Byrne v . Brunswick 07-CV-43-JD 6/26/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph Byrne
v. Civil N o . 07-cv-43-JD Opinion N o . 2007 DNH 082 Brunswick Corporation, et a l .
O R D E R
After his high performance power boat was destroyed by fire
on Lake Winnipesaukee in July of 2005, Joseph Byrne brought suit
against the manufacturer of the boat's engines, the manufacturer
of accessories installed on the boat, and individuals who were
involved in the sale and service of the boat. Frank Brancaccio,
d/b/a Frank's Marine, moves to dismiss the claims against him on
the ground that the court lacks personal jurisdiction over him.
Byrne objects.
Standard of Review
When a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(2) is presented for prima facie review, the court
takes the facts alleged in the complaint as true and construes
them in the light most supportive of jurisdiction. Negron-Torres
v . Verizon Commc'ns, Inc., 478 F.3d 1 9 , 23 (1st Cir. 2007). The
court also considers facts properly submitted by the defendant but only to the extent that those facts are undisputed. Id. In
response to a defendant's motion to dismiss under the prima facie
standard, the plaintiff bears the "burden 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."
Id. at 24 (internal quotation marks omitted).
Background
Byrne alleges that he bought a 2005 Donzi Scorpion high
performance boat in July of 2004 from Gillan Marine in Alton Bay,
New Hampshire. The boat was equipped with engines and outdrives
manufactured by the Brunswick Corporation. In August of 2004,
Gillan Marine replaced parts of the starboard engine under the
manufacturer's warranty. At the end of the boating season in New
Hampshire, Byrne took the boat to Florida to have the hull "blue
printed" and for personal use there.
In December of 2004, Byrne contacted Frank's Marine,
operated by Frank Brancaccio, in Berlin Center, Ohio, to install
Whipple Superchargers to the engines. Byrne chose Frank's Marine
as an authorized dealer for the Whipple Superchargers. He talked
to Brancaccio on the telephone several times to arrange for
service. On December 2 1 , 2004, Brancaccio sent Byrne a contract
to sign for installation of the Whipple superchargers that was
2 addressed to Byrne in Alton Bay, New Hampshire. The boat,
however, was in Florida. Brancaccio transported the boat from
Florida to Ohio in March of 2005 where it was serviced at Frank's
Marine until mid-July of 2005.
Byrne transported the boat back to Lake Winnipesaukee, New
Hampshire, on July 2 4 , 2005. He tested the boat and found that the new port engine was having problems, which continued the next
day when he went for a test run with Ernest Gillan who operates
Gillan's Marine in Alton Bay. Gillan said that an ignition
module would fix the problem. The next day, July 2 6 , Byrne
smelled smoke while operating the boat just outside of Alton Bay.
When he opened the engine hatch, he saw flames along the left
side of the port engine. The boat burned to the water line and
was declared a total loss.
Discussion
Bryne brings claims of negligence, breach of warranty,
violation of the Magnuson-Moss Act, and violation of New
Hampshire's Consumer Protection Act against the defendants,
including Frank Brancaccio. Brancaccio moves to dismiss the
claims against him for lack of personal jurisdiction. Byrne
objects.
3 Brancaccio filed a reply to Byrne's objection. Byrne moves
to strike the reply on the ground that Brancaccio failed to file
a notice of his intent to file a reply as provided in Local Rule
7.1(e). Contrary to Byrne's motion, the purpose of Local Rule
7.1(e) is to establish a time when a motion is ripe for
consideration by the court. Failure to file a notice of intent to file a reply simply results in the motion being ripe without
waiting for a reply. As Byrne provides no basis to strike
Brancaccio's reply, the motion is denied.
When, as here, a case is brought in this court pursuant to
diversity jurisdiction, the plaintiff "must show that the New
Hampshire long-arm statute grants jurisdiction, and if it does,
that the exercise of jurisdiction under the statute is consistent
with the requirements of the Federal Constitution." N . Laminate
Sales, Inc. v . Davis, 403 F.3d 1 4 , 24 (1st Cir. 2005); Sawtelle v . Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995). New Hampshire's
long-arm statute, New Hampshire Revised Statutes Annotated §
510:4(I), provides jurisdiction over a nonresident who "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." The statute has
been interpreted to confer personal jurisdiction "to the full
extent the statutory language and due process will allow." N.
4 Laminate, 403 F.3d at 24 (internal quotation marks omitted). Due
process requires sufficient contacts with the forum state to
support jurisdiction, which may be satisfied under general
jurisdiction or specific jurisdiction analyses. Id.
Brancaccio contends that jurisdiction is lacking because he
conducts his business, as Frank's Marine, only in Ohio and that neither he nor his business has had any substantial contacts with
New Hampshire. Byrne responds that specific personal
jurisdiction exists over Brancaccio based on his communications
with Byrne in New Hampshire and the service provided to the boat,
which was registered in New Hampshire and returned to New
Hampshire after servicing in Ohio.
Specific personal jurisdiction exists if the nonresident
defendant has had contacts with the forum state, New Hampshire in
this case, that are related to the claim, if the defendant purposely availed himself of the privilege of doing business
here, and if exercising personal jurisdiction would be reasonable
under the circumstances. Negron-Torres, 478 F.3d at 2 4 . When
the plaintiff's assertion of specific jurisdiction is based on
contract claims, such as breach of warranty, the plaintiff may
rely on "inferences from the parties' prior negotiations and
contemplated future consequences, along with the terms of the
contract and the parties' actual course of dealing" to satisfy
5 the jurisdictional requirements. Platten v . HG Bermuda Exempted
Ltd., 437 F.3d 1 1 8 , 135 (1st Cir. 2006) (internal quotation marks
omitted). When jurisdiction is based on tort claims, such as
negligence, the plaintiff "must show a sufficient 'causal nexus'
between [the defendant's] contacts with [the forum] and [the
plaintiff's] causes of action." Id. (internal quotation marks omitted). Although Byrne does not expressly differentiate
between his causes of action for purposes of showing
jurisdiction, he focuses on the contractual nature of his
relationship with Brancaccio.
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Byrne v . Brunswick 07-CV-43-JD 6/26/07 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph Byrne
v. Civil N o . 07-cv-43-JD Opinion N o . 2007 DNH 082 Brunswick Corporation, et a l .
O R D E R
After his high performance power boat was destroyed by fire
on Lake Winnipesaukee in July of 2005, Joseph Byrne brought suit
against the manufacturer of the boat's engines, the manufacturer
of accessories installed on the boat, and individuals who were
involved in the sale and service of the boat. Frank Brancaccio,
d/b/a Frank's Marine, moves to dismiss the claims against him on
the ground that the court lacks personal jurisdiction over him.
Byrne objects.
Standard of Review
When a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(2) is presented for prima facie review, the court
takes the facts alleged in the complaint as true and construes
them in the light most supportive of jurisdiction. Negron-Torres
v . Verizon Commc'ns, Inc., 478 F.3d 1 9 , 23 (1st Cir. 2007). The
court also considers facts properly submitted by the defendant but only to the extent that those facts are undisputed. Id. In
response to a defendant's motion to dismiss under the prima facie
standard, the plaintiff bears the "burden 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."
Id. at 24 (internal quotation marks omitted).
Background
Byrne alleges that he bought a 2005 Donzi Scorpion high
performance boat in July of 2004 from Gillan Marine in Alton Bay,
New Hampshire. The boat was equipped with engines and outdrives
manufactured by the Brunswick Corporation. In August of 2004,
Gillan Marine replaced parts of the starboard engine under the
manufacturer's warranty. At the end of the boating season in New
Hampshire, Byrne took the boat to Florida to have the hull "blue
printed" and for personal use there.
In December of 2004, Byrne contacted Frank's Marine,
operated by Frank Brancaccio, in Berlin Center, Ohio, to install
Whipple Superchargers to the engines. Byrne chose Frank's Marine
as an authorized dealer for the Whipple Superchargers. He talked
to Brancaccio on the telephone several times to arrange for
service. On December 2 1 , 2004, Brancaccio sent Byrne a contract
to sign for installation of the Whipple superchargers that was
2 addressed to Byrne in Alton Bay, New Hampshire. The boat,
however, was in Florida. Brancaccio transported the boat from
Florida to Ohio in March of 2005 where it was serviced at Frank's
Marine until mid-July of 2005.
Byrne transported the boat back to Lake Winnipesaukee, New
Hampshire, on July 2 4 , 2005. He tested the boat and found that the new port engine was having problems, which continued the next
day when he went for a test run with Ernest Gillan who operates
Gillan's Marine in Alton Bay. Gillan said that an ignition
module would fix the problem. The next day, July 2 6 , Byrne
smelled smoke while operating the boat just outside of Alton Bay.
When he opened the engine hatch, he saw flames along the left
side of the port engine. The boat burned to the water line and
was declared a total loss.
Discussion
Bryne brings claims of negligence, breach of warranty,
violation of the Magnuson-Moss Act, and violation of New
Hampshire's Consumer Protection Act against the defendants,
including Frank Brancaccio. Brancaccio moves to dismiss the
claims against him for lack of personal jurisdiction. Byrne
objects.
3 Brancaccio filed a reply to Byrne's objection. Byrne moves
to strike the reply on the ground that Brancaccio failed to file
a notice of his intent to file a reply as provided in Local Rule
7.1(e). Contrary to Byrne's motion, the purpose of Local Rule
7.1(e) is to establish a time when a motion is ripe for
consideration by the court. Failure to file a notice of intent to file a reply simply results in the motion being ripe without
waiting for a reply. As Byrne provides no basis to strike
Brancaccio's reply, the motion is denied.
When, as here, a case is brought in this court pursuant to
diversity jurisdiction, the plaintiff "must show that the New
Hampshire long-arm statute grants jurisdiction, and if it does,
that the exercise of jurisdiction under the statute is consistent
with the requirements of the Federal Constitution." N . Laminate
Sales, Inc. v . Davis, 403 F.3d 1 4 , 24 (1st Cir. 2005); Sawtelle v . Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995). New Hampshire's
long-arm statute, New Hampshire Revised Statutes Annotated §
510:4(I), provides jurisdiction over a nonresident who "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." The statute has
been interpreted to confer personal jurisdiction "to the full
extent the statutory language and due process will allow." N.
4 Laminate, 403 F.3d at 24 (internal quotation marks omitted). Due
process requires sufficient contacts with the forum state to
support jurisdiction, which may be satisfied under general
jurisdiction or specific jurisdiction analyses. Id.
Brancaccio contends that jurisdiction is lacking because he
conducts his business, as Frank's Marine, only in Ohio and that neither he nor his business has had any substantial contacts with
New Hampshire. Byrne responds that specific personal
jurisdiction exists over Brancaccio based on his communications
with Byrne in New Hampshire and the service provided to the boat,
which was registered in New Hampshire and returned to New
Hampshire after servicing in Ohio.
Specific personal jurisdiction exists if the nonresident
defendant has had contacts with the forum state, New Hampshire in
this case, that are related to the claim, if the defendant purposely availed himself of the privilege of doing business
here, and if exercising personal jurisdiction would be reasonable
under the circumstances. Negron-Torres, 478 F.3d at 2 4 . When
the plaintiff's assertion of specific jurisdiction is based on
contract claims, such as breach of warranty, the plaintiff may
rely on "inferences from the parties' prior negotiations and
contemplated future consequences, along with the terms of the
contract and the parties' actual course of dealing" to satisfy
5 the jurisdictional requirements. Platten v . HG Bermuda Exempted
Ltd., 437 F.3d 1 1 8 , 135 (1st Cir. 2006) (internal quotation marks
omitted). When jurisdiction is based on tort claims, such as
negligence, the plaintiff "must show a sufficient 'causal nexus'
between [the defendant's] contacts with [the forum] and [the
plaintiff's] causes of action." Id. (internal quotation marks omitted). Although Byrne does not expressly differentiate
between his causes of action for purposes of showing
jurisdiction, he focuses on the contractual nature of his
relationship with Brancaccio.
Even if Byrne could satisfy the relatedness requirement, the
jurisdictional analysis fails at the second step because he has
not made even a prima facie case that Brancaccio purposefully
availed himself of doing business in New Hampshire. Defendants
who "'reach out beyond one state and create continuing relationships and obligations with citizens of another state are
subject to regulation and sanctions in the other state for the
consequences of their actions.'" Id. at 136 (quoting Burger King
Corp. v . Rudzewicz, 471 U.S. 4 6 2 , 473 (1985)). Merely
contracting with a citizen of another state, however, is not
enough to invoke personal jurisdiction. Id. Instead, a
plaintiff relying on specific personal jurisdiction based on a
contract theory must present evidence of action by the defendant
6 that shows he directed activity into the forum state. Id. at
137.
In this case, it is undisputed that Byrne reached out to
Brancaccio in Ohio to service his boat, not the other way around.
Although Brancaccio sent the simple invoice contract to Byrne in
New Hampshire for his signature, he did so in response to Byrne's contacting him about installation of the superchargers. Byrne
alleges that he had "a number of telephone conversations" with
Brancaccio about installing the superchargers and transporting
the boat from Florida to Ohio. Byrne does not say who made the
calls, where he was when the calls occurred, or dispute the
context that the calls were the result of his initial overture to
Frank's Marine.
Further, the boat was serviced in Ohio, and any future
service by Frank's Marine would have been done in Ohio. It is unlikely that either party intended or expected a continuing
relationship, given the distance and the transportation required
for servicing the boat in Ohio. Brancaccio transported the boat
from Florida, not New Hampshire, to Ohio for service. Assuming
that Brancaccio was aware that the boat was registered in New
Hampshire and that Byrne used the boat in New Hampshire, that
information in these circumstances is insufficient to support
specific personal jurisdiction based on a contract theory.
7 Byrne does not address Brancaccio's contacts with New
Hampshire for purposes of specific jurisdiction based on his
negligence claim. The facts presented here, however, would not
support jurisdiction. A prima facie case of personal
jurisdiction under a tort theory requires showing that
Brancaccio's activities in New Hampshire were important or material to Byrne's negligence claim. Platten, 478 F.3d at 137.
Brancaccio's activities in New Hampshire are limited to sending a
contract to Byrne at his address in Alton Bay and telephone
conversations with Byrne, who may have been in New Hampshire.
Importantly, Brancaccio provides services, not tangible
goods, and conducts his business entirely in Ohio, which does not
support the jurisdictional analysis. See Harlow v . Children's
Hosp., 432 F.3d 5 0 , 63 (1st Cir. 2005). To the extent Byrne
would argue that "but for" Brancaccio's contract with Byrne for the superchargers the boat would not have burned in New
Hampshire, that is not enough to support personal jurisdiction
based on his negligence claim. Id. at 6 2 . No other connection
is apparent.
8 Conclusion
For the foregoing reasons, the plaintiff's motion to strike
(document n o . 19) is denied. The defendant's motion to dismiss
for lack of personal jurisdiction (document n o . 14) is granted.
All claims against defendant Frank Brancaccio, d/b/a Frank's
Marine, are dismissed for lack of personal jurisdiction.
SO ORDERED.
JJosfeph A. DiClerico, Jr*. United States District Judge June 2 6 , 2007
cc: Clyde C . Greco, Jr., Esquire Timothy G. Kerrigan, Esquire John A . Lassey, Esquire James M . McNamee, Jr., Esquire George R. Moore, Esquire Peter J. Schulz, Esquire Mary E . Tenn, Esquire