UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony Cappello

v. Civil No. 21-cv-356-SE Opinion No.

Restaurant Depot, LLC, et al.

O R D E R

Anthony Cappello asserts that the remaining defendants in

this case, out-of-state companies, are subject to specific

personal jurisdiction in New Hampshire for claims stemming from

his consumption of contaminated lettuce in New Jersey. To show

that a defendant has sufficient minimum contacts with a forum to

allow a court to exercise specific personal jurisdiction over

that defendant, a plaintiff must demonstrate the existence of

three familiar prongs: relatedness, purposeful availment, and

reasonableness. The first two prongs are distinct concepts.

Relatedness focuses narrowly on the relationship between the

plaintiff’s claim and the defendant’s contacts with the forum.

Purposeful availment considers the defendant’s contacts with the

forum generally. That distinction is critical in this case.

Notwithstanding the Supreme Court’s recent clarification that it

rejects a causation-only approach, the requirement that a

plaintiff’s claims “arise out of or relate to” a defendant’s

conduct “incorporates real limits.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

(2021). Even if the

plaintiff has met his burden to show that the defendants

purposefully availed themselves of doing business in New

Hampshire, he has not shown that his claims relate to any of the

defendants’ contacts with New Hampshire. As such, the court

cannot exercise personal jurisdiction over either of the

remaining defendants in this case and grants their motions to

dismiss.

Standard of Review

Cappello’s objections to the motions to dismiss included a

conditional request for a hearing. Doc. nos. 67 and 68 (asking

the court to “[g]rant an evidentiary hearing if the motion to

dismiss will not be denied on the pleadings”). Because Cappello

has not provided any reason that an evidentiary hearing would

assist in the jurisdictional analysis and because the court’s

reasoning rests on legal conclusions drawn from uncontroverted

facts rather than the determination of any factual dispute, a

hearing is not necessary.

When, as here, the court does not hold an evidentiary

hearing on a Rule 12(b)(2) motion, the prima facie approach

applies. Rodriguez-Rivera v. Allscripts HealthCare Solutions,

Inc.,

, 157 (1st Cir. 2022). Under that approach,

2 the court acts “as a data collector” but not as a factfinder.

(quotation omitted).

As a data collector, the court takes the plaintiff’s

“properly documented evidentiary proffers as true and

construe[s] them in the light most favorable to [the

plaintiff’s] jurisdictional claim.” A Corp. v. All Am. Plumbing,

Inc.,

(1st Cir. 2016). The plaintiff cannot

establish jurisdiction based on allegations in the complaint but

instead “must put forward evidence of specific facts to

demonstrate that jurisdiction exists.”

The court “also

consider[s] facts offered by [the defendant], to the extent that

they are not disputed.”

The plaintiff bears the burden of

showing that specific personal jurisdiction exists. Rodriguez-

Rivera, 43 F.4th at 160.

Background

On November 9, 2018, Cappello, a New Hampshire resident,

purchased and ate a salad from a restaurant in Fairfield, New

Jersey. The restaurant prepared the salad using romaine lettuce

grown or distributed by D’Arrigo Bros., Co., a California

corporation. It was sold to the restaurant by Restaurant Depot,

LLC, which is incorporated in Delaware and has its principal

place of business in New York.

3 The following day when he was back at his home in Bedford,

New Hampshire, Cappello began feeling stomach pains. His

symptoms gradually worsened. Ultimately, his life was in danger,

and he had his colon surgically removed on November 16, 2018. He

spent nearly three weeks in the hospital recovering and received

continuing medical treatment for several months, including two

additional surgeries.

Cappello alleges that his injuries were caused by the salad

he ate in New Jersey on November 9, 2018. Specifically, he

alleges that the lettuce in the salad was contaminated with E.

coli O157:H7. He brings product liability, breach of warranty,

and negligence claims against D’Arrigo and Restaurant Depot.1

The defendants separately move to dismiss, arguing that the

court cannot exercise personal jurisdiction over them. See doc.

nos. 47 and 48. The court extended the time for Cappello to

object to allow him to conduct jurisdictional discovery. He has

since filed his objections, and the motions have been fully

briefed.

1 Cappello brought suit against additional defendants, including the restaurant from which he purchased the salad. He has voluntarily dismissed those claims. D’Arrigo and Restaurant Depot are the only remaining defendants.

4 Discussion

When a defendant in a diversity case challenges personal

jurisdiction, the court “must determine whether the defendant’s

contacts with the state satisfy both the state’s long-arm

statute as well as the Due Process Clause of the Fourteenth

Amendment.” Vapotherm, Inc. v. Santiago,

(1st

Cir. 2022). New Hampshire’s long-arm statute allows personal

jurisdiction over an out-of-state defendant to the extent

allowed by due process.

Thus, specific personal

jurisdiction, as Cappello asserts here, requires the plaintiff

to show:

(1)[his] 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.

Scottsdale Cap. Advisors Corp v. The Deal, LLC,

(1st Cir. 2018). The court may exercise personal jurisdiction

over the defendants only if the plaintiff satisfies all three

prongs of the specific jurisdictional analysis. Motus, LLC v.

CarData Consultants, Inc.,

(1st Cir. 2022).

Cappello submits evidence to show the following facts in

support of the existence of personal jurisdiction over the

5 defendants.2 After an investigation, the Centers for Disease

Control and Prevention (“CDC”) and the United States Food and

Drug Administration determined that there was an outbreak of E.

coli 0157:H7 linked to romaine lettuce around the time Cappello

became ill. From October through early December 2018, 62 people

from 16 states (including New Hampshire), the District of

Columbia, and Canada were infected with E. coli due to

contaminated romaine lettuce.

The CDC determined that the contaminated lettuce came from

areas in northern and central California, including the region

in which D’Arrigo grows its lettuce. During the relevant time

period, Restaurant Depot purchased lettuce from D’Arrigo and

distributed it to its stores in New Jersey and New England. On

November 20, 2018, Restaurant Depot removed all romaine lettuce

from the shelves in its East Coast retail stores in response to

the CDC’s public health advisory regarding the E. coli outbreak.

Although Restaurant Depot does not have any locations in

New Hampshire, it has various connections to the state. From

2017 through 2022, it contracted for the sale of food to

thousands of business locations in New Hampshire and received

2 Restaurant Depot disputes several of the facts Cappello offers to support personal jurisdiction. Because, accepting Cappello’s facts as true, he cannot carry his burden to show the existence of personal jurisdiction over either remaining defendant, the court assumes for the purposes of this order only that they are true.

6 many millions of dollars in revenue from its New Hampshire

members. It also sent its New Hampshire members monthly

advertisements and email solicitations. In addition, Restaurant

Depot has agreements with partners who deliver its food items to

members in New Hampshire.

D’Arrigo’s contacts with New Hampshire are more attenuated.

It does not ship its products to New Hampshire or have any

direct contact with the state. Rather, viewed generously,

Cappello offers evidence to show that D’Arrigo sells romaine

lettuce products to major New England distributors and grocery

stores with the knowledge that its products will then be sold in

New Hampshire.

With those facts set forth, the court now turns to the

specific jurisdiction analysis.

I. Relatedness

The standards for weighing relatedness under New Hampshire

law and due process are different for contract and tort claims.

Vapotherm,

. When, as here, a plaintiff brings

both contract and tort claims, the court must address

relatedness under both standards.

.

7 A. Tort Claims

Cappello asserts three tort claims against the defendants:

strict product liability, negligence, and negligence per se. In

determining relatedness for the purpose of a tort claim, the

court “must probe the causal nexus between the defendant’s

contacts and the plaintiff’s cause of action.” Vapotherm,

. The court considers “whether the tort claim arises

out of or relates to the defendant’s contact with the forum.”

(quotation and alterations omitted).

As the defendants argue, Cappello’s tort claims do not

appear on their face to arise out of or relate to the

defendants’ contacts with New Hampshire. Cappello purchased and

ate the salad containing the contaminated lettuce in New Jersey,

not in New Hampshire. The defendants had general business

contacts with New Hampshire, but none that relates to the salad

Cappello ate in New Jersey.

Nevertheless, Cappello argues that he can establish

relatedness with respect to the defendants by relying on the

more relaxed standard illuminated in Ford Motor Co. v. Montana

Eighth Jud. Dist. Ct.,

(2021). In Ford, two

plaintiffs were injured in car accidents in Montana and

Minnesota, and brought suit against the manufacturer of the

vehicles, Ford Motor Company, in those states.

. Ford

moved to dismiss both suits for lack of personal jurisdiction,

8 arguing that the vehicles were designed, manufactured, and

purchased in other states.

After the state courts determined

that they could exercise specific personal jurisdiction, Ford

appealed, and the Supreme Court affirmed.

.

In determining that the plaintiffs had met the relatedness

prong, the Supreme Court noted that Ford had, “by every means

imaginable,” urged Montanans and Minnesotans to buy its

vehicles.

. Ford dealers in those states regularly

maintained and repaired Ford cars.

Ford had worked “hard to

foster ongoing connections to its cars’ owners” in both states.

It “had systematically served a market in Montana and

Minnesota for the very vehicles that the plaintiffs allege

malfunctioned and injured them in those States.”

Cappello argues that, as in Ford, the defendants’ business

in the forum state satisfies the relatedness prong of the

specific jurisdiction analysis. He points to Restaurant Depot’s

advertisements and sales in New Hampshire, and the fact that

Restaurant Depot made available for sale in New Hampshire and

then ultimately destroyed lettuce contaminated with E. coli

during the relevant timeframe.3 Cappello offers less with respect

3 Restaurant Depot submits evidence to show that few, if any, of these contacts existed prior to November 2018, when Cappello ate the salad with the contaminated lettuce. It argues that, therefore, the court should not consider those contacts when analyzing the relatedness prong of the jurisdictional analysis. See Harlow v. Children’s Hosp.,

(1st

9 to D’Arrigo, arguing only that it ships its lettuce to

distributors located in neighboring states who then sell it in

New Hampshire.

The Supreme Court’s analysis in Ford does not support

jurisdiction over the defendants in this case. Although

Restaurant Depot does business in the forum state and D’Arrigo’s

product is sold by others here, any similarities to Ford end

there. The nature and extent of the defendants’ activity in New

Hampshire is a far cry from the situation in Ford, where the

court looked at the contacts of “a global car company,

extensively serving the state market [for] a vehicle.” Ford,

.

Further, unlike the circumstances in Ford, there is no

allegation that Cappello knew that the salad he purchased in New

Jersey contained lettuce grown or distributed by the defendants.

The Supreme Court cautioned that jurisdiction should not “ride

on the exact reasons for an individual’s purchase, or on his

ability to present persuasive evidence about them.”

.

Yet, the Ford decision relied heavily on Ford’s contacts with

Cir. 2005) (“Because causation is central to the relatedness inquiry, in most cases, contacts coming into existence after the cause of action arose will not be relevant.” (citation omitted)). As stated above, because Cappello has not carried his burden to demonstrate relatedness, the court will assume for the purposes of this order only that Restaurant Depot’s post- November 2018 contacts are relevant to the relatedness inquiry.

10 the forum states that “might turn any resident of Montana or

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

of state.”

There is no evidence to suggest that the

defendants’ contacts with New Hampshire were designed to

persuade, or even capable of persuading, any New Hampshire

resident to purchase a particular prepared salad in a foreign

restaurant, let alone one containing the specific lettuce that

the defendants grow or distribute.

Moreover, Cappello ignores a central limitation to the

Supreme Court’s holding in Ford: the fact that the plaintiffs’

claims brought in Montana and Minnesota courts arose because the

defendant’s vehicles “malfunctioned and injured them in those

States.”

(noting that the facts of the case,

including “an in-state accident,” is “a paradigm example . . .

of how specific jurisdiction works”). Indeed, the Ford opinion

is riddled with that qualification throughout. See, e.g.,

(jurisdiction exists “when a company like Ford serves a

market for a product in the forum State and the product

malfunctions there”), 1028 (“Each plaintiff’s suit, of course,

arises from a car accident in one of [the forum] States.”), 1031

(distinguishing Bristol-Myers Squibb Co. v. Superior Ct. of

Cal.,

(2017) in part on the basis that the

plaintiffs in Ford used the allegedly defective products in the

forum state and were injured there). In contrast, Cappello was

11 injured in New Jersey, where he purchased and ate the salad

containing the contaminated lettuce.

On that point, Cappello argues otherwise. He offers a novel

theory: that an injury such as food poisoning does not occur

when and where a plaintiff consumes contaminated food. He urges

instead that the “existence of an incubation period between

initial exposure and onset of injury makes the situs of where

the injury is first experienced more significant in this

jurisdictional analysis.” Doc. no. 67-1 at 19-20. In other

words, Cappello argues that he suffered his injury for the

purpose of the specific jurisdiction analysis in New Hampshire

because that is where he was when the E. coli’s incubation

period expired and he first experienced food poisoning symptoms

from eating the contaminated lettuce.

A jurisdictional rule driven by the length of an

incubation period would be difficult to employ. It could result

in a court concluding that a food-poisoning injury occurred in a

state a plaintiff passed through only briefly as he traveled

from the location of ingestion to his final destination. A court

could do so only after it received and considered evidence

regarding the bacteria’s precise incubation period in a

particular plaintiff. Indeed, Cappello’s arguments in this case

only underscore the impracticability of such a rule, as he

asserts that the “incubation period for E. coli infection, which

12 is the time from exposure to onset of symptoms in outbreaks, can

vary between one and 10 days.” Doc. no. 67-1 at 4. It is unclear

whether the “onset of symptoms” Cappello advances as the

jurisdictional imperative would concern small, perhaps

imperceptible, internal changes that cause lasting damage or

would require perceived symptoms. Either way, the rule would be

unworkable.

Cappello purchased and ate the contaminated food in New

Jersey. He offers no legal justification for pinning the injury

at the moment of the onset of symptoms rather than at the moment

of consumption. Cappello was injured when he ingested

contaminated lettuce and, therefore, his injury occurred in New

Jersey for the purpose of specific jurisdiction. See, e.g.,

Turley v. Vaudeville Cafe, LLC, No. 1:10-CV-2284-JEC,

, at *2 (N.D. Ga. Aug. 26, 2011) (holding that for

purpose of personal jurisdiction, the “plaintiff’s injury

occurred when and where she was served the contaminated food,

which was in Tennessee”).

Cappello’s reliance on Ford’s relatedness analysis is

unavailing. Because, as discussed above, his injury occurred in

New Jersey, so too are his passing references in his surreply to

Pizz v. Jebeli, No. 2018-0016,

(N.H. June 8,

2018) and Kimball Union Acad. v. Genovesi,

(2013).

Cappello has not shown that his tort claims arise out of or

13 relate to the defendants’ activities in New Hampshire.

Therefore, he has not carried his burden to establish the

relatedness prong of the personal jurisdiction analysis for

those claims.

B. Contract Claims

Cappello asserts a breach of warranty claim in Count II. He

alleges that the defendants breached express and implied

warranties of merchantability or fitness for a particular use.

In the context of breach of contract claims, the relatedness

requirement directs the court to “ask whether the defendant’s

activity in the forum state was instrumental in either the

formation of the contract or its breach.” Vapotherm,

(quotation omitted).

Cappello addresses the relatedness prong for his breach of

warranty claim against Restaurant Depot in a footnote, stating

simply that he can meet the test “because [Restaurant Depot]

advertised the sale of romaine products in New Hampshire and

represented that its romaine products were fit for human

consumption.” Doc. no. 67-1 at 17 n.6. He does not address

relatedness with respect to D’Arrigo at all except to

acknowledge that it is legally required.

These statements cannot carry his burden. Cappello does not

allege or argue that the defendants’ New Hampshire activity was

14 instrumental to the formation of the “contract” – that he

purchased or ate the salad in New Jersey because of the

defendants’ advertising, business, or express or implied

warranty as to the lettuce in New Hampshire. Indeed, Cappello

does not allege that he had any knowledge at all as to the

source of the lettuce in his salad.

Nor can Cappello establish that the defendants’ conduct in

New Hampshire was instrumental to the breach of any warranty.

The warranties were allegedly breached when Cappello purchased

and ate the salad with contaminated lettuce in New Jersey. Any

breach of warranty claim arising out of that event does not

relate to the defendants’ New Hampshire contacts for the purpose

of personal jurisdiction.

II. Remaining Prongs of Jurisdictional Analysis

Cappello’s failure to demonstrate relatedness between any

of his claims and the defendants’ contacts with New Hampshire

means that this court lacks personal jurisdiction over both

defendants. Although Cappello urges the court to analyze the

remaining prongs of the specific jurisdiction analysis even if

it determines that he has not shown the relatedness prong, doc.

no. 67-1 at 20, there is no need to do so. Restaurant Depot and

D’Arrigo are entitled to dismissal of Cappello’s complaint for

15 lack of personal jurisdiction, and the court grants their

motions to dismiss.

Conclusion

For the foregoing reasons, D’Arrigo’s motion to dismiss

(doc. no. 47) and Restaurant Depot’s motion to dismiss (doc. no.

48) are granted. The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge March 21, 2023

cc: Counsel of record.

16