Remsburg v. Docusearch et a l . CV-00-211-B 01/31/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Helen Remsburg, Administrator of the Estate of Amy Lynn Bover

v. Civil No. 00-211-B

Docusearch, Inc., et al.

MEMORANDUM AND ORDER

Helen Remsburg, administrator of the estate of her daughter,

Amy Lynn Boyer, has sued defendants Docusearch, Inc., Wing and a

Prayer, Inc., Daniel Cohn, Kenneth Zeiss and Michele Gambino for

wrongful death; invasion of privacy through intrusion upon

seclusion; invasion of privacy through commercial appropriation

of private information; violation of the federal Fair Credit

Reporting Act, 15 U.S.C. § 1681a et sea.; and violation of the

New Hampshire Consumer Protection Statute, N.H. R.S.A. § 358-A:l

et sea. Defendants Docusearch, Inc., and Wing and a Prayer,

Inc., move 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

Docusearch, Inc., and Wing and a Prayer, Inc., jointly own

and operate an internet-based investigation and information

service known as "docusearch.com," which has an office located in

Boca Raton, Florida. Both companies are jointly owned by Cohn

and Zeiss, with each holding 50% of each company's stock. Cohn

serves as the president of both corporations and Zeiss serves as

a director for Wing and a Prayer, Inc.2 Cohn and Zeiss at one

point operated Docusearch from a condominium in Boca Raton where

they both resided. Currently, Zeiss works for Docusearch in Boca

Raton but Cohn lives and works for Docusearch in Ashburn,

Virginia.

Docusearch conducts its business primarily through its

interactive website, where clients can place orders for

information about third parties and pay for their requests with a

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 Docusearch, Inc., and Wing and a Prayer, Inc., are indistinguishable for jurisdictional purposes. Therefore, I refer to them, as well as the website they operate, collectively as "Docusearch."

- 2 - credit card. Docusearch is incorporated in Florida, and Cohn is

licensed as a private investigator by both the State of Florida

and Palm Beach County, Florida. Neither Docusearch nor its

employees are licensed or registered to do business in any other

state.

On July 29, 1999, New Hampshire resident Liam Youens

contacted Docusearch through its internet website and requested

the date of birth for Amy Lynn Boyer, another New Hampshire

resident. Youens gave Docusearch his name. New Hampshire address

and telephone number. Youens also paid Docusearch's $20 fee by

Mastercard. Zeiss placed a telephone call to Youens in New

Hampshire that day. Zeiss cannot recall the reason for the phone

call, but speculates that it was to verify Youens' order. The

next day, July 30, 1999, Docusearch provided Youens with the

birthdates for several Amy Boyers, but none were for the Amy

Boyer that Youens had in mind. In response, Youens sent

Docusearch another email asking if Docusearch could obtain better

results if it used Boyer's home address, which he provided.

Later that day, Youens contacted Docusearch and placed an

order for Boyer's social security number, paying Docusearch's $45

fee by Mastercard. On August 2, 1999, Docusearch provided Youens

- 3 - with Boyer's social security number. The next day, Youens placed

an order with Docusearch for Boyer's employment information,

paying the $109 fee by Mastercard. Phone records reveal that

Zeiss placed a second phone call to Youens on August 6, 1999.

The phone call lasted for less than a minute, and no record

exists concerning its topic. On August 20, 1999, having received

no response to his latest request, Youens placed another request

for Boyer's employment information, again paying the $109 fee by

Mastercard. On September 1, 1999, Docusearch refunded Youens'

first $109 payment because its effort to obtain Boyer's

employment information had failed.

With his second request for Boyer's employment information

pending, Youens placed yet another order for information with

Docusearch on September 6, 1999. This time, he requested a

"locate by social security number" search for Boyer. Youens paid

the $30 fee by Mastercard, and received the results of the search

- Boyer's Nashua, New Hampshire home address - on September 7,

1999 .

On September 8, 1999, Docusearch informed Youens that Boyer

worked for Dr. John Bednar at 5 Main Street, Nashua, New

Hampshire. Docusearch acquired Boyer's business address through

- 4 - a subcontractor, Michele Gambino. Gambino, in turn, obtained the

information by placing a "pretext" telephone call to Boyer in New

Hampshire. Gambino lied about who she was and the purpose of her

call in order to convince Boyer to reveal her employment

information.

On October 15, 1999, Youens drove to Boyer's workplace and

fatally shot her as she left work. Youens then shot himself in

the head and died immediately. Remsburg has brought this suit

against Docusearch under the theory that Docusearch negligently

provided Youens with information that enabled him to find and

kill Boyer. Docusearch moves to dismiss on the ground that this

court lacks personal jurisdiction.

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.,

(1st

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

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

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

- 5 - personal jurisdiction over the defendants. See Sawtelle v.

Farrell,

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

Elec. Radio and Mach. Workers of Am. (UE) v. 163 Pleasant St.

Corp.,

(1st Cir. 1993) [hereinafter Pleasant St.

II] ) •

To make a prima facie showing of jurisdiction, Remsburg may

not rest on the pleadings. Rather, she must "adduce evidence of

specific facts" that support her jurisdictional claim. Foster-

Miller,

; Pleasant St. II,

. 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,

; 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

- 6 - that they are uncontradicted. See

When assessing personal jurisdiction over a non-resident

defendant in a diversity of citizenship case, "a federal court

exercising diversity jurisdiction 'is the functional equivalent

of a state court sitting in the forum state.'" Sawtelle,

(quoting Ticketmaster,

). 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

; 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

process standard.3 See Phelps v. Kingston,

, 171

3 Remsburg alternatively claims that the court has federal question jurisdiction over her Federal Credit Reporting Act 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.,

(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.

- 7 - (1987). Therefore, I proceed directly to the constitutional due

process analysis.

Ill. 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'1 Shoe

Co. v. Washington,

(1945)) (alteration in

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 St. Corp.,

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

, 626- 27 (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. 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) ) .

The "constitutional touchstone" for personal jurisdiction is

"whether the defendant purposefully established ''minimum

contacts' in the forum State." Burger King,

(citing Int'1 Shoe,

); 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,

(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.

- 9- Denckla,

(1958)).

A court may assert authority over a defendant by means of

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

(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 to, the defendant's contacts with the forum.

See id.; Pritzker,

. Here, I evaluate Remsburg's

claim that the court has specific personal jurisdiction.

The First Circuit has developed a three-part test for

determining whether an exercise of specific jurisdiction is

consistent with due process. The analysis consists of an inquiry

into (1) relatedness, (2) purposeful availment, and (3)

reasonableness. See Mass. Sch. of Law,

; Nowak v.

- 10 - Tak How Invs., Ltd.,

(1st Cir. 1996), cert.

denied,

(1997). An affirmative finding on each of

these three components is required to support an assertion of

specific jurisdiction. See Phillips Exeter,

.

1. Relatedness

The relatedness requirement dictates that a sufficient nexus

exist between the defendant's contacts with the forum and the

plaintiff's causes of action. See id.; Mass. Sch. of Law,

. With respect to tort claims, the First Circuit has

determined that relatedness in most instances requires a showing

that defendant's forum contacts are both a cause in fact and a

legal cause of the plaintiff's injuries. See Mass. Sch. of Law,

. Although the court has not explicitly applied

the relatedness requirement to statutory claims such as

Remsburg's claims under the Fair Credit Reporting Act and the New

Hampshire Consumer Protection Act, I conclude that a showing of

both cause in fact and legal cause will also satisfy the

relatedness requirement with respect to Remsburg's statutory

claims.

Remsburg argues that Docusearch's acquisition of Boyer's

business address through a pretext call placed to Boyer in New

- 11 - Hampshire and its transmission of that address to Youens in this

state are causes in fact of Boyer's death because Youens needed

to know where Boyer worked to complete his plan to kill her.

Remsburg supports her argument by averring that Youens feared

stalking Boyer at her home and could not follow her as she moved

about in her day-to-day life because he had limited access to a

vehicle. Thus, she argues, Youens needed to know where Boyer

worked so that he could arrange to confront her away from her

home. Construing these averments in the light most favorable to

Remsburg's jurisdictional claim, as I must at this stage of the

proceedings, they are sufficient to support her argument that

Docusearch's contacts with New Hampshire were a cause in fact of

Boyer's death.

Remsburg has also pleaded sufficient facts to support her

assertion that Docusearch's New Hampshire contacts were a legal

cause of Boyer's death. In addition to the above-described

averments, Remsburg asserts that Docusearch was aware of the fact

that the information it provided Youens could be misused to stalk

and possibly harm the subject of his inquiries. Thus, assuming

without deciding that Remsburg has asserted viable causes of

- 12 - action,4 she has alleged sufficient facts to support a conclusion

that Docusearch's New Hampshire contacts are both a factual and a

legal cause of the injuries on which Remsburg's claims are based.

Therefore, she has satisfied the relatedness requirement.

2. Purposeful Availment

I next must determine whether Docusearch purposefully

availed itself of the privilege of conducting business in New

Hampshire. In doing so, I focus "on whether a defendant has

'engaged in any purposeful activity related to the forum that

would make the exercise of jurisdiction fair, just, or

reasonable.'" Sawtelle,

(citing Rush v. Savchuk,

(1980)). The factors I consider when making

that determination are voluntariness and foreseeability. See

Voluntariness reflects the willingness with which a

defendant engages in activity in the forum. See Ticketmaster,

-08 (citing Burger King,

(cautioning

that jurisdiction may not rest on the "unilateral activity of

another party or a third person")). Here, Docusearch certainly

4 I take no position as to whether Remsburg has stated viable causes of action under state and federal law. Instead, I merely determine that if any of her causes of action are viable, the court has personal jurisdiction to resolve them.

- 13 - acted voluntarily by responding to Youens' five separate New

Hampshire-based requests for information about Boyer. Although

Youens initiated the contacts, Docusearch eagerly set about

fulfilling his orders knowing that Youens was based in New

Hampshire and that the subject of his inquiries was also a New

Hampshire resident. Docusearch thus cannot claim that it was

involuntarily drawn into New Hampshire through some act of

deception or coercion by Youens.

Courts also must consider the next factor, foreseeability,

because "a defendant's 'conduct and connection with the forum

State [must be] such that he should reasonably anticipate being

haled into court there.'" Ticketmaster,

(citing

World-Wide Volkswagen,

) (alteration in original).

When accepting and fulfilling Youens' requests for information,

Docusearch knew that it was selling a New Hampshire client

information about another New Hampshire resident. Docusearch

established a significant business relationship with Youens,

which included accepting five separate orders from him, with fees

totaling $313.5 Docusearch's conduct in fulfilling Youens

5 Youens paid Docusearch $20 to search for Boyer's birthdate; $45 to search for Boyer's social security number; $109

- 14 - requests, including placing phone calls to Youens and Boyer in

New Hampshire, is enough to support Remsburg's claim that

Docusearch should reasonably have anticipated being sued in New

Hampshire. See Nowak,

(finding that "where the

defendant purposefully derives economic benefits from its forum-

state activities" it should foresee being haled into that forum-

state' s court).

3. Reasonableness

Although Remsburg has satisfied both the relatedness and the

purposeful availment requirements, I must still consider the

final portion of the three-part test, reasonableness. The

Supreme Court has identified five factors to consider when

analyzing the fairness of subjecting a nonresident to a court's

jurisdiction. See Sawtelle,

. Known as the

"gestalt factors," they include: "(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

to find Boyer's workplace information; another $109 to search again for Boyer's workplace information; and $30 to perform a "locate by social security number" search on Boyer. Docusearch refunded Youens' first $109 payment when its first attempt to find Boyer's workplace information failed.

- 15 - 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."

(citing Burger King,

).

a . Defendant's Burden of Appearance

Docusearch is based in Florida, and its corporate officers

live in Florida and Virginia. Certainly, litigating in Florida

would be easier for Docusearch, but the mere inconvenience that

litigating in a foreign jurisdiction presents is not sufficient

to make this factor meaningful. A defendant must "demonstrate a

special or unusual burden" before this factor weighs against

jurisdiction. Sawtelle,

. Here, Docusearch has

not made such a demonstration.

b . The Forum State's Adjudicatory Interest

The First Circuit has explained that "[t]he purpose of

[this] inquiry is not to compare the forum's interest to that of

some other jurisdiction, but to determine the extent to which the

forum has an interest." Sawtelle,

(citing

Foster-Miller,

) (alteration and emphasis in

original). A state has a demonstrable interest in exercising

jurisdiction over one who causes tortious injury within its

- 16 - borders. Ticketmaster,

. Here, one New Hampshire

resident murdered another New Hampshire resident in New

Hampshire. Remsburg argues that Docusearch's conduct was a

substantial contributing factor in the murder. Given the gravity

of this allegation. New Hampshire's adjudicatory interest weighs

in favor of jurisdiction.

c . Plaintiff's Interest in Obtaining Convenient Relief

" [A] plaintiff's choice of forum must be accorded a degree

of deference with respect to the issue of its own convenience."

Sawtelle,

. Here, it would be more convenient for

Remsburg to litigate in New Hampshire than in Florida.

d . The Administration of Justice

Often, courts conclude that this factor does not weigh in

either direction. See

at 1395 (citing Ticketmaster,

). However, in this case, discovery is underway and many

filings have been made in this court. Therefore, the most

efficient manner of resolving this case would be for this court

to retain jurisdiction.

e . Pertinent Policy Arguments

Analysis of this final factor entails considering "the

common interests of all sovereigns in promoting substantive

- 17 - social policies. Here, the most 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."

(citing Burger King,

). The injury alleged

in this case is directly linked to the important substantive

social issue of privacy. A New Hampshire resident has been

murdered, and the allegation has been made that negligence and

invasion of the murder victim's privacy by an out-of-state actor

were substantial causes in that murder.

The overall effect of the gestalt factors weighs in favor

jurisdiction. Because the requirements of relatedness and

purposeful availment are also satisfied, I conclude that

Docusearch is subject to specific jurisdiction in this court.

IV. CONCLUSION

I deny Docusearch's motion to dismiss for lack of personal

jurisdiction under Fed. R. Civ. P. 1 2 (b)(2) (Doc. No. 7).

SO ORDERED.

Paul Barbadoro Chief Judge January 31, 2002

- 18 - cc: David M. Gottesman, Esq. Dona Feeney, Esq. Carol L. Hess, Esq. Michael J. lacopino, Esq. Steven B. Ross, Esq.

- 19 -