Barrett v. Ambient Pressure Diving

2007 DNH 101

• Court: District Court, D. New Hampshire
• Decided: August 23, 2007
• Docket: 06-CV-240-SM
• Status: Published

Opinion

Barrett v. Ambient Pressure Diving 06-CV-240-SM 08/23/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Stephanie B. Barrett, Plaintiff

v.

Ambient Pressure Diving, Ltd., et a l ., Defendants

Civil No. 06-CV-240-SM Ambient Pressure Diving. Ltd.. Opinion No. 2007 DNH 101 Third-Party Plaintiff

Adam Bress. Sean Baird, and Michael Secreast. Third-Party Defendants

O R D E R

Stephanie Barrett, individually and on behalf of her

husband's estate and her minor daughter, brings suit against

Ambient Pressure Diving, Ltd., ("Ambient") for claims arising out

of the death of her husband, Robert Barrett. Robert Barrett

drowned while using an underwater breathing apparatus

manufactured by Ambient. Ambient subsequently brought a third-

party complaint against Adam Bress, Sean Baird, and Michael

Secreast for indemnification and contribution. Additionally,

Ambient asserts claims of fraud and civil conspiracy against

Bress. Bress moves to dismiss, arguing that this court lacks personal jurisdiction over him (document no. 75). See F e d . R.

C i v . P. 12(b)(2). Ambient objects. For the reasons set forth

below. Dress's motion is granted.

The Legal Standard

When considering a motion to dismiss for lack of personal

jurisdiction under F e d . R. C i v . P. 12(b)(2), the court takes the

facts pleaded in the complaint as true, and construes them "in

the light most congenial to the plaintiff's jurisdictional

claim." Negron-Torres v. Verizon Commc'ns, Inc.. 478 F.3d 19, 23

(1st Cir. 2007) (citing Mass. Sch. of Law at Andover. Inc. v. Am.

Bar Ass'n., 142 F.3d 26, 34 (1st Cir. 1998)). The court also

considers uncontradicted facts put forth by the defendant, but

does not "credit conclusory allegations or draw farfetched

inferences." I d . (citations and quotation marks omitted).

Background

This case arises from a diving accident that occurred on

August 3, 2002. In brief, Barrett's husband, Robert, drowned

while on a scuba diving trip to a quarry in Lancaster County,

Pennsylvania. Accompanying Mr. Barrett on the trip were Baird,

Bress, and Secreast, all of whom are certified rescue divers. At

2 the time of his death, Mr. Barrett was using a breathing

apparatus manufactured by Ambient.

Mrs. Barrett asserted claims against a number of defendants

for negligence, product liability, breach of warranty, personal

injury, and wrongful death. The case was filed in the United

States District Court for the Eastern District of Pennsylvania on

July 27, 2004, and was subsequently transferred to this court on

June 28, 2006. On December 19, 2006, Ambient filed a third-party

complaint against Bress, Baird, and Secreast, seeking

contribution and indemnification. Ambient also asserted claims

of fraud and civil conspiracy against Bress, contending that

Bress made false statements to police and insurance company

investigators to facilitate Mrs. Barrett's recovery under life

insurance policies payable only if Mr. Barrett died during a

recreational dive, as opposed to working as a dive instructor.

Ambient claims that those same allegedly false statements

provided Mrs. Barrett with a basis for bringing her suit against

it.

Discussion

Bress moves to dismiss the third-party suit against him,

arguing that this court lacks personal jurisdiction.

3 Specifically, Bress says that he has not had the minimum contacts

with New Hampshire necessary to support personal jurisdiction.

Ambient counters that Dress's tortious conduct - his statements

in support of Mrs. Barrett's New Hampshire lawsuit - is

sufficiently related to and directed at New Hampshire to justify

the exercise of personal jurisdiction here.

I. Personal Jurisdiction

When a defendant challenges personal jurisdiction, the

burden falls on the plaintiff "to demonstrate the existence of

every fact required to satisfy both the forum's long-arm statute

and the Due Process Clause of the Constitution." Negron-Torres.

478 F.3d at 24. Where, as here, the long-arm statute is

coextensive with the constitutional limits of due process, the

two inquiries become one, focusing solely on whether jurisdiction

comports with due process. See i d .; Computac. Inc. v. Dixie News

C o .. 124 N.H. 350, 355 (1983) (explaining that New Hampshire's

long-arm statute is "coextensive with constitutional

limitations").

Personal jurisdiction comes in two varieties: specific and

general. See Negron-Torres. 478 F.3d at 24. Key to both is the

existence of "minimum contacts" between the nonresident defendant

and the forum. Id.

4 A. General Personal Jurisdiction

A court may exercise general personal jurisdiction over a

defendant 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.'" Negron-Torres. 478

F.3d at 25 (quoting 163 Pleasant St. Corp.. 960 F.2d at 1088 (1st

Cir. 1992) ) .

Ambient has failed to allege facts that might support a

finding of general jurisdiction. Bress visited New Hampshire on

one occasion for a three day period in 2005. That minimal

contact falls significantly below the threshold of "continuous

and systematic" presence required to support general personal

jurisdiction. See Donatelli v. Nat'l Hockey League. 893 F.2d

459, 463 (1st Cir. 1990) (citing Int'l Shoe Co. v. Wash.. 326

U.S. 310, 317 (1945) (single or isolated contacts insufficient to

justify general personal jurisdiction).

B. Specific Personal Jurisdiction

In contrast to general personal jurisdiction, specific

personal jurisdiction exists "'where the cause of action arises

directly out of, or relates to, the defendant's forum-based

contacts.'" Negron-Torres. 478 F.3d at 24 (quoting United E l e c ..

5 Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d

1080, 1088-89 (1st Cir. 1992)). The Court of Appeals for this

circuit has explained that in considering whether a plaintiff has

alleged sufficient facts to support a finding of specific

jurisdiction, the court "■'divides the constitutional analysis

into three categories: relatedness, purposeful availment, and

reasonableness.'’" I d . (quoting Flatten v. HG Berm. Exempted

L t d ., 437 F.3d 118, 135 (1st Cir. 2006)). " / [A]n affirmative

finding on each of the three elements of the test is required to

support a finding of specific jurisdiction.'’" Negron-Torres. 478

F.3d at 24-25 (quoting Phillips Exeter Acad, v. Howard Phillips

Fund. 196 F.3d 284, 288 (1st Cir. 1999)). The reasonableness

inquiry is considered in terms of certain so-called "Gestalt

factors." Sawtelle v. Farrell. 70 F.3d 1381, 1389 (1st Cir.

1995) .

The relatedness inquiry is "not an open door" and requires a

"material connection" between the defendant and the forum. Id.

at 25. A finding of relatedness requires that the plaintiff's

action arises directly "out of the specific contacts between the

defendant and the forum state." Sawtelle. 70 F.3d at 1389. Put

differently, for a finding of relatedness, the plaintiff's claim

must arise out of, or relate to the defendant's in-forum

6 activities. I d . (citing Ticketmaster-New York.. Inc. v. Alioto,

26 F .3d 201, 206 (1st Cir. 1994)).

Ambient contends that personal jurisdiction over Bress may

be exercised in New Hampshire because Dress's allegedly

fraudulent statements are central to Barrett's claims in the

underlying case, which are pending in this district. But, as

Bress points out. Ambient's claim against him does not arise out

of any New Hampshire-based activities, but rather, concern the

accident in Pennsylvania and subsequent statements made by him

about that accident in Pennsylvania and Maryland. Accordingly,

says Bress, there is no basis on which to find "relatedness" with

respect to New Hampshire.

Generally, to establish personal jurisdiction for a tortious

act, the plaintiff must show some "causal nexus between the

defendant's contacts and the plaintiff's cause of action."

Phillips Exeter Acad.. 196 F.3d at 288. The Court of Appeals for

this circuit has explained that mere injury in the forum state

is, without more, an insufficient basis upon which to subject a

defendant to personal jurisdiction in a particular forum. See

Mass. Sch. of Law. Inc. v. Am. Bar Ass'n. 142 F.3d 26, 36 (1st

C i r . 1998); see also Sawtelle, 70 F.3d at 1390 (1st Cir. 1995).

7 In this case. Ambient has failed to demonstrate that Dress's

alleged conduct has any causal nexus to New Hampshire. Ambient

simply alleges that Dress's fraudulent statements, all of which

were made outside of New Hampshire, and related to an accident

that also occurred outside of the state, might give rise to an

injury felt in New Hampshire, if it loses the lawsuit filed by

Mrs. Darrett. Decause mere allegations of a potential injury in

New Hampshire, without more, are insufficient to support a

finding of relatedness. Ambient has failed to establish the first

element of the specific personal jurisdiction test.

Even if Ambient could establish relatedness, it has also

failed to demonstrate that Dress purposefully directed his

conduct at New Hampshire, or that the exercise of personal

jurisdiction over Dress in New Hampshire would be reasonable in

light of the relevant Gestalt factors.

Dress's statements in Maryland and Pennsylvania about a

diving accident that occurred in Pennsylvania cannot be fairly

construed as having been purposefully directed at New Hampshire.

Moreover, the mere fact that Dress is involved as a witness in

Mrs. Darrett's lawsuit, which happens to be before a New

Hampshire court, does not support the assertion that Dress

purposefully directed his activities to New Hampshire. To find otherwise would suggest that Bress purposefully directed his

activity at any forum where Mrs. Barrett's lawsuit might be

heard, thereby subjecting Bress to personal jurisdiction in any

of those forums. That result would fall far short of traditional

notions of fair play and substantial justice. See Int'l Shoe

C o ., 326 U.S. at 316 (defendant must have minimum contacts with

the forum state such that maintenance of the suit does not offend

traditional notions of fair play and substantial justice)

(citations and internal quotation marks omitted).

Ambient cites some precedent in support of its proposition

that Bress should have realized that the alleged fraudulent

statements would cause harm in New Hampshire. Those cases are

inapposite, however, because the defendant in each of them

directed conduct specifically toward New Hampshire, or was aware

that the conduct would likely impact New Hampshire. See N .

Laminate Sales. Inc. v. Davis. 403 F.3d 14, 25 (1st Cir. 2005)

(New York corporation tortiously induced New Hampshire

manufacturer to extend credit to a New York-based affiliate of

the corporation); VDI Tech. v. Price. 781 F. Supp. 85, 88 (D.N.H.

1991) (Massachusetts patent holder mailed letters to customers of

New Hampshire company threatening suit for patent infringement if

they purchase the New Hampshire company's product); Buckley v.

McGraw-Hill. Inc.. 762 F. Supp. 430, 431-32 (D.N.H. 1991)

9 (Florida defendant wrote and published libelous articles for a

national magazine knowing that such articles would be available

in New Hampshire).

In this case, Bress had no reason to think that his

allegedly fraudulent statements would have any substantial effect

in New Hampshire. Moreover, at the time Bress is alleged to have

made the fraudulent statements, he was unaware that this case

would eventually be brought in a New Hampshire court.1

Ambient has also failed to demonstrate that the exercise of

personal jurisdiction over Bress would be reasonable in light of

the relevant Gestalt factors.2 Aside from the fact that Ambient

has an office in New Hampshire, and that the underlying case is

being litigated here, the subject matter has no connection to the

1 Bress is alleged to have first made the fraudulent statements shortly after the accident occurred on August 3, 2002, in the course of a local police investigation. See Third Party Compl. (document no. 60) 47-55. Mrs. Barrett filed suit on July 27, 2004, in the Eastern District of Pennsylvania. The case was later transferred to New Hampshire on June 28, 2006.

2 Specifically, the court considers "(I) the defendant's burden of appearing; (2) the forum state's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the judicial system's interest in obtaining the most effective resolution of the controversy; and (5) the common interests of all sovereigns in promoting substantive social policies." Sawtelle. 70 F.3d at 1394 .

10 state. None of the operative facts pertinent to the underlying

case implicate New Hampshire, and none of the fraudulent

statements that Bress allegedly gave to investigators implicate

New Hampshire. Indeed, New Hampshire has little interest in

having the claims against Bress adjudicated here.

Moreover, the burden associated with litigating the third-

party claims in New Hampshire far outweighs Ambient's interest in

obtaining convenient and effective relief. Bress is a 23 year

old graduate student in Baltimore, Maryland, who, as a student,

likely faces considerable time and travel constraints. Ambient,

on the other hand, is a multinational corporation, with

flexibility and ready access to legal services in a variety of

forums. To require Bress to defend against Ambient's claims far

from his home, thereby incurring costs above and beyond those

normally associated with litigation would not be reasonable.

Having failed to demonstrate that Bress purposefully

directed his conduct to New Hampshire or that the exercise of

personal jurisdiction over Bress would be reasonable in light of

the Gestalt factors, even if Ambient had shown that Bress's

alleged conduct was sufficiently related to New Hampshire for

jurisdictional purposes, this court would decline to exercise

personal jurisdiction over Bress.

11 Conclusion

As the court lacks personal jurisdiction, Bress's motion to

dismiss (document no. 75) is hereby granted.

SO ORDERED.

St/even J./McAuliffe Chief Judge

August 23 , 20 0 7

cc: John T. O'Connell, Esq. Pamela J. Khoury, Esq. Samuel Hankin, Esq. David G. Concannon, Esq. Robert H. Miller, Esq. David J. Berardinelli, Esq. Dona Feeney, Esq. Walter P. DeForest, Esq. John P. Fagan, Esq. Courtney Q. Brooks, Esq. Jamie N. Hage, Esq. Richard W. Evans, Esq. Mary A. Dempsey, Esq.