Raymarine v. Argonaut Computer CV-02-021-B 08/01/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Raymarine, Inc.

v. Civil N o . 02-021-B Opinion N o .

Argonaut Computer, Inc.

MEMORANDUM AND ORDER

Raymarine, Inc. has filed suit seeking a declaration that it

properly terminated its contract with Argonaut Computer, Inc.

Argonaut moves to dismiss the 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 Southern

District of California. For the reasons that follow, I deny

Argonaut’s motion.

I. BACKGROUND1

Raymarine, a Delaware corporation, manufactures recreational

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). Facts from the defendant’s evidentiary submissions are included to the extent they are uncontradicted. Mass. Sch. of Law at Andover, Inc. v . Am. Bar Ass’n,

6 , 34 (1st Cir. 1998). marine products including marine radars, fishfinders, autopilots,

GPS instruments, VHF radios, and navigation software. Its

headquarters for North and South America is located in Nashua,

New Hampshire. The Nashua office oversees sales, customer

support, technical support, product line management, inventory

management, and contract purchase order management for both

regions. Raymarine also has a technical facility in Portsmouth,

United Kingdom, a facility in Ohio, and offices in Virginia and

Florida.

Argonaut, a California corporation, develops, produces and

markets rugged, high performance computer systems for use in

marine, industrial or military settings. Argonaut is not

licensed or registered to do business in New Hampshire, has no

employees in New Hampshire, has never maintained an office here,

and has never delivered any products to any address within the

state.

The Argonaut Marine PC (the “Marine PC”) is a rugged

personal computer that is used on commercial and recreational

boats. During January 2001, Argonaut and the recreational marine

division of the Raytheon Company engaged in discussions

concerning the potential purchase of Marine PCs. The discussions

-2- ceased around January 3 0 , 2001 (Raymarine’s date of

incorporation), when Raymarine purchased the assets of the

recreational marine division.

Following the asset purchase, Richard Kane, the President

and Chief Executive Officer of Raymarine, sent the President of

Argonaut, George Kioutas, a letter expressing his interest in

resuming discussions concerning the Marine P C . M r . Kane sent the

letter, dated February 9, 2001, from Raymarine’s Nashua office on

letterhead reflecting its Nashua address. M r . Kioutas

countersigned the letter and returned it to the Nashua office via

facsimile.

Between February 9 and the end of March, the two parties

negotiated a purchase agreement, with Mr. Kioutas and Terry

Startsman (an employee in Raymarine’s Virginia office) handling

most of the negotiations. The two conducted discussions between

California and Virginia via the telephone and on separate

occasions held meetings in Florida and California. Mr. Kane also

participated in telephone conversations concerning the purchase

agreement from his office in Nashua.

Mr. Kioutas signed the completed contract in California on

March 2 7 , 2001, and sent it to Mr. Kane in Nashua, who executed

-3- it on March 2 9 . The contract engaged the parties for three

years, gave Raymarine exclusive rights (within the recreational

and commercial marine markets) to the Marine P C , and provided a

list of specifications which, among other things, required the

Marine PC to be waterproof and resistant to high temperatures and

excessive movement. The agreement required Raymarine to purchase

at least 2,000 units at an approximate cost of $4,000 per unit,

giving the contract a minimum value of $8 million. Argonaut was

to ship the computers to Raymarine’s Ohio facility once

production began. The contract also stipulated that Argonaut

would purchase nine different sub-assemblies from Raymarine.

The Purchase Agreement, which identified Raymarine only as a

Delaware corporation, included no forum selection clause, but

designated New Hampshire law as the governing law. The contract

also referenced a non-disclosure agreement that the parties were

to agree to later. Raymarine ultimately drafted the disclosure

agreement in its Nashua office and printed it on letterhead

reflecting its Nashua address. Mr. Kioutas signed the agreement

in California on June 1 4 , 2001, and sent it Nashua were it was

executed by Mr. Kane on July 2 0 , 2001.

-4- In anticipation of the new product line, Raymarine hired

Louis Chemi as its Product Line Manager for the Marine P C . Mr.

Chemi’s responsibilities were to include the marketing and

coordination of the Marine PC line, and he was to be based out of

Raymarine’s Nashua office. Argonaut’s limited interaction with

Mr. Chemi occurred during his time in Virginia, prior to his

relocation to New Hampshire.

The Marine PC was developed in California and Texas by

Argonaut and its subcontractor Xplore. During the course of the

product’s development, Argonaut and Raymarine representatives met

in Florida, Texas and the United Kingdom. The first tests of the

prototypes took place at Raymarine’s facility in Portsmouth,

United Kingdom, on March 22 and 23 (prior to the Purchase

Agreement’s execution). The tests conducted by Raymarine

measured the product’s compliance with the Purchase Agreement’s

specifications. The Marine PC failed these tests.

As a result, numerous communications ensued between

Raymarine and Argonaut concerning technical modifications. The

discussions and meetings took place in California, Texas and the

United Kingdom and included a Raymarine technician on loan to

Argonaut to assist in rectifying the problems. During this time,

-5- Argonaut directed billing and invoicing questions by telephone,

in e-mails, and in correspondence to Raymarine’s office in New

Hampshire.

A second set of tests performed a month later (April 19-20)

at the Portsmouth facility met the same result. Again, more

communication took place between the Portsmouth facility and

Xplore’s Texas facility. A third round of tests was performed at

the Portsmouth facility on August 22 and 2 8 , and the prototypes

failed to meet the specifications for a third time. As a result

of the multiple product failures, Raymarine commenced discussions

with Argonaut concerning the continued viability of the Purchase

Agreement.

Employees at Raymarine’s Nashua office continued to

communicate with employees at Argonaut from late August until

late October. The communications culminated with Raymarine

declaring Argonaut in default and terminating the Purchase

Agreement. Included in these communications was a letter from

Mr. Kioutas to M r . Kane discussing the possibility that Argonaut

might sue Raymarine for breach of contract. This prompted

Argonaut to send Raymarine a draft complaint naming it as a

defendant in which New Hampshire was identified as the

-6- jurisdiction in which the complaint would be filed. In

anticipation of Argonaut’s threatened lawsuit, Raymarine filed

this action seeking a declaratory judgment that it did not breach

the Purchase Agreement.

II. PERSONAL JURISDICTION

A. 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,

4 ; Rodriguez v . Fullerton Tires Corp.,

1 , 83 (1st Cir. 1997). In a case such as this, in which no

evidentiary hearing has been held, I hold the plaintiff to a

prima facie standard. 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, a plaintiff

may not rest on the pleadings. Rather, he or she must “adduce

evidence of specific facts” that support jurisdiction. Foster-

-7- Miller,

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

conducting my analysis, I take the facts offered by the plaintiff

as true and construe them in the light most favorable to the

plaintiff’s jurisdictional 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

B. Statutory and Constitutional Requirements

When assessing personal jurisdiction in a diversity of

citizenship case, the court “‘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

-8- both the New Hampshire long-arm statute and the due process

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

Miller,

. Because New Hampshire’s long-arm statute

is coextensive with the federal due process standard, however, I

proceed directly to the constitutional due process analysis. See

Phelps v . Kingston,

(1987).

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 . Washington,

1 0 , 316 (1945)); see also Sawtelle,

.

This “minimum contacts” inquiry 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). The ultimate

objective of the due process Aminimum contacts@ standard is to

ensure that the exercise of personal jurisdiction over a

nonresident defendant does not offend A>traditional notions of

fair play and substantial justice.=@ United Elec. Radio and Mach.

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

,

1087 (1st Cir. 1992) [hereinafter Pleasant S t . I ] (quoting Int’l

-9- Shoe,

1 6 ) . If a defendant has even one meaningful

contact with the forum, the exercise of personal jurisdiction is

constitutionally proper. See Nowak v . Tak How Invs., Ltd.,

(1st Cir. 1996) (citing McGee v . Int’l Life Ins.

Co.,

(1957)); Pritzker,

1 .

A court may assert authority over a defendant by means of

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

(citing Donatelli v . Nat’l Hockey League,

(1st Cir. 1990)); Foster-Miller,

. A

defendant 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. Phillips Exeter Acad. v .

Howard Phillips Fund, Inc.,

(1st Cir. 1999)

(citing Helicopteros Nacionales de Colombia, S.A. v . Hall,

(1984); Donatelli,

).

Specific jurisdiction exists if there is Aa demonstrable

nexus between a plaintiff=s claims and a defendant=s forum-based

activities.@ Mass. Sch. of Law,

4 . That i s , a

court may exercise specific jurisdiction if the plaintiff=s case

Arelates sufficiently t o , or arises from, a significant subset of

-10- contacts between the defendant and the forum.@ Phillips Exeter,

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

In this case, Raymarine argues only that this court has specific

personal jurisdiction over Argonaut.

C. Analysis

To determine whether the exercise of specific jurisdiction

is consistent with due process, the First Circuit has developed a

three-part test that evaluates: (1) relatedness, (2) purposeful

availment (or “minimum contacts”), and (3) reasonableness. See

Mass. Sch. of Law,

5 ; Nowak,

. A

finding of specific jurisdiction requires that each of the three

components be satisfied. Phillips Exeter,

.

1. Relatedness

I focus first on the relatedness prong of the three-part

test; a prong intended to be a flexible and relaxed standard.

See Sawtelle,

; Pritzker,

1 . Under

the relatedness test I must determine whether the plaintiff’s

claims arise out o f , or are related t o , the defendant’s forum

contacts. See Mass. Sch. of Law,

5 ; Sawtelle,

. When, as here, the plaintiff asserts a contract

-11- claim, I must determine “whether the defendant’s contacts with

the forum were instrumental either in the formation of the

contract or in its breach.” Phillips Exeter,

.

As discussed below, Argonaut’s New Hampshire contacts were

instrumental in both the formation and alleged breach of the

Purchase Agreement and thus satisfy the relatedness requirement.

Argonaut’s contacts with Raymarine’s Nashua office concerning the

contract’s formation included responding to the initial offer to

negotiate, conducting at least some negotiations with Nashua via

the phone, and forwarding the signed contract to Nashua for

execution. Additionally, the Confidentiality Agreement, an

integral part of the Purchase Agreement, was drafted in Nashua,

sent to Argonaut from Nashua, and returned to Nashua by Argonaut

for execution. These communications by Argonaut constitute forum

contacts for purposes of this analysis. See Sawtelle,

-90 (citing Burger King, 471 U.S. at 4 7 6 ) ; Rodriguez v . Dixie

S . Indus.,

(D.P.R. 2000).

Argonaut also had contacts with Raymarine’s Nashua office

that were instrumental to the alleged breach of the Purchase

Agreement. These communications included a letter from Mr.

Kioutas to Mr. Kane discussing Argonaut’s view that any

-12- termination by Raymarine would be considered a breach of the

contract and threatening legal action if Raymarine did not

complete its contract obligations. See

As a result, Argonaut’s contacts with New Hampshire are

sufficient to satisfy the due process requirement that the claims

arise directly out of, or are related to, its contacts with the

forum.

2. Purposeful Availment

In evaluating whether Argonaut purposefully availed itself

of the privilege of conducting business in New Hampshire, I

consider “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

purposeful availment requirement is intended to protect an out-

of-state defendant from the forum's exercise of personal

jurisdiction based upon the defendant's "'random, isolated, or

fortuitous' contacts with the forum state." Sawtelle,

(quoting Keeton v. Hustler Magazine, Inc.,

(1984)). Accordingly, the First Circuit requires both

voluntariness and foreseeability to exist before the purposeful

-13- availment prong is satisfied. See id.; Ticketmaster-New York,

Inc.,

.

For a defendant=s contacts with the forum to be considered

voluntary, they must not be based upon Athe unilateral actions of

another party or a third person.@ For the forum=s exercise of

personal jurisdiction to be deemed foreseeable, the out-of-state

defendant must establish a Acontinuing obligation between itself

and the forum state.@ Sawtelle,

. In addition,

the defendant=s contacts must be such that the defendant would

Areasonably anticipate being haled into court there.@ Nowak,

.

In a contract action, the mere existence of a contractual

relationship between a forum plaintiff and an out-of-state

defendant is insufficient to establish purposeful availment. See

Phillips Exeter,

; Ganis Corp. of Cal. v. Jackson,

9 4 , 197 (1st Cir. 1987). Rather, using a Acontract-

plus@ analysis, see Ganis Corp.,

, I must consider

additional factors, including: A(1) the prior negotiations

between the parties and the contemplated future consequences of

the [contract]; (2) the terms of [the contract]; and (3) the

parties= actual course of dealing.@ U.S.S. Yachts, Inc. v. Ocean

-14- Yachts, Inc.,

(1st Cir. 1990); Ganis Corp.,

.

I conclude that Raymarine has alleged and provided evidence

of jurisdictional facts which, if true, demonstrate that

Argonaut=s contacts with New Hampshire (1) were voluntary, in

that they were not the product of Raymarine=s unilateral actions;

and (2) created an on-going relationship with a forum resident,

thereby making it foreseeable that Argonaut would be haled into

court in New Hampshire. Argonaut’s contacts were voluntary

because the relationship between the two parties began with a

letter from Raymarine’s Nashua office, which Argonaut signed and

returned, thus putting Argonaut on notice that it was dealing

with a New Hampshire company. Moreover, Argonaut initiated and

responded to numerous communications with the Nashua office once

the Purchase Agreement was executed. See Nowak,

.

The parties= contract, which involves the purchase and sale

of relatively complex products modified to fit the specific

requirements of Raymarine=s project, was the result of extensive

negotiation. While Argonaut was not physically present in New

Hampshire during the negotiation and contract period, it did

direct communications, by telephone, fax, letter and e-mail, into

-15- the state. See Sawtelle,

("The transmission

of information into [the forum] by way of telephone or mail is

unquestionably a contact for purposes of our analysis."); see

also Mass. Sch. of Law,

; Pleasant St. I, 960 F.2d

at 1090.

The terms of the parties' contract also support the exercise

of personal jurisdiction over Argonaut. The Purchase Agreement

included a choice of law clause which identified New Hampshire

law as the governing law. The terms of the contract thus put

Argonaut on notice that it was dealing with a New Hampshire

buyer. See Ganis Corp.,

("While not conclusive,

a [choice of law provision] further tips the scales in favor of

[plaintiff] since a contractual provision adopting a forum

state's laws combined with the five-year duration of the

relationship 'reinforce[s] [the nonresident defendant's]

deliberate affiliation with the forum State and the reasonable

foreseeability of possible litigation there.'") (quoting Burger

King, 471 U.S. at 482) (alterations in original).

Finally, the future consequences of the three-year

contractual relationship contemplated by the parties should have

put Argonaut on notice that it might be haled into court in

-16- Raymarine’s principal place of business, New Hampshire.2 New

Hampshire houses Raymarine’s headquarters for North and South

America and handles a number of important responsibilities for

the region. This being the case, any significant contract with

Raymarine in the Western hemisphere would inevitably entail

contact with its Nashua office.3 See Burger King, 471 U.S. at

480. Argonaut’s awareness that M r . Chemi (hired to oversee the

Marine PC line) would be located in New Hampshire further

supports this conclusion.

3. Reasonableness

The third prong of the specific jurisdiction analysis

focuses on the reasonableness of the forum=s exercise of

jurisdiction. In particular, reasonableness is assessed Ain

light of a variety of pertinent factors that touch upon the

fundamental fairness of an exercise of jurisdiction.@ Phillips

2 That Argonaut’s drafted complaint elected to use New Hampshire as its forum indicates at the very least that Argonaut was aware of the role and importance of Raymarine’s Nashua office to Raymarine as a whole. 3 Not only did some of the negotiations take place through the New Hampshire office, but Argonaut addressed billing and invoicing issues and contract termination issues with the Nashua office within the first six months of the contract.

-17- Exeter,

. The First Circuit identifies five

fairness considerations, dubbed the “Gestalt" factors, that are

determinative of the reasonableness prong: "(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; (5) and the common interests of all sovereigns

in promoting substantive social policies." Sawtelle,

; see also Pleasant St. I, 960 F.2d at 1088. While none of

these factors strongly favors either party’s position, on balance

they lend support to Raymarine’s claim that this court has

personal jurisdiction.

a. The Defendant’s Burden of Appearance

First, although Argonaut may be inconvenienced by litigating

this case in New Hampshire, it has not demonstrated that

defending itself here imposes a special or unusual burden on it.

See Pritzker,

. While some of Argonaut’s employees

might find it more convenient if this case were tried in

California, other employees and employees of Argonaut’s Texas

subcontractor who are probable witnesses will be equally

-18- inconvenienced regardless of whether this action is tried here or

in California.

b. The Forum State’s Adjudicatory Interest

Second, New Hampshire has an interest in providing a

convenient forum for companies that maintain regional

headquarters here. See Burger King, 471 U.S. at 473. While a

state’s interest is certainly greater when the contract concerns

a product manufactured or used exclusively in the forum state,

the state’s interest does not dissipate entirely when these

circumstances are absent. See In-Flight Devices Corp. v . Van

Dusen Air, Inc.,

(6th Cir. 1972).

c. The Plaintiff’s Interest in Obtaining Convenient Relief

Third, Raymarine has selected New Hampshire as the forum in

which to bring its action against Argonaut. With respect to

measuring Raymarine’s convenience, I must pay some deference to

its choice of forum. See Sawtelle,

(A[A]

plaintiff=s choice of forum must be accorded a degree of

deference with respect to the issue of its own convenience.@).

d. The Administration of Justice

The judicial system=s interest in obtaining the most

-19- effective resolution to the controversy offers no particular

guidance for the present case.

e. Pertinent Policy Arguments

The final “Gestalt” factor considers the “common interests

of all sovereigns in promoting substantive social policies.@

Sawtelle,

. The only real argument falling under

this factor concerns the use of New Hampshire law to govern

issues arising under the contract. In general, courts in New

Hampshire will be better equipped to adjudicate cases involving

New Hampshire law then will courts in an alternative forum.

For the above-stated reasons, this court has personal

jurisdiction over Argonaut.

III. VENUE

A. Standard of Review

While the First Circuit has not specified the standard a

district court should use in resolving venue disputes prior to

trial, it has determined the standard in the related context of a

challenge to personal jurisdiction. See Boit,

-

77. In cases where no hearing is held, the court makes only a

-20- prima facie determination of jurisdiction.

Accordingly, the

court does not find facts, but rather accepts the truth of the

plaintiff=s factual averments to the extent that they are

supported by evidence of specific facts set forth in the record.

Since at least one other circuit requires district courts to

use a similar standard in venue disputes, see Home Ins. C o . v .

Thomas Indus., Inc.,

, 1355 (11th Cir. 1990), and

the parties have not drawn my attention to any precedent

suggesting a different approach, I will determine the venue

question under the prima facie standard outlined in Boit.

B. Analysis

The general venue statute provides that an action may be

brought in any Ajudicial district in which a substantial part of

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

.@ 28 U.S.C. ' 1391(b). When applying this provision, a court

must look Anot 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). The test is the same whether the claim sounds

in contract or tort. See

at 4 1 . In this circuit, a court

must not confine its inquiry to the acts of the defendant but

-21- instead must employ a more “holistic” view of the problem.

See

at 42 n.6. Finally, an event need not be in dispute to

comprise a substantial event giving rise to the claim. See

at 4 3 . 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

at 4 2 ; First of

Michigan Corp. v . Bramlet,

(6th Cir. 1998).

In this case, I determine that venue is proper for many of

the same reasons that this court has personal jurisdiction over

Argonaut. Argonaut’s forum contacts were instrumental in the

formation, maintenance and termination of the contract and thus

were a substantial part of the events which gave rise to this

claim. Accordingly, I reject Argonaut=s venue challenge.

IV. TRANSFER OF VENUE

A. Standard of Review

Motions to transfer are governed by 28 U.S.C. ' 1404(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. Since venue is proper in the instant case, I

-22- focus only 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 Amight have been brought@ in

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

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

the transfer will enhance the convenience of the parties and the

witnesses and promote the interest of justice. Id.

If the first requirement is met, the district court enjoys

considerable discretion in making the transfer decision. Norwood

v . Kirkpatrick,

9 , 3 0 , 32 (1955). When a court

contemplates a transfer based on ' 1404(a), it 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). AOf those factors, the

convenience to the expected witnesses is probably the most

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

-23- Oakbrook Int=l, Inc.,

3 4 , 141 (D. Mass. 1999)

(citation and internal quotation marks omitted).

A defendant seeking to transfer venue bears the Asubstantive

burden@ of showing that the factors Apredominate@ in favor of

transfer. Buckley v . McGraw-Hill, Inc.,

3 0 , 439

(D.N.H. 1991). AThe 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)).

B. Analysis

Argonaut argues that even if personal jurisdiction and venue

are proper in New Hampshire, I should exercise my discretion and

transfer the case to the Southern District of California. In

support of this argument, Argonaut alleges that: (1) the claim

could be brought in California because a substantial part of the

events or omissions giving rise to the claim occurred there; (2)

few evidentiary items are located in New Hampshire while many

relevant materials are located in California; and (3) witnesses

essential to establishing Argonaut=s case reside in California

-24- while few of Raymarine’s witnesses reside in New Hampshire.4

On balance, Argonaut has not demonstrated that transferring

this 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 Marine PC’s were manufactured in

California and Texas and employees at both locations will likely

be called on to testify, so too will Raymarine employees in New

Hampshire and the United Kingdom. In fact, New Hampshire serves

as a far better geographic midpoint for the many locations from

which witnesses might come than does California. Moreover,

documents relating to the claim are easily transportable to this

district. Finally, the vast majority of witnesses likely to be

called are employees of one of the two parties, substantially

lowering risk that venue will preclude their appearance. For

these reasons, I will not disturb Raymarine’s choice of forum.

See Buckley,

.

4 Since Argonaut fails to demonstrate that transferring the case enhances the parties’ and witnesses’ convenience or promotes the interest of justice, I need not address whether the action may have been brought in California originally.

-25- V. CONCLUSION

For the reasons stated above, Argonaut’s motion to dismiss

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

alternative, to transfer venue to the United States District

Court for the Southern District of California (Doc. N o . 5 ) is

denied.

SO ORDERED.

Paul Barbadoro Chief Judge

August 1 , 2002

cc: W . Wright Danenbarger, Esq. David B . Wilson, Esq.

-26-