UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

P.C. Hoag & Co., Inc.

v. Civil No. 15-cv-498-AJ Opinion No.

Man Lift Mfg., Co., All Terrain Aerial Lifts, and A-1 Expert Tree Service, Inc.

O R D E R

The plaintiff P.C. Hoag & Company (“P.C. Hoag”) brings this

action against Man Lift Manufacturing (“Man Lift”), All Terrain

Aerial Lifts (“ATAL”), and A-1 Expert Tree Service (“A-1”)

(collectively, the “defendants”) asserting various claims

stemming from the purchase of an aerial lift that P.C. Hoag

contends is defective. Man Lift moves to dismiss the claims

advanced against it for lack of personal jurisdiction. Doc. no.

7.1 The plaintiff objects. Doc. no. 8. For the reasons stated

below, the motion is denied.

Standard of Review

When personal jurisdiction is contested, the plaintiff

1 ATAL and A-1 have not been served. On March 7, 2016, P.C. Hoag filed an assented-to motion to extend the deadline to serve these defendants. Doc. no. 12. The court granted the motion in an endorsed order. bears the burden of establishing that the court has jurisdiction

over the defendant. Rodriguez v. Fullerton Tires Corp.,

(1st Cir. 1997). In cases in which an evidentiary

hearing is not held, “a plaintiff need only to make a prima

facie showing that [the] defendants are subject to personal

jurisdiction.” Presby Patent Trust v. Infiltrator Sys., Inc.,

No. 14-CV-542-JL,

, at *2 (D.N.H. June 3, 2015)

(quoting Elecs. for Imaging, Inc. v. Coyle,

(Fed. Cir. 2003)).

“In making a prima facie showing of jurisdiction, a

plaintiff need not, and indeed may not, rely only on the

allegations in the complaint.” Sturm, Ruger & Co. v. Armscor

Precision Int'l, Inc., No. 14-CV-194-SM,

, at *1

(D.N.H. July 28, 2015). “Rather, he or she must adduce evidence

of specific facts that support jurisdiction.” Dagesse v. Plant

Hotel N.V.,

(D.N.H. 2000) (quotation

marks omitted). “In reviewing the facts, [the court] take[s]

the plaintiff's evidentiary proffers as true and construe[s]

them in the light most favorable to the plaintiff's claim, and

[will] also consider] uncontradicted facts proffered by the

defendant.” C.W. Downer & Co. v. Bioriginal Food & Sci. Corp.,

(1st Cir. 2014).

2 Background

The relevant facts, construed in the light most favorable

to P.C. Hoag, are as follows.

P.C. Hoag is a New Hampshire corporation with its principal

place of business in New Hampshire. Hoag Aff. ¶ 1, doc. no. 8-

2. P.C. Hoag provides arborist services throughout New

Hampshire.

Man Lift is a Nebraska corporation with a

manufacturing facility in Wisconsin that constructs aerial

lifts. Dunn Aff. ¶ 1, doc. no. 7-2. A-1 is a California

corporation. Compl. ¶ 3, doc. no. 1-1. ATAL is a division of

A-1. Id. ¶ 4.

In January 2012, Peter Hoag, the president of P.C. Hoag,

contacted ATAL about purchasing an aerial lift. Pl.’s Ex. A at

3, doc. no. 8-3. P.C. Hoag contends that the ATAL

representative held himself out to be an authorized agent for

Man Lift. Hoag Aff. ¶ 2. After some negotiations and delays,

the ATAL representative sent a subject written purchase and

sales agreement for an A70 TDI Track Drive Aerial Lift (“aerial

lift”) to P.C. Hoag’s place of business in New Hampshire. Pl.’s

Ex. A at 2-3, Hoag Aff. ¶ 3. In November 2012, P.C. Hoag

purchased the aerial lift. Hoag Aff. ¶ 2.

The aerial lift purchased by P.C. Hoag was made in Man

Lift’s Wisconsin facility. Pl.’s Ex. A at 3; Hoag Aff. ¶ 2;

3 Dunn Aff. ¶ 1. Around the time P.C. Hoag purchased the aerial

lift, Man Lift contacted Hoag directly to inform him that the

lift would be ready by November 5th. Pl.’s Ex. A at 3. Soon

after, Man Lift contacted Hoag again to inform him that the lift

would not be available until November 14th. Id. On November

14th, Hoag traveled from New Hampshire to Wisconsin to learn how

to use the aerial lift. Id. The aerial lift was shipped to New

Hampshire later that month. Hoag Aff. ¶ 3.

Man Lift contends that it did not contract to sell the

aerial lift to P.C. Hoag. Dunn Aff. ¶ 2. Instead, Man Lift

alleges it provided a quote to ATAL for two aerial lifts with no

knowledge as to the ultimate buyers of the lifts. Id. ¶ 5. One

of the two aerial lifts delivered by Man Lift to ATAL was

purchased by P.C. Hoag. Id. Man Lift further claims that it

has no formal relationship or common ownership with ATAL or

control over ATAL’s actions. Id. ¶ 3.

P.C. Hoag experienced a number of substantial problems with

the lift shortly after it was delivered to New Hampshire. Hoag

Aff. ¶ 4. P.C. Hoag cites for example that the aerial lift was

difficult to start and the lift’s engine, outrigger, battery,

tool circuit, paint, and hour meter were dysfunctional. Id. In

February 2013, P.C. Hoag reported these issues to Man Lift. Id.

¶ 5. A Man Lift technician from Wisconsin traveled to New

4 Hampshire to attempt to examine and repair the machine. Id.;

Dunn Aff. ¶ 5. Soon after, P.C. Hoag contends that the lift

failed again. Hoag Aff. ¶5. P.C. Hoag alleges that additional

cracks were later found in the lift’s track’s axles. Id. In

October 2013, P.C. Hoag shipped the lift back to Man Lift’s

Wisconsin manufacturing facility for repairs. Dunn Aff ¶ 5;

Pl.’s Ex. A at 4. Man Lift shipped the lift back to New

Hampshire the next month. Pl’s Ex. A at 4.

P.C. Hoag alleges additional issues were found with the

lift in December 2013 and January 2014. Hoag Aff. ¶ 5. In

March 2014, Hoag wrote a letter to Man Lift chronicling P.C.

Hoag’s issues with the lift and providing notice that it

intended to revoke its acceptance of the lift. Pl.’s Ex. A.

Two weeks later, Joe Banks, a vice president of Man Lift,

responded to Hoag’s letter. Pl.’s Ex. B at 2, doc. no. 8-4.

Banks’s letter to Hoag stated that “[a]lthough you didn’t

purchase the machine from Man Lift we are the manufacturer and

we’ve been willing to deal with you directly.” Id. The letter

further stated that Man Lift had no “intention of accepting the

[lift] back[,]” however, it was willing to “dispatch technicians

or help find local support if necessary.” Id.

In May 2014, a second Man Lift technician traveled to New

Hampshire to repair the lift. Hoag Aff. ¶ 6. According to P.C.

5 Hoag, the repairs were again unsuccessful. Id. In the summer

of 2014, the same Man Lift technician returned to New Hampshire

for additional repairs. Id. Yet, once again, P.C. Hoag alleges

that the lift remained inoperable. Id. In August 2014, P.C.

Hoag contends that Man Lift made arrangements with a mechanic

shop in North Conway, New Hampshire to provide additional work

on the lift. Id. ¶ 7.

Based on the foregoing allegations, P.C. Hoag filed suit

against Man Lift, A-1, and ATAL in six counts: strict liability

(count I); negligence (count II); breach of express warranty

(count III); breach of implied warranty (count IV); breach of

contract (count V); and revocation of acceptance (count VI).

Compl. ¶¶ 10-39. In December 2015, Man Lift removed P.C. Hoag’s

action to this court. Doc. no. 1.

Discussion

Man Lift argues in its motion to dismiss that P.C. Hoag has

failed to plead facts sufficient to establish that this court

has personal jurisdiction over it. Specifically, Man Lift

contends that P.C. Hoag’s claims do not arise out of any

contacts it had with New Hampshire and any contacts it had with

New Hampshire were initiated by P.C. Hoag. Man Lift

6 additionally claims that is would be burdensome to appear in the

state.

In its objection, P.C. Hoag alleges its claims arise from

Man Lift’s attempts to satisfy its warranty obligations and

negligent attempts to repair the aerial lift’s defects in New

Hampshire. P.C. Hoag further argues that Man Lift’s contacts

with it were voluntary, therefore subjecting it to jurisdiction

in New Hampshire.

“Whether a court has personal jurisdiction in a diversity

action over a nonresident defendant depends on whether both the

forum state's long-arm statute and the due process requirements

of the United States Constitution are satisfied.” GE Mobile

Water, Inc. v. Red Desert Reclamation, LLC, No. 13-CV-357-PB,

, at *2 (D.N.H. Mar. 7, 2014) (citing Cossaboon v.

Maine Med. Ctr.,

, 29 n.1 (1st Cir. 2010)). “The New

Hampshire Supreme Court has interpreted the New Hampshire long-

arm statute as affording jurisdiction over foreign defendants to

the full extent that the statutory language and due process will

allow.” N. Laminate Sales, Inc. v. Davis,

(1st

Cir. 2005) (quotation marks omitted). “Therefore, the court need

only determine whether the application of personal jurisdiction

comports with Fourteenth Amendment due process requirements.”

7 Campbell v. CGM, LLC, No. 15-CV-88-JD,

, at *3

(D.N.H. July 20, 2015).

“The Fourteenth Amendment requires that a defendant have

sufficient ‘minimum contacts’ with the forum such that

‘maintenance of the suit does not offend traditional notions of

fair play and substantial justice.’” R & R Auction Co., LLC v.

Johnson, No. 15-CV-199-PB,

, at *3 (D.N.H. Mar. 2,

2016) (quoting Int'l Shoe Co. v. Washington,

(1945)). “The inquiry into minimum contacts is also highly

idiosyncratic, involving an individualized assessment and

factual analysis of the precise mix of contacts that

characterize each case.” Pritzker v. Yari,

(1st

Cir. 1994).

There are two categories of personal jurisdiction: general

and specific. United Elec., Radio & Mach. Workers of Am. v. 163

Pleasant St. Corp.,

, 1088 (1st Cir. 1992). In

reviewing the pleadings, it does not appear that P.C. Hoag

alleges general jurisdiction. Thus, the court will only analyze

whether Man Lift is subject to this court’s personal

jurisdiction.

The First Circuit follows a three-prong test to determine

whether specific personal jurisdiction exists:

(1) whether the claim directly arises out of, or relates to, the defendant's forum state activities; 8 (2) whether the defendant's in-state contacts 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; and (3) whether the exercise of jurisdiction is reasonable.

C.W. Downer & Co.,

(quotation marks and brackets

omitted). P.C. Hoag must satisfy each of these three

requirements “to support a finding of specific jurisdiction.”

Phillips Exeter Acad. v. Howard Phillips Fund,

(1st Cir. 1999). The court considers each prong in turn.

I. Relatedness

“To satisfy the relatedness prong, the cause of action must

arise from or relate to the defendant's contacts with the forum

state.” Bluetarp Fin., Inc. v. Matrix Const. Co.,

(1st Cir. 2013). Relatedness “is a flexible, relaxed

standard which focuses on the nexus between the defendant's

contacts and the plaintiff's cause of action.” Adelson v.

Hananel,

(1st Cir. 2007) (internal citation and

quotation marks omitted).

Because “specific jurisdiction is tied to the particular

claim asserted, a nonresident defendant's contacts are evaluated

separately for contract and tort claims.” Lucerne Farms v.

Baling Techs., Inc.,

(D. Me. 2002)

(citing Phillips Exeter,

). Here, P.C. Hoag

9 alleges both contract and negligence claims. See Compl.

However, “[g]iven the underlying similarity of the contract and

tort actions, the court analyzes all of [the] [p]laintiff's

claims under the contracts rubric.” Lucerne Farms,

. Accordingly, the court will “focus on the parties'

prior negotiations and contemplated future consequences, along

with the terms of the contract and the parties' actual course of

dealing.” C.W. Downer & Co.,

(quotation marks

omitted). Where, as in this case, “the cause of action is for

an alleged breach of contract, we ask whether the defendant's

activity in the forum state was ‘instrumental either in the

formation of the contract or its breach.’” Adelson,

(quoting Philips Exeter,

).

Man Lift argues that P.C. Hoag’s claims do not arise out of

its contacts with New Hampshire because it did not participate

in the negotiation or sale of the lift purchased by P.C. Hoag.

Man Lift also claims that its only contacts with New Hampshire

were repairs made by a Man Lift technician in the state, phone

and email conversations with P.C. Hoag, and P.C. Hoag shipping

the lift from New Hampshire to Wisconsin for additional repairs.

In response, P.C. Hoag contends that its claims arise from Man

Lift’s contacts with New Hampshire because Man Lift took action

in New Hampshire in recognition of its warranty obligations.

10 Here, there is sufficient evidence to establish relatedness

to New Hampshire. The exhibits submitted concerning P.C. Hoag’s

negotiations with ATAL and subsequent purchase of the lift

suggest some contacts between P.C. Hoag and Man Lift during the

formation of the contract. In its March 2014 letter to Man

Lift, P.C. Hoag stated that it purchased the lift from Man Lift,

not ATAL. See Pl.’s Ex. A at 2. This marginally supports that

P.C. Hoag reasonably believed that it negotiated the purchase of

the lift with Man Lift. Although Man Lift disputes this claim,

Dunn Aff ¶ 2, at this stage, any contested facts must be viewed

in favor of P.C. Hoag. Adelson,

. Ultimately,

the subject written purchase and sale agreement for the lift was

executed in New Hampshire, and, after the agreement was executed

(with ATAL independently or as an agent of Man Lift), but before

it was shipped, Hoag traveled from New Hampshire to Man Lift’s

Wisconsin facility to train with the lift. Pl.’s Ex. A at 3;

Hoag Aff. ¶ 3. P.C. Hoag also alleges in an affidavit that the

defendants “collectively” delivered the lift to New Hampshire,

pursuant to the sales contract. Hoag Aff ¶ 3. Moreover, a

significant portion of P.C. Hoag’s claims stem from the failure

of Man Lift’s Wisconsin technician to repair the lift while in

New Hampshire, an alleged violation of the lift’s warranty.

11 Based on these facts, P.C. Hoag has minimally met its burden at

this stage to show relatedness.

II. Purposeful Availment

In addition to relatedness, “specific jurisdiction requires

that the defendant's contacts 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 presence before the state's

courts foreseeable.” Bluetarp Fin,

(quotation

marks omitted). “The inquiry focuses on the defendant's

intentions; the defendant's contacts with the forum state must

be voluntary and deliberate, and the contacts must be of such a

nature that the defendant can reasonably foresee being haled

into court there.” Campbell,

, at *6 (citing

Bluearp Fin,

).

Man Lift argues that litigation in New Hampshire was not

foreseeable because its only contacts with the forum were after

the sale of the lift and initiated by P.C. Hoag. In response,

P.C. Hoag cites its exhibits to contend that Man Lift

voluntarily sent technicians to New Hampshire to repair the lift

pursuant to lift’s warranty and, since P.C. Hoag purchased the

lift, Man Lift has expressed a desire “deal with [P.C. Hoag]

directly” in New Hampshire. Pl.’s Ex. B at 1.

12 In an affidavit submitted by Donald Dunn, the Chairman of

Man Lift, he contends that Man Lift sold two aerial lifts to

ATAL without knowledge that they would be bought by P.C. Hoag or

shipped to New Hampshire. Dunn Aff. ¶ 5. However, in viewing

the facts in the light most favorable to the plaintiff at this

early stage, it is likely Man Lift was aware that its lift would

be shipped to New Hampshire and, consequently, its warranty

obligations would be based in the state. Around the same time

P.C. Hoag purchased the lift from ATAL, Man Lift independently

contacted P.C. Hoag on at least two occasions to inform it when

the lift would be ready. Pl.’s Ex. A at 3. Additionally,

before the lift was shipped to P.C. Hoag’s place of business in

New Hampshire, Hoag traveled to Man Lift’s Wisconsin facility to

train with the lift.

Hoag’s affidavit also states that the

lift was “collectively” delivered by the defendants to P.C.

Hoag’s place of business in New Hampshire. Hoag Aff. ¶ 3.

After the lift was delivered, Man Lift sent a technician

from its facility in Wisconsin to New Hampshire three different

times to attempt to repair the lift. Hoag Aff. ¶ 6. On a

fourth occasion, Man Lift made arrangements with a New Hampshire

mechanic shop to act on behalf of Man Lift to perform remedial

work on the lift. Id. ¶ 7.

13 Man Lift contends that, although multiple technicians

traveled to New Hampshire to repair the lift, only one repair

was made during the lift’s one-year warranty. At this stage,

the distinction is irrelevant. Even if additional repairs were

unnecessary pursuant to the lift’s warranty, “[c]ompetitive

business practices may make it advantageous for out-of-state

manufacturers to travel to other states to make repairs and to

service the products in issue.” Mesalic v. Fiberfloat Corp.,

(3d Cir. 1990). Irrespective of “the

rights of the parties under the contract[,]” the court “must

assess the contacts actually made.”

Therefore, because Man Lift had knowledge that its lift

would be shipped to and used in New Hampshire, sent technicians

on three occasions from Wisconsin to New Hampshire to repair the

lift, and arranged for a New Hampshire mechanic shop to perform

repairs on behalf of Man Lift, P.C. Hoag has sufficiently

demonstrated Man Lift’s purposeful availment to the state. See

Eagle Air Transp., Inc. v. Nat'l Aerotech Aviation Delaware,

Inc.,

(N.D. Ill. 2014) (concluding that

the defendant’s personal jurisdiction argument was “belied” in

part “by the fact that it sent two individuals to Illinois to

perform work on the [product] when it broke down . . . . Not

only does this support that [the defendant] contemplated the

14 warranty could involve work in Illinois, but it provides

additional contacts.”) (internal citation omitted); Premiere

Credit of N. Am., LLC v. AAT Fabrication, Inc., No. 1:04CV1391-

LJM-WTL,

, at *2 (S.D. Ind. May 5, 2005) (finding

that the defendant’s “knowledge that the [item] would be shipped

to and used in Indiana and sending two . . . employees to

Indiana to perform (or attempt to perform) contractual

obligations under the Contract's warranty provision, provides

sufficient minimum contacts for personal jurisdiction.”).

III. Reasonableness

“Even after concluding that minimum contacts exist,

personal jurisdiction may only be exercised if it would be

reasonable, pursuant to a series of factors known as the

‘Gestalt factors.’” Adelson,

. These factors

are:

(1) the defendant's burden of appearing [in the forum state], (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, and (5) the common interests of all sovereigns in promoting substantive social policies.

Ticketmaster-New York, Inc. v. Alioto,

(1st

Cir. 1994) (citing Burger King Corp. v. Rudzewicz,

(1985)). “The factors, intended to aid the court in

achieving substantial justice, play a larger role in cases where 15 the minimum contacts question is very close.” Adelson,

.

As to the first factor, “the concept of burden is

inherently relative, and, insofar as staging a defense in a

foreign jurisdiction is almost always inconvenient and/or costly

. . . this factor is only meaningful where a party can

demonstrate some kind of special or unusual burden.” Pritzker,

. Man Lift’s motion does not identify a special or

unusual burden for appearing in New Hampshire. Although travel

from Nebraska to New Hampshire may be inconvenient, Man Lift’s

“circumstances are not unusual.” R & R Auction Co.,

, at *9. “In the modern era, the need to travel

[domestically] creates no especially ponderous burden for

business travelers.” Pritzker,

. Without more,

this factor weighs in favor of personal jurisdiction.

The second factor also weighs in favor of personal

jurisdiction. A state “has ‘significant’ interests in providing

a convenient forum for disputes involving its citizens and in

ensuring that its companies have easy access to a forum when

their commercial contracts are said to be breached by out-of-

state defendants.” C.W. Downer & Co.,

. As a

corporate citizen of New Hampshire, P.C. Hoag has an interest in

bringing suit in New Hampshire. Adelson,

.

16 Addressing the third factor, Man Lift contends that P.C.

Hoag cannot identify any strong interests in having its case

adjudicated in New Hampshire. P.C. Hoag counters, in part, that

it has an interest in litigating in New Hampshire because its

witnesses are in the state. Yet, based on the preliminary facts

of this case, other key witnesses may also be in California,

Nebraska, or Wisconsin. Although this factor does not heavily

support either party, P.C. Hoag’s “choice of forum must be

accorded a degree of deference with respect to the issue of its

own convenience.” Sawtelle v. Farrell,

(1st

Cir. 1995).

The remaining factors do not appear to cut for or against

personal jurisdiction. “[T]he judicial system's interest in

obtaining effective resolution to a given suit will not favor

either side in a personal jurisdiction dispute.” R & R Auction

Co.,

, at *9. As to the final factor, the parties

point to no substantive social policy favoring or discouraging

personal jurisdiction.

In conclusion, P.C. Hoag has proffered just enough evidence

to satisfy the relatedness and purposeful availment requirements

necessary to show specific personal jurisdiction. Because the

minimum contacts question is close, the “Gestalt factors” are

important in determining whether personal jurisdiction is

17 appropriate. Adelson,

. Here, most of the

factors support jurisdiction in New Hampshire. Therefore, Man

Lift’s “contacts with [New Hampshire] constitute ‘minimum

contacts’ in such a manner that it does not ‘offend traditional

notions of fair play and substantial justice’ for [P.C. Hoag] to

bring this case in the state.”

.

Conclusion

Because P.C. Hoag has met its modest burden at this stage

of demonstrating that the court may exercise specific personal

jurisdiction over the defendant Man Lift, Man Lift’s motion to

dismiss (doc. no. 7) is denied without prejudice.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge March 22, 2016

cc: Paul M. Monzione, Esq. Robert J. Meagher, Esq.

18