Robbins Motor v . US Sea Launch CV-01-191-B 10/11/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robbins Motor Transportation, Inc.

v. Civil N o . C-01-191-B Opinion N o . 2001DNH188 United States Sea Launch Limited Partnership

MEMORANDUM AND ORDER

In this civil action, Robbins Motor Transportation, Inc.

(“Robbins”), sues its customer, United States Sea Launch Limited

Partnership (“USSL”), for money due under a contract for

interstate transportation services. See

(a)

(1994 & Supp. V 1999). USSL has moved to dismiss Robbins’ action

for lack of personal jurisdiction and venue o r , in the

alternative, to transfer the case to the United States District

Court for the Central District of California. For the following

reasons, I deny USSL’s motion. I. BACKGROUND

Robbins, a Pennsylvania corporation with its principal place

of business in Eddystone, Pennsylvania, is an interstate motor

carrier licensed and approved by the United States Department of

Transportation. USSL, a California limited partnership with its

principal place of business in Long Beach, California, provides

marine-based commercial satellite launch services. USSL is not

licensed to do business in New Hampshire, does not target

advertising to the state, and has not consented to be sued here.

At some point in 1999, USSL contracted with Process

Engineering, a New Hampshire corporation, for the manufacture of

a 127,000 pound liquid nitrogen tank with external piping. On

November 5 , 1999, USSL hired Robbins to transport the tank from

New Hampshire to USSL’s place of business in California. Prior

to shipment, Process Engineering tested the tank and found that

it was undamaged and operational. The bill of lading, issued in

New Hampshire, set forth the governing terms and rates for the

contract of transport.

On or about December 8 , 1999, a Robbins employee arrived in

New Hampshire to transport the tank. According to Robbins, a

-2- USSL employee was present in New Hampshire when the driver

arrived to pick up the tank, and spoke with the driver about the

transport. The transport of the tank required the assistance of

the Rockingham County Sheriff’s Department. The Sheriff’s

Department escorted Robbins from local New Hampshire roads to the

interstate highway system. The lump sum price of the agreement

between Robbins and USSL included police escort costs.

Robbins delivered the tank to USSL in California on January

7 , 2000. Upon arrival, a USSL employee visually inspected the

tank from ground level and thereafter signed the bill of lading,

indicating that it had received the tank in good condition. On

January 1 0 , 2000, however, when the tank was loaded onto a barge,

USSL employees noticed that a vacuum jacket lift plate was

missing from the top of the tank. After discovering the damage,

USSL retained Chart Industries, Inc. of New Hampshire, to repair

the tank. USSL subsequently notified Robbins of the damage to

the tank and refused to pay its freight charges, claiming that

Robbins had damaged the tank and that USSL’s repair costs

exceeded the amount it owed under the transportation contract.

Robbins sued USSL in this court for the $62,725.00 it claims to

be due under the contract.

-3- II. STANDARDS OF REVIEW

A. Personal Jurisdiction

When a defendant contests a forum court’s exercise of

personal jurisdiction, the plaintiff bears the burden of

demonstrating that personal jurisdiction exists. See, e.g.,

Mass. Sch. of Law at Andover, Inc. v . Am. Bar Ass’n,

6 ,

34 (1st Cir. 1998); Sawtelle v . Farrell,

(1st

Cir. 1995); Foster-Miller, Inc. v. Babcock & Wilcox Canada,

(1st Cir. 1995). Because I have not held an

evidentiary hearing on the question of personal jurisdiction over

USSL, Robbins must make a prima facie showing that such

jurisdiction exists. See Sawtelle,

n . 1 .

To make such a showing, Robbins may not rest on the

pleadings. Rather, it must “adduce evidence of specific facts”

that support jurisdiction, see Foster-Miller,

;

United Elec. Radio & Mach. Workers of Am. (UE) v . 163 Pleasant

St. Corp.,

9 , 44 (1st Cir. 1993) [hereinafter Pleasant

St. I I ] , which I will take as true and construe in the light most

favorable to its jurisdictional claim, see Mass. Sch. of Law,

4 ; Foster-Miller,

. I do not act as a

-4- fact-finder; instead I must determine “whether the facts duly

proffered, [when] fully credited, support the exercise of

personal jurisdiction.” Rodriguez v . Fullerton Tires Corp.,

1 , 84 (1st Cir. 1997) (citing Boit v . Gar-Tec Prods., Inc.,

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

B. Venue

Authorities are split as to the proper allocation of the

burden of proof in venue disputes. The Third, Seventh, and

Eighth Circuits as well as Moore’s Federal Practice Treatise,

take the view that a challenge to venue is in the nature of an

affirmative defense which must be proved by the defendant. See

Myers v . Am. Dental Ass’n,

(3d Cir. 1982); In

re Peachtree Lane Assocs., Ltd.,

(7th Cir.

1998); United States v . Orshek,

(8th Cir.

1947); 17 Moore’s Federal Practice § 110.01[5][c]. A number of

district courts and Wright, Miller and Cooper’s Federal Practice

and Procedure Treatise assert that the better view is that the

plaintiff must prove venue when it has been properly challenged.

See D’Anton Jos, S.L. v . The Doll Factory, Inc.,

(S.D.N.Y. 1996); Dunham v . Hotelera Canco S.A. de C.V.,

(E.D. Va. 1996); Wright, Miller and Cooper,

-5- Federal Practice and Procedure 2d § 3826.

I need not determine which party bears the burden of proof

to resolve USSL’s venue challenge. The historical facts that

bear on the question are not in dispute and I would resolve the

ultimate issue the same way regardless of how the burden of proof

is allocated. Thus, I leave the resolution of the burden of

proof issue for another day.

C. Transfer of Venue

Motions to transfer are governed by

(a),

which applies if venue is proper in the court where the action

was filed, and § 1406(a), which applies when venue is improper in

the original court. Here, I focus on the requirements of §

1404(a).

A district court may transfer an action to another district

pursuant to § 1404(a) if two requirements are met. First, the

court must determine that the action “might have been brought” in

the transferee district court originally. Van Dusen v . Barrack,

1 2 , 616 (1964). Second, the court must determine that

transferring the action will enhance the convenience of the

-6- parties and the witnesses and promote the interest of justice.

Id.

Once the first requirement is met, the district court enjoys

considerable discretion in deciding whether to transfer a case.

Norwood v . Kirkpatrick,

9 , 3 0 , 32 (1955). In

exercising that discretion, the court should consider: (1) the

convenience of the parties and witnesses; (2) the relative ease

of access to documents needed for evidence; (3) the cost of

procuring willing witnesses; and (4) any practical problems

associated with trying the case most expeditiously and

inexpensively. Coady v . Ashcraft & Gerel,

, 11 (1st

Cir. 2000); F.A.I. Elecs. Corp. v. Chambers,

7 , 80-

81 (D. Mass. 1996) (citation omitted). “Of those factors, the

convenience to the expected witnesses is probably the most

important factor . . . .” Fairview Mach. & Tool Co., Inc. v .

Oakbrook Int’l, Inc.,

(D. Mass. 1999)

(citation and internal quotation marks omitted).

A defendant seeking to transfer an action bears the

“substantive burden” of showing that the factors “predominate” in

favor of transfer. Buckley v . McGraw-Hill, Inc., 762 F. Supp.

-7- 430, 439 (D.N.H. 1991). “The Supreme Court has held that

‘[u]nless the balance is strongly in favor of the defendant, the

plaintiff’s choice of forum should rarely be disturbed.’”

(quoting Gulf Oil Corp. v . Gilbert,

(1947)).

III. DISCUSSION

USSL argues that I should dismiss this case for lack of

personal jurisdiction because USSL’s contacts with New Hampshire

are not sufficient to make USSL amenable to specific personal

jurisdiction. USSL further contends that venue is improper

because no substantial events or omissions giving rise to the

claim occurred in New Hampshire. Finally, USSL makes an

alternative argument that this court should transfer the case to

the Central District of California. I discuss each argument in

turn.

A. Personal Jurisdiction

1. New Hampshire’s Long-Arm Statue

To exercise personal jurisdiction over a defendant, a

district court must find sufficient contacts between the

defendant and the forum state to satisfy both the state’s long-

-8- arm statute and the Fourteenth Amendment’s Due Process Clause.

See, e.g., Sawtelle,

; Ticketmaster-New York, Inc.

v . Alioto,

(1st Cir. 1994).

The New Hampshire long-arm statute applicable to foreign

corporations, see

-A:15-10 (Supp.

1999), has been interpreted to be coextensive with federal

constitutional limits on jurisdiction, see Sawtelle,

(citing McClary v . Erie Engine & Mfg. Co.,

2 ,

55 (D.N.H. 1994)). As a result, “the traditional two-part

personal jurisdiction inquiry collapses into the single question

of whether the constitutional requirements of due process have

been met.” McClary,

5 . Therefore, I proceed

directly to the due process analysis.

2. Constitutional Analysis: Due Process

The “constitutional touchstone” for personal jurisdiction is

“whether the defendant purposefully established ‘minimum

contacts’ in the forum State.” Burger King Corp. v . Rudzewicz,

6 2 , 474 (1985) (citing Int’l Shoe C o . v . Wash.,

(1945)); see also Sawtelle,

. The

-9- ultimate objective of the due process “minimum contacts”

requirement is to ensure that the forum’s exercise of personal

jurisdiction over a nonresident defendant does not offend

“‘traditional notions of fair play and substantial justice.’”

United Elec., Radio & Mach. Workers of Am. v . 163 Pleasant S t .

Corp.,

, 1087 (1st Cir. 1992) [hereinafter Pleasant

St. I ] , (quoting Int’l Shoe,

1 6 ) . The Due Process

Clause precludes a court from asserting jurisdiction over a

defendant unless “the defendant’s conduct and connection with the

forum State are such that [it] should reasonably anticipate being

haled into court there.” World-Wide Volkswagen Corp. v . Woodson,

(1980).

The inquiry into “minimum contacts” is necessarily fact-

specific, “involving an individualized assessment and factual

analysis of the precise mix of contacts that characterize each

case.” Pritzker v . Yari,

3 , 60 (1st Cir. 1994). A

defendant cannot be subjected to the forum’s jurisdiction based

solely on “random,” “fortuitous,” or “attenuated” contacts.

Burger King, 471 U.S. at 475; Keeton v . Hustler Magazine, Inc.,

7 0 , 774 (1984); World-Wide Volkswagen, 444 U.S.

-10- at 299. Rather, “it is essential in each case that there be some

act by which the defendant purposefully avails itself of the

privilege of conducting activities within the forum State, thus

invoking the benefits and protections of its laws.” Burger King,

471 U.S. at 475 (quoting Hanson v . Denckla,

(1958)).

3. General and Specific Personal Jurisdiction

There are two forms of personal jurisdiction. If a

defendant maintains continuous and systematic contacts with the

forum state, then the forum court has general jurisdiction.

Phillips Exeter Acad. v . Howard Phillips Fund, Inc.,

(1st Cir. 1999). Specific jurisdiction exists if there

is “a demonstrable nexus between a plaintiff’s claims and a

defendant’s forum-based activities.” Mass. Sch. of Law,

4 . In other words, a forum court may exercise specific

jurisdiction if the plaintiff’s case “relates sufficiently t o , or

arises from, a significant subset of contacts between the

defendant and the forum.” Phillips Exeter Acad.,

; see also Pleasant S t . I , 960 F.2d at 1088-89.

In the case at bar, Robbins argues that the court has

specific personal jurisdiction over USSL. To invoke specific

-11- jurisdiction, Robbins must show that (1) the claim underlying the

litigation directly arises out o f , or relates t o , USSL’s forum-

state activities; (2) USSL’s in-state contacts represent

purposeful availment of the privilege of conducting activities in

New Hampshire, thereby invoking the benefits and protections of

New Hampshire’s laws and making USSL’s involuntary presence

before the state’s courts foreseeable; and (3) the exercise of

personal jurisdiction is reasonable. See Foster-Miller,

(setting forth five so-called “gestalt factors”, specified

infra, by which the reasonableness of an exercise of personal

jurisdiction should be judged); Nowak v . Tak How Invs., Ltd.,

(1st Cir. 1996) (similar). I turn now to the

specific jurisdiction analysis.

a. Relatedness

“In order for the extension of [specific] personal

jurisdiction to survive constitutional scrutiny, a claim must

arise out o f , or be related t o , the defendant’s in-forum

activities.” Mass. Sch. of Law,

(citation and

internal quotation marks omitted). USSL purchased the nitrogen

tank in question from Process Engineering, a New Hampshire

-12- corporation. USSL then contracted with Robbins for transport of

the tank from New Hampshire to California. The bill of lading,

issued in New Hampshire, set forth the governing terms and rates

for the contract of transport. Because the claim is based on

unpaid fees for the transport of the tank which was purchased and

shipped from New Hampshire, the “relatedness” test is easily

satisfied.

b. Purposeful Availment

The “purposeful availment” component of the due process

analysis incorporates two factors, foreseeability and

voluntariness. Ticketmaster-New York,

. The

“foreseeability” factor requires that the defendant’s “contact

and connection with the forum State [be] such that he should

reasonably anticipate being haled into court there.”

(citation and internal quotation marks omitted). The

“voluntariness” factor requires that the defendant’s contacts be

voluntary, and not the result of “unilateral activity of another

party or a third person.”

(citation and internal

quotation marks omitted). Because USSL does not suggest that the

activities Robbins points to in asserting jurisdiction were in

any way involuntary or prompted by a third party, I concentrate

-13- on the question of foreseeability.

USSL contracted with Process Engineering, a New Hampshire

corporation, for the purchase of the tank. This required USSL to

communicate with Process Engineering to finalize a purchase

agreement bringing it into contractual privity with a New

Hampshire corporation, and to arrange for shipment of the

contracted-for product from New Hampshire. Moreover, USSL sent

an employee to New Hampshire, and the bill of lading was issued

in New Hampshire, where the tank was inspected and prepared for

transport. These contacts with New Hampshire made it reasonably

foreseeable that USSL could be haled into court in this judicial

district.

c. Reasonableness

Even if the plaintiff establishes relatedness and purposeful

availment, a defendant may defeat jurisdiction by showing that an

assertion of jurisdiction would not be “reasonable.” See

Ticketmaster-New York,

. The First Circuit has set

forth the following five factors, called the “gestalt factors”,

to assist courts in assessing reasonableness:

-14- (1) the defendant’s burden of appearing, (2) the forum State’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the judicial system’s interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies.

Foster-Miller,

(citation omitted).

While the question is close, Robbins’ interest in obtaining

convenient and effective relief and the presence of key witnesses

in this district support this court’s assertion of specific

personal jurisdiction over USSL. USSL’s burden of litigating in

this district seems reasonable when one considers that,

regardless of where the case is heard, USSL would have to come to

New Hampshire to depose Process Engineering’s employees.

Furthermore, the judicial system’s interest in obtaining the most

effective resolution of the controversy is served by litigating

the claim in this district because non-party witnesses from

Process Engineering and Chart Industries are likely to reside

within the limits of this court’s subpoena powers. If I were to

transfer this case to the Central District California as USSL

suggests, that court would lack the power to compel these

witnesses to attend the trial. Therefore, Robbins could be

-15- forced to rely on their deposition testimony. None of the other

Gestalt factors outweigh this concern. For these reasons, I

conclude that asserting personal jurisdiction over USSL would not

be unreasonable.

B. Venue

The general venue statute provides that an action may be

brought in any “judicial district in which a substantial part of

the events or omissions giving rise to the claim occurred . . .

.”

(b). When applying this provision, a court

must look “not to a single ‘triggering event’ prompting the

action, but to the entire sequence of events underlying the

claim.” Uffner v . La Reunion Francaise, S.A.,

8 , 42

(1st Cir. 2001). Using this standard, venue may well exist in

several different jurisdictions where a substantial part of the

events giving rise to the claim took place. See First of

Michigan Corp. v . Bramlet,

(6th Cir. 1998).

In this case, I determine that the court has venue over this

dispute for the same reasons that it has personal jurisdiction

over USSL. Accordingly, I reject USSL’s venue challenge.

-16- C. Transfer of Venue

USSL contends that even if this court has personal

jurisdiction over it and is a proper venue in which to litigate,

I should exercise my discretion to transfer the case to the

Central District of California. In support of this argument,

USSL alleges that: (1) a substantial part of the events or

omissions giving rise to the claim occurred in California; (2)

the evidence is located there; and (3) material witnesses

essential to establishing USSL’s defenses reside there.

On balance, USSL has failed to demonstrate that transferring

the action will enhance the convenience of the parties and

witnesses and promote the interest of justice. See Van Dusen,

376 U.S. at 616. Although the tank (which itself is not likely

to be introduced into evidence at trial) was unloaded and found

to be damaged in California, it was manufactured, inspected, and

loaded here in New Hampshire. Documents relating to the claim

are easily transportable to this district, and as I previously

noted, important witnesses reside here who are beyond the

subpoena power of the California courts. For these reasons, I

will not disturb Robbins’ choice of forum. See Buckley, 762 F.

Supp. at 439.

-17- IV. CONCLUSION

For the foregoing reasons, I deny USSL’s motion to dismiss

for lack of personal jurisdiction and venue o r , in the

alternative, to transfer the venue to the United States District

Court for the Central District of California [Doc. N o . 6 ] .

SO ORDERED.

Paul Barbadoro Chief Judge October 1 1 , 2001

cc: Robert E . Murphy, Jr., Esq. Michael D. Ramsdell, Esq. Richard P. Schweitzer, Esq. Leon Koutsouftikis, Esq.

-18-