UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bernard E. Bulwer, M.D.

v. Civil No. 1:13-cv-521-LM Opinion No.

Massachusetts College of Pharmacy and Health Sciences

O R D E R

Bernard Bulwer, M.D. brought suit against Massachusetts

College of Pharmacy and Health Sciences (the “College”), asserting

claims for copyright infringement, conversion and

misappropriation, and unjust enrichment. The College moves to

dismiss the complaint pursuant to Federal Rule of Civil Procedure

12(b)(2), claiming that the court lacks personal jurisdiction over

it. Bulwer objects to the motion.

Standard of Review

When personal jurisdiction is contested, the plaintiff bears

the burden of establishing that the court has such jurisdiction.

See Sawtelle v. Farrell,

(1st Cir. 1995).

Allegations of jurisdictional facts are construed in the

plaintiff’s favor, see Buckley v. Bourdon,

(D.N.H. 1988), and if, as here, the court proceeds based upon the

written submissions of the parties without an evidentiary hearing, the plaintiff need only make a prima facie showing that

jurisdiction exists, see Kowalski v. Doherty, Wallace, Pillsbury &

Murphy,

(1st Cir. 1986); see also Boit v. Gar-Tec

Prods., Inc.,

(1st Cir. 1992).

“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.” Dagesse

v. Plant Hotel N.V.,

(D.N.H. 2000)

(quoting Forest-Miller, Inc. v. Babcock & Wilcox Canada,

(1st Cir. 1995)); see also GE Mobile Water, Inc. v. Red

Desert Reclamation, LLC, No. 13-cv-357-PB,

, at *2

(D.N.H. Mar. 7, 2014). The court is tasked with determining

“whether the facts duly proffered, [when] fully credited, support

the exercise of personal jurisdiction.” Rodriguez v. Fullerton

Tires Corp.,

(1st Cir. 1997) (citing Boit,

). The court may also consider facts offered by the

defendants, but only to the extent they are uncontradicted.

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

(1st Cir. 1998).

2 Background1

The College is a nonprofit college incorporated in

Massachusetts. The College has three campuses: two are located

in Massachusetts (Boston and Worcester), and one is located in

New Hampshire (Manchester). In addition, the College offers

courses online. The majority of the College’s students take

courses on the Boston campus, which is the College’s main campus.

In February of 2012, the College hired Bernard Bulwer, M.D.,

a citizen of Belize, as the “Program Director and Associate

Professor of its Diagnostic Medical Sonography Program -

Cardiovascular Track (Echocardiography).” Compl. ¶ 19. Bulwer

is “the registered author and owner of over 4,230 copyrighted

medical illustrations and images . . . .” Id. ¶ 11. Bulwer’s

illustrations and images were created and copyrighted prior to

his employment with the College.

Bulwer alleges that he used his copyrighted material in

preparing coursework and lecture materials for the Diagnostic

Medical Sonography (“DMS”) program. In January of 2013, less

than a year after he was hired, Bulwer was informed via letter

written by the interim dean of the school, Douglas Pisano, that

he would be terminated, effective June 30, 2013. The letter

1 The background is taken from the allegations in the complaint, the facts offered by Bulwer in support of personal jurisdiction, and the uncontradicted facts offered by the College in its motion to dismiss.

3 contained directives concerning Bulwer’s teaching schedule and

course development for the DMS program until his effective

termination date. Bulwer’s appeal of the termination decision

was denied by the College’s Provost, Dr. George Humphrey, on

February 12, 2013.

Until his effective termination date, Bulwer continued to

assist in creating materials for the DMS program as he was

directed to do by Pisano’s letter. In April of 2013, at the

College’s request, Bulwer provided the College materials for

echocardiography courses in PowerPoint format. Bulwer alleges

that the PowerPoint materials, as well as much of the coursework

provided to the College, contained his copyrighted work. He also

alleges that the College distributed and advertised his

copyrighted work after his termination in order to promote the

DMS program, and that it continues to use his work in its DMS

courses.

Following his termination, Bulwer’s visa expired and he was

forced to leave the United States. He currently resides in

Belize.

Discussion

The College argues that Bulwer has failed to plead facts

sufficient to establish that the court has personal jurisdiction

over the College. The College contends that the court does not

4 have specific jurisdiction over it because Bulwer’s claims do not

arise from any of the College’s contacts with New Hampshire. The

College also argues that the court does not have general

jurisdiction over it because the College’s contacts with New

Hampshire are limited. In response, Bulwer contends that the

College’s contacts with New Hampshire are sufficient for the court

to exercise both specific and general jurisdiction.

“Personal jurisdiction implicates the power of a court over a

defendant. In a federal court, both its source and its outer

limits are defined exclusively by the Constitution.” Forest-

Miller,

. “[D]ifferent constitutional amendments

control personal jurisdiction, depending on the basis for federal

subject-matter jurisdiction.” PFIP, LLC v. You-Fit, Inc., No. 08-

271-JL,

, at *10 (D.N.H. Apr. 27, 2009). “In

general, state actors are subject to the Fourteenth Amendment’s

Due Process Clause and federal actors are governed by the Fifth

Amendment’s counterpart provision.” Automated Facilities Mgmt.

Corp. v. Smartware Grp., Inc., No. 12-cv-327-PB,

,

at *2 (D.N.H. Oct. 21, 2013) (citing Malloy v. Hogan,

(1964)). “If jurisdiction is determined under the Fourteenth

Amendment, the defendant’s contacts with the state in which the

court sits will determine whether due process has been satisfied,

but if jurisdiction is determined under the Fifth Amendment, a

defendant’s contacts with the United States as a whole will

5 ordinarily be dispositive.”

(citing United States v. Swiss

Am. Bank, Ltd.,

(1st Cir. 2001)).

In a case where, as here, a plaintiff’s federal claim arises

under a statute that does not provide for nationwide service of

process on defendants,2 “that distinction is largely academic.”

PFIP,

, at *11. In such a case, “to bring the

defendant[] within the jurisdiction of this court, [the

defendant] must be served under Rule 4(k)(1) of the Federal Rules

of Civil Procedure, which, in relevant part, [provides that a

federal district court will have personal jurisdiction over a

defendant] only to the extent permitted by the law of the state

in which the district court sits.”

(internal quotation marks

and citations omitted). The proper inquiry is, therefore,

whether the exercise of jurisdiction is sanctioned by the long-

arm statute of the forum state and comports with due process

requirements of the Constitution. See Hannon v. Beard,

(1st Cir. 2008).

The New Hampshire long-arm statute,

(2013), “extends the jurisdiction of the New Hampshire

courts as far as the due process clause of the Fourteenth

Amendment allows.” PFIP,

, at *11; see also

2 Bulwer’s only federal claim is for copyright infringement under

, et seq. That statute does not provide for nationwide service of process. See, e.g, Walker v. Concoby,

, 829 n.1 (N.D. Ohio 1999).

6 Kimball Union Acad. v. Genovesi,

(2013). Thus,

the court employs a “constitutional analysis, which requires

‘sufficient minimum contacts with the state, such that

maintenance of the suit does not offend traditional notions of

fair play and substantial justice.’” GE Mobile Water,

, at *2 (quoting Adelson v. Hananel,

(1st

Cir. 2007)).

A court may exercise either specific or general personal

jurisdiction based on the nature of the defendant’s contacts with

the forum state. Carreras v. PMG Collins, LLC,

(1st Cir. 2011); N. Laminate Sales, Inc. v. David,

(1st Cir. 2005). Bulwer argues that the court may exercise

both specific and general personal jurisdiction over the College.

The College contends that neither applies.

A. Specific Jurisdiction

“Specific jurisdiction exists when there is a demonstrable

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

activities.” Swiss Am. Bank,

(internal quotation

marks and citations omitted). In other words, specific

jurisdiction “may only be relied upon where the cause of action

arises directly out of, or relates to, the defendant’s forum-

based contacts.” Cossaboon v. Me. Med. Ctr.,

(1st Cir. 2010); see also Bluetarp Fin., Inc. v. Matrix Const.

7 Co.,

(1st Cir. 2013). The First Circuit has set

forth three factors that apply when analyzing whether specific

jurisdiction exists: “relatedness, purposeful availment, and

reasonableness.” Phillips v. Prairie Eve Ctr.,

(1st Cir. 2008); see also Adelson,

. An

“affirmative finding on each of the three elements of the test is

required to support a finding of specific jurisdiction.”

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

(1st Cir. 1999).3

“In the First Circuit, to determine whether a plaintiff’s

tort claim meets the relatedness prong, [the court] ask[s]

whether ‘the injury would not have occurred but for the

defendant’s forum activity’ (cause in fact) and whether ‘the

defendant’s in-state conduct gave birth to the cause of action’

(proximate cause).” Sarah’s Hat Boxes, L.L.C. v. Patch Me Up,

L.L.C., 12-cv-399-PB,

, at *5 (D.N.H. Apr. 12,

2013) (quoting Mass. Sch. of Law,

). The

defendant’s contacts with the forum state “must form an

important, or at least material, element of proof in the

3 The parties do not discuss personal jurisdiction with regard to each claim, but instead discuss it with regard to the claims collectively. Because Bulwer’s state-law claims and his copyright infringement claim arise out of the same common nucleus of facts, the court will analyze the claims together. See Scotch Road Trust, LLC v. GF Princeton, LLC, No. 11-7743,

, at *2 (E.D. Pa. June 21, 2012); 3M Co. v. Kinik Co., No. 04-123,

, at *3 (D. Minn. June 15, 2004).

8 plaintiff’s case.” Platten v. HG Bermuda Exempted Ltd.,

(1st Cir. 2006) (internal quotation marks and citations

omitted); see also Sawtelle,

(“[The relatedness]

requirement is not met merely because a plaintiff’s cause of

action arose out of the general relationship between the parties;

rather, the action must directly arise out of the specific

contact between the defendant and the forum state.”).

The College represents in its motion that Bulwer taught

courses only at the College’s Boston campus and that Bulwer

resided at the College’s Boston campus while he was employed by

the College.4 In short, the College contends that all of its

dealings with Bulwer occurred in Massachusetts.5 Bulwer does not

dispute any of those facts in his objection.

Bulwer’s theory as to specific jurisdiction is that the

College offers courses in the DMS program online, and, therefore,

New Hampshire residents and students at the Manchester campus may

enroll in those courses. Specifically, Bulwer argues that the

College:

4 The College includes, as an exhibit to its motion, the February 12, 2013, letter denying Bulwer’s appeal that is referenced in paragraph 45 of the complaint. The letter is addressed to Bulwer at 179 Longwood Avenue, Boston, MA 02115, the location of the College’s Boston campus. 5 The College includes with its motion the affidavit of Deborah O’Malley, the Vice President, General Counsel and Chief Compliance Officer, Legal Affairs, at the College. The affidavit provides support for the representations in the College’s motion.

9 has directed its educational activities to residents in New Hampshire by offering courses at its Manchester campus and by offering online courses . . . . This litigation results from injuries related to, among other things, [the College]’s online courses, particularly courses offered in relat[ion] to the DMS program. This program is offered online to Defendant’s students (including New Hampshire residents and students at the Manchester campus) and may feature materials created by [Bulwer].

Obj. at 3-4. Bulwer includes as an exhibit to his objection a

printout from the College’s website for online courses, which

discusses the availability of courses in the DMS program.6

Bulwer’s allegations in the complaint and the facts set

forth in his objection are insufficient to establish that the

College’s contacts with New Hampshire satisfy the relatedness

prong of the specific jurisdiction analysis. Bulwer’s claims

arise out of the College’s alleged copying, displaying, and

distributing his copyrighted material. Bulwer alleges that the

6 Although Bulwer asserts that the College offers courses at its Manchester campus, it is unclear whether Bulwer intended to argue that the College offers any courses in the DMS program at its Manchester campus. It appears from the College’s website that it does not offer such courses at the campus. See http://www.mcphs.edu/campuses/manchester/programs-at-this-campus; see also Scheel v. Harris, No. 3:11-cv-18,

, at *3 (W.D. Va. June 28, 2011) (when ruling on a motion to dismiss for lack of personal jurisdiction, district court may take “judicial notice of public documents . . . even when the documents were neither referenced by nor integral to the plaintiff’s complaint” (internal quotation marks and citation omitted)). Regardless, to the extent Bulwer intended to assert that argument, it is not sufficiently developed to be considered by the court. See Higgins v. New Balance Athletic Shoes, Inc.,

(1st Cir. 1999); United States v. Zannino,

(1st Cir. 1990).

10 College obtained and copied the copyrighted material in

Massachusetts, and that it used the copyrighted materials in its

courses offered in the Boston and Worcester campuses, as well as

in its online programs. Even assuming that New Hampshire

residents have enrolled in online courses in the DMS program, it

can hardly be said that those contacts with New Hampshire “are

both the cause-in-fact and proximate cause of [Bulwer’s] injury.”

Platten,

. In other words, Bulwer’s claims would

have arisen regardless of the College’s contacts with New

Hampshire and, therefore, those contacts do not form an important

or material element of proof in Bulwer’s case.

In addition, even if the use of Bulwer’s copyrighted work in

the DMS courses offered online could be enough to meet the

relatedness prong of the specific jurisdiction analysis, Bulwer

has not sufficiently alleged that his copyrighted materials are

offered in those courses. See Situation Mgmt. Sys., Inc. v. ASP.

Consulting Corp., No. 05-cv-458-PB,

, at *5

(D.N.H. Aug. 15, 2006) (finding specific jurisdiction lacking

over defendant in case alleging claim for copyright infringement

where plaintiff had “not proffered any facts suggesting that its

materials were copied in New Hampshire or that any of the

allegedly infringing works were distributed in New Hampshire”);

see also Farkas v. Rich Coast Corp., No. 2:13-cv-926-LPL,

, at *15 (W.D. Pa. Feb. 11, 2014). Rather, Bulwer argues

11 only that the DMS courses offered online “may feature materials

created by [Bulwer].” Obj. (doc. no. 17) at 4 (emphasis added);

see also id. at 2 (“Plaintiff has not yet determined whether any

New Hampshire residents have accessed Plaintiff’s materials

through the Defendant’s online courses . . . .”). “In short,

plaintiff[] [has] failed to offer specific facts showing that

defendant[] conducted forum activities ‘essential to’ the alleged

infringement.” Broady v. Hoppen, No. 12-cv-79-SM,

, at *5 (D.N.H. Aug. 8, 2012) (quoting PFIP, LLC,

, at *14).

Because Bulwer has not satisfied the relatedness

requirement, the court needs not address the remaining prongs of

the specific-jurisdiction analysis to determine that Bulwer has

failed to make a prima facie case for the existence of specific

jurisdiction.

B. General Jurisdiction

“Although a showing of minimum contacts is sufficient to

establish specific jurisdiction, the standard for establishing

general jurisdiction is considerably more stringent.” Cossaboon,

; see also Helicopteros Nacionales de Colombia,

S.A. v. Hall,

(1984). “[G]eneral jurisdiction

requires affiliations so continuous and systematic as to render

[the defendant] essentially at home in the forum State.” Daimler

12 AG v. Bauman,

, 758 n.11 (2014) (internal

puntuation and citation omitted); see also Goodyear Dunlop Tires

Ops., S.A. v. Brown,

(2011). “With respect

to a corporation, the place of incorporation and principal place

of business are paradigm . . . bases for general jurisdiction.”

Daimler AG,

(internal quotation marks and

citations omitted). “By contrast, those who live or operate

primarily outside [the forum] have a due process right not to be

subjected to judgment in its court as a general matter.” J.

McIntyre Mach., Ltd. v. Nicastro,

(2011)

(plurality opinion).

Bulwer contends that the College’s contacts with New

Hampshire are sufficient to render it “at home” in the state. He

argues that the existence of the College’s Manchester campus and

the inclusion of that campus on the College’s letterhead and

website are sufficient to show that jurisdiction over the College

in New Hampshire is constitutionally fair even if his claims are

unrelated to the College’s contacts with the state.

The parties have not cited, and the court is not aware of

any, case law that addresses the issue of whether a satellite

campus in a forum state is sufficient to subject a college or

university to general jurisdiction in that forum. The Supreme

Court has instructed, however, that only in an “exceptional case”

may a corporation be deemed at home and subject to general

13 jurisdiction in a state other than where it is incorporated or

has its principal place of business. Daimler AG,

n.19. The circumstances of this case do not appear to be

exceptional.

For example, the Supreme Court in Daimler AG cited Perkins

v. Benguet Consolidated Mining Co.,

(1952), as

presenting an exceptional case sufficient to subject a

corporation to general jurisdiction in a forum where it is not

incorporated and in which it does not have its principal place of

business. In Perkins, the defendant, a foreign Philippine mining

corporation that had ceased all mining activities abroad, was

sued in Ohio.

. The defendant’s only business at

the time of the suit was done in Ohio, where its president

maintained his office, kept the company files, and supervised the

company.

The Supreme Court held that the district court in

Ohio properly exercised general jurisdiction over the defendant

because “Ohio could be considered a surrogate for the place of

incorporation or head office.” Daimler AG,

n.8

(internal quotation marks and citations omitted).

In this case, the College’s website indicates that 5,808 of

its 6,548 students, more than 88 percent, take courses at one of

the Massachusetts campuses. See http:/www.mcphs.edu/ about-

mcphs/notable-facts-and-statistics. In contrast, only 405

students, about six percent, take courses at the Manchester

14 campus. See

In light of that disparity, the existence of

the Manchester campus does not meet Daimler AG’s standard of a

surrogate place of incorporation or head office. See, e.g.,

Cutcher v. Midland Funding, LLC, No. ELH-13-3733,

, at *6-*7 (D. Md. May 10, 2014) (defendant’s operation of

a place of business with several employees in the forum did not

subject it to general jurisdiction); Holden v. Bah Exp., Inc.,

No. 13-423-SDD-SCR,

, at *3 (M.D. La. Nov. 27,

2013) (defendant’s operation of a satellite office in the forum

was insufficient to establish general jurisdiction over the

defendant).7

In sum, this is not a case with “instances in which the

continuous corporate operations within a state [are] so

substantial and of such a nature as to justify suit . . . on

causes of action arising from dealings entirely distinct from

those activities.” Daimler AG,

(emphasis in

7 Bulwer makes a passing reference to the availability of online courses and suggests that “New Hampshire residents are aware of the school’s presence in the locality and can take any number of courses offered online as scheduled each semester, although not offered in Manchester.” Obj. (doc. no. 17) at 4. The mere fact that New Hampshire residents may have taken online courses is not enough to establish general jurisdiction over the College. See, e.g., Cossaboon,

(“MMC’s website is available to anyone with internet access and does not target New Hampshire residents in particular. Although MMC’s interactive website advertises MMC’s services and may increase the chance that users turn to MMC for their healthcare needs, that is no more true of New Hampshire residents than it is of any other visitors to the website.”).

15 original) (quoting Int’l Shoe Co. v. Washington,

(1945)). The factual allegations set forth in Bulwer’s

complaint and objection to the College’s motion to dismiss do not

state a prima facie case for general jurisdiction.

Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

for lack of personal jurisdiction (document no. 15) is granted.

The plaintiff’s claims are dismissed without prejudice to

refiling in a jurisdiction where personal jurisdiction over the

defendant is proper.

The clerk of the court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________ Landya McCafferty United States District Judge

August 4, 2014

cc: Katherine Ann Guarino, Esq. John A. Houlihan, Esq. Frank B. Mesmer, Jr., Esq.

16