25 CP LLC v. Firstenberg Mach. CV-09-80-PB 12/08/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

25 CP, LLC

v. Case N o . 09-cv-80-PB Opinion N o .

Firstenberg Machinery Co. and Grifols USA, LLC

MEMORANDUM AND ORDER

25 C P , LLC has sued Firstenberg Machinery Company, Inc. and

Grifols USA, LLC for breach of contract. Firstenberg and Grifols

each now move to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(2), claiming that this court does not have

personal jurisdiction over them. For the reasons set forth

below, I deny Firstenberg’s motion and deny Grifols’ motion

without prejudice to its right to reinstate the motion, if

appropriate, after jurisdictional discovery has been completed.

I. BACKGROUND

A. The Parties and Other Relevant Entities

25 CP is a New Hampshire limited liability company whose

primary business purpose is the “[o]wnership and management of

real estate and related activities.” (Certification of Formation, Doc. N o . 13-4, at 4.) Firstenberg is a California

corporation that sells used and new biomedical parts and

machinery. (Firstenberg Aff., Doc. N o . 13-3, ¶¶ 2-3.) Grifols,

a biomedical research and development institute, is a Florida

limited liability company with a principal place of business in

Los Angeles, California. (Bill in Equity for Specific

Performance and Damages (hereinafter “Complaint”), Doc. N o . 1-2,

¶ 8 ; Stopher Aff., Doc. N o . 14-3, ¶ 3.)

25 CP alleges that it contracted (through its representative

Matthew Halvorsen) with Firstenberg (through Firstenberg’s

employee Victor Gonzales) to purchase a Hull Lyophilizer (“the

Hull”), a large freeze-drying unit.1 (See Mem. of Law in Supp.

1 Neither party makes any specific allegations concerning the location from which Halvorsen conducted business. It appears, however, to be undisputed that the communications Gonzales transmitted to Halvorsen were transmitted to Halvorsen in New Hampshire. (See, e.g., Mem. of Law in Supp. of Pl.’s Objection to Firstenberg’s Mot. to Dismiss, Doc. N o . 16-2, at 7 (“Firstenberg emailed an offer to sell the Hull to Mr. Halvorsen in New Hampshire.) (emphasis added).) Three additional documents suggest that Halvorsen was operating out of New Hampshire: (1) an invoice Gonzales emailed to Halvorsen, which included the line, “Attention: Matthew Halvorsen” and noted that the Hull was being sold to Lyophilization Services of New England, a company with a New Hampshire address and phone number; (2) a letter Halvorsen mailed Gonzales, whose letterhead included a New Hampshire address; and (3) a letter Halvorsen mailed to the president of Firstenberg, with the same letterhead address. (See Gonzales Aff. Doc. N o . 13-5, at 6, 8 ; Firstenberg Aff. Ex. B , Doc. N o . 13-3, at 7-8.) Thus, I assume that Halvorsen made or

-2- of Pl.’s Objection to Firstenberg’s Mot. to Dismiss, Doc. N o . 16-

2 , at 2-3; 25 CP’s Objection to Firstenberg’s Mot. to Dismiss Ex.

A , Doc. N o . 16-3, at 2 2 ; Pl.’s O b j . to Firstenberg’s Mot. to

Dismiss, Doc. N o . 16-1, at 1.) 25 CP alleges that Grifols was

the “undisclosed principal owner” of the Hull and that

Firstenberg acted as Grifols’ agent in attempting to sell the

Hull. (See Compl., Doc. N o . 1-2, ¶ 2 1 ; Pl.’s Objection to

Firstenberg’s Mot. to Dismiss, Doc. N o . 16-1, at 1.) During

Halvorson’s negotiations with Gonzales, Gonzales believed that

Halvorsen was representing a fourth company, Lyophilization

Services of New England (“LSNE”), a New Hampshire corporation

that is not a party to this suit. (See Gonzales Aff., Doc. N o .

received all the relevant communications in New Hampshire. If Firstenberg and Grifols have some basis to challenge this assumption, they can move to reconsider this order denying their motions to dismiss. 2 25 CP has provided the emails and letter I cite in this order but has not provided an affidavit that demonstrates their authenticity. (See Grifols’ Reply to 25 CP’s Objection to Mot. to Dismiss for Lack of Personal Jurisdiction, Doc. N o . 2 1 , at 2- 3.) Firstenberg has provided some, but not all, of the same documents in authenticated form. (See attachments to Firstenberg’s Mot. to Dismiss, Doc. N o . 13.) I will assume that 25 CP’s emails and letter are authentic provided that 25 CP can produce an affidavit confirming their authenticity within ten days. If a satisfactory affidavit is not timely filed, Firstenberg and Grifols may file motions to reconsider the denial of their motions to dismiss.

-3- 13-5, ¶¶ 2-5.) 3

B. The Alleged Contract and Breach

On December 3 , 2008, Halvorsen received an unsolicited email

from Gonzales that listed equipment Firstenberg was selling.

(Compl., Doc. N o . 1-2, ¶ 1 0 ; see also 25 CP’s Objection to

Firstenberg’s Mot. to Dismiss Ex. A , Doc. N o . 16-3, at 3-6.)

Halvorsen wrote back to Gonzales and expressed interest in two

pieces of equipment. (Compl., Doc. N o . 1-2, ¶ 1 1 ; see also

25 CP’s Objection to Firstenberg’s Mot. to Dismiss Ex. A , Doc.

No. 16-3, at 3.) Gonzales responded by providing information on

both pieces. (Compl., Doc. N o . 1-2, ¶ 1 2 ; see also 25 CP’s

Objection to Firstenberg’s Mot. to Dismiss Ex. A , Doc. N o . 16-3,

at 2.) On December 4 , Halvorsen again expressed interest in one

of the two pieces of equipment, the Hull. (Compl., Doc. N o . 1-2,

¶ 13.) In response, Gonzales emailed Halvorsen pictures of and

information about the Hull. (Id.; see also 25 CP’s Objection to

3 Although 25 CP does not explicitly deny that Halvorsen was initially acting as a representative of LSNE, 25 CP appears to contend that 25 C P , and not LSNE, eventually contracted with Firstenberg to buy the Hull. (See Firstenberg Aff. Ex. B , Doc. No. 13-3, at 7-8 (a letter Halvorsen sent to the President of Firstenberg after the alleged breach, noting that “[LSNE is] not a party to the contract [for the Hull] between 25 C P , LLC and Firstenberg Machinery, Co.”).)

-4- Firstenberg’s Mot. to Dismiss Ex. B , Doc. N o . 16-4.)

On December 5 , Gonzales and Halvorsen negotiated a price

over the telephone and Gonzales emailed an invoice to Halvorsen

to confirm the price. (See Compl., Doc. N o . 1-2, ¶¶ 15-16;

25 CP’s Objection to Firstenberg’s Mot. to Dismiss Ex. C , Doc.

No. 16-5, at 2-3.) The invoice noted that the purchaser was

“Lyophilization Services of New England,” or LSNE. (See 25 CP’s

Objection to Firstenberg’s Mot. to Dismiss Ex. C , Doc. N o . 16-5,

at 3.) On December 8 , following additional telephone

conversations, Gonzales emailed Halvorsen an updated invoice.

(Compl., Doc. N o . 1-2, ¶ 17.) The updated invoice differed from

the initial one in that it required “25% [p]ayment with order,”

with the remainder due before shipping, instead of simply

requiring the entire payment before shipping. (Compl., Doc. N o .

1-2, ¶ 1 8 ; see also 25 CP’s Objection to Firstenberg’s Mot. to

Dismiss Ex. C , Doc. N o . 16-5, at 5.) Both invoices noted that

the buyer was responsible for rigging and shipping the unit.

(See Compl., Doc. N o . 1-2, ¶ 1 8 ; 25 CP’s Objection to

Firstenberg’s Mot. to Dismiss Ex. C , Doc. N o , 16-5, at 3 , 5.)

On December 1 0 , Halvorsen sent Gonzales a check for $47,500

(twenty-five percent of the total purchase price), and noted in

-5- an accompanying letter that this check would “confirm the

purchase” of the Hull. (Compl., Doc. N o . 1-2, ¶ 1 9 ; 25 CP’s

Objection to Firstenberg’s Mot. to Dismiss Ex. D, Doc. N o . 16-6.)

The check was drawn on 25 CP’s account at Centrix Bank & Trust,

located in Bedford, New Hampshire, and listed a New Hampshire

address for 25 CP. (See Gonzales Aff. Ex. B., Doc. N o . 13-5, at

9.) Halvorsen requested that the unit be available for shipping

within twenty days of December 1 1 . (See Compl., Doc. N o . 1-2,

¶ 1 9 ; 25 CP’s Objection to Firstenberg’s Mot. to Dismiss Ex. D,

Doc. N o . 16-6.) According to Halvorsen’s bank, Firstenberg

cashed the check on or before December 1 2 . (See Compl., Doc. N o .

1-2, ¶ 20.)

On December 1 6 , Gonzales emailed Karl Miller, whose company

was going to rig the Hull at Halvorsen’s expense, and asked him

to contact Halvorsen, who was copied, directly regarding

shipping. (See Compl., Doc. N o . 1-2, ¶ 2 1 ; 25 CP’s Objection to

Firstenberg’s Mot. to Dismiss Ex. E , Doc. N o . 16-7, at 2.) In

that same email, Gonzales mentioned that he “still [had] not

received a confirmation as to when Grifols [would] have the

utilities disconnected from the machine.” (25 CP’s Objection to

Firstenberg’s Mot. to Dismiss Ex. E , Doc. N o . 16-7, at 2 ; see

-6- also Compl., Doc. N o . 1-2, ¶ 21.) Gonzales also mentioned that

he thought the unit would likely be shipped after January 1 ,

2009. (See 25 CP’s Objection to Firstenberg’s Mot. to Dismiss

Ex. E , Doc. N o . 16-7, at 2-3.) Halvorsen then emailed Gonzales

“expressing a desire to file a UCC notice on the Hull 140.”

(Compl., Doc. N o . 1-2, ¶ 2 3 ; see also 25 CP’s Objection to

Firstenberg’s Mot. to Dismiss Ex. E , Doc. N o . 16-7, at 2.)

Gonzales replied by saying, among other things, that Firstenberg

had received Halvorsen’s deposit and “[would] send out an

agreement by the end of [the] week covering the purchase of the

machine[,] including a refund of the deposit if the purchase

[could not] be concluded.” (25 CP’s Objection to Firstenberg’s

Mot. to Dismiss Ex. E , Doc. N o . 16-7, at 2 ; see also Compl., Doc.

No. 1-2, ¶ 23(a)-(b).)

Finally, on December 1 7 , Gonzales called Halvorsen to

explain that the seller was removing the Hull from the market and

that Halvorsen’s deposit would be returned. (Compl., Doc. N o . 1-

2 , ¶ 24.) 25 CP alleges that “[a]t the time of receipt of the

updated invoice [on December 8 ] , both 25 C P , LLC and Firstenberg

had entered into a valid contract for the sale of the Hull” and

that “[r]eceipt and deposit of the $47,500 deposit check by

Firstenberg made the contract binding and required performance by

-7- both parties[:] tender of the Hull . . . by Firstenberg and

final payment by 25 C P , LLC.” (Id. ¶ 25.) Thus, 25 CP alleges,

Firstenberg breached the contract when it failed to tender the

Hull.

II. STANDARD OF REVIEW

When a defendant contests personal jurisdiction under Rule

12(b)(2), the plaintiff bears the burden of demonstrating a basis

for asserting jurisdiction. Hannon v . Beard,

(1st Cir. 2008), cert. denied, 129 S . C t . 726 (2008). Because I

have not held an evidentiary hearing, 25 CP need only make a

prima facie showing that the court has personal jurisdiction over

Firstenberg and Grifols. See Sawtelle v . Farrell,

,

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

Workers of America v . 163 Pleasant Street Corp.,

9 , 43

(1st Cir. 1993)).

To make a prima facie showing of jurisdiction, a plaintiff

may not rest upon the pleadings. Rather, the plaintiff must

“adduce evidence of specific facts” that support its

jurisdictional claim. See Foster-Miller, Inc. v . Babcock &

Wilcox Canada,

(1st Cir. 1995). I do not act as

a factfinder when considering whether a plaintiff has made a

-8- prima facie showing of personal jurisdiction. Rather, I

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). I may also “add to the mix facts put forward by the

defendants, to the extent that they are uncontradicted.” Mass.

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

6 , 34

(1st Cir. 1998). While the prima facie standard is liberal, and

I construe the facts offered by the plaintiff in the light most

favorable to its claim, I need not “‘credit conclusory

allegations or draw farfetched inferences.’”

(quoting

Ticketmaster-New York, Inc. v . Alioto,

(1st Cir.

1994)).

III. ANALYSIS

Federal Rule of Civil Procedure 4(k)(1)(A) provides that

“[s]erving a summons or filing a waiver of service establishes

personal jurisdiction over a defendant . . . who is subject to

the jurisdiction of a court of general jurisdiction in the state

where the district court is located.” Fed. R. Civ. P.

4(k)(1)(A). Thus, when assessing personal jurisdiction over a

non-resident defendant in a diversity of citizenship case such as

-9- this one, the federal court “‘is the functional equivalent of a

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

(quoting Ticketmaster,

0 4 ) . Because New

Hampshire’s relevant long-arm statute,

-A:15.10, authorizes jurisdiction to the full extent

permitted by the Federal Constitution, the sole inquiry in this

case is “whether the exercise of personal jurisdiction comports

with federal constitutional standards.” Sawtelle,

.

The Fourteenth Amendment’s 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 “constitutional touchstone” for personal

jurisdiction is “whether the defendant purposefully established

‘minimum contacts’ in the forum State.” Burger King Corp. v .

Rudzewicz,

(1985) (quoting Int’l Shoe C o . v .

Washington,

(1945)). 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, 42

-10- F.3d 5 3 , 60 (1st Cir. 1994). A defendant cannot be subjected to

the forum state’s jurisdiction based solely on “random,

fortuitous, or attenuated” contacts. Burger King,

(internal quotations 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 exercise authority over a defendant by means of

either general or specific jurisdiction. Northern Laminate

Sales, Inc. v . Davis,

4 , 24 (1st Cir. 2005). General

jurisdiction exists over a defendant who has maintained

“continuous and systematic” activity in a forum sufficient to

establish jurisdiction in that state over all matters including

matters unrelated to the defendant’s contacts to the forum state.

Id. (citing Phillips Exeter Acad. v . Howard Phillips Fund, Inc.,

(1st Cir. 1999)). In contrast, specific

jurisdiction is narrower in scope and exists only when the cause

of action arises from or relates to the defendant’s contacts with

the forum state.

25 CP argues only that this court should

-11- exercise specific jurisdiction over Firstenberg and Grifols.4 In

the First Circuit, “the constitutional analysis [regarding

specific jurisdiction] is divided into three categories:

relatedness, purposeful availment, and reasonableness.” Phillips

v . Prairie Eye Ctr.,

2 , 27 (1st Cir. 2008), cert.

denied, 129 S . C t . 999 (2008); Daynard v . Ness, Motley, Loadholt,

Richardson & Poole, P.A.,

2 , 60 (1st Cir. 2002). In

order to satisfy its burden and establish personal jurisdiction,

“[t]he plaintiff must demonstrate that each of these three

requirements is satisfied.” Prairie Eye Ctr.,

7 .

In a contract action such as 25 CP’s, the mere existence of

a contractual relationship between an out-of-state defendant and

a forum-state plaintiff is insufficient, in itself, to establish

jurisdiction in the plaintiff’s home forum. See Burger King,

; Phillips Exeter,

; Ganis Corp. of

Cal. v . Jackson,

(1st Cir. 1987); Bond Leather

4 Firstenberg argues in its reply memorandum that 25 CP is essentially asking this court to exercise general jurisdiction over Firstenberg when it argues that Firstenberg’s contacts with LSNE create jurisdiction over Firstenberg in 25 CP’s suit. (See Firstenberg’s Reply to 25 CP’s Objection to Mot. to Dismiss, Doc No. 2 0 , at 2.) Firstenberg mischaracterizes the situation. 25 CP is requesting that this court exercise specific personal jurisdiction on the basis of Firstenberg’s contacts with Halvorsen, who was associated with both 25 CP and LSNE.

-12- Co., Inc. v . Q.T. Shoe Mfg. Co., Inc.,

(1st

Cir. 1985). Under the “contract-plus” analysis adopted by the

Supreme Court in Burger King, the contract between the parties is

merely an intermediate step in an ongoing process. See United

Elec., Radio and Mach. Workers of Am. v . 163 Pleasant Street

Corp.,

, 1090 (1st Cir. 1992) [hereinafter Pleasant

St. I ] (citing Burger King,

7 9 ) , appeal after

remand,

(1st Cir. 1993); Ganis,

(same). Accordingly, to determine whether Firstenberg and

Grifols purposefully established minimum contacts with New

Hampshire, I must evaluate the parties’ “‘prior negotiations and

contemplated future consequences, along with the terms of the

contract and the parties’ actual course of dealing.’” Phillips

Exeter,

(quoting Burger King,

7 9 ) .

Moreover, I must make my assessment of Firstenberg and Grifols’

New Hampshire contacts in light of “all of the communications and

transactions between the parties, before, during and after the

consummation of the contract.” Ganis,

. 5 With

5 Some cases apply the “contract-plus” analysis when evaluating contacts under the relatedness prong. See, e.g., GT Solar Inc. v . Goi,

, 2 7 . Others apply it when discussing the purposeful availment prong. See, e.g., Raymarine, Inc. v . Argonaut Computer, Inc.,

(D.N.H. 2002). I refer to the pre-contract communications between 25 CP and

-13- these principles in mind, I apply the tripartite test for

specific jurisdiction to Firstenberg after briefly introducing

Firstenberg’s arguments against the exercise of specific

jurisdiction. I then discuss whether this court may impute

Firstenberg’s contacts to Grifols for the purpose of exercising

personal jurisdiction over Grifols.

A. Personal Jurisdiction over Firstenberg

Firstenberg essentially argues that any contacts it may have

had with New Hampshire were not “related” to 25 CP’s claims in

this case because those claims arise from a contract Firstenberg

made with LSNE, not 25 CP. Firstenberg, however, does not cite

any authority or reasoned argument in support of the proposition

that a seller is not subject to jurisdiction in a breach of

contract action brought by a buyer where the seller negotiates

with a representative in the forum state (Halvorsen), and

believes he is contracting with one company (LSNE) in the forum

state but gets paid by another company (25 CP) in the forum

state. Thus, the fact that Gonzales thought that his contacts

culminated in a contract with LSNE rather than 25 CP does not

prohibit this court from exercising personal jurisdiction.

Firstenberg in both sections, as they are relevant to both relatedness and purposeful availment.

-14- Instead, if Gonazales’ contacts with Halvorsen meet the three-

pronged First Circuit test, I may assert personal jurisdiction over Firstenberg.6

1. Relatedness

“The evidence produced to support specific jurisdiction must

show that the cause of action either arises directly out o f , or

is related t o , the defendant’s forum-based contacts.” Harlow v .

Children’s Hosp.,

0 , 60-61 (1st Cir. 2005). In a

contract case, the court must consider whether the defendant’s

forum-based activities were instrumental in the formation or

breach of the contract. Phillips Exeter,

; see

also Mass. Sch. of Law,

(formation); Pleasant S t .

I , 960 F.2d at 1089 (same).

6 Firstenberg also argues that LSNE is a required party to this suit under Federal Rule of Civil Procedure 19(a) because “LSNE [was] the only entity with whom FMC was attempting to negotiate the purchase of the Hull.” (See Firstenberg’s Mem. of Law in Supp. of Its Mot. to Dismiss, Doc. N o . 13-2, at 8.) This argument is irrelevant to the question of whether personal jurisdiction exists. Firstenberg may move to add LSNE as a party, or to dismiss 25 CP’s claims, if it believes that these claims have merit. In addition, Firstenberg briefly argues that 25 CP’s claim is barred by the Statute of Frauds because Firstenberg never signed a writing “that constitutes a contract to sell the Hull Freeze Dryer to 25 CP.” (See id. at 1 , 8.) Firstenberg may assert this argument in a motion to dismiss for failure to state a claim, but the argument is irrelevant here.

-15- A determination of relatedness begins with an identification

of all of the defendant’s alleged contacts with the forum state.

United States v . Swiss Am. Bank,

(1st Cir.

2001) (reasoning that there can be “no requisite nexus between

the contacts and the cause of action if no contacts exist”).

Here, Firstenberg is a California corporation with a principal

place of business in Richmond, California. (See Firstenberg’s

Mem. of Law in Supp. of Its Mot. to Dismiss, Doc. N o . 13-2, at

2.) Firstenberg does not maintain a branch office, telephone

listing, or mailing address in New Hampshire, nor does it have

any real or personal property there. (Id.) None of

Firstenberg’s directors, officers, or employees reside, hold

meetings, or attend conferences in New Hampshire. (Id.)

Firstenberg does not advertise in publications that target New

Hampshire consumers. (Id.) Firstenberg does not employ any New

Hampshire residents to market, distribute, or service its

products. (Id.)

Firstenberg did, however, direct multiple communications, by

telephone and email, into New Hampshire through its employee,

Gonzales. Telephone calls and letters clearly constitute

contacts for jurisdictional purposes. See Sawtelle,

; Mass. Sch. of Law,

6 ; Swiss Am. Bank, 274

-16- F.3d at 622. Courts have considered email messages “contacts” as

well. See, e.g., GT Solar Inc., v . Goi,

(D.N.H.

2009); Trade Wings, LLC v . Technetic, Inc.,

(D.N.H. 2002). 7

These telephone and email contacts were instrumental to the

formation of the alleged contract at issue here. On December 3 ,

Gonzales emailed Halvorsen with information about equipment for

sale. (See 25 CP’s Objection to Firstenberg’s Mot. to Dismiss

Ex. A , Doc. N o . 16-3, at 3.) Halvorsen emailed to express

interest in two units and Gonzales replied with more information

on these units. (See id. at 2-3.) The Hull was priced at

$330,000. (See id. at 2.) The next day, after Halvorsen

expressed continued interest in the Hull, Gonzales emailed

7 The First Circuit has noted that “there is a natural blurring of the relatedness and purposeful availment inquiries in cases . . . in which the alleged contacts are less tangible than physical presence,” and that “in such circumstances, an inquiring court must determine the extent to which the defendant directed an out-of-state activity at the forum state in order to ascertain whether the activity can be termed a contact at all.” Phillips Exeter,

. Here, Gonzales called Halvorsen in New Hampshire before sending the first of the emails relevant in this case. (See 25 CP’s Objection to Firstenberg’s Mot. to Dismiss Ex. A , Doc. N o . 16-3, at 3.) I assume that Gonzales called a number with a “603" New Hampshire area code because Firstenberg has not contended otherwise. Thus, I assume that Gonzales knew that Halvorsen was located in New Hampshire when he sent the first email, and that sending the email therefore constitutes a contact.

-17- Halvorsen photographs of the machine and information about its

previous use. (See Compl., Doc. N o . 1-2, § 1 3 ; see also 25 CP’s

Objection to Firstenberg’s Mot. to Dismiss Ex. B , Doc. N o . 16-4.)

On December 5 , after several telephone conversations, Gonzales

emailed Halvorsen an invoice for the Hull, priced at $190,000.

(Compl., Doc. N o . 1-2, § 1 5 ; see also 25 CP’s Objection to

Firstenberg’s Mot. to Dismiss Ex. C , Doc. N o . 16-5, at 2-3.) On

December 8 , following additional telephone conversations,

Gonzales emailed Halvorsen an updated invoice. (Compl., Doc. N o .

1-2, ¶ 17.) The updated invoice differed from the initial one in

that it required “25% [p]ayment with order” instead of simply

requiring the entire payment before shipping. (Compl., Doc. N o .

1-2, ¶ 1 8 ; see also 25 CP’s Objection to Firstenberg’s Mot. to

Dismiss Ex. C , Doc. N o . 16-5, at 5.) On December 1 0 , Halvorsen

sent Gonzales a check for $47,500 from 25 CP that was drawn on a

New Hampshire bank and listed a New Hampshire address for 25 CP.

Clearly, if a contract resulted here, Gonzales’ telephone

calls with and emails to Halvorsen were instrumental in its

formation. Halvorsen became aware that the Hull was available

because Gonzales emailed him. Halvorsen learned the initial

price of the Hull in the same way. All negotiations between

Halvorsen and Gonzales appear to have taken place over the phone,

-18- and all prices and terms were confirmed via email.

Firstenberg correctly points out that it offered the Hull

for sale “as i s , where is,” and if it breached a contract, that

breach would have taken place in California, where it allegedly

accepted payment and then failed to perform. (See Firstenberg’s

Reply to 25 CP’s Objection to Mot. to Dismiss, Doc. N o . 2 0 , at 3-

4 ) ; Phillips Exeter,

(“[A] contract arguably is

breached where a promisor fails to perform.”) That Firstenberg’s

activities in California were instrumental to the alleged breach,

however, does not prevent this court from exercising personal

jurisdiction over him. See Cambridge Literary Props., Ltd. v . W .

Goebel Porzellanfabrik G.m.b.H. & C o . Kg.,

9 , 65 (1st

Cir. 2002) (“That events elsewhere also bear upon the claim . . .

does not negate the existence of minimum . . . contacts related

to the claim.”); Phillips Exeter,

(location of

breach not dispositive). Thus, because Firstenberg’s contacts

with New Hampshire were instrumental to the formation of the

alleged contract, those contacts are sufficiently “related” to

satisfy the first prong of the three-part test.8

8 Firstenberg’s final attack on 25 CP’s “relatedness” argument is misleading and irrelevant. 25 CP cites the Restatement (Third) of Agency § 6.02 (2006) in its discussion of “relatedness” for the proposition that when an agent makes a

-19- 2. Purposeful Availment

Under the second element of the tripartite test, I must

determine whether Firstenberg’s forum-related contacts constitute

a purposeful availment of the privilege of conducting activities

in New Hampshire, thereby invoking the benefits and protections

afforded by New Hampshire’s laws. See Burger King,

; Phillips Exeter,

; Nowak v . Tak How

Investments, Ltd.,

(1st Cir. 1996). The

purposeful availment requirement focuses on “whether a defendant

has ‘engaged in any purposeful activity related to the forum that

contract on behalf of an unidentified principal, the principal, agent, and third party are all generally parties to the contract. (See Mem. of Law in Supp. of Pl.’s Objection to Firstenberg’s Mot. to Dismiss, Doc. N o . 16-2, at 8-9 (asserting that Firstenberg’s contacts with Halvorsen led to a contract between 25 CP (the third party), Grifols (the unidentified principal), and Firstenberg (the agent)).) Firstenberg argues that 25 CP is trying to assert that it was an unidentified principal and LSNE was its agent, and then argues that 25 CP was not “unidentified” because Firstenberg had no notice that 25 CP existed when Firstenberg was negotiating with Halvorsen. (See Firstenberg’s Reply to 25 CP’s Objection to Mot. to Dismiss, Doc. N o . 2 0 , at 4.) 25 C P , however, was not describing itself as the “unidentified principal” in the passage of its objection that Firstenberg cites; rather, it was describing Grifols as the unidentified principal. If there is a principal-agent relationship between 25 CP and LSNE, it appears that it would be one of agent and undisclosed principal because, as Firstenberg points out, Firstenberg had no notice of 25 CP’s existence. See Restatement (Third) of Agency § 1.04 (2006). In any case, the fact that 25 CP was an undisclosed principal has no bearing upon whether this court has personal jurisdiction over Firstenberg.

-20- would make the exercise of jurisdiction fair, just, or

reasonable.’” Sawtelle,

(quoting Rush v .

Savchuk,

(1980)). Its function is to ensure

“that personal jurisdiction is not premised solely upon a

defendant’s ‘random, isolated, or fortuitous’ contacts with the

forum state.”

(quoting Keeton v . Hustler Magazine, Inc.,

, 7 7 4 ) .

Purposeful availment rests on two cornerstones:

voluntariness and foreseeability. See Sawtelle,

-

93. First, the defendant’s contacts with the forum state must be

voluntary. See Nowak,

. This requirement is not

satisfied when those contacts are “based on the unilateral

actions of another party or a third person.”

Here,

Firstenberg claims that its only contacts with 25 CP were based

on 25 CP’s unilateral act of sending Firstenberg a check for the

deposit due on the Hull. (See Firstenberg’s Mem. of Law in Supp.

of Its Mot. to Dismiss, Doc. N o . 13-2, at 7.) This argument is a

red herring. Gonzales emailed Halvorsen, a representative of

LSNE and 25 C P , on multiple occasions. These contacts were not

based on the unilateral actions of 25 CP. Although it is unclear

whether Gonzales or Halvorsen initiated the telephone calls

between the two, Firstenberg does not claim that these

-21- conversations were based on the unilateral actions of 25 CP.

In addition, “[e]ven if a defendant’s contacts with the

forum are deemed voluntary, the purposeful availment prong of the

jurisdictional test investigates whether the defendant benefitted

from those contacts in a way that made jurisdiction foreseeable.”

Phillips Exeter,

(citing Ticketmaster,

). An exercise of personal jurisdiction over a nonresident

defendant is foreseeable, and therefore appropriate, “where the

defendant purposefully derives economic benefits from its forum-

state activities,” Nowak,

, or makes “a purposeful

decision . . . to ‘participate’ in the local economy,” Bond

Leather,

. Similarly, the assertion of

personal jurisdiction over a nonresident defendant is foreseeable

when that defendant has reached out to establish a continuing

relationship or obligation between itself and a resident of the

forum state. See Burger King,

; Sawtelle,

. Here, Firstenberg, through Gonzales, reached out

to a New Hampshire resident in order to derive economic benefit.

Gonzales called and emailed Halvorsen, in New Hampshire, to

solicit business.9 This solicitation led to negotiations and an

9 The First Circuit has noted that it may be difficult to prove “purposeful availment” when the defendant has emailed the

-22- alleged contract to sell the Hull for $190,000, no small sum.

The invoice Gonzales sent Halvorsen to reflect their agreement

included a New Hampshire address for LSNE, the listed buyer.

Thus, even if Firstenberg thought that LSNE was purchasing the

Hull, it should have foreseen that it would be subject to suit in

New Hampshire if it breached the alleged contract.

3. Reasonableness

I must consider the reasonableness of the exercise of

jurisdiction over Firstenberg in light of certain gestalt

factors. Daynard,

2 .

These gestalt factors 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 effective relief; [4] the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and [5] the shared interest of the several States in furthering fundamental substantive social policies.

Northern Laminate, 403 F.3d at 26 (citing Burger King,

7 7 ) . “The gestalt factors rarely seem to preclude

jurisdiction where relevant minimum contacts exist,” Cambridge

forum state because, unlike a letter, an email requires no physical address. See Prairie Eye Ctr.,

n.3. The fact that Gonzales called Halvorsen in New Hampshire before emailing him, presumably at a number with a “603" area code, shows that Gonzales knew that he was emailing an individual in New Hampshire. (See 25 CP’s Objection to Firstenberg’s Mot. to Dismiss Ex. A , Doc. N o . 16-3, at 3.)

-23- Literary Props.,

6 , and this case is no exception.

As to the first factor, it is clearly more burdensome for

Firstenberg to appear in New Hampshire than to appear in

California. However, this factor “is only meaningful where a

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

Pritzker, 42 F.3d at 6 4 . Firstenberg has demonstrated no such

burden.

The second and third factors weigh in favor of exercising

jurisdiction over Firstenberg. “The purpose of the inquiry

[regarding the second factor] 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.” Foster-Miller,

. New Hampshire clearly has an interest in protecting

its businesses from breaches of contract. Analyzing the third

factor requires according 25 CP’s choice of forum a degree of

deference.

25 CP’s interest in obtaining convenient and

effective relief is clearly better served by allowing the company

to sue in New Hampshire, where it is located.10

10 Firstenberg argues that the third factor weighs against exercising jurisdiction because 25 CP cannot “obtain convenient and effective relief” in New Hampshire because it cannot obtain effective relief anywhere. (See Firstenberg’s Mem. of Law in Supp. of Its Mot. to Dismiss, Doc. N o . 13-2, at 7-9.) Firstenberg notes that 25 CP must be seeking to enforce either a

-24- The fourth factor “usually . . . is a wash,” Nowak,

, and that is the case here. The interstate judicial

system’s interest in promoting an efficient administration of

justice will be equally well satisfied in California or New

Hampshire, as parties and potential witnesses are located in both

states.

The fifth factor “addresses the interests of the affected

governments in substantive social policies.” Nowak,

. New Hampshire has an interest in protecting its businesses

from breaches of contract and in providing a convenient forum for

addressing such breaches, but California has an interest in

providing its businesses with a convenient forum for defending

themselves against potentially false allegations. Thus, this

factor favors neither party. See

(considering both

plaintiffs’ government’s interest in protecting its citizens and

defendant’s government’s interest in protecting its

contract between itself and FMC or a contract between LSNE and FMC. (See id. at 8.) If the former, Firstenberg argues that 25 CP will be unsuccessful because Firstenberg lacks the necessary contacts with 25 CP in New Hampshire. (See id.) This argument is repetitive and unpersuasive. If the latter, Firstenberg argues that 25 CP cannot obtain effective relief because Firstenberg does not own or possess the machine 25 CP wishes to buy. (Id.) This argument may be relevant to the merits of the case, but it has no bearing on the personal jurisdiction analysis.

-25- businesses).11

Jurisdiction over Firstenberg in New Hampshire is certainly

reasonable. Accordingly, I conclude that subjecting Firstenberg

to jurisdiction of the courts in New Hampshire would not violate

the Due Process Clause of the Constitution.12

B. Personal Jurisdiction over Grifols

Grifols argues that it was not involved in the contract

between Firstenberg and either LSNE or 25 C P , and thus has no

relevant contacts with New Hampshire. 25 CP counters that

Grifols, the owner of the Hull, was a principal who used

Firstenberg as an agent to sell its used equipment. Thus, 25 CP

argues, this court may impute Firstenberg’s contacts to Grifols

for the purposes of personal jurisdiction.

“Under basic principles of agency law, forum-related

11 New Hampshire may have a stronger interest here because 25 CP is the alleged victim. See Trade Wings,

(“[The plaintiff’s] claimed injury implicates the public policy favoring the prevention of unfair or deceptive acts in business transactions. New Hampshire has the strongest interest in this public policy because its citizen is the alleged victim of [such practices here].”). Regardless, it is still reasonable to exercise personal jurisdiction over Firstenberg. 12 Firstenberg has requested an oral argument. (See Firstenberg’s Mot. to Dismiss, Doc. N o . 1 3 , at 2.) I deny this request because the facts and law are sufficiently clear and oral argument would serve no useful purpose.

-26- contacts made by an agent acting within the scope of an agency

relationship are attributable to the principal.” Dagesse v .

Plant Hotel N.V.,

, 216 n.2 (D.N.H. 2000); see

also Sawtelle,

n.4; Daynard,

5 .

Consignees are generally considered agents. See Restatement

(Third) of Agency § 6.02, cmt. d (2006) (“A consignment of goods

creates an agency relationship between the consignor and the

consignee. The consignee has power to sell the goods on behalf

of the consignor, who retains title to them.”); see also Rogers

v . U.S. Rubber Co.,

(N.H. 1941) (“The very term

[“consignment”] imports an agency.”) (internal quotation

omitted). Although it is conceivable that the consignor-

consignee relationship might be treated differently than the

general principal-agent relationship for the purposes of personal

jurisdiction, Grifols has cited no case law, and I have found none, to support that proposition.13

13 I also note that “[t]he exact type of agency relationship used to impute contacts is not crucial to [my] inquiry regarding traditional notions of fair play and substantial justice.” Jet Wine & Spirits, Inc. v . Bacardi & Co.,

, 7 (1st Cir. 2002). “‘[T]he [relevant] question . . . is whether a sufficient relationship exists under the Due Process Clause to permit the exercise of jurisdiction, not whether a partnership, joint venture, or other particular agency relationship between the two defendants exists.’”).

at 8 (quoting Daynard,

.)

-27- 25 C P , on the other hand, cites Camar Corp. v . N.R.

Acquisition Corp., N o . 96-40095-NMG,

(D. Mass.

Mar. 1 1 , 1997), which, although not perfectly analogous, supports

the proposition that Firstenberg’s contacts may be imputed to

Grifols. In Camar, a party that admitted to being an agent, see

at * 4 , dismantled an aircraft carrier for a principal and

sold the aircraft’s metal and equipment on behalf of the

principal, who held title to the items from the carrier and was

entitled to certain payments from sales, see

at * 1 . This

relationship is similar to the relationship that 25 CP alleges

existed between Grifols and Firstenberg because Firstenberg

facilitated the sale of the Hull while Grifols (presumably)

retained title to the Hull. (See Mem. of Law in Supp. of Pl.’s

Objection to Grifols’ Mot. to Dismiss for Lack of Personal

Jurisdiction, Doc. N o . 17-2, at 7.) In Camar, the court noted

that “[t]he contacts of [the dismantler and seller of parts] are

attributable to [the principal] because ‘the contacts of a

corporation’s agent can subject the corporation to personal

jurisdiction.’”

at *4 n.1 (citing Pleasant S t . I , 960 F.2d

at 1090). Camar thus suggests that the type of agency

relationship that allegedly exists between Firstenberg and

-28- Grifols is one in which it is appropriate for a court to impute

contacts from the agent to the principal, as long as the agent is

acting within the scope of its agency, which Firstenberg clearly

would have been when advertising and contracting to sell the

Hull. Therefore, I assume that Firstenberg’s contacts with

Halvorsen may be imputed to Grifols, and thus that I may exercise

personal jurisdiction over Grifols, if Firstenberg is Grifols’

agent.

Even crediting all of 25 CP’s non-conclusory allegations as

true, which I must under the prima facie standard, 25 CP has not

proffered sufficient evidence regarding Grifols’ status as a

principal to support personal jurisdiction. 25 CP’s evidence

does, however, suggest that, if provided time for jurisdictional

discovery, it could proffer sufficient evidence that Grifols and

Firstenberg are in a principal-agent relationship. 25 CP has

provided evidence that Firstenberg is in the business of

“sell[ing] . . . surplus equipment on consignment.” (See Pl.’s

Objection to Grifols’ Mot. to Dismiss for Lack of Personal

Jurisdiction Ex. F., Doc. N o . 17-8.) When Gonzales emailed a

shipping company about Halvorsen’s order, his email noted that he

“still [had] not received a confirmation as to when Grifols

-29- [would] have the utilities disconnected from the machine.” (See

Pl.’s Objection to Grifols’ Mot. to Dismiss for Lack of Personal

Jurisdiction Ex. E . , Doc. N o . 17-8, at 2 (emphasis added).)

Because Grifols is “a biomedical research and development

institute” (Compl., Doc. N o . 1-2, ¶ 8 ) , and not in the utilities

or moving business, this email suggests both that Grifols was the

owner of the Hull, and that it had a principal-agent relationship

with Firstenberg.

In a case like this one, where the plaintiff has “[made] out

a colorable case for the existence of in personam jurisdiction,”

Negrón-Torres v . Verizon Commc’ns, Inc.,

9 , 27 (1st

Cir. 2007), the facts supporting the existence of personal

jurisdiction are in the hands of the defendant, and the defendant

does not deny the relevant jurisdictional facts, jurisdictional

discovery is appropriate.14 Thus, I will allow 25 CP sixty days

14 Though 25 CP has not requested jurisdictional discovery, I assume that it would prefer for me to consider providing time for jurisdictional discovery rather than dismissing its claims against Grifols outright. I have the authority to order jurisdictional discovery sua sponte. See Hatfill v . Foster,

(S.D.N.Y. 2006) (noting that the court had previously sua sponte ordered fifteen days of jurisdictional discovery where “it seemed that misrepresentations might have been made to [the] court”); Am. Color Graphics v . Brooks Pharm., Inc., N o . 8:05-CV-1512-T-27TBM,

, *4 (M.D. Fla. Oct. 2 9 , 2007) (noting that “[t]his Court is not obliged to sua

-30- for jurisdictional discovery to adduce evidence that a principal-

agent relationship existed between Grifols and Firstenberg.15

Grifols makes two other unpersuasive arguments. First,

Grifols mischaracterizes 25 CP’s argument by implying that 25 CP

is asking this court to “subscribe to” an improper “transitive

view of minimum contacts, which would hold that a letter from A

to B that reports on C’s actions confers personal jurisdiction

over C in B’s home state.” (See Mem. of Law in Supp. of Grifols’

Mot. to Dismiss for Lack of Personal Jurisdiction, Doc. N o . 14-2,

at 9 n.7 (quoting Mass. Sch. of Law,

).) 25 C P ,

however, is not suggesting that this court should exercise

jurisdiction over Grifols because Firstenberg wrote a letter to

25 CP regarding Grifols’ activities. Rather, 25 CP correctly

argues that this court may exercise jurisdiction over Grifols

because Firstenberg contacted 25 CP in New Hampshire on Grifols’

behalf, as Grifols’ agent.

In addition, Grifols misconstrues Daynard v . Ness, a First

sponte order discovery,” and thus implying that it may do s o ) . 15 Following jurisdictional discovery, Grifols may file a motion to reinstate its motion to dismiss. If Grifols files such a motion, this court will establish a schedule for further status conferences and briefing.

-31- Circuit case discussing imputation of contacts for the purposes

of personal of jurisdiction. There, the court explained that

“[w]hether or not an agent is initially authorized to act on

behalf of a principal, the agent’s actions may be attributed to

the principal, for purposes of personal jurisdiction, if the

principal later ratifies the agent’s conduct.”

5 .

Grifols argues that because there is no evidence that Grifols

ratified Firstenberg’s actions, Firstenberg’s contacts may not be

imputed to Grifols. This interpretation misreads Daynard, which

requires either proof of initial authority to act or later

ratification. Here, I need not consider ratification, because

Firstenberg, if it was a consignee for Grifols, had the authority

to communicate with customers on behalf of Grifols.

IV. CONCLUSION

For all of the foregoing reasons, I deny Firstenberg’s

motion to dismiss (Doc. N o . 1 3 ) . Grifols’ motion to dismiss

(Doc. N o . 14) is denied without prejudice to its right to seek

reinstatement after the plaintiff has had an opportunity to

conduct jurisdictional discovery. The court grants the

plaintiffs sixty days to conduct limited discovery, restricted to

-32- specific facts that bear on the issues of agency and personal

jurisdiction.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 8 , 2009

cc: Michael R. Callahan, Esq. Thomas H. Good, Esq. Gordon J. MacDonald, Esq. Erik Graham Moskowitz, Esq. William B . Pribis, Esq. David G. Thomas, Esq.

-33-