Beckwith Builders v. Depietri, et a l . 04-CV-282-SM 09/15/06 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Beckwith Builders, Inc., Plaintiff
v. Civil No. 04-cv-282-SM Opinion No. 2006 DNH 107 William Depietri; Beth Depietri; Wood & Clay, Inc.; Battle Associates, Inc.; R.C. Searles Associates, Inc.; Margulies & Associates, Inc.; and Lakeshore Realty Trust, Defendants
O R D E R
Beckwith Builders, Inc. ("Beckwith") has sued a variety of
defendants, including R.C. Searles Associates, Inc. ("Searles"),
under a variety of legal theories. Based upon a contemporaneous
order (document no. 157), the only claim remaining against
Searles is Count I, Beckwith's claim of copyright infringement.
Before the court is Searles' motion to dismiss for lack of
personal jurisdiction. Beckwith objects. For the reasons given,
Searles' motion is granted.
Searles is an architectural firm located in Marlborough,
Massachusetts. According to Searles, this court lacks personal
jurisdiction over it because it is a non-resident defendant, and it does not have sufficient minimum contacts with New Hampshire,
thus making the exercise of personal jurisdiction inconsistent
with the constitutional requirement of due process.
Principles of Personal Jurisdiction
In the face of Searles' challenge, Beckwith has "the burden
of persuading the court that jurisdiction exists." Flatten v. HG
Berm. Exempted Ltd.. 437 F.3d 118, 134 (1st Cir. 2006) (quoting
Mass. Sch. of Law. Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st
Cir. 1998)). Furthermore, as the court of appeals for this
circuit has explained:
" [P]laintiffs may not rely on unsupported allegations in their pleadings," Bolt [v. Gar-Tec Prods.. Inc.), 967 F .2d [671,] 675 [(1st Cir. 1992)], but are "obliged to adduce evidence of specific facts," Foster-Miller, Inc. v. Babcock & Wilcox Can.. 46 F.3d 138, 145 (1st Cir. 1995). We, in turn, take those "specific facts affirmatively alleged by the plaintiff[s] as true . . . and construe them in the light most congenial to the plaintiff[s '] jurisdictional claim." Mass. Sch. of Law. 142 F.3d at 34. We also "add to the mix facts put forward by the defendants, to the extent that they are uncontradicted." Id.
Flatten. 437 F.3d at 134. When, as here, the court resolves the
issue of personal jurisdiction based upon written submissions,
the plaintiff must only make a prima facie showing of
jurisdiction. See Bolt. 967 F.2d at 674-75; Kowalski v. Dohertv.
2 Wallace, Pillsburv & Murphy, Att v s . at Law, 787 F.2d 7, 8 (1st
Cir. 1986).
Because subject matter jurisdiction in this case arises from
a federal statute rather than diversity of citizenship, "the
constitutional limits of the court's personal jurisdiction are
fixed . . . not by the Fourteenth Amendment but by the Due
Process Clause of the Fifth Amendment." United States v. Swiss
Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001) (quoting United
Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d
1080, 1085 (1st Cir. 1992)). "[UJnder the Fifth Amendment, a
plaintiff need only show that the defendant has adequate contacts
with the United States as a whole, rather than with a particular
state." Swiss Am. Bank, 274 F.3d at 618 (citation omitted).
Even so, "the plaintiff must still ground its service of process
in a federal statute or civil rule." I d . (citation omitted).
"The Copyright Act, 17 U.S.C. § 101 et se a ., does not
provide for nationwide service of process." Fort Knox Music,
Inc. v. Baptiste, 203 F.3d 193, 196 (2d Cir. 2000) (citing
Janmark, Inc. v. Reidv, 132 F.3d 1200, 1201 (7th Cir. 1997)).
Thus, Beckwith's service of process on Searles must comport with
Rule 4 of the Federal Rules of Civil Procedure, under which
3 service may be accomplished "pursuant to the law of the state in
which the district court is located, or in which service is
effected, for the service of a summons upon the defendant in an
action brought in the courts of general jurisdiction of the
State." F e d . R. C i v . P. 4(e)(1). In other words, when ruling on
a copyright defendant's challenge to personal jurisdiction, "a
federal court applies the forum state's personal jurisdiction
rules . . . ." Fort Knox Music. 203 F.3d at 196 (quoting PDK
Labs. Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997))
(other citations omitted).
The "long-arm" provision of New Hampshire's personal
jurisdiction statute provides:
Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.
N.H. R e v . S t a t . A n n . § 510:4, I. That statute has been construed
by the New Hampshire Supreme Court "to provide jurisdiction over
foreign defendants to the full extent that the statutory language
4 and due process will allow." Phelps v. Kingston. 130 N.H. 166,
171 (1987) (citations omitted).
Due process requires that "a defendant must have sufficient
minimum contacts with the forum state such that maintenance of
the suit does not offend traditional notions of fair play and
substantial justice." Flatten. 437 F.3d at 135 (quoting Int'1
Shoe Co. v. Washington. 326 U.S. 310, 316 (1945)) (internal
quotation marks and citation omitted). In turn:
The "minimum contacts" standard has three requirements:
For specific jurisdiction, the plaintiff's claim must be related to the defendant's contacts. For general jurisdiction, in which the cause of action may be unrelated to the defendant's contacts, the defendant must have continuous and systematic contacts with the state. Second, for either type of jurisdiction, the defendant's contacts with the state must be purposeful. And third, the exercise of jurisdiction must be reasonable under the circumstances.
Harlow [v. Children's Hosp.1, 432 F.3d [50,] 57 [(1st Cir. 2005)]; see also Cambridge Literary Props. Ltd. v. W. Goebel Forzellanfabrik G.m.b.H. & Co. K g.. 295 F.3d 59, 63 (1st Cir. 2002); Noonan v. Winston Co.. 135 F.3d 85, 89 (1st Cir. 1998) .
Flatten. 437 F.3d at 135. "For specific jurisdiction, this
circuit divides the constitutional analysis into three
categories: relatedness, purposeful availment, and
5 reasonableness." I d . (quoting Davnard v. Ness. Motley. Loadholt,
Richardson & Poole. P.A.. 290 F.3d 42, 60 (1st Cir. 2002)).
Discussion
Beckwith asserts that this court has specific jurisdiction
over Searles because Searles drafted a set of architectural plans
for Depietri knowing that Depietri intended to use those plans to
build a house in New Hampshire, which, in Beckwith's view, made
Searles' conduct a tortious act committed in New Hampshire. The
relevant facts, properly established by deposition or otherwise,
are these: (1) William Depietri, who was a regular client of
Searles, approached Searles with "a variety of different designs"
and asked Ron Searles to design a house based upon those designs;
(2) Mr. Searles understood that the drawings he was asked to
produce were for a house to be built in New Hampshire; (3)
Searles produced a set of drawings for which it was paid between
$600 and $1,500; (4) Searles never produced a set of final
construction plans from which a house could have been built; (5)
Depietri took Searles' work to a second architect, Margulies &
Associates, and had Margulies create a second set of plans; (6)
Depietri took Margulies' work to a third architect. Battle
Associates, and had Battle create a third set of plans; and (7)
Depietri's builder. Wood & Clay, used the Battle plans to build
6 the Clark Road home. It is undisputed that Ron Searles never
came to New Hampshire in connection with the Clark Road project.
And Beckwith has produced no evidence that Depietri ever provided
Searles with plans for the Cedar Cove home in a format that
indicated they were the property of a New Hampshire corporation.
According to Beckwith, the foregoing facts are sufficient to
establish relatedness, purposeful availment, and reasonableness.
Searles disagrees, categorically.
A. Relatedness
Beckwith relies upon the tortious-act aspect of New
Hampshire's long-arm reach, under which it "must show a
sufficient 'causal nexus' between [Searles'] contacts with New
Hampshire and [its] cause of action." Jet Wine & Spirits. Inc.
v . Bacardi & C o ., 298 F.3d 1, 7 (1st Cir. 2002) (quoting Phillips
Exeter Acad, v. Howard Phillips Fund. 196 F.3d 284, 289 (1st Cir.
1999) ) .
To satisfy the relatedness prong of the constitutional inquiry in a tort case,
[t]he evidence produced to support specific jurisdiction must show that the cause of action either arises directly out of, or is related to, the defendant's forum-based contacts. The relatedness requirement is not an open door; it is
7 closely read, and it requires a showing of a material connection. This court "steadfastly reject[s] the exercise of personal jurisdiction whenever the connection between the cause of action and the defendant's forum-state contacts seems attenuated and indirect." "Instead, the defendant's in-state conduct must form an 'important, or [at least] material, element of proof' in the plaintiff's case." A broad "but- for" argument is generally insufficient . . . . "[D]ue process demands something like a 'proximate cause' nexus."
Harlow. 432 F.3d at 60-61 (citations omitted) (quoting Pleasant S t . [1. 960 F.2d at 1089; Cambridge Literary Props.. 295 F.3d at 65); see also Phillips Exeter A c a d .. 196 F.3d at 289.
Flatten. 437 F.3d at 137. In addition, it is well established in
this circuit that "in-forum effects of extra-forum activities [do
not] suffice to constitute minimum contacts." Mass. Sch. of Law.
142 F.3d at 36 (citing Sawtelle v. Farrell. 70 F.3d 1381, 1390
(1st Cir. 1995); Kowalski. 787 F.2d at 11).
While Beckwith recognizes that the act of infringement it
alleges against Searles - copying the plans for the Cedar Cove
home - occurred in Massachusetts, it argues that in copyright
infringement cases, courts have often asserted personal
jurisdiction over defendants who committed infringing acts out of
state, while knowing that their acts would have consequences in
the forum state. The cases cited by Beckwith all involve a factor missing in this case: an act by the defendant directed
toward the forum state. In Walker v. University Books. Inc.. 382
F. Supp. 126 (N.D. C a l . 1974), a New York publisher sold copies
of its allegedly infringing book in the forum state, California.
I d . at 127. In Edv Clover Productions. Inc. v. National
Broadcasting Co.. 572 F.2d 119 (3d Cir. 1978), an allegedly
infringing television program, created by a California television
producer for nationwide broadcast, was broadcast into the forum
state. New Jersey. I d . at 120. And in Donner v. Tams-Witmark
Music Library. Inc.. 480 F. Supp. 1229 (E.D. Pa. 1979), a New
York music licensor granted the plaintiff the right to perform a
copyrighted musical work in the forum state, Pennsylvania, and
then consented to an allegedly infringing performance by a third
party, also in Pennsylvania. I d . at 1230-31.
Walker, Edv Clover, and Donner all involved acts by out-of-
state defendants targeted at the forum states: a New York
publisher selling books in California; a California television
producer creating a program for national broadcast, including
broadcast into New Jersey; and a New York licensing concern
granting permission for a performance in Pennsylvania. Here, by
contrast, a Massachusetts firm produced a set of drawings for
another Massachusetts resident whose only relevant connection
9 with New Hampshire was his intention, at some point in the
future, to build a house on the shore of the state's largest
lake.
Moreover, in Walker, Edv Clover, and Donner, more than just
the right of reproduction was at issue; in those cases, the out-
of-state defendants were alleged to have been involved in
infringing the plaintiffs' rights of distribution and/or
performance by selling copies or facilitating performances within
the forum state. Here, by contrast, Beckwith has alleged only
that Searles violated its exclusive right to reproduce its
copyrighted works, and that Searles' infringing act was its
creation of a set of architectural plans. In short, the evidence
adduced by Beckwith does not demonstrate that Searles had any
contact with New Hampshire. Rather, the evidence shows only that
Searles had contact with Depietri, who was not in New Hampshire
at any relevant time, but only thinking about someday building a
house in the state.
Finally, while Beckwith makes much of Searles' knowledge
that Depietri planned to build a house in New Hampshire, it does
not explain the legal significance of that knowledge. If Searles
did copy Beckwith's architectural plans or its architectural
10 work, the act of infringement was fully completed in
Massachusetts; the subsequent construction of the Clark Road home
is immaterial to Searles' liability as a copier. In other words,
Searles' knowledge of Depietri's future plans in New Hampshire -
the only New Hampshire-related fact demonstrated or alleged by
Beckwith - is not "an 'important, or [at least] material, element
of proof'" in Beckwith's copyright infringement claim against
Searles. Flatten. 437 F.3d at 137 (citations omitted).
Because Beckwith has not demonstrated that Searles had any
contact with New Hampshire, and because the New Hampshire
effects, if any, of Searles' alleged Massachusetts copying do not
establish that Searles had contact with New Hampshire, Beckwith
has failed to make a showing of relatedness. Where a plaintiff
fails to satisfy the relatedness requirement by failing to
demonstrate any contact between the out-of-state defendant and
the forum state, personal jurisdiction is improper, and a
purposeful availment analysis is unnecessary, if not impossible,
given that the point of such an analysis is to evaluate the
quality of a defendant's contacts with the forum state. See
Flatten. 437 F.3d at 138 (ending personal jurisdiction analysis
after determining that plaintiff failed to satisfy relatedness
requirement); Ticketmaster-N.Y .. Inc. v. Alioto. 26 F.3d 201, 207
11 (1st Cir. 1994) (recognizing the possibility of situations in
which "a court may . . . dismiss a given case for lack of
relatedness per se).
B. Purposeful Availment
Assuming, for the purposes of this analysis, that Searles'
dealings with Depietri did qualify as contacts with New Hampshire
related to Beckwith's cause of action, Beckwith is still unable
to demonstrate purposeful availment. To establish that
prerequisite to jurisdiction, Beckwith must show that Searles'
New Hampshire "contacts . . . represent a purposeful availment of
the privilege of conducting activities in [New Hampshire],
thereby invoking the benefits and protections of [this] state's
laws and making the defendant's involuntary presence before the
state's courts foreseeable." Davnard. 290 F.3d at 61 (quoting
Foster-Miller. Inc. v. Babcock & Wilcox Canada. 46 F.3d 138, 144
(1st Cir. 1995)). "The function of the purposeful availment
requirement is to assure that personal jurisdiction is not
premised solely upon a defendant's 'random, isolated, or
fortuitous' contacts with the forum state." Sawtelle. 70 F.3d at
1391 (quoting Keeton v. Hustler Magazine. Inc.. 465 U.S. 770, 774
(1980)). "The cornerstones upon which the concept of purposeful
12 availment rests are voluntariness and foreseeability." Davnard.
290 F.3d at 61 (citation omitted).
1. Voluntariness
The voluntariness aspect of the purposeful availment inquiry
is a protection against resting jurisdiction "on the ■'unilateral
activity of another party or a third person.'" Ticketmaster. 26
F.3d at 208 (quoting Burger King Corp. v. Rudzewicz. 471 U.S.
462, 475 (1985) ) .
Here, it is only the activity of a third person - or the
contemplated activity of a third person - that connects Searles
to New Hampshire. There is no evidence that Searles solicited
Depietri's business, much less any business in New Hampshire
related to Beckwith's claims in this case. Rather, the
deposition evidence shows that Depietri approached Searles in
Massachusetts, and did so on the basis of a longstanding business
relationship conducted wholly outside New Hampshire.
Thus, Searles is somewhat analogous to the defendant in
Ticketmaster. a California resident sued for defamation in
Massachusetts for comments he made in an unsolicited interview
with a Massachusetts reporter. In Ticketmaster. the court of
13 appeals characterized the plaintiff's showing on voluntariness as
"dubious." I d . at 208. The out-of-forum defendant in this case,
however, has not been shown to have spoken with anyone in New
Hampshire, making the argument for voluntariness even more
dubious than in Ticketmaster. Sawtelle is to similar effect. In
that case, the court of appeals held that "voluntariness" was not
present in a legal malpractice suit brought in New Hampshire
against a Florida law firm that had previously brought suit in
Florida for the New Hampshire malpractice plaintiff. I d . at
1391-92. Again, this case lacks even the key element present in
both Ticketmaster or Sawtelle: contact between the out-of-state
defendant and a forum-state resident.
When Searles performed its work for Depietri, Depietri was
not a New Hampshire resident; he was Massachusetts resident
thinking about building a New Hampshire residence. Beckwith has
produced no evidence to suggest that Searles had any control over
Depietri's choice of where to build. That Depietri was thinking
about New Hampshire, and even sharing his thoughts with Searles,
is not enough to establish that Searles voluntarily took
advantage of the opportunity of conducting business in New
Hampshire. The evidence brought forth by Beckwith includes
nothing that shows any voluntary action on Searles' part that
14 would serve to establish the jurisdiction of a New Hampshire
court over him.
2. Foreseeability
The foreseeability aspect of the purposeful availment
inquiry requires that "a defendant's ''conduct and connection with
the forum State [must be] such that he should reasonably
anticipate being haled into court there.'" Ticketmaster, 26 F.3d
at 207 (quoting World-Wide Volkswagen Corp. v. Woodson. 444 U.S.
286, 297 (1980)). "The enforcement of personal jurisdiction over
a non-resident defendant is foreseeable when that defendant has
established a continuing obligation between itself and the forum
state." Sawtelle, 70 F.3d at 1393 (citing Burger King. 471 U.S.
at 4 76; Travelers Health Ass'n v. Virginia. 339 U.S. 643, 648
(1950)).
Searles' drafting of a set of plans for a Massachusetts
resident, even if that Massachusetts resident intended to use
those plans to construct a house in New Hampshire, did not
establish a continuing obligation between Searles and New
Hampshire. It is undisputed that the Searles plans were far too
preliminary to be used for construction; any construction was at
least one set of plans down the line from the ones Searles
15 produced, and construction itself was in Depietri's hands. Thus,
Searles did nothing to establish an ongoing obligation between
itself and New Hampshire.
In short, Depietri's intention to build a house in New
Hampshire, using a set of construction plans based upon the
preliminary plans drafted by Searles, was not enough to give
Searles a reasonable anticipation of being haled into court in
New Hampshire. This is especially so given that no Searles
employee has been shown to have known of the New Hampshire
origins of the plans allegedly copied by Searles, and given the
legal insignificance of the location in which Depietri elected to
build his house, in the context of Beckwith's copyright
infringement claim.
C. Reasonableness
Because Beckwith has not satisfied either the relatedness
requirement or the purposeful availment requirement, there is no
need to undertake a reasonableness analysis. See Phillips
Exeter, 196 F.3d at 288 ("if the proponent's case clears the
first two hurdles [relatedness and purposeful availment], the
court then must analyze the overall reasonableness of an exercise
of jurisdiction") (emphasis added); see also Flatten. 437 F.3d at
16 138 (ending personal jurisdiction analysis after determining that
plaintiff failed to meet relatedness requirement). Where, as
here, plaintiff has demonstrated neither relatedness nor
purposeful availment, it would necessarily be unreasonable to
exercise personal jurisdiction over an out-of-state defendant
such as Searles.
Conclusion
For the reasons given, Searles' motion to dismiss for lack
of personal jurisdiction (document no. 72) is granted.
SO ORDERED.
SVeven J./McAuliffe ^fhief Judge
September 15, 2006
cc: Paul M. Monzione, Esq. V. Richards Ward, Jr., Esq. William M. Pezzoni, Esq. Ann M. Dirsa, Esq. Michael J. Persson, Esq. Douglas Marrano, Esq. Jay S. Gregory, Esq. Jeffrey L. Alitz, Esq.