UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas H. Saliba

v. Civil No. 18-cv-498-JD Opinion No.

Greenfield, Stein & Senior, LLP

O R D E R

Thomas H. Saliba brought suit in state court against a law

firm, Greenfield, Stein & Senior, LLP, (“GSS”) challenging the

firm’s decision to retain money, in escrow, to cover its fees.

The firm removed the case to this court and moved to dismiss the

case for lack of personal jurisdiction or alternatively based on

a forum selection clause. Saliba objects to the motion.

I. Background

Thomas Saliba lives in New Hampshire. He was named as a

co-trustee of the Edwin P. Twombly, Jr. Trust. Ralph E. Lerner

was also a co-trustee. Saliba hired GSS, a law firm in New York

City, to represent the Trust in April of 2013, and both Saliba

and Lerner, as co-trustees, signed the engagement letter to GSS.

In 2014, another co-trustee brought a legal action seeking

to remove Saliba and Lerner as trustees. GSS was hired and

agreed to represent the Trust in that litigation. Saliba and

Lerner retained personal counsel to represent them in the

litigation. GSS represents that there were several disputes involving the Trust and the co-trustees and beneficiaries. The

litigation of the disputes occurred in New York Surrogate’s

Court, New York County.

The parties to the litigation entered a settlement

agreement in 2018 to resolve all of the disputes. Under the

terms of the agreement, Saliba and Lerner were to be paid an

agreed amount for their services to the Trust in exchange for

their resignation from and renunciation of their positions as

co-trustees. In paragraph 10 of the agreement, Lerner was

authorized to pay $3,650,000.00 to GSS “as attorneys for

[Lerner] and [Saliba] which shall be disbursed to [Lerner] and

[Saliba] upon the effective date of their Resignation and

Renunciation pursuant to paragraph 12, and (2).” Doc. 6-3, at

10-11.

The funds were paid to GSS as provided in the agreement.

GSS paid Saliba just over $1,700,000.00 of the money from the

Trust but retained $116,851.07 in an escrow account. GSS sent

Saliba an invoice and letters to have him agree that GSS could

retain the withheld money to pay its outstanding balance for

legal services. Saliba contends that GSS only represented the

Trust and did not represent him. For that reason, he contends

that he does not owe GSS for its fees and that GSS is required

to pay him the money it has retained.

2 II. Personal Jurisdiction

A party may move to dismiss an action for lack of personal

jurisdiction. Fed. R. Civ. P. 12(b)(2). When no evidentiary

hearing is held on a motion challenging personal jurisdiction,

the court uses the prima facie standard, which requires the

plaintiff to provide evidence that if taken as true supports

personal jurisdiction. Scottsdale Capital Advisors Corp. v. The

Deal, LLC,

(1st Cir. 2018).

To meet that burden, the plaintiff cannot rely on the

allegations in the complaint but instead must submit evidence to

show jurisdictional facts. A Corp. v. All Am. Plumbing, Inc.,

(1st Cir. 2016). Then, the court accepts the

properly supported facts as true and construes them in the light

most favorable to finding that jurisdiction exists.

Evidence presented by the defendants may be considered only to

the extent it is undisputed.

In a diversity jurisdiction case, such as this one,

personal jurisdiction exists to the extent allowed under the Due

Process Clause of the Fourteenth Amendment and the forum state’s

long-arm statute. Baskin-Robbins Franchising LLC v. Alpenrose

Dairy, Inc.,

(1st Cir. 2016). New Hampshire’s

individual long-arm statute, RSA 510:4, authorizes jurisdiction

over foreign defendants to the full extent of the statutory

language and the Due Process Clause. N. Laminate Sales, Inc. v.

3 Davis,

(1st Cir. 2005); Allstate Property &

Casualty Ins. Co. v. Grohe Canada, Inc.,

,

, at *2 (D.N.H. Feb. 13, 2018). Because the long-arm

statute is coextensive with federal due process, only the due

process requirements need to be addressed. Scottsdale Capital

Advisors Corp. v. Deal, LLC,

, at *1 (D.N.H.

Sept. 8, 2017) (aff’d

(1st Cir. 2018)).

Personal jurisdiction may be general or specific. Bluetarp

Fin., Inc. v. Matrix Constr. Co., Inc.,

(1st

Cir. 2013). Saliba contends that the court is authorized to

exercise specific personal jurisdiction over GSS because of

GSS’s efforts directed to him in New Hampshire to collect its

fees from him personally. Specific personal jurisdiction exists

when (1) the plaintiff’s 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, . . . ; and (3) the exercise of jurisdiction is

ultimately reasonable.” Scottsdale,

. The

primary focus for determining whether personal jurisdiction

exists is “the defendant’s relationship to the forum State.”

Bristol-Myers Squibb Co. v. Superior Court of Cal., San

Francisco County,

(2017).

4 A. Relatedness

The nature of the plaintiff’s claims directs the analysis

for purposes of determining relatedness. Phillips Exeter Acad.

V. Howard Phillips Fund,

(1st Cir. 1999). For

tort claims, the court considers whether “the plaintiff has

established cause in fact (i.e., the injury would not have

occurred but for the defendant’s forum-state activity) and legal

cause (i.e., the defendant’s in-state conduct gave birth to the

cause of action).” Scottsdale,

(internal

quotation marks omitted). For contract claims, the court

considers “whether the defendant’s activity in the forum state

was instrumental either in the formation of the contract or its

breach.” Phillips v. Prairie Eye Ctr.,

(1st

Cir. 2008) (internal quotation marks omitted); see also Gulf Oil

Ltd. P’ship v. Petroleum Mktg. Gr., Inc.,

(D. Mass. 2018) (emphasizing that relatedness depends on

the defendant’s actions, not where an injury was felt).

In this case, Saliba seeks a declaratory judgment that he

is entitled to the $116,851.07 that GSS is holding in escrow as

payment for its legal services. Saliba also alleges that GSS is

wrongfully withholding the money in violation of RSA chapter

358-A (New Hampshire’s Consumer Protection Act), and alleges

that GSS has breached its fiduciary duty as an escrow agent.

5 Saliba contends that his claims do not raise a contract

issue. GSS relies on the relatedness analyses in Sawtelle v.

Farrell,

(1st Cir. 1995), which involved a

legal malpractice claim, and Dagesse v. Law Firm of Esperti,

Peterson & Cahoone,

, at *4-*5 (D.N.H. Dec. 4,

2003), which involved a contract claim and a legal malpractice

claim. As alleged, Saliba does not claim that a contract

existed between himself and GSS or that GSS breached a contract.

Therefore, the claims are assessed under the tort standard for

relatedness.

Saliba argues that his claims arose from GSS’s letters and

emails to him, in New Hampshire, seeking to collect the disputed

fees from him. While those communications do address the issue

of fees, Saliba brought suit to recover the money that GSS is

holding as payment for its fees. In other words, the injury he

is seeking to redress is GSS’s failure to include the

$116,851.07 when it sent him his share of the settlement amount.

As such, Saliba’s claims arose from and are based on GSS’s

decision to withhold money from the settlement amount to pay its

fees.

The settlement money was delivered to GSS in New York. GSS

decided to retain $116,851.07 to pay its fees in New York.

GSS’s communications directed to Saliba in New Hampshire to

6 justify its claim to the money and to explain its decision were

not the cause in fact or the legal cause of Saliba’s claims.1

B. Purposeful Availment and Reasonableness

Because Saliba has not carried his burden to show that his

claims are related to GSS’s contacts with New Hampshire, it is

not necessary to consider the other two elements of specific

personal jurisdiction: purposeful availment and reasonableness.

Nevertheless, the court also concludes that Saliba has not shown

that GSS “purposefully avail[ed] itself of the privilege of

conducting activities within the forum State, thus invoking the

benefits and protections of its laws.” Hanson v. Denckla,

(1958). Even if an attorney-client relationship

had existed between Saliba and GSS, which Saliba denies, his

residency in New Hampshire is not enough to show personal

availment. See Sawtelle,

. Further, given GSS’s

location in New York and New York being the location of the

pertinent actions in this case, Saliba has not shown that it

would be reasonable to exercise jurisdiction over GSS in New

Hampshire. See A Corp.,

(listing elements of

reasonableness inquiry).

1 The parties dispute whether Saliba was actually in New Hampshire when he received GSS’s communications. That issue need not be resolved because the communications, even if made to Saliba while he was in New Hampshire, were not the cause of the injury claimed by Saliba.

7 C. Forum Selection Clause

Because the court lacks personal jurisdiction over GSS, it

does not consider the argument that the case must be dismissed

based on the forum selection clause in the settlement agreement.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 6) is granted in that the case is

dismissed for lack of personal jurisdiction.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED

__________________________ Joseph A. DiClerico, Jr. United States District Judge

August 13, 2018

cc: Peter G. Callaghan, Esq. Megan C. Carrier, Esq. James F. Ogorchock, Esq.

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