UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert L. Conroy

v. Civil No. 18-cv-641-LM Opinion No.

The Dow Chemical Company, et al

O R D E R

Robert Conroy alleges that he suffered serious injuries

when the contents of a can of foam sealant manufactured by The

Dow Chemical Company (“Dow”) and distributed by Sudbury Lumber

Company, Inc. (“Sudbury Lumber”) exploded on him. He sued Dow

and Sudbury Lumber in New Hampshire Superior Court, and Dow

removed the action to this court based on diversity

jurisdiction. Sudbury Lumber moves to dismiss the claim against

it pursuant to Federal Rule of Civil Procedure 12(b)(2),

claiming that the court lacks personal jurisdiction over it.

Conroy objects. Because Conroy has failed to make a prima facie

showing that this court has either specific or general

jurisdiction over Sudbury Lumber, the court grants Sudbury

Lumber’s motion.

STANDARD OF REVIEW

When a defendant contests personal jurisdiction under Rule

12(b)(2), the plaintiff bears the burden of persuading the court that jurisdiction exists. See Mass. Sch. of Law at Andover,

Inc. v. Am. Bar Ass’n,

(1st Cir. 1998). Where,

as here, the court considers a Rule 12(b)(2) motion without

holding an evidentiary hearing, the court applies the prima

facie standard. See Sawtelle v. Farrell,

, 1386 n.1

(1st Cir. 1995). To make a prima facie showing of jurisdiction,

a plaintiff cannot rest on the pleadings, but must adduce

evidence of specific facts supporting jurisdiction. See Foster-

Miller, Inc. v. Babcock & Wilcox Canada,

(1st

Cir. 1995).

The court “draws the facts from the pleadings and the

parties’ supplementary filings, including affidavits, taking

facts affirmatively alleged by the plaintiff as true and viewing

disputed facts in the light most favorable to plaintiff.”

Sawtelle,

. The court may also consider the

facts posited by defendant, to the extent they are

uncontradicted. See Mass. Sch. of Law,

. But the

court need not “credit conclusory allegations or draw farfetched

inferences.”

(quotation omitted). In short, the court does

not sit as a fact-finder; it “ascertains only whether the facts

duly proffered, fully credited, support the exercise of personal

jurisdiction.“ Rodriguez v. Fullerton Tires Corp.,

(1st Cir. 1997).

2 BACKGROUND

Conroy owns and operates a small carpentry business. In

November 2016, he was working on a renovation project in which

he planned to install insulation in a home. To complete the

project, Conroy decided to use GREAT STUFF™, a foam sealant

product. Dow manufactures Great Stuff and advertises it as an

effective foam sealant, ideal “for a do-it-yourselfer.” Doc.

no. 1-1 at ¶ 15.

During the project, a worker handed Conroy a can of Great

Stuff that had recently been purchased at Sudbury Lumber.

Conroy began shaking the can, per the instructions. While doing

so, the can slipped out of his hands, fell to the floor, and

exploded. The contents of the can sprayed onto his face and

hands, causing serious chemical burns. Conroy alleges a claim

of products liability against both Sudbury Lumber and Dow,

claiming that “Dow, by and through its authorized retailer,

Sudbury Lumber, provided products to [him]” that were defective

or unreasonably dangerous, resulting in injury.

at ¶¶ 92-

93, 101-02.1

Sudbury Lumber is a Massachusetts corporation with its

principal office in Sudbury, Massachusetts. Sudbury Lumber

1 Conroy also alleges claims of negligent misrepresentation and a violation of the New Hampshire Consumer Protection Act against Dow.

3 asserts that it has no retail location or office, no registered

agent, no employees, no mailing address, and no bank account in

New Hampshire. Doc. no. 11-1 at 2. It also avers that it is

not registered to do business in New Hampshire. Id. at 3.

Conroy does not dispute any of these assertions.

Nevertheless, he contends that the court may exercise personal

jurisdiction because of Sudbury Lumber’s website. Sudbury

Lumber does not dispute that it maintains a website. Id. at 2.

According to Conroy, the website allows customers to search

Sudbury Lumber’s catalog—which includes Dow products—and add

items to a shopping cart. Doc. no. 10 at 2. Once customers

have placed items in a shopping cart, they have the option to

“[e]mail for [a] quote,” which commences a transaction between

the customer and Sudbury Lumber. Id. Sudbury Lumber may

respond to that communication to secure the customer’s business.

Conroy does not allege that customers can buy products directly

through Sudbury Lumber’s website.

DISCUSSION

“Personal jurisdiction implicates the power of a court over

a defendant.” Foster-Miller,

. “An exercise of

jurisdiction must be authorized by state statute and must comply

with the Constitution.” Harlow v. Children’s Hosp.,

(1st Cir. 2005). New Hampshire’s long-arm statute

4 reaches as far as the Constitution allows. Phillips Exeter

Acad. v. Howard Phillips Fund,

(1st Cir.

1999). Therefore, the court’s inquiry is whether the

constitutional requirements of due process have been met. See

“The Due Process Clause prohibits a court from imposing its

will on persons whose actions do not place them in a position

where they reasonably can foresee that they might be called to

account in that jurisdiction.”

Grounded in principles of

fundamental fairness, the court’s personal jurisdiction inquiry

focuses on the quality and quantity of defendant’s contacts with

the forum state. See

.

Personal jurisdiction may be either specific or general.

Cossaboon v. Maine Med. Ctr.,

(1st Cir. 2010).

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.”

(quotation omitted). By contrast,

“[g]eneral jurisdiction exists when the litigation is not

directly founded on the defendant’s forum-based contacts, but

the defendant has nevertheless engaged in continuous and

systematic activity, unrelated to the suit, in the forum state.”

Foster-Miller,

(quotation omitted). The Supreme

Court has recently clarified that, to justify general

jurisdiction, defendant’s forum state contacts must be so

5 continuous and systematic “as to render [defendant] essentially

at home in the forum State.” Daimler AG v Bauman,

,

133 n.11 (2014) (quoting Goodyear Dunlop Tires Operations, S.A.

v. Brown,

(2011)). Because Conroy has not

distinguished between specific and general jurisdiction, the

court will address both.

I. Specific Jurisdiction

To determine whether specific jurisdiction exists, courts

consider three elements: relatedness, purposeful availment, and

reasonableness. Phillips v. Prairie Eye Center,

(1st Cir. 2008). Plaintiff must prove that each of these three

requirements is met.

The first requirement of relatedness

differentiates specific jurisdiction from general jurisdiction.

While general jurisdiction may be exercised over “suits not

directly founded on [defendant’s] forum-based conduct,”

Cossaboon,

(quotation omitted), specific

jurisdiction exists only if plaintiff’s claim is related to

defendant’s contacts in the forum state, see Harlow,

.

In assessing relatedness, the court must first identify

what type of claim plaintiff alleges. See Phillips Exeter

Acad.,

. In tort cases, the court examines

“relatedness” by evaluating “whether the plaintiff has

6 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 Capital Advisors Corp. v.

The Deal, LLC,

(1st Cir. 2018).

To the extent Conroy asserts that his claim is related to

Sudbury Lumber’s New Hampshire contacts, Conroy focuses on

Sudbury Lumber’s website. He alleges that Sudbury Lumber

maintains a website accessible by New Hampshire residents that

allows customers to add Dow products to a shopping cart and

request a quote or credit application from Sudbury Lumber. Doc.

no. 10 at 2.

These facts are insufficient to establish that Sudbury

Lumber’s contacts with New Hampshire were the factual and legal

cause of Conroy’s injuries. Conroy does not allege that the can

of Great Stuff that caused his injuries was purchased through

Sudbury Lumber’s website, that he or his associates had shopped

for or inquired about the product via the website, or that he or

his associates had ever visited the website.2 Therefore, even

viewing the facts in the light most favorable to Conroy, the

website was not a “but for” cause of Conroy’s injury and he has

2 The complaint alleges only that the can “had recently been purchased at Sudbury Lumber.” Doc. no. 1-1 at ¶ 24.

7 not demonstrated that his claim is related to Sudbury Lumber’s

contacts in New Hampshire. Because Conroy cannot satisfy the

first element of “relatedness,” the court need not address the

remaining requirements for specific jurisdiction. See Phillips,

. Conroy has failed to make a prima facie showing

that this court has specific jurisdiction over Sudbury Lumber.

II. General Jurisdiction

Because Conroy’s claim is not related to Sudbury Lumber’s

contacts in New Hampshire, this court may exercise jurisdiction

only if Conroy makes a prima face showing that the court has

general jurisdiction over Sudbury Lumber. See Harlow,

. The standard for establishing general jurisdiction is

“considerably more stringent” than that for specific

jurisdiction. Cossaboon,

(quotation omitted).

To establish general jurisdiction, the plaintiff must show that:

(1) the defendant has sufficient contacts with the forum state;

(2) those contacts are purposeful; and (3) the exercise of

jurisdiction is reasonable under the circumstances.

To satisfy the first requirement, defendant’s contacts with

the forum state must be “so continuous and systematic as to

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

Daimler,

n.11 (quotation and internal quotation

marks omitted). The second requirement that defendant’s

8 contacts be “purposeful” asks whether defendant has purposefully

and voluntarily directed its activities toward the forum such

that it would expect to be subject to the court’s jurisdiction.

See Cossaboon,

. These first two requirements

turn on the “quality and nature” of defendant’s activity in the

forum state and are highly fact specific.

(quotation

omitted). The final reasonableness requirement is secondary to

the first two inquiries: “unless the defendant has some

cognizable contacts with the proposed forum, the court cannot

assert general jurisdiction.”

(quotation omitted). To

establish general jurisdiction, plaintiff must satisfy all three

requirements. See

at 39 n.7.

Conroy contends that the nature of Sudbury Lumber’s website

provides a basis for personal jurisdiction. It is well

established, however, that “the mere existence of a website that

is visible in a forum and that gives information about a company

and its products is not enough, by itself, to subject a

defendant to personal jurisdiction in that forum.”

(quotation omitted). Instead, “something more” is necessary,

such as the interactive feature of online shopping.

(quotation and brackets omitted). Whether that “something more”

is present depends “on the extent to which the defendant has

actually and purposefully conducted commercial or other

9 transactions with forum state residents through its website.”

Here, Conroy has not shown that Sudbury Lumber’s contacts

with New Hampshire are “something more” than a mere internet

presence. It is undisputed that customers cannot complete a

commercial transaction via Sudbury Lumber’s website. See

Cossaboon,

(holding no general jurisdiction over

defendant hospital where its website had interactive features,

such as patient pre-registration, but did not sell or render

services online). Although customers may browse for products

and place them in a shopping cart, Conroy does not allege that

customers can finalize the purchase of those items online.

Rather, after a customer creates a shopping cart, the customer’s

next option is to email Sudbury Lumber for a quote. Sudbury

Lumber must then reach out to the customer to complete the

transaction. Conroy does not allege that after such

communication, the transaction can be completed online. Nor has

Conroy offered any evidence of the amount of sales Sudbury

Lumber generated from New Hampshire residents through its

website, or how often New Hampshire residents visited the

website. Compare Dagesse v. Plant Hotel N.V.,

(D.N.H. 2000) (finding no general jurisdiction over

defendant hotel that had interactive website advertising

10 services and permitting online reservations because plaintiff

proffered no evidence that defendant used website to do business

or interact with forum state residents), with Mieczkowski v.

Masco Corp.,

(E.D. Tex. 1998) (finding

general jurisdiction based on combination of defendant’s

interactive website and traditional business contacts with forum

state, including that 3.2% of defendant’s gross sales income

over previous four years was derived from forum state and that

defendant biannually mailed advertisements to forum state

customers).3

The website contacts Conroy relies upon are inadequate to

establish that Sudbury Lumber engaged in the continuous and

systematic pursuit of business in New Hampshire such that it was

essentially “at home” here and could expect to be subject to

this court’s jurisdiction. Because Conroy has failed to satisfy

the first element of sufficient contacts with the forum state,

3 Conroy also relies upon the “close geographic proximity” of New Hampshire and Massachusetts, in conjunction with the website, to support the exercise of jurisdiction. Doc. no. 10 at 4-5. The court is not convinced that the states’ proximity to one another, without any evidence linking that proximity to sales to forum state residents through the website or otherwise, has any bearing in this case. Cf. Ford v. RDI/Caesars Riverboat Casino, LLC,

(W.D. Ky. 2007) (finding exercise of jurisdiction over defendant casino reasonable based, in part, on casino’s geographic proximity to forum state and its “heavy reliance” on forum state patrons for business).

11 this court need not reach the other two elements necessary to

establish general jurisdiction. See Cossaboon,

n.7. The court cannot exercise general jurisdiction over

Sudbury Lumber.

CONCLUSION

Conroy has failed to carry his burden of making a prima

facie showing that this court has either specific or general

jurisdiction over Sudbury Lumber. Accordingly, Sudbury Lumber’s

motion to dismiss under Rule 12(b)(2) (doc. no. 9) is granted.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

November 8, 2018

cc: Counsel of Record

12