UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Hannah International Foods, Inc.

v. Case No. 18-cv-52-AJ Opinion No.

House of Thaller, Inc.

MEMORANDUM ORDER

In an action filed in state court, Hannah International

Foods, Inc. alleges that House of Thaller, Inc. failed to

satisfy the material terms of an agreement to produce certain

food products. Invoking federal diversity jurisdiction under

, the defendant removed this action here. See doc.

no. 1. Once removed, the case was assigned to the undersigned

magistrate judge, to whose jurisdiction the parties consented.

See doc. no. 8.

The defendant now moves to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(2), contending that this court lacks

personal jurisdiction over it. See doc. no. 5. On this same

basis, but in the alternative, the defendant asks the court to

transfer this matter to the United States District Court for the

Eastern District of Tennessee. See

The plaintiff objects.

See doc. no. 9. Concluding that the plaintiff has not

demonstrated that the defendant purposefully availed itself of

the privilege of conducting activities in New Hampshire, the court grants the defendant’s motion in part and transfers this

matter to the Eastern District of Tennessee.

I. APPLICABLE LAW

The plaintiff bears the burden of demonstrating that

personal jurisdiction exists. See A Corp v. All Am. Plumbing,

Inc.,

(1st Cir. 2016). “To establish personal

jurisdiction in a diversity case, a plaintiff must satisfy both

the forum state’s long-arm statute and the Due Process Clause of

the Fourteenth Amendment.” C.W. Downer & Co. v. Bioriginal Food

& Sci. Corp.,

(1st Cir. 2014). As New

Hampshire’s long-arm statute “reaches to the full extent that

the Constitution allows,” however, the court’s sole inquiry is

whether exercising personal jurisdiction would comport with due

process. See Phillips Exeter Acad. v. Howard Phillips Fund,

(1st Cir. 1999). Due process requires that a

defendant have sufficient “minimum contacts” with the forum

state “such that the maintenance of the suit does not offend

traditional notions of fair play and substantial justice.”

Int’l Shoe Co. v. Washington,

(1945) (internal

quotation marks omitted).

Though a federal court may exercise general or specific

personal jurisdiction over a defendant, in this case the

plaintiff only asserts specific personal jurisdiction, “i.e.,

2 jurisdiction over [this defendant] for the purpose of this

specific lawsuit.” Scottsdale Capital Advisors Corp. v. The

Deal, LLC,

(1st Cir. 2018) (citations omitted).

To establish specific personal jurisdiction, a plaintiff must

demonstrate that (1) its claim “directly arises out of or

relates to the defendant's forum-state activities”; (2) “the

defendant’s contacts with the forum state represent a purposeful

availment of the privilege of conducting activities in that

state, thus invoking the benefits and protections of that

state’s laws and rendering the defendant’s involuntary presence

in that state’s courts foreseeable”; and (3) “the exercise of

jurisdiction is ultimately reasonable.”

(citation omitted).

“Failure to make any one of these showings dooms any effort to

establish personal jurisdiction.”

(citation omitted).

Though the court may evaluate personal jurisdiction under

one of several standards, see A Corp,

& n. 5, the

plaintiff seeks to meet its burden in this case under the prima

facie standard. See doc. no. 9-1 at 4. This is the standard

“most commonly employed in the early stages of litigation,” see

A Corp,

n. 5, and the defendant does not dispute

its applicability here. Under the prima facie standard, the

plaintiff may not “rely on unsupported allegations,” but must

rather “proffer evidence which, if credited, is sufficient to

support findings of all facts essential to personal

3 jurisdiction.” See Scottsdale,

(brackets and

citations omitted). “The court, in turn, must view this

evidence, together with any evidence proffered by the defendant,

in the light most favorable to the plaintiff and draw all

reasonable inferences therefrom in the plaintiff’s favor.”

Carreras v. PMG Collins, LLC,

(1st Cir. 2011)

(citation omitted). The court “need not, however, credit bald

allegations or unsupported conclusions.”

(citation

omitted).

II. BACKGROUND

Located in Seabrook, New Hampshire, the plaintiff

manufactures and supplies dips, spreads, and salads. Doc. no.

9-2 ¶ 3. The defendant is a Tennessee manufacturer of food

products for wholesale and retail sellers with facilities in

Knox County, Tennessee. Doc. no. 5-1 ¶¶ 3, 4. In early 2016,

the plaintiff sought to provide services to a new, “substantial”

customer. Doc. no. 9-2 ¶¶ 4. In order to meet this customer’s

demand, representatives of the plaintiff visited the defendant

in Tennessee and requested that the defendant manufacture food

products for the plaintiff at the defendant’s plant. Id. ¶ 5.

The parties negotiated for several weeks. Id. ¶ 5. During

this time, the parties exchanged “substantial communications”

between Tennessee and New Hampshire. Id. In mid-April 2016,

4 the plaintiff signed a Contract Manufacturing Agreement in New

Hampshire. Id. ¶ 6. The plaintiff forwarded this agreement to

the defendant, which signed it in Tennessee. Id.; doc. no. 5-1

¶ 6.

The contract specified that the defendant would manufacture

and package product for the plaintiff at the defendant’s

facility in Knoxville, Tennessee. Doc. no. 9-3 at 4. Under the

contract, no product could be manufactured, packaged, or tested

at any location other than that facility without the plaintiff’s

consent. Id. The contract also required that the defendant

receive the plaintiff’s permission before storing product

outside of the Knoxville facility. Id. The contract provided

for a term of three years, and stated that it “shall be governed

by, construed and enforced in accordance with the substantive

internal law of the State of Tennessee, without regard to its

conflict of law principles.” Id. at 12, 15. The contract

required that the defendant produce product consistent with the

plaintiff’s specifications and requirements and ship that

product consistent with purchase orders received from the

plaintiff’s customer. Doc. no. 9-2 ¶ 7.

The plaintiff represents that its customer “operated

nationwide, and that it was common knowledge that the customer

had multiple stores in New Hampshire, and, as a result that the

product would be shipped to multiple stores in New Hampshire.”

5 Id. According to the plaintiff, these shipments “occurred

regularly throughout the course of the relationship.” Id.

Though the defendant concedes that it shipped product to several

different states, it does not believe that it sent shipments to

New Hampshire. Doc. no. 5-1 ¶ 11.

As the parties’ relationship progressed, an increasing

number of issues arose related to the defendant’s performance

under the contract. Doc. no. 9-2 ¶¶ 8, 9. The parties

regularly communicated by telephone and email, and some of these

communications were directed to or from New Hampshire. Id. ¶ 8.

The plaintiff also sent personnel to the defendant’s plant in

Tennessee to monitor product. Doc. no. 5-1 ¶ 9. The plaintiff

ultimately terminated the contract in July 2017, at which point

the defendant returned certain packaging to the plaintiff. Id.

¶ 12; doc. no. 9-2 ¶ 10. No employee of the defendant visited

New Hampshire during the negotiation, execution, or performance

of the contract or after its termination. Doc. no. 5-1 ¶ 13.

On December 20, 2017, the plaintiff filed suit against the

defendant in Rockingham County Superior Court, alleging counts

of breach of contract and breach of the covenant of good faith

and fair dealing. See doc. no. 1-1 at 2-8. The defendant

timely removed the action to this court before filing the

present motion.

6 III. DISCUSSION

As discussed above, “the constitutional test for

determining specific jurisdiction . . . has three distinct

components, namely, relatedness, purposeful availment (sometimes

called ‘minimum contacts’), and reasonableness.” Adelson v.

Hananel,

(1st Cir. 2011) (internal quotation

marks and citations omitted). To establish jurisdiction, the

plaintiff must demonstrate that each of these components is

satisfied. See Scottsdale,

. Because the

plaintiff has not met its burden with respect to purposeful

availment, the court limits its analysis to that inquiry. Cf.

Copia Commc’ns, LLC v. AMResors, L.P.,

(1st Cir.

2016).

A. Purposeful Availment

“The purposeful availment prong represents a rough quid pro

quo: when a defendant deliberately targets its behavior toward

the society or economy of a particular forum, the forum should

have the power to subject the defendant to judgment regarding

that behavior.” C.W. Downer,

(citation and

internal quotation marks omitted). “The cornerstones of this

inquiry are voluntariness and foreseeability.”

(citation

omitted). “This places the emphasis on the defendant’s

intentions and prohibits jurisdiction based on random,

7 fortuitous, or attenuated contacts.”

(citation and internal

quotation marks omitted). “The proper question is not where the

plaintiff experienced a particular injury or effect but whether

the defendant’s conduct connects [it] to the forum in a

meaningful way.” A Corp,

(brackets, quotation

marks, and citation omitted).

Two somewhat recent First Circuit decisions inform the

court’s analysis. The first, C.W. Downer & Company v.

Bioriginal Food & Science Corporation, involved a contract under

which a Massachusetts investment bank agreed to serve as the

exclusive financial adviser for the sale of a Canadian producer

of nutritional supplements. See

. After the

Canadian company solicited the investment bank in Massachusetts,

the parties negotiated the contract remotely, communicating

primarily by email and telephone. See

The contract

contemplated that the investment bank would provide services in

Massachusetts, and the investment bank did so, ultimately

identifying a potential buyer and hosting a conference call from

Boston. See

. That deal fell through, and the

investment bank subsequently learned that the Canadian company

had been sold to a private equity firm. See

. When

the Canadian company refused to pay the investment bank a

transaction fee and other amounts under the contract, the

8 investment bank brought suit in Massachusetts for breach of

contract and related claims. See

The Canadian company moved to dismiss for lack of personal

jurisdiction. See

The district court granted that motion,

but the First Circuit reversed, finding that the investment bank

had satisfied each of the components of specific personal

jurisdiction. See

. As to purposeful

availment, the court emphasized that the Canadian company had

solicited the investment bank in Massachusetts, that the parties

had formed a long-term contractual relationship which

contemplated the investment bank performing services for the

Canadian company in Massachusetts, and that the investment bank

actually performed extensive services for the Canadian company

in Massachusetts pursuant to the contract. See

.

The court held that these facts, when coupled with the number

and duration of the email and phone communications to and from

Massachusetts, demonstrated that the Canadian company had

purposefully availed itself of the privileges of conducting

activities within that state. See

.

Contrast this with Copia Communications, LLC v. AMResorts,

L.P. In Copia, the plaintiff was a Massachusetts company that

provided internet services to hotels in Jamaica, and the

defendants were a Jamaican resort operator and its Pennsylvania

alter ego. See Copia,

. The plaintiff sent the

9 defendants an offer to provide internet services for two planned

Jamaican resorts.

After several months of negotiations,

which occurred in person in Jamaica and through email

communications sent from or received in Massachusetts, the

parties entered into a contract, which was executed in Jamaica.

. During the performance of the contract, the

plaintiff shipped equipment to Jamaica and installed and

maintained internet services in Jamaica.

. No employee

of the defendants traveled to Massachusetts during the

negotiation, execution, or performance of the contract. See

. The plaintiff did, however, receive some contract-

related phone and email communications in Massachusetts.

. Nearly five years after the contract was executed, the

defendants informed the plaintiff that they were not renewing

its terms.

. The plaintiff brought suit in

Massachusetts, challenging the timeliness of the notice of

nonrenewal.

On appeal, the First Circuit “easily” affirmed the district

court’s dismissal of the action for want of personal

jurisdiction, concluding that the defendants’ contacts with

Massachusetts did not “represent a purposeful availment of the

protections of Massachusetts’s laws.”

. Finding

that the email and phone communications in question were

insufficient on their own to satisfy the purposeful availment

10 prong, see

, the court rejected the plaintiff’s argument

that shipments of equipment from Massachusetts and payments by

the defendants to Massachusetts constituted voluntary contact

between the defendants and the forum state, because there was

nothing beyond the plaintiff’s mere presence in Massachusetts

that tied these shipments and payments to that state. See

. The court similarly held that the plaintiff’s reliance on

C.W. Downer was misplaced, concluding that C.W. Downer hinged on

three factors not present in the record: “the defendant’s in-

forum solicitation of the plaintiff’s services, the defendant’s

anticipation of the plaintiff’s in-forum services, and the

plaintiff’s actual performance of in-forum services.”

at 6

(citing Cossart v. United Excel Corp.,

(1st Cir.

2015)). Thus, the court concluded that the defendants “did

nothing to invoke the benefits and protections of

Massachusetts’s laws beyond implicitly relying on the state’s

laws in the way that any party to a contract relies on the laws

of the jurisdiction in which his counter-party happens to

reside.” Id. at 5.

The facts in this case, even when viewed in the light most

favorable to the plaintiff, bear more than a passing resemblance

to those in Copia. As in Copia, the plaintiff here solicited

the defendant in the defendant’s home jurisdiction. Similarly,

the contracts in both cases were negotiated either in the

11 defendants’ home jurisdictions or remotely, with only calls and

emails going to and from the plaintiffs’ home jurisdictions. In

both cases, the contracts contemplated performance occurring in

the defendants’ home jurisdictions, and in both cases that is

where performance actually occurred. While representatives of

the plaintiffs visited the defendants’ home jurisdictions in

both cases, the defendants’ representatives did not visit the

plaintiffs’ home jurisdictions in either. Finally, though the

Copia court did not focus on this fact, the contract here, like

the one in that case, stated that the laws of the defendant’s

home jurisdiction would govern. Based on these similarities,

the court is hard-pressed to conclude that Copia does not

control.

Moreover, none of the factors central to the C.W. Downer

decision are present here. In that case, the court emphasized

that the defendant solicited the plaintiff’s services in the

plaintiff’s home state. As noted, the opposite is true in this

case. Similarly, whereas the contract in C.W. Downer

contemplated that the plaintiff would perform substantial

services in its home state, the contract here largely

contemplated performance in Tennessee. 1 And where the plaintiff

1 Though the C.W. Downer court also noted, as part of the second factor, that the parties had formed a long-term contractual relationship, see

, the Copia decision calls the importance of that fact into question, both because

12 in C.W. Downer actually did perform services under the contract

in its home state, performance in this case appears to have

almost exclusively occurred in Knoxville. Thus, C.W. Downer is

readily distinguishable and provides little basis to find

purposeful availment here.

The plaintiff does point to facts, not present in either

Copia or C.W. Downer, that it believes support a finding of

purposeful availment in this case. According to the plaintiff,

the defendant knew that the plaintiff’s end-customer had stores

in New Hampshire and, accordingly, that product the defendant

produced would be shipped to this forum. And, according to the

plaintiff, the defendant did in fact ship product to stores in

New Hampshire pursuant to its agreement with the plaintiff.

This, in the plaintiff’s view, constitutes sufficient contact

with New Hampshire for this court to exercise jurisdiction over

the defendant. For its part, the defendant disputes that it

ever shipped product to New Hampshire. Even assuming such

shipments occurred, however, the court is not persuaded that

they constitute purposeful availment.

the contract Copia endured for longer than the contract in C.W. Downer and because the Copia court did not list the duration of the contract as one of the factors upon which the C.W. Downer decision hinged. See Copia,

. In light of this, and because the anticipated duration of contract here was shorter than the actual durations in either C.W. Downer or Copia, the court does not give this fact much weight.

13 As discussed, the purposeful availment component emphasizes

“the defendant’s intentions and prohibits jurisdiction based on

random, fortuitous, or attenuated contacts.” C.W. Downer,

(citation and internal quotation marks omitted).

Based on the plaintiff’s own representations, the sole reason

the defendant may have sent shipments to New Hampshire in this

case is because the plaintiff’s end-customer “operated

nationwide, and it was common knowledge that the customer had

multiple stores in New Hampshire.” Doc. no. 9-2 at 2. In other

words, there is nothing about these shipments that demonstrates

that the defendant intended to target New Hampshire any more

than it did any other state to which it shipped product. And

the Supreme Court has rejected the notion that the act of

passively placing an item in the stream of commerce with the

expectation it will reach a particular state subjects a

defendant to that state’s jurisdiction. See, e.g., J. McIntyre

Mach., Ltd. v. Nicastro,

(2011) (plurality

opinion) (“The defendant's transmission of goods permits the

exercise of jurisdiction only where the defendant can be said to

have targeted the forum; as a general rule, it is not enough

that the defendant might have predicted that its goods will

reach the forum State.”);

(Breyer, J., concurring in

the judgment) (“[T]his Court has rejected the notion that a

defendant’s amenability to suit travels with the chattel.”

14 (citation, brackets, and internal quotation marks omitted)). In

short, there is nothing about the shipments at issue here that

moves them beyond the realm of random, fortuitous contacts with

New Hampshire. They therefore provide insufficient basis to

exercise jurisdiction over the defendant. 2

In sum, the court finds that the plaintiff has not met its

burden of demonstrating that the defendant purposefully availed

itself of the privilege of conducting activities in New

Hampshire. This court accordingly does not have personal

jurisdiction over the defendant.

B. Transfer

Though the defendant primarily requests that the court

dismiss this action, it alternatively asks that the court

transfer the case to the United States District Court for the

Easter District of Tennessee. Per

, “[w]henever

a civil action is filed in a court . . . and that court finds

that there is a want of jurisdiction, the court shall, if it his

2 The plaintiff also cites several district court decisions that it believes support its position. See GT Solar Incorporated v. Fabrizio GOI,

(Laplante, J.); Trade Wings, LLC v. Technetics, Inc.,

(Barbadoro, J.); Macri v. Macri,

(DiClerico, J.). These decisions significantly predate C.W. Downer and Copia, however, and therefore do not benefit from recent refinements to the purposeful availment analysis. As the court finds the more recent appellate decisions dispositive, it need not, and does not, reach whether these older decisions suggest a contrary result.

15 in the interest of justice, transfer such action . . . to any

other court in which the action . . . could have been brought at

the time it was filed . . . .” The First Circuit has held that

this statute applies when a district court concludes it lacks

personal jurisdiction over a defendant and that it

“establish[es] a rebuttable presumption in favor of transfer”

that is only overcome “if an inquiring court determines that a

transfer is not in the interest of justice.” Fed. Home Loan

Bank of Boston v. Moody's Corp.,

(1st

Cir.), abrogated on other grounds by Lightfoot v. Cendant Mortg.

Corp.,

(2017) (citations and internal quotation

marks omitted).

The court has little trouble concluding that it serves the

interests of justice to transfer this case to the Eastern

District of Tennessee. This matter has been pending, either in

state court or here, for the better part of nine months. This

court established a schedule for this case and the parties imply

that they have conducted at least some discovery. Dismissing

this case now, only to have the parties start from scratch in

Tennessee, makes little sense. The court therefore grants the

defendant’s alternative request for relief.

16 IV. CONCLUSION

The court concludes that it does not have personal

jurisdiction over the defendant, as the defendant never

purposefully availed itself of the privileges of conducting

activities in New Hampshire. Rather than dismiss this case,

however, the court concludes that it is in the interests of

justice to transfer this matter to a forum with such

jurisdiction. The court therefore directs the Clerk’s Office to

transfer this case to the United States District Court for the

Eastern District of Tennessee. The defendant’s motion to

dismiss (doc. no. 5) is granted in part, consistent with this

outcome.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

August 8, 2018

cc: Arnold Rosenblatt, Esq. Charles G. Taylor, III, Esq. Mark L. Mallory, Esq.

17