United States Court of Appeals For the First Circuit

No. 23-1368

ANTHONY CAPPELLO,

Plaintiff, Appellant,

v.

RESTAURANT DEPOT, LLC; D'ARRIGO BROS., CO.,

Defendants, Appellees,

CICCHETTI, LLC, d/b/a IL PANINO ITALIAN DELI; ADAM BROS. FARMING, INC.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Samantha D. Elliott, U.S. District Judge]

Before

Gelpí, Lynch, and Rikelman, Circuit Judges.

Amanda E. Quinlan, with whom McLane Middleton, P.A. was on brief, for appellant. Scott T. Ober, with whom Matthew G. Lindberg, Patrick T. Ciapciak, and Hassett & Donnelly, P.C. were on brief, for appellee D'Arrigo Bros., Co. Kenneth B. Walton, with whom Patricia B. Gary and Lewis Brisbois Bisgaard & Smith LLP were on brief, for appellee Restaurant Depot, LLC. December 28, 2023 LYNCH, Circuit Judge. In November 2018, Anthony

Cappello, a New Hampshire resident, purchased and ate a salad from

Il Panino Italian Deli and Catering, a counter-serve deli in New

Jersey. Within days after Cappello had returned home to New

Hampshire he was diagnosed at a New Hampshire hospital with a life-

threatening E. coli infection which required several surgeries,

including the removal of his colon.

In April 2021, Cappello filed this lawsuit in the U.S.

District Court for the District of New Hampshire alleging that the

lettuce in the salad he ate had been contaminated with E. coli.

He sued Il Panino as well as the company that sold the lettuce to

Il Panino, Restaurant Depot, LLC; the lettuce distributor,

D'Arrigo Brothers, Co.; the lettuce grower, Adam Brothers Farming,

Inc.; and one hundred John Does as defendants. He later

voluntarily dismissed his claims against Il Panino, Adam Bros.,

and all John Does.

Restaurant Depot and D'Arrigo Bros., the remaining

defendants, each moved to dismiss for lack of personal

jurisdiction. The New Hampshire federal district court granted

Restaurant Depot's and D'Arrigo Bros.' motions to dismiss this

suit for lack of personal jurisdiction, reasoning that Cappello

had failed to demonstrate that his claims arose out of or related

to either defendant's contacts with New Hampshire. Cappello v.

Rest. Depot, LLC, No. 21-cv-356,

(D.N.H. Mar. 21,

- 3 - 2023). Cappello appeals. We affirm, albeit on somewhat different

reasoning. Baskin-Robbins Franchising LLC v. Alpenrose Dairy,

Inc.,

(1st Cir. 2016) (holding that reviewing court

can affirm "for any reason made evident by the record").

I. Background

The district court dismissed Cappello's case for lack of

personal jurisdiction using the prima facie method, that is,

without holding an evidentiary hearing and based solely on the

sufficiency of Cappello's evidentiary proffers. Cappello,

, at *1. Accordingly, we "draw the relevant facts 'from

the pleadings and whatever supplemental filings (such as

affidavits) are contained in the record, giving credence to the

plaintiff's version of genuinely contested facts.'" Rodríguez-

Rivera v. Allscripts Healthcare Sols., Inc.,

, 160

(1st Cir. 2022) (quoting Baskin-Robbins Franchising LLC,

).

On November 9, 2018, Cappello purchased and ate a takeout

Mediterranean salad from Il Panino, a counter-serve Italian deli

offering takeout and eat-in seating at a single location in

Fairfield, New Jersey.1 Il Panino prepared Cappello's salad using

Andy Boy brand romaine lettuce grown by Adam Bros. in California

which had been packaged and placed on a Restaurant Depot truck by

1 Cappello ate the takeaway salad in New Jersey; he does not allege precisely where.

- 4 - D'Arrigo Bros. in California and ultimately sold by Restaurant

Depot to Il Panino in New Jersey. Cappello returned to his home

in Bedford, New Hampshire, no later than November 11, 2018.

Early in the morning on November 12, 2018, Cappello

developed abdominal cramps and bloody diarrhea. Cappello was

admitted at Catholic Medical Center ("CMC") in Manchester, New

Hampshire. Cappello tested positive for an infection of a

particular E. coli strain, known as E. coli O157:H7, that produces

Shiga toxin, an endotoxin also associated with dysentery. Cappello

experienced symptoms of hemolytic uremic syndrome (a condition in

which toxins cross from the intestines into the bloodstream), acute

kidney failure, and thrombocytopenia (low blood platelet count).

Surgeons at CMC removed Cappello's colon on November 16, 2018, and

Cappello has since required at least two additional procedures,

which both occurred at Massachusetts General Hospital in Boston,

Massachusetts.

From October 2018 to January 2019, the CDC, FDA, and

other public health agencies together received reports of sixty-

two E. coli O157:H7 infections, including Cappello's. The CDC and

FDA traced the infections back to products grown at the Adam Bros.

farm.

Cappello filed a complaint against the defendants in the

U.S. District Court for the District of New Hampshire on April 29,

- 5 - 2021.2 Cappello brought claims3 for strict liability, negligence,

negligence per se, and breach of warranty. At the time Cappello

filed his complaint in New Hampshire on April 29, 2021, his three

tort claims would have been untimely in New Jersey under its two-

year statute of limitations for such claims. N.J. Stat. § 2A:14-

2.

Both D'Arrigo Bros. and Restaurant Depot asserted lack

of personal jurisdiction as an affirmative defense in answers to

Cappello's complaint filed on September 30, 2021, and October 19,

2021, respectively. The parties engaged in discovery. Restaurant

Depot and D'Arrigo Bros. each moved to dismiss for lack of personal

jurisdiction on April 29, 2022. Cappello then filed a new lawsuit

against Il Panino in New Jersey state court on November 7, 2022,

asserting only a breach of warranty claim. Il Panino filed a

third-party complaint against Restaurant Depot and D'Arrigo Bros.

in that lawsuit. That New Jersey lawsuit is currently in

discovery.

All parties filed affidavits and made evidentiary

proffers, and Cappello specifically requested an evidentiary

2 Cappello named Il Panino as Cicchetti, LLC d/b/a Il Panino Italian Deli and Catering restaurant. 3 Cappello's complaint does not identify which state's law provides the basis for his claims. In briefing before the district court and at oral argument in this case Cappello took the position that his claims are based on New Hampshire law.

- 6 - hearing. Cappello made evidentiary proffers of the following New

Hampshire contacts as to each defendant, which we credit for

purposes of our review. See Harlow v. Children's Hosp.,

(1st Cir. 2005) (holding reviewing court takes "the

'properly supported proffers of evidence' . . . as true" (quoting

Boit v. Gar-Tec Prods., Inc.,

(1st Cir. 1992)).

Restaurant Depot is a Delaware limited liability company

with its principal place of business in New York state. It

distributes restaurant supplies, including produce, to businesses

throughout the United States through a network of over a hundred

members-only warehouses. Restaurant Depot does not operate any

warehouses or own any property in New Hampshire. Restaurant Depot

offers memberships only to businesses, and applicants must submit

a business license or reseller's permit to secure a membership.

This restriction ensures compliance with zoning requirements for

the sites of its warehouses. Its members include businesses

located in all ten counties of New Hampshire. Restaurant Depot

sends its members -- including members located in New Hampshire -

- regular advertisements by post and email. Between 2017 and 2018

Restaurant Depot received $36,874,207 in revenue from sales to its

New Hampshire members.

Restaurant Depot does not ship products to its

customers; customers must pick products up from Restaurant Depot

warehouses. Restaurant Depot does have agreements with some third-

- 7 - party delivery partners who can purchase products on behalf of

Restaurant Depot members and then deliver them to the member.

Cappello alleges this includes third-party delivery partners who

delivered to members in New Hampshire. Restaurant Depot maintains

that it had no delivery partners who offered delivery of food

products into New Hampshire at the time the events giving rise to

this lawsuit occurred.

The other defendant on appeal, D'Arrigo Bros., is a

California corporation with its principal place of business in

California. D'Arrigo Bros. does not ship products directly into

New Hampshire, nor does it own any real property or conduct any

operations in New Hampshire. It ships products to six distribution

centers in Massachusetts, Connecticut, and Rhode Island, which

then make D'Arrigo Bros. produce available to stores and other

users, including in New Hampshire. Cappello offered no evidence

as to any D'Arrigo Bros. advertising activities.

The district court denied Cappello's request for an

evidentiary hearing and granted both Restaurant Depot's and

D'Arrigo Bros.' motions to dismiss in a written order on March 21,

2023. Cappello,

, at *1. The district court

reasoned that Cappello's proffered evidence, even if true, was

insufficient to establish personal jurisdiction over either

defendant because the contacts Cappello cited were not

sufficiently related to Cappello's claims. Id. at *1, *5-6.

- 8 - This timely appeal followed.

II. Discussion

Cappello does not dispute the district court's choice to

use the prima facie method to determine whether Cappello had

carried his burden to demonstrate that personal jurisdiction

existed in his opening brief.4 See Vapotherm, Inc. v. Santiago,

(1st Cir. 2022) ("[A] district court 'may choose

from among several methods for determining whether the plaintiff

has met [this] burden.'" (quoting Adelson v. Hananel,

(1st Cir. 2007)). We thus review the district court's decision

de novo.

"In determining whether a non-resident defendant is

subject to its jurisdiction, a federal court exercising diversity

jurisdiction 'is the functional equivalent of a state court sitting

in the forum state.'" Sawtelle v. Farrell,

, 1387

4 In his reply brief Cappello argues [t]he district court erroneously denied Cappello an evidentiary hearing by finding that "the court's reasoning rests on legal conclusions drawn from uncontroverted facts rather than a determination of any factual dispute." Yet, the district court plainly ignored the prima facie approach when it determined where and when Cappello was injured.

Cappello waived this argument by failing to develop it fully in his opening brief. See Small Justice LLC v. Xcentric Ventures LLC,

, 323 n.11 (1st Cir. 2017) ("[A]rguments developed for the first time in a reply brief are waived.").

- 9 - (1st Cir. 1995) (quoting Ticketmaster-N.Y., Inc. v. Alioto,

(1st Cir. 1994)). Thus "to establish personal

jurisdiction over [D'Arrigo Bros.] and [Restaurant Depot],

[Cappello] must meet the requirements of both the [New Hampshire]

long-arm statute and the Due Process clause of the Fourteenth

Amendment."5 Rodríguez-Rivera, 43 F.4th at 160.

A. New Hampshire Long-arm Statute

As construed by the New Hampshire Supreme Court, "New

Hampshire's long-arm statute authorizes the exercise of personal

jurisdiction . . . to the extent permissible under the [f]ederal

Due Process [c]lause," In re Reddam,

(N.H.

2018), and we have generally treated it as "coextensive with the

outer limits of due process," Sawtelle,

(citing

Phelps v. Kingston,

(N.H. 1987)); see also

Vapotherm,

(citing Phelps for the same conclusion).

We quickly dispose of Restaurant Depot's argument that

the New Hampshire long-arm statute is not satisfied here. The

statute covers, in relevant part, nonresidents who "transact[] any

business within [New Hampshire or] commit[] a tortious act within

[New Hampshire]." N.H. Rev. Stat. § 510:4. Restaurant Depot

5 In this diversity case where Cappello seeks to establish personal jurisdiction over the defendants under Federal Rule of Civil Procedure 4(k)(1)(A), we draw on due process requirements as imposed by the Due Process clause of the Fourteenth Amendment.

- 10 - argues that this statutory language is not satisfied here because

Restaurant Depot transacts no business within New Hampshire and

the allegedly tortious act here occurred in New Jersey, not New

Hampshire. The New Hampshire Supreme Court has held that its long-

arm statute is satisfied where in-state harm as a result of the

defendant's out-of-state actions was "reasonably foreseeable."

Mosier v. Kinley,

(N.H. 1997) (citing Phelps,

) (holding long-arm statute satisfied where

individual discharged from Vermont hospital for transfer to

Massachusetts hospital was injured on road while passing through

New Hampshire because "it was reasonably foreseeable . . . that

the plaintiff would travel through New Hampshire [on the way to

Massachusetts] and could exacerbate his injury there"); see also

Kimball Union Acad. v. Genovesi,

(2013) (holding

long-arm statute satisfied where architect completed all work from

New Jersey office but defect in design arose once building was

constructed in New Hampshire).

The parties' arguments as to the location of Cappello's

injury conflate two common legal uses of the term "injury," one

synonymous with "breach" and the other synonymous with "harm."

The Supreme Court has suggested that being served or ingesting a

defective product in one place (i.e., injury as breach) and later

incurring damages elsewhere (i.e., injury as harm) could create a

sufficient "connection between the forum and the specific claims

- 11 - at issue" in either place. See Bristol-Myers Squibb Co. v.

Superior Ct. of Cal.,

(2017) (holding

plaintiffs had failed to establish personal jurisdiction over

defendants in California in part because they "did not allege that

they obtained [the drug at issue] through California physicians or

from any other California source; nor did they claim that they

were injured by [that drug] or were treated for their injuries in

California"). We add that neither the district court nor our

analysis turns on the place or places of injury.

We will assume arguendo in Cappello's favor that his

symptoms and treatment occurred and caused injury in New Hampshire

and that they were reasonably foreseeable in New Hampshire as a

result of contaminated lettuce consumed in New Jersey. Even so,

we hold that the exercise of personal jurisdiction over each of

the defendants in this case fails to satisfy a required element of

the due process analysis.

B. Due Process Requirements

To exercise personal jurisdiction over a nonresident

defendant, due process requires that the defendant "have certain

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) (quoting Milliken v. Meyer,

(1940)); see also Mallory v. Norfolk S. Ry. Co.,

,

- 12 - 137-41 (2023) (discussing Int'l Shoe in detail). Such contacts,

depending on their extent and nature, can establish general or

specific personal jurisdiction over a "defendant 'that has not

consented to suit in the forum.'" Mallory, 600 U.S. at 138

(emphasis removed) (quoting Goodyear Dunlop Tires Operations, S.A.

v. Brown,

(2011)). Cappello does not argue

general jurisdiction, he argues only that the defendants are

subject to specific personal jurisdiction in New Hampshire.

[P]laintiffs seeking to establish that a court has specific personal jurisdiction over a defendant must show that: (1) their 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 Cap. Advisors Corp. v. The Deal, LLC,

(1st Cir. 2018). We address the requirement of relatedness and

find that Cappello has failed to carry his burden as to this

necessary element.

We need not and do not resolve whether Restaurant Depot's

contacts with New Hampshire amounted to purposeful availment.

D'Arrigo Bros.' contacts with New Hampshire plainly do not. See,

e.g., Knox v. MetalForming, Inc.,

(1st Cir.

2019) (requiring "regular flow or regular course of sale in the

forum" or "something more" than mere knowledge that a product

- 13 - placed in the stream of commerce could end up in a particular state

to demonstrate purposeful availment (quoting Plixer Int'l, Inc. v.

Scrutinizer GmbH,

(1st Cir. 2018)); see also J.

McIntyre Mach., Ltd. v. Nicastro,

(2011) (Breyer,

J., concurring in the judgment) (rejecting a stream of commerce

rule that would subject a defendant "to jurisdiction for a

products-liability action so long as it 'knows or reasonably should

know that its products are distributed through a nationwide

distribution system that might lead to those products being sold

in any of the fifty states.'" (quoting Nicastro v. McIntyre Mach.

Am., Ltd.,

(N.J. 2010))). Nor do we address the

reasonableness of exercising personal jurisdiction over either

defendant in New Hampshire.

Cappello brings three tort claims and one contract

claim, each asserted against both D'Arrigo Bros. and Restaurant

Depot. Our analysis of relatedness differs for the contract and

the tort claims.

To demonstrate relatedness for his tort claims, Cappello

"must show a nexus between his claim and the defendants' forum-

based activities," Rodríguez-Rivera, 43 F.4th at 160, such that

the "plaintiff's claims . . . arise out of or relate to the

defendant[s'] contacts with the forum," id. (quoting Ford Motor

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

(2021)).

The parties agree that neither Restaurant Depot's nor D'Arrigo

- 14 - Bros.' contacts with New Hampshire were the but-for cause of

Cappello's claims. Cappello instead argues that the Supreme

Court's opinion in Ford Motor Co. established that but-for

causation is not necessary to a showing of relatedness and that

"some relationships will support jurisdiction without a causal

showing."

. From this he argues that the

respective relationships between New Hampshire and each of

Restaurant Depot and D'Arrigo Bros. are such relationships

supporting jurisdiction without a but-for causal showing. The

Ford court rejected Ford's argument that there was no causal link

to the forum states where the vehicles were not designed,

manufactured, or sold in those states and only later resales and

relocations by consumers had brought the vehicle to the forum

states.

The Court rejected Ford's "causation-only approach"

to there being a connection between the plaintiffs' suits and the

defendants' activities.

The concurring justices saw no need

to address the but-for issue, as the relatedness test was clearly

met under traditional criteria. See

(Alito, J.,

concurring in the judgment);

(Gorsuch, J.,

concurring in the judgment). We conclude the relationship of each

defendant with New Hampshire does not meet the standards

established in Ford.

As to Restaurant Depot, Cappello proffered evidence to

show that it had granted membership to New Hampshire businesses,

- 15 - that it had made over $36 million in sales to those members between

2017 and 2018, and that it had advertised to those New Hampshire

members by email and post.

Cappello has not proffered any evidence to show that

Restaurant Depot's New Hampshire contacts6 had anything to do with

a retail customer (a type of customer Restaurant Depot does not

and cannot serve) purchasing a salad at a restaurant in New Jersey.

Here, as in Vapotherm, Cappello's salad-derived E. coli infection

"do[es] not arise out of or relate to [Restaurant Depot]'s contacts

with New Hampshire. Instead, the [salad is] connected to

[Cappello] through [Restaurant Depot's] contacts in" New Jersey.

.

Cappello mistakenly argues that he meets the relatedness

test under the Supreme Court's opinion in Ford. Cappello argues

that the Ford test is satisfied because "the type of product that

Mr. Cappello was injured by is the type of product that Restaurant

Depot reaps a benefit from in its business contacts in New

Hampshire." (Emphasis added.) We reject this expansive "type of

product" reasoning for the relatedness standard under Ford. As

Ford stated, the minimum contacts test instead arises out of due

6Cappello offers no evidence and does not argue that he was -- or was even eligible to become -- a Restaurant Depot member. Nor does he offer to show that he ever received -- or was even a part of the target demographic for -- Restaurant Depot's New Hampshire-directed advertisements.

- 16 - process concerns of "'reasonable[ness] . . .' and '. . .

traditional notions of fair play and substantial justice.'"

(quoting Int'l Shoe,

).

In Ford the nationwide manufacture and retail sale of

vehicles (including parts) and Ford's support in the forum states

for a secondary market of used Ford vehicles satisfied these

concerns in ways that the wholesale distribution of lettuce to a

non-forum state simply cannot and does not. We name just a few

relevant differences between the nature of the businesses at issue

here and Ford's. Here Restaurant Depot did not cultivate a market

for its food products in the forum state or have the product

malfunction there. Nor did Restaurant Depot "extensively

promote[]" sales or service of lettuce in New Hampshire. Id. at

1032. Personal automobiles and like vehicles serve to make their

consumers mobile (such as between jurisdictions); lettuce does

not. Personal vehicles are durable goods. Lettuce is not a

durable good; it is meant to be consumed once. Personal vehicle

manufacturers like Ford provide service centers and aftermarket

products to "ensure[] that consumers can keep their vehicles

running long past the date of sale" and to ensure their convenient

use by the ultimate consumer throughout the country, id. at 1022-

23; lettuce distributors do not. Personal vehicles are also the

subject of a nationwide market of consumer-to-consumer sales;

lettuce is not.

- 17 - In Ford the Ford Motor Company engaged in forum-state

contacts -- individual car drivers owning and operating Ford

vehicles within the forum state when the vehicle was originally

purchased elsewhere -- from which the lawsuit arose. Ford,

. Here, Cappello proffers no evidence that

Restaurant Depot's New Hampshire contacts included contacts --

retail consumption of a salad outside the forum state -- like those

from which this lawsuit arose. There is insufficient relatedness

as to the tort claims against Restaurant Depot.

As to the tort claims against D'Arrigo Bros., Cappello

relies on even weaker grounds: his proffered evidence that it

distributed lettuce products to the New England area with the

knowledge that some of those products might end up in New

Hampshire. That knowledge that its lettuce might or might not end

up in a salad in New Hampshire is insufficient to show relatedness

and has nothing to do with retail consumption of a salad from an

unconnected restaurant in New Jersey. Ford does not provide any

support to Cappello. Nothing about D'Arrigo Bros.' knowledge its

lettuce could end up in a salad in New Hampshire was in any way

related to the consumption of a salad in New Jersey.

We next turn to the relatedness analysis for Cappello's

contract-based claims. Here he must show "the defendant's activity

in the forum state was instrumental either in the formation of the

contract or its breach." Vapotherm,

-59 (quoting

- 18 - Adelson,

). We conclude Cappello has failed to make

this showing as to each defendant.

Cappello's contract claim is a warranty of

merchantability claim. Cappello argues that personal jurisdiction

over the defendants for this claim is proper because the New Jersey

and New Hampshire warranties of merchantability are identical.

Even if true, we do not see why that would make Restaurant Depot's

or D'Arrigo Bros.' contacts with New Hampshire instrumental to the

formation of any contract Cappello entered into when he purchased

the salad, or to the breach of any such contract. See

He

further argues that the breach of warranty occurred in New

Hampshire where he experienced his symptoms. This does not

establish that the defendants' New Hampshire contacts were

instrumental to that alleged breach.

III. Conclusion

Here the denial of personal jurisdiction in New

Hampshire best serves the interests of "interstate federalism."

Ford,

(quoting World-Wide Volkswagen Corp. v.

Woodson,

(1980)). We affirm.

- 19 -