Bruns v . Fryeburg, Maine 11-CV-183-SM 10/20/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Timothy Bruns, Plaintiff

v. Case N o . 11-cv-183-SM Opinion N o .

Town of Fryeburg, Maine, Defendant

O R D E R

Plaintiff, Timothy Bruns, filed a negligence suit in New

Hampshire Superior Court against the Town of Fryeburg, Maine

(“Town”). He seeks damages for injuries suffered in an accident

at the Town’s transfer station. The Town timely removed the case

to this court (document n o . 1 ) , and now moves to dismiss the

complaint for lack of personal jurisdiction (document n o . 7 ) .

Plaintiff objects.

The parties have submitted documents, answers to

interrogatories, and affidavits in support of their respective

positions on the motion to dismiss. Where, as here, the court

resolves the motion to dismiss for lack of jurisdiction without

holding an evidentiary hearing, the “prima facie” standard

applies. See Sawtelle v . Farrell,

, 1386 n.1 (1st

Cir. 1995). “Under this standard, it is plaintiff’s burden to

demonstrate the existence of ‘every fact required to satisfy both

the forum’s long-arm statute and the [D]ue [P]rocess [C]lause of the Constitution.’” United Elec. Radio and Mach. Workers of

America (UE) v . 163 Pleasant Street Corp.,

9 , 44 (1st

Cir. 1993) (citations omitted).

Crediting the allegations in the complaint, it appears that,

in 2007, the Town entered into a contract with North Conway

Incinerator Services, Inc. (“NCIS”) for trash removal and

disposal. NCIS is a New Hampshire corporation whose principal

place of business is in Center Conway, New Hampshire. Under the

contract, NCIS collected trash from the Town’s transfer station

in Fryeburg, Maine, and transported it to a landfill site in

Berlin, New Hampshire. Bruns was employed by NCIS, and his

duties included traveling from New Hampshire to the Town’s

transfer station in Maine and hauling trash back to the New

Hampshire landfill. Bruns alleges that during one of his visits

to the transfer station in 2010 he fell while attempting to

release the turnbuckles on a trash compactor can. He alleges

that the accident happened as a result of the Town’s failure to

properly secure the can and maintain the area adjacent to the can

in a safe and reasonable manner.

Bruns asserts that this court may exercise either general or

specific personal jurisdiction over the Town.

2 Specific Jurisdiction

A court may exercise specific jurisdiction when the cause of

action arises directly out o f , or relates t o , the defendant's

forum-based contacts.

at 43 n.9. Whether specific personal

jurisdiction over a defendant may be exercised is generally

determined by applying a three-part test. First, the claim

underlying the litigation must directly arise out o f , or relate

t o , the defendant's forum state activities. Second, the

defendant's in-state contacts must represent a purposeful

availment of the privilege of conducting activities in the forum

state, thereby invoking the benefits and protections of that

state's laws and making the defendant's involuntary presence

before the state's courts foreseeable. Third, the exercise of

jurisdiction must be reasonable, in light of what are known as

the “gestalt factors.” United Elec., Radio & Mach. Workers of

America v . 163 Pleasant S t . Corp.,

, 1089 (1st Cir.

1992). An affirmative finding as to each of those three elements

— relatedness, purposeful availment, and reasonableness — is

necessary to support the exercise of personal jurisdiction. See

Phillips Exeter Acad. v . Howard Phillips Fund, Inc.,

(1st Cir. 1999).

In all cases, a court must begin its relatedness inquiry “by

identifying the alleged contacts, since there can be no requisite

nexus between the contacts and the cause of action if no contacts

3 exist.” United States v . Swiss Am. Bank, Ltd.,

(1st Cir. 2001). Here, Bruns identifies as forum contacts (1)

the Town’s contractual agreement with a New Hampshire company

(not his employer) for the installation, repair, and maintenance

of the trash compactor located at the Town’s transfer station;

(2) its disposal of waste in New Hampshire pursuant to its

contract with AVRRDD; and (3) the Town’s waste hauling contract

with his employer, NCIS.

Bruns’s assertion of specific personal jurisdiction fails,

however, because he has not shown that his personal negligence

claim directly “arise[s] from or relate[s] to” any of those

contacts. In this circuit, the “relatedness” prong of the

jurisdictional inquiry requires “a connection of proximate cause

between the defendant’s contacts and the plaintiff’s claim.”

Dagesse v . Plant Hotel N.V.,

(D.N.H.

2000) (Barbadoro, J.) (citing Nowak v . Tak How Invs., Ltd.,

(1st Cir. 1996)). “[P]roximate or legal cause

clearly distinguishes between foreseeable and unforeseeable risks

of harm,” and “[f]oreseeability is a critical component in the

due process inquiry . . . .” Nowak,

. Here, none

of the Town’s agreements with New Hampshire companies relating to

waste disposal proximately caused plaintiff’s personal injuries.

Broadly speaking, those New Hampshire contacts might be described

as “but for” causes, in the sense that absent the installation of

4 equipment at the facility and absent the hauling contract, Bruns

would not have been at the Town’s transfer station to collect the

Town’s waste, and would not have been injured. But those types

of loosely related contacts and “but for” causation are

insufficiently “related” t o , and are far too indirect to support

the exercise of specific personal jurisdiction.

In short, none of the Town’s contacts with this forum are

sufficiently related to Bruns’s injury, and none constitute a

“material . . . element of proof” with respect to Bruns’s

negligence claim.

(quotation omitted). Indeed, Bruns’s

complaint discloses that his negligence claim against the Town is

not causally related to the contract between the Town and his

employer at all. The complaint mentions neither the contract

with NCIS nor Bruns’s status as an employee of NCIS, but relies

exclusively on the Town’s alleged breach of its independent duty

as landowner to maintain its premises in a safe condition.

Although it appears from the Town’s answers to interrogatories

that the Town seeks to hold NCIS accountable under the hauling

contract for the proper maintenance of grounds at the transfer

station, that position is best described as a potential claim for

indemnity or contribution, but is not pertinent to Bruns’s

negligence claim against the Town.

5 Bruns appears to concede as much. Nevertheless, relying on

Nowak, he asks this court to reject the proximate cause standard

in favor of a looser causation standard, under which the

relatedness test is met by the “meaningful link” between the

Town’s forum contacts and the “harm suffered.”

. In

Nowak, the plaintiff’s wife drowned in the swimming pool of a

Hong Kong hotel. Plaintiff brought a wrongful death action in

Massachusetts against the foreign corporation that owned the

hotel. The defendant’s contacts with Massachusetts consisted of

a series of communications with plaintiff’s employer designed to

solicit the employer’s use of the hotel.

. The

court of appeals recognized that the foreign defendant’s contacts

with Massachusetts did not proximately cause plaintiff’s wife’s

death.

. It held, however, that defendant’s forum

contacts were sufficiently “related” to the claim because the

contacts and the claim were “meaningful[ly] link[ed].”

The

court emphasized, however, that this looser standard was a

“narrow exception” to the proximate cause standard, and that it

would apply only where “circumstances dictate.”

The court

found that the circumstances before it in Nowak — the “direct

[. . . ] target[ing]” of forum residents by a “foreign

corporation” in an “ongoing effort to further a business

relationship” — warranted application of the looser standard in

that case.

.

6 Bruns has not shown that in this case the “circumstances

dictate” deviation from the usual proximate cause standard.

Although the defendant here, as in Nowak, had an ongoing business

relationship with a forum corporation, and “but for” that

relationship Bruns would not have traveled to Maine, the

circumstances here are quite different in several respects 1 , at

least one of which is critical. The tort in this case occurred

in a sister state and the defendant is a municipal corporation of

that state. Maine’s sovereignty interests, therefore, are

strong. The Supreme Court recently reaffirmed that personal

jurisdiction doctrine rests, in part, on proper concern for the

sovereign interests of co-equal states. See J. McIntyre Mach.,

Ltd. v . Nicastro, __ U.S. __, 131 S . C t . 2780, 2789 (2011)

(plurality decision).

Accordingly, because in this case the alleged tort occurred

and the injury was suffered in a sister state — a circumstance

not present in Nowak — this court is obliged to consider “the

federal balance, which posits that each State has a sovereignty

that is not subject to unlawful intrusion by other States.”

Application of the usual proximate cause standard under these

circumstances not only promotes “foreseeability” values, as

1 E.g., plaintiff here, unlike the plaintiff in Nowak, is not faced with the troubling prospect of having no domestic forum to hear his claim absent the exercise of personal jurisdiction over a foreign defendant.

7 recognized in Nowak, but also protects the federal balance and

Maine’s own sovereign interests. As noted, Maine’s interest in

the litigation is strong: the alleged breach of duty occurred in

Maine; the injury was suffered in Maine; the defendant is a Maine

municipality; and the dispositive legal issues involve

interpretation and application of Maine’s Tort Claims Act — tasks

appropriately undertaken by Maine’s courts. See Harlow v .

Children’s Hosp.,

0 , 67 (1st Cir. 2005) (finding non-

forum state’s “interest as a sovereign” was strong where alleged

medical malpractice occurred “within its borders,” and its laws

would “govern th[e] dispute.”) On the other hand, New

Hampshire’s interest in the litigation “is diminished [because]

the injury occurred outside” its borders.

In this circuit

the proximate cause standard applies in all but the narrowest of

circumstances, and Bruns has not shown that a departure from its

application is warranted.2

For these reasons, plaintiff has not made the necessary

prima facie showing of specific personal jurisdiction.

2 Were the court to apply the looser causation standard Bruns advocates, the outcome would probably be the same. Maine’s important sovereign interests would render a finding of “reasonableness” on the third-prong unlikely. See Harlow,

(finding exercise of jurisdiction would be unreasonable in light of non-forum state’s sovereignty interests).

8 General Jurisdiction

“General jurisdiction may be found in the absence of a

relationship between a nonresident defendant’s contacts with the

forum and the cause of action where the defendant engages in the

‘continuous and systematic’ pursuit of general business

activities in the forum state.” Glater v . Eli Lilly & Co.,

(1st Cir. 1984). “Although minimum contacts

suffice in and of themselves for specific jurisdiction ..., the

standard for general jurisdiction is considerably more

stringent.”

Bruns argues that this court’s exercise of general

jurisdiction is appropriate because (1) the Town is a member of

the Mount Washington Valley Chamber of Commerce and the Mount

Washington Valley Economic Council, both of which promote

business and tourism in the region, and are headquartered in New

Hampshire; (2) has, within the last five years, entered into

contracts with four other New Hampshire businesses besides NCIS,

for paving, engineering and cable services received in Maine; (3)

occasionally advertised bid proposal requests in a New Hampshire

newspaper; (4) participates with other regional municipalities in

a “Mutual Aid Agreement” with eight New Hampshire fire districts

for assistance in putting out fires; and (5) 172 New Hampshire

businesses and individuals have served as “vendors” to the Town

within the past five years. None of these contacts, however, are

9 systematic and continuous in the sense that, through them, the

Town has established a “business presence” in New Hampshire.

Moldflow Corp. v . Simcon, Inc.,

4 , 40 (D. Mass.

2003) (where defendant had no “offices, representatives, realty,

personalty, bank accounts, or any other presence in

Massachusetts,” its sales and marketing efforts in Massachusetts

did not “constitute a ‘continuous and systematic’ business

presence” in the forum); LTX Corp. v . Daewoo Corp.,

1 , 58 (D. Mass. 1997) (finding defendant’s contacts with forum

businesses, including contracts with forum manufacturers, did not

evidence a “business presence” in the forum state).

While the Town’s asserted relationship with 172 New

Hampshire vendors over a five year period might suggest a

continuous and systematic business presence in this state, the

record is undeveloped. The transactions referenced in a

“Vendor’s List” filed by Bruns may have consisted of little more

than the purchase of goods or services in Maine from New

Hampshire suppliers. See document n o . 13-1, Ex. P, “Vendor List”

(internet services; flowers). Many of the entries also suggest

that the Town shopped at local stores across the border. See

(North Conway Hannaford; Anthony Walker’s Bike Shop in North

Conway; Center Conway Auto Repair). Procuring goods and services

across state borders is not the type of activity that will

subject a party to the general jurisdiction of a state. Cf.

10 Access Telecomm., Inc. v . MCI Telecomm. Corp.,

(5th Cir. 1999) (holding that, despite defendant’s numerous

cross-border business dealings with Texas companies, contacts

were not continuous and systematic for purposes of general

jurisdiction because “doing business with Texas” was not the same

as “doing business in Texas.”) (emphasis in original).

Although the Town’s contacts with New Hampshire are said to

be numerous, they are not contacts of the type that amount to

“continuous and systematic” contacts sufficient to subject the

Town to the exercise of general jurisdiction over it in this

state. See e.g., Helicopteros Nacionales de Colombia, S . A . v .

Hall,

(1984) (finding defendant corporation’s

contacts with the forum state were not “continuous and

systematic” even where corporate officer was physically present

in the forum for contract negotiations and corporation regularly

purchased equipment and training services in the forum); see also

Glater,

(finding contacts with New Hampshire

were not continuous and systematic even though defendant

advertised its products in New Hampshire and employed eight sales

representatives within the state, three of whom were residents).

Here, the record does not suggest that the Town’s “activities

manifest an intention to submit to the power of a sovereign” that

i s , that the Town “purposely avail[ed] itself of the privilege of

conducting activities within the forum state, thus invoking the

11 benefit and protection of its laws.” McIntyre, 131 S . C t . at

2788 (citations omitted).

The Town is not subject to the exercise of general personal

jurisdiction in this forum.

Conclusion

The defendant’s motion to dismiss for lack of personal

jurisdiction (document n o . 7 ) is granted. The case is dismissed

without prejudice.

SO ORDERED.

October 2 0 , 2011

cc: Christopher E . Grant, Esq. Susan A . Lowry, Esq. Michael E . Saucier, Esq. Mark V. Franco, Esq.

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