Aprisma v. System CV-02-591-M 03/12/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Aprisma Management Technologies, Inc., Plaintiff

v. Civil No. 02-591-M Opinion No.

System Management Arts, Inc., Defendant

O R D E R

Defendant in this patent infringement suit. System

Management Arts, Inc. ("SMA"), moves to dismiss plaintiff's

complaint, alleging that the court lacks personal jurisdiction

over it. See Fed. R. Civ. P. 12(b)(2). In the alternative, it

seeks an order transferring the case to the Southern District of

New York. See

(a). Plaintiff objects.

The standard of review applicable to 12(b) (2) motions to

dismiss (as well as motions to change venue) in the context of a

patent suit is well known and need not be repeated. See

generally R & J Tool v. Manchester Tool, No. CV-99-242-M,

(D.N.H. April 21, 2000). It is sufficient to note that,

in the absence of an evidentiary hearing, plaintiff need only make a prima facie showing that jurisdiction exists. See

Kowalski v. Doherty, Wallace, Pillsburv & Murphy,

, 8

(1st Cir. 1986). It has succeeded.

Among other things, SMA acknowledges that: (1) it contracted

with a New Hampshire marketing firm which provides SMA with

inside sales (e.g., telemarketing) and marketing initiatives; (2)

it employed three New Hampshire residents, two of whom work at

least two days of the week from their home offices, in New

Hampshire; and (3) in June of 2002, SMA demonstrated its products

for a company located in Portsmouth, New Hampshire. See

Affidavit of Michelle Ciccone, Exhibit 1 to plaintiff's motion.

Plainly, then, SMA employs workers who reside in and work from

this district and, through its agent (the marketing company), SMA

conducts sales-related activity in this district. And, whether

the product demonstration is viewed as a "use" of an allegedly

infringing product, see, e.g.. Patent Tube Corp. v. Bristol-Myers

C o .,

(S.D.N.Y. 1938), or as the "sale" of an

allegedly infringing product, see Union Asbestos & Rubber Co. v.

Evans Products Co.,

(7th Cir. 1964), it is

sufficient conduct within this district, when combined with the

2 other factors listed above, to warrant the exercise of personal

jurisdiction over SMA.

As to SMA's motion to transfer this case to the United

States District Court for the Southern District of New York,

while the case certainly could have been brought in that forum,

the equities, on balance, do not counsel in favor of transfer.

See generally, Environamics v. Master Pump, CV-96-476-M (D.N.H.

January 08, 1997).

Defendant's motion to dismiss or, in the alternative, to

transfer (document no. 5) is, therefore, denied. Of course, the

court's ruling is without prejudice to SMA's right to again

challenge the exercise of personal jurisdiction, once the record

has been more fully developed.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge

March 12, 2003

cc: George R. Moore, Esg. Paul J. Hayes, Esg. Garry R. Lane, Esg. Leslie B. Zacks. Esg. J. Michael Martinez de Andino, Esg.

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