S.M.W. Seiko v . Howard Concrete CV-01-183-JM 10/18/01 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

S.M.W. Seiko, Inc.

v. Civil N o . 01-183-JM Opinion N o .

Howard Concrete Pumping Co., Inc.

O R D E R

Before the court for consideration is the defendant’s motion

to dismiss for lack of personal jurisdiction, improper venue and

insufficient service of process pursuant to Fed. R. Civ. P.

12(b)(2), (3) & ( 5 ) , o r , in the alternative, to transfer venue

pursuant to

(a). For the reasons set forth

below, the defendant’s motion (document no. 6 ) is denied in its

entirety.

Background

Plaintiff S.M.W. Seiko, Inc. (“Seiko”) is a California

corporation with offices located throughout the United States,

including New Hampshire. Defendant Howard Concrete Pumping Co.,

Inc. (“Howard”) is a Pennsylvania corporation with a principal

place of business in Pennsylvania. In June 2000, Seiko and

Howard entered into an agreement (“Agreement”) whereby Seiko

agreed to lease to Howard certain equipment for use on a construction project in Pennsylvania. Paragraph 19 of the

Agreement, which is entitled “Venue and Applicable Law,” states

that “[t]his agreement and all actions arising here from shall be

governed by the laws and venues in the State of New Hampshire.”

See Document n o . 8 , Exhibit 2.A.1

Following the parties’ execution of the Agreement, Howard

arranged to have the equipment shipped from Seiko’s Merrimack,

New Hampshire facility to Pennsylvania for use at the project

site. After completion of the project, Howard arranged to have

the equipment returned to Seiko’s New Hampshire facility, where

it is currently stored.

In April 2001, Seiko brought suit against Howard in New

Hampshire Superior Court seeking recovery for damage that

allegedly occurred to the equipment while it was in Howard’s

possession. Pursuant to New Hampshire’s long-arm statute,

, Seiko served Howard with a Writ of

Summons by leaving a copy of the Writ with the Secretary of

State.

On May 1 8 , 2001, counsel for Howard filed a general

1 A draft of the Agreement reveals that Howard had initially proposed that the Agreement and all actions arising therefrom be governed by the “laws and venues in the State of Pennsylvania.” See Document n o . 8 , Exhibit 2.B.

2 appearance in the Superior Court. On that same date, Howard

removed the action to this court.

Discussion

A. Personal Jurisdiction

Howard moves to dismiss for lack of personal jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(2). 2 “When the court’s

jurisdiction is contested, the plaintiff has the burden of

proving that jurisdiction exists.” Kowalski v . Doherty, Wallace,

Pillsbury & Murphy,

, 8 (1st Cir. 1986). See also

Sawtelle v . Farrell,

(1st Cir. 1995). Where,

as here, “there has been no evidentiary hearing and the court

proceeds upon written submissions, plaintiff ‘need only make a

prima facie showing that jurisdiction exists’.” Kowalski,

(quoting 2A J. Moore & J. Lucas, Moore’s Federal

Practice ¶ 12.07[2.-2](2d ed. 1985)). In determining whether a

prima facie showing has been made, the court does not act as

2 Like Howard’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), Howard’s motion to dismiss for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(4) is based upon Howard’s assertion that it is not subject to personal jurisdiction in New Hampshire. Specifically, Howard argues that New Hampshire’s long-arm statute only allows service of process upon persons who are subject to personal jurisdiction in the state. Because New Hampshire courts do not have jurisdiction over i t , Howard argues, Seiko failed to effect service of process upon Howard under the long-arm statute.

3 factfinder, but accepts the plaintiff’s properly supported

proffers of evidence as true. Boit v . Gar-Tec Products, Inc.,

7 1 , 675 (1st Cir. 1992).

It is unnecessary to evaluate whether Howard has sufficient

contacts with the State of New Hampshire to satisfy the state’s

long-arm statute and the Fourteenth Amendment’s Due Process

clause. Here, as Seiko argues, Howard waived its right to

contest personal jurisdiction when it filed a general appearance

in state court.

In New Hampshire, a defendant who files a general appearance

waives all objections to personal jurisdiction.3 R. Wiebusch, 4

N.H. Prac. Series, Civ. Prac. & Proc. § 15.11 (2d ed.

1997)(citing Woodbury v . Swan,

(1878)). See also

Barton v . Hayes,

(1996)(personal jurisdiction

argument waived by defendant’s general appearance moving to

strike default judgment); LaChapelle v . Town of Goffstown,

(1991)(by moving for late entry of appearance and

3 In New Hampshire, a general appearance waives not only all objections to personal jurisdiction, but also all objections to jurisdiction over the property involved in the case, defects in venue, deficiencies in the form of the initial pleading, defects in service or notice, improper entry of the writ or other process, and misnomer. R. Wiebusch, 4 N.H. Prac. Series, Civ. Prac. & Proc. § 15.11 (2d ed. 1997).

4 to strike default, defendant submitted to jurisdiction);

Brodowski v . Supowitz,

(1982)(defendant

submitted to jurisdiction of the court by moving to file a

general appearance). By filing a general appearance in New

Hampshire Superior Court, therefore, Howard submitted to the

jurisdiction of that court.

After removal, the federal court takes up the case where the

state court left off. Granny Goose Foods, Inc. v . Brotherhood of

Teamsters,

(1974)(citation omitted). Upon

removal, therefore, “a defendant may assert any defense that

would have been available to him in state court and which has not

been lost through the operation of either Fed. R. Civ. P. 12(g)

or 12(h).”4 Nationwide Eng’g & Control Sys., Inc. v . Thomas,

(8th Cir. 1988). Where a defendant has waived his

right under state law to contest jurisdiction, he is barred from

asserting a defense of personal jurisdiction in federal court.

See also Hakemy v . Jackson,

*1-2 (N.D. Tex.

May 4 , 2001)(following Nationwide Eng’g in holding that a

defendant who waives the defense of personal jurisdiction in

4 Fed. R. Civ. P. 12(g) concerns the consolidation of defenses in a motion made pursuant to Rule 1 2 . Fed. R. Civ. P 12(h) concerns the waiver or preservation of certain defenses.

5 state court cannot assert the defense following removal to

federal court); Haedike v . Kodiak Research, Ltd.,

(N.D. Ill. 1993)(same); Delloma v . Consol. Coal Co.,

*1-2 (S.D. Ill. April 3 , 1992)(defendant who

generally appeared in state court on the same date that he filed

a petition for removal to federal court was precluded from

challenging personal jurisdiction). Accordingly, Howard’s motion

to dismiss for lack of personal jurisdiction and for insufficient

service of process is denied.

B. Venue

Howard’s venue challenge is equally unavailing. Contrary to

the parties’ assertions,

is inapplicable to this

matter because it is a removed action. See Polizzi v . Cowles

Magazines, Inc.,

(1953); Lambert v . Kysar,

, 1113 n.2 (1st Cir. 1993). Instead, the venue of

removed actions is governed by

(a), which

provides that the proper venue is “the district court of the

United States for the district and division embracing the place

where such action is pending.” Polizzi,

. Given

that Howard removed this case to the district court of the United

States where the action was pending, venue properly lies with

6 this court. See

; Sweeney v . Resolution Trust Corp.,

, 4 (1st Cir. 1994), cert. denied

(1994).

C. Transfer of Venue

Having rejected Howard’s personal jurisdiction and venue

arguments, I turn to Howard’s request for a transfer of venue to

the United States District Court for the Western District of

Pennsylvania pursuant to

(a). Section 1404(a)

provides: “For the convenience of parties and witnesses, in the

interest of justice, a district court may transfer any civil

action to any other district or division where it might have been

brought.” This provision “is intended to place discretion in the

district court to adjudicate motions for transfer according to an

‘individualized, case-by-case consideration of convenience and

fairness’.” Stewart Org., Inc. v . Ricoh Corp.,

2 , 29

(1988)(quoting Van Dusen v . Barrack,

(1964)).

The burden of demonstrating that transfer is appropriate “rests

with the party seeking transfer; there is a strong presumption in

favor of the plaintiff’s choice of forum.” Coady v . Ashcraft &

Gerel,

, 11 (1st Cir. 2000).

The convenience of the parties and witnesses and the

availability of evidence are factors to be considered in

7 resolving a motion under

(a). Id.; Cianbro Corp.

v . Curran-Lavoie, Inc.,

, 11 (1st Cir. 1987). 5 In

addition, where the parties have entered into an agreement

containing a forum selection clause, the parties’ written

expression of their venue preferences “will be a significant

factor that figures centrally in the district court’s calculus.”

Stewart Org., 487 U.S. at 2 9 .

In support of its motion for transfer, Howard argues that

the plaintiff’s choice of forum should not weigh heavily in the

court’s analysis because New Hampshire is not Seiko’s home state

and because the Agreement was negotiated and finalized by

employees in Seiko’s Boston, Massachusetts office rather than in

its New Hampshire office. Howard also argues that “virtually

every witness,” including non-party witnesses who could not be

compelled to testify in person at trial in this court, resides in

5 Howard asserts that the factors to be considered in deciding a motion to transfer venue are the factors set forth in Royal Bed & Spring Co., Inc. v . Famossul Industria E Comercio de Moveis Ltda.,

(1st Cir. 1990). That case involved an appeal of a dismissal based on the doctrine of forum non conveniens, and did not involve a motion pursuant to

(a). Since the enactment of § 1404(a), forum non conveniens has been applied only where the alternative forum is abroad. See Quackenbush v . Allstate Ins. Co.,

(1996). Accordingly, the doctrine is not applicable to this case.

8 Pennsylvania. Howard further asserts that the project site is

located in Pennsylvania, that Seiko’s only contact with New

Hampshire consists of a small equipment yard, and that the

Western District of Pennsylvania has a far greater interest in

the controversy than does New Hampshire. Finally, Howard makes

the novel argument that its motion to transfer should be granted

because Seiko has filed a substantially similar action against

Howard in Pennsylvania state court, and Howard intends to remove

that case to the Western District of Pennsylvania. Accordingly,

Howard contends, transferring this case to Pennsylvania will

serve the interests of efficiency, convenience and justice by

enabling it to be consolidated with what is now the state court

case.

I find that Howard has not met its substantial burden of

showing that a transfer of venue is appropriate. Although Seiko

is a California corporation, its choice of forum is entitled to

substantial weight. See Coady,

1 . Moreover, Seiko

has shown that it managed billing, handled questions, generated

and received correspondence, and provided customer service

relating to the Agreement from its New Hampshire office. Seiko

also has shown that the equipment that is the subject of the

9 dispute came from Seiko’s New Hampshire facility and remains in

New Hampshire today. It appears, therefore, that relevant

documentary and physical evidence are located in New Hampshire.

Although Howard has presented evidence indicating that a

Pennsylvania forum would be more convenient for most of the

witnesses, at least one of Seiko’s critical witnesses is located

in New Hampshire and other Seiko witnesses are located in

neighboring Massachusetts. Viewed in its entirety, the evidence

indicates that New Hampshire has an interest in litigating the

case and provides a convenient forum for resolving the dispute.

Even more significant is the fact that the parties selected

New Hampshire as the appropriate venue in which to resolve

disputes under the Agreement by agreeing that “all actions

arising here from shall be governed by the laws and venues in the

State of New Hampshire.” While not dispositive of the

defendant’s motion, see Stewart Org., 487 U.S. at 3 1 , the

parties’ Agreement weighs heavily in favor of the plaintiff’s

choice of forum.6 The evidence shows that the final Agreement

was the result of arms-length negotiations between Seiko and

6 Although Howard asserts that it never intended to select New Hampshire as a forum for litigating disputes between the parties, the Agreement indicates otherwise.

10 Howard. Furthermore, nothing in the record suggests that Howard

suffered from unequal bargaining power in the negotiation and

consummation of the Agreement. When viewed in combination with

the other relevant factors, the parties’ choice of venue

provision defeats the defendant’s arguments in favor of transfer.

Finally, Howard’s argument that the case should be

transferred to the Western District of Pennsylvania for possible

consolidation with Seiko’s state court case against Howard is

unpersuasive. Howard has cited numerous cases illustrating the

appropriateness and value of transferring a case to another

judicial district where a similar or related case is pending.

However, there is no evidence that any such case is pending in

the proposed transferee forum. The record indicates only that

Howard intends to remove Seiko’s Pennsylvania state court case to

the Western District of Pennsylvania. Based on this record, the

likelihood of future consolidation remains entirely speculative.

Even if Howard had removed the state court case to the

Western District of Pennsylvania, this court would not be

inclined to grant Howard’s motion to transfer venue. “Where

identical actions are proceeding concurrently in two federal

courts, entailing duplicative litigation and a waste of judicial

11 resources, the first filed action is generally preferred in a

choice-of-venue decision.” Cianbro,

1 . Because

this is the first filed action, New Hampshire would remain the

preferred venue.

Conclusion

The defendant’s motion to dismiss the plaintiff’s complaint

for lack of jurisdiction, lack of venue and insufficient service

of process (document n o . 6 ) is denied. The defendant’s motion in

the alternative, to transfer venue to the Western District of

Pennsylvania (document n o . 6 ) , is also denied.

SO ORDERED.

James R. Muirhead United States Magistrate Judge Date: October 1 8 , 2001

cc: Richard C . Gagliuso, Esq. David W . Rayment, Esq.

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