Steir v. Girl Scouts CV-00-456-B 09/10/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Linda J. Steir, m/n/f Marika Steir

v. Civil N o . 00-456-B

Girl Scouts of the USA and Spar & Spindle Council of the Girl Scouts

MEMORANDUM AND ORDER

Marika Steir (“Marika”), through her mother Linda Steir

(“Steir”), brings this action against the Girl Scouts of the

United States of America (“GSUSA”) and the Spar & Spindle Council

(“Spar & Spindle”) alleging that the GSUSA and Spar & Spindle

failed to make reasonable accommodation for Marika in violation

of the Americans with Disabilities Act (“ADA”),

et seq., and the New Hampshire Law Against Discrimination

(“LAD”), N.H. Rev. Stat. Ann. ch. 354-A (1995 & Supp. 2001).

Steir also brings a common law intentional infliction of

emotional distress claim, alleging that one or more incidents

giving rise to this suit caused Marika severe emotional distress. Defendant GSUSA moves to dismiss for lack of personal

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). For the

reasons that follow, I deny the motion.

I. BACKGROUND1

GSUSA is a federally chartered, non-profit membership

organization. See

. Its purposes are:

(1) to promote the qualities of truth, loyalty, helpfulness, friendliness, courtesy, purity, kindness, obedience, cheerfulness, thriftiness, and kindred virtues among girls, as a preparation for their responsibilities in the home and for service to the community; (2) to direct and coordinate the Girl Scout movement in the United States and territories and possessions of the United States; and (3) to fix and maintain standards for the movement that will inspire the rising generation with the highest ideals of character, patriotism, conduct, and attainment.

. The national organization charters 317

regional councils throughout the United States, which in turn

oversee local troops. To obtain a charter, a regional council

1 The background facts are drawn from the parties’ evidentiary submissions and are considered in the light most favorable to the plaintiffs. See Foster-Miller, Inc. v. Babcock & Wilcox Canada,

(1st Cir. 1995).

-2- must agree to subscribe to the purposes and adhere to the

policies and guidelines of GSUSA. A regional council must make

reports of its work to GSUSA and pay a charter fee. A charter

confers upon a regional council the right to be identified with

GSUSA and use the term “Girl Scouts.”

Charters are valid for four years. Eighteen months before a

regional council’s charter is to expire, GSUSA conducts a review

of the council’s performance. Findings from a review are

presented to committees, and, ultimately, to GSUSA’s Board of

Directors. If a charter is renewed, it is done so with an

accompanying letter outlining the strengths and weaknesses of the

regional council. Should a council be found to be particularly

deficient, the Board of Directors can renew a charter with

qualifications, or not renew a charter at all. The Board of

Directors also has the right to conduct compliance audits of

regional councils.

GSUSA has issued a charter to Spar & Spindle to use the Girl

Scout name in New Hampshire. GSUSA nevertheless maintains that

its connection with Spar & Spindle is too attenuated, and its

contacts with New Hampshire too minimal, for this court to

maintain personal jurisdiction over i t . In support of this

-3- contention, GSUSA notes that it does not own, lease or operate

any real estate or other property in New Hampshire, does not have

an agent or personal representative in New Hampshire, nor has it

ever been licensed to do business in New Hampshire. It also

alleges that it does not maintain an office or a bank account,

and does not have any paid employees in New Hampshire.

II. STANDARD OF REVIEW

When a defendant contests personal jurisdiction under Fed.

R. Civ. P. 12(b)(2), the plaintiff bears the burden of showing

that a basis for asserting jurisdiction exists. See Mass. Sch.

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

6 , 34 (1st

Cir. 1998); Rodriguez v . Fullerton Tires Corp.,

1 , 83

(1st Cir. 1997). Because I have not held an evidentiary hearing,

Steir need only make a prima facie showing that the court has

personal jurisdiction over GSUSA. See Sawtelle v . Farrell,

, 1386 n.1 (1st Cir. 1995) (citing United Elec. Radio

and Mach. Workers of Am. (UE) v . 163 Pleasant S t . Corp.,

9 , 43 (1st Cir. 1993) [hereinafter Pleasant S t . I I ] ) .

To make a prima facie showing of jurisdiction, Steir may not

rest on the pleadings. Rather, she must “adduce evidence of

-4- specific facts” that support her jurisdictional claim. Foster-

Miller,

; Pleasant S t . I I , 987 F.2d at 4 4 . I take

the facts offered by the plaintiff as true and construe them in

the light most favorable to the plaintiff’s claim. See Mass.

Sch. of Law,

4 ; Foster-Miller,

. I do

not act as a fact-finder; instead, I determine “whether the facts

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

personal jurisdiction.” Rodriguez,

(citing Boit

v . Gar-Tec Prods., Inc.,

(1st Cir. 1992)).

While the prima facie standard is liberal, I need not

“‘credit conclusory allegations or draw farfetched inferences.’”

Mass. Sch. of Law,

(quoting Ticketmaster-New York,

Inc. v . Alioto,

(1st Cir. 1994)). I also

consider facts offered by the defendant, but only to the extent

that they are uncontradicted. See

When assessing personal jurisdiction over a non-resident

defendant in a diversity of citizenship case,2 “a federal court

2 Steir might alternatively argue that the court has federal question jurisdiction over her ADA claim and supplemental jurisdiction over her state law claims. Personal jurisdiction in a federal question case is governed by the Fifth Amendment’s due process clause rather than by its Fourteenth Amendment counterpart. United States v . Swiss Am. Bank, Ltd., 274 F.3d

-5- exercising diversity jurisdiction ‘is the functional equivalent

of a state court sitting in the forum state.’” Sawtelle,

(quoting Ticketmaster,

0 4 ) . Accordingly, I

must determine whether an exercise of jurisdiction is proper

under both the New Hampshire long-arm statute and the due process

requirements of the federal constitution. See id.; Foster-

Miller,

. The New Hampshire long-arm statute,

which permits the exercise of personal jurisdiction over a

defendant who “transacts any business within [the] State” or

“commits a tortious act within [the] State,”

, I (Supp. 1994), is coextensive with the federal due

610, 618 (1st Cir. 2001). Under the Fifth Amendment, “a plaintiff need only show that the defendant has adequate contacts with the United States as a whole, rather than with a particular state.”

In a case such as this, however, where the federal question arises under a statute that does not provide for nationwide service of process, Rule 4(e) of the Federal Rules of Civil Procedure requires a court to also look to the forum state’s long-arm statute to determine the existence of personal jurisdiction. See United Elec., Radio and Mach. Workers of Am. v . 163 Pleasant S t . Corp.,

, 1086 (1st Cir. 1992); Sculptchair, Inc. v . Century Arts, Ltd.,

(11th Cir. 1996). Because, as I have noted, New Hampshire’s long-arm statute is co-extenstive with the Fourteenth Amendment’s due process standard, the personal jurisdiction analysis is the same in this case regardless of whether the court’s subject matter jurisdiction rests on federal question jurisdiction or diversity jurisdiction.

-6- process standard. See Phelps v . Kingston,

(1987); Seymour v . Parke, Davis & Co.,

(D.N.H. 1969) (

-A:15.10 reaches as far

as due process allows). Therefore, I proceed directly to the

constitutional due process analysis.

III. ANALYSIS

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). Because

the constitutional inquiry is founded on “‘traditional

conception[s] of fair play and substantial justice,’” Burger King

Corp. v . Rudzewicz,

(1985) (quoting Int’l Shoe

Co. v . Washington,

(1945)) (alteration in

original), determining personal jurisdiction has always been

“more an art than a science,” Ticketmaster,

(quoting Donatelli v . Nat’l Hockey League,

, 468 n.7

(1st Cir. 1990)).

-7- The “constitutional touchstone” for personal jurisdiction is

“whether the defendant purposefully established ‘minimum

contacts’ in the forum State.” Burger King,

(citing Int’l Shoe,

1 6 ) ; see also Sawtelle,

. 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 a forum state’s jurisdiction

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

Burger King,

(quoting Keeton v . Hustler Magazine,

Inc.,

(1984); World-Wide Volkswagen,

) (internal quotation marks omitted). 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.”

(quoting Hanson v .

Denckla,

(1958)).

A court may assert authority over a defendant by means of

either general or specific jurisdiction. See Mass. Sch. of Law,

-8-

(citing Donatelli,

); Foster-

Miller,

. A defendant who has engaged in

continuous and systematic activity in a forum is subject to

general jurisdiction in that forum with respect to all causes of

action, even those unrelated to the defendant’s forum-based

activities. See Phillips Exeter Acad. v . Howard Phillips Fund,

Inc.,

(1st Cir. 1999) (citing Helicopteros

Nacionales de Colombia, S.A. v . Hall,

(1984);

Donatelli,

). A court may exercise specific

jurisdiction, by contrast, only when the cause of action arises

from, or relates t o , the defendant’s contacts with the forum.

See id.; Pritzker,

0 . Here, I evaluate Steir’s claim

that this court has general personal jurisdiction.

Two criteria must be met to establish general jurisdiction:

(1) “‘continuous and systematic general business contacts’” must

exist between the defendant and the forum; and (2) the exercise

of jurisdiction must be reasonable as demonstrated by certain

“gestalt factors.” United States v . Swiss America Bank, Ltd.,

1 0 , 619 (1st Cir. 2001), (quoting Helicopteros

Nacionales de Columbia, S.A. v . Hall,

(1984)).

-9- The standard for such a showing is high. See Helicopteros,

(1984); Donatelli,

.

Steir argues that GSUSA has continuous and systematic

contacts with New Hampshire because: (1) GSUSA receives

membership dues from each girl who registers as a Girl Scout in

New Hampshire; (2) GSUSA receives royalty income from sales of

Girl Scout cookies in New Hampshire; (3) GSUSA sells to New

Hampshire residents Girl Scout uniforms, clothing, badges, pins,

manuals and other paraphernalia through its catalog and website;

(4) GSUSA offers training sessions and collects registrations

fees for the sessions from New Hampshire troop leaders and other

volunteers; (5) GSUSA has held at least one regional training

session in New Hampshire; (6) GSUSA insures the activities of all

local Girl Scout troops; and (7) GSUSA’s manuals set safety and

performance requirements for local troops.

In response, GSUSA argues that any revenue derived from New

Hampshire residents is both minimal and indirect. The dues

revenue collected from New Hampshire Girl Scouts accounts for

less than one hundredth of one percent of its total dues revenue,

and the dues are first paid to the local troop or regional

-10- council, which then sends the money to GSUSA; revenues derived

from uniform and other equipment sales in New Hampshire are

minimal; and only one training session was held in New Hampshire

during the time period relevant to this lawsuit.

If revenues derived from cookie and uniform sales were the

only consideration, I would agree that GSUSA lacks the “minimum

contacts” necessary for this court to exercise general

jurisdiction. See Brock Supply C o . v . Moulding Assocs., Inc.,

3 8 , 342-43 (D.P.R. 2000). However, GSUSA’s forum

contacts are far more extensive. GSUSA exists for the purpose of

recruiting members and having them participate in activities that

are governed by guidelines it sets. See

.

GSUSA conducts extensive reviews of regional councils on a

regular basis, and revokes or qualifies charters if the councils

are not maintaining enough members or adhering to guidelines.

GSUSA has the exclusive rights to badges, emblems, words and

phrases associated with the Girl Scouts, see

,

which it permits regional councils and local troops to use only

after confirming that these entities comply with GSUSA’s

standards. Without GSUSA’s permission to associate itself with

the “Girl Scouts,” undoubtedly Spar & Spindle would not attract

-11- and keep anywhere near as many members.

GSUSA’s reliance on the First Circuit’s decision in

Donatelli v . Nat’l Hockey League,

(1st Cir. 1990) is

misplaced. There, the court noted that the National Hockey

League (“NHL”) had no meaningful presence in Rhode Island, and so

it focused on the control that the NHL exercised over its member

hockey teams. See Donatelli,

. It concluded

that the NHL had “very slight influence” over teams, and that

“the Bruins entered the Rhode Island market by their own choice

and for their own benefit, not as the association’s handmaiden.”

In this case, the opposite is true. Spar & Spindle exists

as an arm of GSUSA, and carries out GSUSA’s goals and purposes.

In short, Spar & Spindle and the local troops it governs cannot

exist as they do without the approval of GSUSA in the form of a

charter. Because GSUSA exercises considerable control over

regional councils, I find that the contacts between GSUSA and New

Hampshire are continuous and systematic.

In addition to a finding of continuous and systematic

contacts, the exercise of jurisdiction must be reasonable in

order for this court to have general jurisdiction over a

defendant. See Sawtelle,

. In assessing

-12- reasonableness, the First Circuit has set forth five factors,

known as the “gestalt factors.”

(citing Burger King,

7 7 ) . The five gestalt factors are: (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.

In the instant case, the gestalt factors

weigh in favor of exercising jurisdiction.

a. Burden of Appearing

GSUSA is a federally chartered corporation with its

principal place of business in New York. Because New Hampshire

is a foreign jurisdiction for GSUSA, litigating in New York would

be more convenient. The ordinary inconvenience that GSUSA may

confront in litigating in a nearby state, however, does not tip

the first factor in favor of GSUSA. Since litigating in a

foreign jurisdiction is usually expensive and inconvenient, the

First Circuit has held that this factor is “only meaningful where

a party can demonstrate some kind of special or unusual burden.”

Pritzker,

4 ; accord Sawtelle,

.

-13- Because GSUSA has not demonstrated that its burden is special or

unusual, this factor is not meaningful and therefore does not

support a finding of unreasonableness.

b . Forum State’s Adjudicatory Interest

In analyzing this second factor, “[t]he purpose of [this]

inquiry is not to compare the forum’s interests to that of some

other forum, but to determine the extent to which the forum has

an interest.” Sawtelle,

(citing Foster-Miller,

) (alteration and emphasis in original). The State

of New Hampshire certainly has an interest in protecting its

disabled citizens from discrimination. In addition, Marika’s

claims are not based solely on the federal ADA, but invoke the

New Hampshire LAD. N.H. Rev. Stat. Ann. ch. 354-A. According to

LAD, discriminating against disabled persons in New Hampshire is

a matter of state concern that “threatens the rights and proper

privileges of its inhabitants.” N.H. Rev. State. Ann. § 354-A:1.

Marika has also raised a common law tort claim. A state has a

demonstrable interest in exercising jurisdiction over a person

who commits a tort within its borders. Ticketmaster,

. The State’s adjudicatory interest is significant. Thus,

this factor favors the exercise of jurisdiction over GSUSA.

-14- c. The Plaintiffs’ Interest in Obtaining Convenient Relief

The First Circuit has repeatedly held that “a plaintiff’s

choice of forum must be accorded a degree of deference with

respect to the issue of its own convenience.” Sawtelle,

; see, e.g., Foster-Miller, Inc.,

;

Pritzker,

4 . In addition, Marika is disabled and

wheelchair bound making it inconvenient for her to travel to New

York for trial. In light of the deference I must accord Marika

and her particular need for a convenient forum for relief, this

factor counsels in favor of reasonableness in exercising

jurisdiction over GSUSA. See

d. Administration of Justice

In this third factor, I must analyze the judicial system’s

interest in obtaining the most effective resolution of the

controversy. See

Courts often find that this factor does

not weigh in either direction. See Ticketmaster,

.

In this case, however, substantial discovery has taken place and

a second lawsuit between Steir and GSUSA has been filed in this

court (Civil Action No. 02-236-B). Therefore, in the interest of

judicial economy and efficiency, the fourth factor favors this

court retaining its jurisdiction.

-15- e . Pertinent Policy Arguments

The final gestalt factor requires that I consider the common

interests of all sovereigns in promoting substantive social

policies. See Sawtelle,

, Ticketmaster,

. This case is unlike Sawtelle, where “the only prominent

policy implicated is the ability of a state to provide a

convenient forum for its residents to redress injuries inflicted

by out-of-forum actors.” Sawtelle.

. Here, the

injury alleged is linked to the important substantive social

issue of preventing the discrimination against the disabled.

Marika is a disabled citizen of New Hampshire and an allegation

has been made that an out-of-state actor has discriminated

against her.

Because the gestalt factors weigh in favor of the retaining

jurisdiction, it is reasonable for this court to do s o . The

contacts between GSUSA and the State of New Hampshire are

continuous and systematic and it is proper for this court to

exercise general personal jurisdiction over GSUSA.3

3 A second lawsuit between Steir and GSUSA has recently been filed in this court (Civil Action N o . 02-236-B). For the same reasons put forth in this order, I find that general jurisdiction over GSUSA exists in that case as well.

-16- IV. CONCLUSION

I deny GSUSA’s motion to dismiss for lack of personal

jurisdiction under Fed. R. Civ. P. 12(b)(2) (Doc. N o . 4 9 ) .

SO ORDERED.

Paul Barbadoro Chief Judge September 1 0 , 2002

cc: Kenneth Kirschner, Esq. James E . Higgins, Esq. Paul T . Muniz, Esq. Jennifer L . Parent, Esq. John Bisson, Esq.

-17-