UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Diane O’Neil Case No. 20-cv-175-PB v. Opinion No.

Somatics, LLC & Elektrika, Inc.

MEMORANDUM AND ORDER

In this diversity action, Diane O’Neil, a New Hampshire

resident, has sued two out-of-state corporate defendants,

Somatics, LLC and Elektrika, Inc., after sustaining injuries

from electroconvulsive therapy with a Thymatron instrument. I

allowed O’Neil to conduct jurisdictional discovery when

Elektrika first moved to dismiss the claims against it for lack

of personal jurisdiction. Before me is Elektrika’s renewed

motion to dismiss on the same ground. Because O’Neil has failed

to demonstrate that Elektrika is subject to personal

jurisdiction in New Hampshire, I grant the motion to dismiss.

I. BACKGROUND

The Thymatron is an instrument used to treat severe

psychiatric disturbances by inducing a major motor seizure

through a brief but intense electrical current applied to a

patient’s head in a process known as electroconvulsive therapy.

From August 2016 until February 2017, O’Neil underwent multiple

rounds of electroconvulsive therapy with a Thymatron at the Elliot Hospital in Manchester, New Hampshire. She allegedly

suffered brain damage and permanent neurocognitive injuries as a

result of that treatment.

Since its inception in the 1980s, the Thymatron has been

collaboratively designed and manufactured by Elektrika, a

privately held New York corporation, and Somatics, a Florida

limited liability company. There is no overlap in ownership

between the two companies. According to a 1997 exclusivity

agreement between Elektrika and Somatics, the two “have enjoyed

an exclusive and successful business relationship since 1983,

characterized by close collaboration in the design, manufacture,

and marketing of the Thymatron ECT device and accessories

worldwide.” Doc. No. 34 at 3. In that contract, Elektrika

agreed to manufacture the Thymatron exclusively for Somatics, so

long as Somatics purchases at least fifty units every year. In

turn, Somatics agreed to purchase the device exclusively from

Elektrika, provided that Elektrika supplies as many units as

Somatics “provides good purchase orders for.” Doc. No. 34 at 3.

Elektrika is the principal designer and manufacturer of the

device. Elektrika designed the original Thymatron and has been

responsible for design updates, with Somatics suggesting some

specifications that Elektrika could reject. In terms of

manufacturing, Elektrika assembles the main body of the device

in New York and ships it to Somatics in Florida. Somatics

2 completes the assembly by installing additional parts and

calibrating the device.

Somatics is exclusively responsible for the sale and

distribution of the Thymatron. At least since 2003, Somatics

has marketed the device without any input from Elektrika.

An undated agreement between the two companies regarding

quality assurance practices provides that Elektrika is

“responsible for handling any repairs of the Thymatrons sent to

be serviced and reporting the information to Somatics who will

be responsible for maintaining the repair / Customer Complaint

procedures.” Doc. No. 34 at 2. Throughout the repair process,

Somatics is the only entity that communicates with a Thymatron

customer, such as a hospital. The process starts when a

hospital contacts Somatics with a maintenance or repair request.

Somatics assigns a return merchandise authorization (“RMA”)

number to the machine in question and coordinates its transfer

to Elektrika. Typically, Somatics instructs the hospital to

ship the device either directly to Elektrika’s New York location

or to Somatics, which then forwards it to Elektrika. Upon

receipt, Elektrika verifies that the machine is accompanied by

an RMA issued by Somatics, examines the machine, and informs

Somatics what work needs to be done. After Somatics approves

the proposed repair work, Elektrika completes the repair and

returns the machine. A packing slip provided by Somatics tells

3 Elektrika where and how to ship the repaired machine, typically

either back to Somatics or directly to the hospital. Somatics

bills the hospital for the repair and remits payment to

Elektrika.

The specific device that injured O’Neil was manufactured in

2005. Elektrika has performed maintenance or repair work on

that machine on three occasions, in June 2008, January 2010, and

June 2020. On each occasion, Elektrika received the machine and

performed the work in New York. Elektrika then shipped it back

directly to the Elliot Hospital in New Hampshire.

In September 2013, Elektrika shipped a Thymatron component

part directly to another hospital in New Hampshire, the Southern

New Hampshire Medical Center. That hospital placed the part

order with Somatics, which later remitted payment to Elektrika.

Elektrika has no offices, facilities, employees, agents, or

other representatives in New Hampshire. It does, however,

purchase printer cables, which are incorporated into the

Thymatron, from a New Hampshire-based sales representative of a

California company called Rapid Manufacturing. 1 For the past ten

years, Elektrika has placed via email approximately one order

for 200 printer cables every year, paying around $1,000 per

order.

1 The cables are used to connect the printer to the PC board in the Thymatron instrument.

4 The complaint alleges product liability and negligence

claims against Elektrika. Specifically, Elektrika is allegedly

liable for a negligent failure to warn, manufacturing and design

defects, breach of the implied warranty of merchantability, and

breach of the implied warranty of fitness. These theories of

liability center on the idea that the Thymatron device is an

inherently dangerous and defective device that was not

accompanied by adequate warnings about the risks of undergoing

electroconvulsive therapy.

After the complaint was filed, Elektrika moved to dismiss

the claims against it for lack of personal jurisdiction. O’Neil

responded with a request to conduct jurisdictional discovery. I

denied without prejudice Elektrika’s motion and granted O’Neil’s

request for limited jurisdictional discovery after concluding

that she had proffered a colorable claim that Elektrika is

subject to specific jurisdiction in New Hampshire. After the

parties conducted that discovery, Elektrika renewed its motion

to dismiss for lack of personal jurisdiction. I held a hearing

on the motion in June 2021. At the hearing, both parties agreed

that I could decide the present motion on the record before me,

without conducting an evidentiary hearing.

II. STANDARD OF REVIEW

When defendant contests personal jurisdiction under Federal

Rule of Civil Procedure 12(b)(2), plaintiff bears the burden of

5 showing that a basis for asserting jurisdiction exists. Nandjou

v. Marriott Int’l, Inc.,

(1st Cir. 2021).

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

Under this standard, plaintiff

must “proffer evidence which, taken at face value, suffices to

show all facts essential to personal jurisdiction.” Baskin-

Robbins Franchising LLC v. Alpenrose Dairy, Inc.,

(1st Cir. 2016). In conducting this analysis, I must take

the evidence offered by plaintiff as true and construe it in the

light most favorable to plaintiff’s jurisdictional claim.

Nandjou,

. I can also consider facts offered

by defendant, to the extent they are uncontradicted. A Corp. v.

All Am. Plumbing, Inc.,

(1st Cir. 2016).

III. ANALYSIS

Elektrika argues that it is not subject to personal

jurisdiction in New Hampshire. O’Neil disagrees, arguing that

she has provided evidence of jurisdictional facts which, if

true, demonstrate that Elektrika’s contacts with New Hampshire

satisfy the requirements of specific personal jurisdiction.

When assessing personal jurisdiction in a diversity case, a

federal court “is the functional equivalent of a state court

sitting in the forum state.” Baskin-Robbins,

(quoting Sawtelle v. Farrell,

(1st Cir.

6 1995)). The court must determine whether an exercise of

jurisdiction is proper under both the forum’s long-arm statute

and the due process requirements of the U.S. Constitution. C.W.

Downer & Co. v. Bioriginal Food & Sci. Corp.,

(1st Cir. 2014). Because New Hampshire’s long-arm statute is

coextensive with the due process clause, however, I need only

consider whether exercising personal jurisdiction would comport

with due process. Phillips Exeter Acad. v. Howard Phillips

Fund,

(1st Cir. 1999).

Due process requires that defendant “have certain minimum

contacts with the forum such that the maintenance of the suit

does not offend traditional notions of fair play and substantial

justice.” Plixer Int’l, Inc. v. Scrutinizer GmbH,

(1st Cir. 2018) (quoting Int’l Shoe Co. v. Washington,

(1945)) (cleaned up). When plaintiff asserts specific

jurisdiction, due process requires that (1) her “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 Capital Advisors Corp. v.

The Deal, LLC,

(1st Cir. 2018).

Elektrika argues that its contacts with New Hampshire are

neither related to O’Neil’s claims nor do they amount to

7 purposeful availment of the forum. Applying the prima facie

standard, I conclude that the evidence here is insufficient to

establish either relatedness or purposeful availment.

A. Relatedness

Plaintiff’s claims for relief must “arise out of or relate

to” defendant’s contacts with the forum state. Ford Motor Co.

v. Mont. Eighth Jud. Dist. Ct.,

(2021).

This is a “flexible, relaxed standard” that requires “only a

demonstrable nexus between the complaint’s claims and the

activities in the forum that properly may be attributed to the

defendant[], such that the litigation itself is founded directly

on those activities.” PREP Tours, Inc. v. Am. Youth Soccer

Org.,

(1st Cir. 2019) (cleaned up).

In Ford, the Supreme Court rejected a “causation-only

approach” to the relatedness inquiry.

. The

Court reasoned that the phrase “arise out of or relate to” is

formulated in the disjunctive and only the “arise out of”

language involves causation.

By contrast, the phrase

“relate to” suggests “that some relationships will support

jurisdiction without a causal showing.”

That phrase,

however, “incorporates real limits” and requires “a strong

relationship among the defendant, the forum, and the

litigation.”

(cleaned up).

8 At issue in Ford was whether the courts of Montana and

Minnesota could exercise personal jurisdiction over Ford in

suits arising from in-state accidents involving two Ford

vehicles that were designed, manufactured, and purchased out of

state.

. In the absence of contacts related to the

specific vehicles involved in those crashes, the Supreme Court

focused on Ford’s broader efforts to sell same-model vehicles in

each state. Specifically, Ford had urged residents of Montana

and Minnesota to buy such vehicles through advertisements; the

vehicles were available for sale in those states; and Ford

dealers in those states regularly maintained and repaired the

company’s vehicles.

. “Those contacts,” the

Court explained, “might turn any resident of Montana or

Minnesota into a Ford owner — even when he buys his car from out

of state.”

. Thus, the relatedness prong was met

because “Ford had systematically served a market in Montana and

Minnesota for the very vehicles that the plaintiffs allege[d]

malfunctioned and injured them in those States.”

.

Although the First Circuit has yet to address Ford, its

precedent is consistent with that decision. In Nandjou, the

circuit reaffirmed its earlier holding that the relatedness

prong “‘is not as rigid’ as the proximate cause inquiry in the

tort context,” and that “‘strict adherence to a proximate cause

standard in all circumstances is unnecessarily restrictive.’”

9

(quoting Nowak v. Tak How Invs., Ltd.,

(1st Cir. 1996)). In that case, a Massachusetts

resident was on vacation in Canada when her husband and child

drowned in the pool of the Montreal Residence Inn, leading to a

wrongful death suit in Massachusetts against the hotel’s owners.

Id. at 139. Before booking their stay, plaintiffs’ family

received several direct mailings from defendants at their

Massachusetts home advertising the Montreal Residence Inn,

including its pool. Id. The First Circuit concluded that the

lawsuit was sufficiently related to defendants’ in-forum

activities. Id. at 150. Although their marketing efforts did

not proximately cause the tort, defendants’ deliberate attempt

to cultivate business from plaintiff’s family in Massachusetts

bore a sufficient nexus to the cause of action, which was based

on harm that plaintiff’s family suffered while engaging in the

very relationship defendants sought to establish. Id.

The thrust of O’Neil’s product liability and negligence

claims against Elektrika is that Elektrika designed an

inherently dangerous and defective product and failed to warn

her about the risks of its use. She relies upon three sets of

contacts to establish personal jurisdiction in New Hampshire:

(1) Elektrika’s maintenance and repair work, performed in New

York, on the specific machine that injured her, which Elektrika

then shipped back to New Hampshire; (2) Elektrika’s shipment of

10 a Thymatron component part to another New Hampshire hospital;

and (3) Elektrika’s once-a-year purchase of component parts for

the Thymatron (printer cables) from a California company via a

New Hampshire-based sales representative.

None of those contacts have a causal link to O’Neil’s

claims. Whether those activities took place or not has no

bearing on O’Neil’s claims that the Thymatron was defectively

designed, defectively manufactured, and unaccompanied by proper

warnings. She does not allege, for example, that the device

that injured her was negligently repaired or maintained.

Therefore, her claims do not “arise out of” Elektrika’s contacts

with New Hampshire.

The question, then, becomes whether those contacts are

nonetheless “related to” O’Neil’s claims because they evince “a

strong relationship among the defendant, the forum, and the

litigation.” Ford,

(cleaned up). The facts

O’Neil cites do not support this theory of relatedness either.

Unlike in Ford, Elektrika has not “systematically served a

market” for the Thymatron or any other product in New Hampshire.

See

There is no evidence that Elektrika marketed or sold

any Thymatrons in New Hampshire or otherwise sought to foster

relations with Thymatron customers in the State. Nor is there

other evidence in the record tending to show “a strong

relationship” among Elektrika, New Hampshire, and this

11 litigation. See

In contrast to the active and continuous

engagement in the forum that satisfied relatedness in Ford,

Elektrika had only remote and infrequent contacts related to the

Thymatron with New Hampshire. It cannot be said that those

limited contacts might turn any New Hampshire resident into a

Thymatron customer or end user. See

.

O’Neil’s strongest evidence on relatedness shows that on

three occasions Elektrika performed maintenance or repair work

on the specific device that injured her. One of those repairs

occurred after her claims arose and is thus not relevant to the

jurisdictional inquiry. See Harlow v. Children’s Hosp.,

(1st Cir. 2005) (“[I]n analyzing specific

jurisdiction, contacts must generally be limited to those before

and surrounding the accrual of the cause of action.”). The two

relevant instance of repair work are not meaningfully related to

O’Neil’s claims. The fact that Elektrika twice repaired the

specific device in question and shipped it to the Elliot

Hospital does not “form an important, or at least material,

element of proof” in O’Neil’s case. See

(cleaned up). Nor

can it be said that the litigation is otherwise “founded

directly on those activities.” PREP Tours,

.

O’Neil argues that Elektrika’s repair activities render

this case analogous to Katz v. Spiniello Companies, where the

district court held that Massachusetts had personal jurisdiction

12 over an out-of-state maintenance company that had sent its

technicians from Massachusetts to Delaware to perform work on,

and certify the airworthiness of, an airplane that subsequently

crashed in Massachusetts. See

(D.

Mass. 2017). Plaintiffs there argued that because the plane’s

gust lock system was faulty, it was not airworthy and,

therefore, the maintenance company was negligent in certifying

the plane.

Defendant countered that its maintenance work

and certification had nothing to do with the gust lock system

and produced a record showing that it performed work on the

plane’s APU system.

. The court held that

plaintiffs had adequately alleged a causal link between their

negligence claim and defendant’s in-forum activities in part

because the evidence did not show that the scope of the

certification was limited to the APU system.

.

I agree with Elektrika that Katz is distinguishable.

Unlike in that case, no one from New Hampshire performed the

repair work on the device that injured O’Neil. More

importantly, there is no allegation that the scope of that work

bears any relation to O’Neil’s claims. 2

2 The First Circuit’s decision in Nandjou likewise does not support a finding of relatedness here. Whereas plaintiff there was injured while engaging in the business relationship that defendants’ in-forum activities sought to create, the relationship with the Elliot Hospital was created and maintained exclusively by Somatics. See

.

13 Elektrika’s shipment of a Thymatron component part to

another New Hampshire hospital is likewise insufficiently

related to O’Neil’s claims. This shipment has no “demonstrable

nexus” to Elektrika’s alleged misconduct in New Hampshire. See

PREP Tours,

. It is no more than an attenuated

contact that bears a weak relationship to both the forum and

this litigation. Cf. Ford,

(requiring a

“strong relationship” in this context).

Lastly, O’Neil contends that Elektrika’s yearly purchase of

printer cables through a New Hampshire-based sales

representative shows systemic contacts with the State that

satisfy the relatedness requirement. But placing a single

purchase order every year from a California company by

communicating via email with an employee working from New

Hampshire pales in comparison to the scale of the systemic

contacts in Ford. See

. Despite their

regularity, those purchases do not amount to widespread

activities that can justify a relatedness finding under Ford.

See id.; cf. Goodyear Dunlop Tires Operations, S.A. v. Brown,

, 930 n.6 (2011) (“[E]ven regularly occurring sales

of a product in a State do not justify the exercise of

jurisdiction over a claim unrelated to those sales.”).

In sum, none of O’Neil’s claims relates to Elektrika’s in-

forum activities. The nexus between them is too attenuated to

14 support an exercise of specific jurisdiction over Elektrika in

New Hampshire.

B. Purposeful Availment

The purposeful availment prong is met when “defendant

purposefully and voluntarily directs his activities toward the

forum so that he should expect, by virtue of the benefit he

receives, to be subject to the court’s jurisdiction based on

these contacts.” United States v. Swiss Am. Bank, Ltd.,

(1st Cir. 2001). The two “cornerstones” of

purposeful availment are “voluntariness and foreseeability.”

C.W. Downer,

. For defendant’s contacts with the

forum to be considered voluntary, they must proximately result

from defendant’s own actions, rather than plaintiff’s unilateral

activities. PREP Tours,

. Foreseeability in this

context means that “defendant’s conduct and connection with the

forum State are such that he should reasonably anticipate being

haled into court there.”

(quoting Burger King Corp. v.

Rudzewicz,

(1985)). This standard ensures

that an exercise of jurisdiction is not based on defendant’s

“random, fortuitous, or attenuated [forum] contacts.” Carreras

v. PMG Collins, LLC,

(1st Cir. 2011) (quoting

Burger King,

).

For purposes of this prong, O’Neil relies on the “stream of

commerce plus” theory of personal jurisdiction. See Asahi Metal

15 Indus. Co. v. Super. Ct. of Cal.,

(1987); Boit

v. Gar–Tec Prods., Inc.,

(1st Cir. 1992).

Under that theory, “[t]he placement of a product into the stream

of commerce, without more, is not an act of the defendant

purposefully directed toward the forum State.” Asahi,

. To establish purposeful availment, plaintiff must

demonstrate some additional conduct by defendant directed toward

the forum, such as “advertising in the forum State, establishing

channels for providing regular advice to customers in the forum

State, or marketing the product through a distributor who has

agreed to serve as the sales agent in the forum State.” Id.;

see Knox v. MetalForming Inc.,

(1st Cir.

2019).

The “plus” factors O’Neil cites do not show that Elektrika

purposefully availed itself of the benefits of doing business in

New Hampshire. Elektrika did not seek to cultivate a market for

the Thymatron in New Hampshire by advertising in the State or

addressing customer complaints with New Hampshire residents. I

agree with the California superior court in Carranza v. Somatics

LLC, another case involving similar claims against the same

defendants, that Elektrika’s repair activities are insufficient

to show purposeful availment. See Case No. 20STCV28893, Slip

Op. (Cal. Super. Ct. May 21, 2021), Doc. No. 39-6.

16 As that court explained in granting Elektrika’s motion to

dismiss for lack of personal jurisdiction, the repair work was

performed in New York while Somatics directed the entirety of

the related transactions. Here, as in Carranza, “[t]he evidence

shows that any repairs or replacements by Elektrika were done at

the direction of Somatics, communications with the customers

seeking repairs or replacement parts were with Somatics, and any

invoices were issued by Somatics.” Doc. No. 39-6 at 7.

Elektrika’s only activity attendant to repairing the device used

in O’Neil’s treatment involved shipping the device back to New

Hampshire. But neither those shipments, which occurred twice

during the relevant period, nor Elektrika’s shipment of a

Thymatron part to another New Hampshire hospital show that

Elektrika reached out beyond New York to exploit a market in New

Hampshire. To be sure, those activities show that Elektrika had

knowledge that two Thymatron devices were being used in New

Hampshire. But the fact that Elektrika shipped the device or a

component part to New Hampshire on three occasions over six

years does not create a foreseeable possibility that Elektrika

would be haled into a New Hampshire court.

O’Neil’s reliance on Elektrika’s purchases of printer

cables fares no better. Elektrika’s yearly exchange of emails

with a California company’s sales agent who happened to live in

New Hampshire, which resulted in the once-per-year purchase of

17 printer cables, is the type of “random” and “fortuitous” event

that is insufficient to satisfy the purposeful availment

requirement. See Sawtelle,

(no purposeful

availment where defendant attorneys’ contact “with New Hampshire

were limited, consisting primarily of written and telephone

communications with the clients in the state where they happened

to live”). Even considered collectively, the facts here do not

support a finding of sufficient minimum contacts brought about

by purposeful acts of Elektrika directed toward New Hampshire.

IV. CONCLUSION

After conducting jurisdictional discovery, O’Neil has

failed to make the prima facie showing necessary to establish

that there is personal jurisdiction over Elektrika in New

Hampshire. Accordingly, I grant Elektrika’s motion to dismiss

for lack of personal jurisdiction (Doc. No. 32).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

September 24, 2021

cc: Counsel of record

18