Clearview Software et a l . v. Ware CV-07-405-JL 9/30/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Clearview Software International, Inc. & Blue Ivy Solutions, Inc.
v. Civil No. 07-cv-0405-JL Opinion No. 2008 DNH 182 Christopher E. Ware
O R D E R
The plaintiffs commenced this action with a five-count writ
of summons in Hillsborough County Superior Court, alleging that
the defendant (1) tortiously interfered with the plaintiff's
contractual relations, (2) engaged in fraud,1 and (3) conspired
with others in doing so. The plaintiffs also alleged violations
of (4) the New Hampshire Consumer Protection Act, see N.H. Rev.
Stat. Ann. 358-A, and (5) the New Hampshire Uniform Trade Secrets
Act, see N.H. Rev. Stat. Ann. 350-B. The defendant, Christopher
Ware, timely removed the action and moved to dismiss the
complaint, asserting that he lacks sufficient minimum contacts
with New Hampshire to be subject to personal jurisdiction in this
court. See Fed. R. Civ. P. 12(b)(2). The plaintiffs objected,
arguing that the court possesses both general and specific
jurisdiction over Ware, and requested, in the alternative, an
1 The plaintiffs have since abandoned the fraud claim. "opportunity to engage in jurisdictional discovery in an effort
to uncover additional facts to support their jurisdictional
claim."
I. Applicable Legal Standard
"It is basic law that a court must have personal
jurisdiction over the parties to hear a case, that is, the power
to require the parties to obey its decrees." U.S. Swiss American
Bank, Ltd., 274 F.3d 610, 617 (1st Cir. 2001). Where the court's
personal jurisdiction over a defendant is contested, the
plaintiff bears the burden of establishing that jurisdiction
exists. See Neqron-Torres v. Verizon Communications, Inc., 478
F.3d 19, 23 (1st Cir. 2007). Under the applicable "prima facie
standard, . . . the district court considers 'only whether the
plaintiff has proffered evidence that, if credited, is enough to
support findings of all facts essential to personal
jurisdiction.'" Neqron-Torres, 478 F.3d at 23 (quoting Bolt v.
Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)). In
order to make its prima facie showing, the plaintiff "ordinarily
may not rest upon the pleadings but is obliged to adduce evidence
of specific facts." Foster-Miller, Inc. v. Babcock & Wilcox
Can., 46 F.3d 138, 145 (1st Cir. 1995). The court, in turn, must
take those facts "affirmatively alleged by the plaintiff as true
2 (whether or not disputed) and construe them in the light most
congenial to the plaintiff's jurisdictional claim." Mass. Sch.
of Law, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998) .
II. Background
Symbol Technologies, Inc. ("Symbol") designs, manufactures,
and sells various computer related products. The plaintiffs,
Clearview Software International, Inc. ("Clearview"), and Blue
Ivy Solutions, Inc. ("Solutions")--both companies with a
principal place of business in New Hampshire--are authorized
resellers of Symbol's products. At all times relevant to this
complaint, the defendant worked for Symbol as its Northeast
Channel Account Manager, covering the plaintiffs' New Hampshire
offices, which entailed:
• coordinating all business activities that involve Symbol products, services, personnel, business partners, and distributors or resellers; • coordinating all financing and ordering; • facilitating introductions between Symbol partners; • facilitating trade show activities; • managing equipment training and certification; • managing conflict in the Symbol business environment, including conflict among Symbol partners or their employees; and • providing sales prospects to the Symbol resellers in its region.
3 Ware also managed the accounts of resellers, distributors, and
customers of Symbol's products, and served as their primary point
of contact. With respect to Symbol's clients located in New
Hampshire, which included Solutions, Ware regularly communicated
with their representatives and visited them at their offices to
conduct business. Solutions' current Chief Executive Officer has
alleged that Ware had "weekly, and at times daily" contact with
Solutions' employees via telephone calls, e-mails, and face-to-
face meetings. In support of these claims, the plaintiffs have
identified seven e-mails that Ware sent to Solutions' executives
between December 5, 2005, and November 10, 2006.
According to the plaintiffs' Amended Complaint, Ware, in his
capacity as Symbol's regional manager, conspired with Solutions'
competitors to:
1. Misappropriate trade secrets and other proprietary information owned by the plaintiffs, including computer hardware and software, the TEA-Perishable software, customer lists, business pipelines, and customer proposals;
2. Use this information to secure contracts and business with customers of the plaintiffs; and
3. Inform customers of the plaintiffs that Blue Ivy Mobility Solutions, LLC-- another company that directly competes with Solutions--is, in fact. Solutions with a new name, and has been diverting business.
4 contracts and customers of the plaintiffs to its competitors.
The plaintiffs allege that these claims arise directly out of
Ware's specific contacts with New Hampshire. In particular, the
plaintiffs point to an e-mail Ware sent to Gary Bowser, the then-
President of Solutions who has since gone to work for Blue Ivy
Mobility Solutions, a competitor of Solutions, inquiring about
"the new company." The plaintiffs argue that "this e-mail
evidences the defendant's role in facilitating, through his
contacts with Bowser in the State of New Hampshire, the
establishment of [Blue Ivy] Mobility [Solutions] as a Symbol
distributor standing in the shoes of Solutions."
Ill. Analysis
Based on the evidence before the court, it is unclear
whether Ware possesses sufficient minimum contacts with New
Hampshire "such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice." Int'1
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) . The plaintiffs
have, however, presented a claim of jurisdiction that is, at
least, colorable. See U.S. v. Swiss Am. Bank, Ltd., 274 F.3d
610, 626 (1st Cir. 2001) ("a diligent plaintiff who sued an out-
of-state corporation and who makes out a colorable case for the
5 existence of in personam jurisdiction may well be entitled to a
modicum of jurisdictional discovery"). As the plaintiffs have
produced specific e-mails that Ware apparently directed to
Solutions' employees in New Hampshire, and which relate, at least
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Clearview Software et a l . v. Ware CV-07-405-JL 9/30/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Clearview Software International, Inc. & Blue Ivy Solutions, Inc.
v. Civil No. 07-cv-0405-JL Opinion No. 2008 DNH 182 Christopher E. Ware
O R D E R
The plaintiffs commenced this action with a five-count writ
of summons in Hillsborough County Superior Court, alleging that
the defendant (1) tortiously interfered with the plaintiff's
contractual relations, (2) engaged in fraud,1 and (3) conspired
with others in doing so. The plaintiffs also alleged violations
of (4) the New Hampshire Consumer Protection Act, see N.H. Rev.
Stat. Ann. 358-A, and (5) the New Hampshire Uniform Trade Secrets
Act, see N.H. Rev. Stat. Ann. 350-B. The defendant, Christopher
Ware, timely removed the action and moved to dismiss the
complaint, asserting that he lacks sufficient minimum contacts
with New Hampshire to be subject to personal jurisdiction in this
court. See Fed. R. Civ. P. 12(b)(2). The plaintiffs objected,
arguing that the court possesses both general and specific
jurisdiction over Ware, and requested, in the alternative, an
1 The plaintiffs have since abandoned the fraud claim. "opportunity to engage in jurisdictional discovery in an effort
to uncover additional facts to support their jurisdictional
claim."
I. Applicable Legal Standard
"It is basic law that a court must have personal
jurisdiction over the parties to hear a case, that is, the power
to require the parties to obey its decrees." U.S. Swiss American
Bank, Ltd., 274 F.3d 610, 617 (1st Cir. 2001). Where the court's
personal jurisdiction over a defendant is contested, the
plaintiff bears the burden of establishing that jurisdiction
exists. See Neqron-Torres v. Verizon Communications, Inc., 478
F.3d 19, 23 (1st Cir. 2007). Under the applicable "prima facie
standard, . . . the district court considers 'only whether the
plaintiff has proffered evidence that, if credited, is enough to
support findings of all facts essential to personal
jurisdiction.'" Neqron-Torres, 478 F.3d at 23 (quoting Bolt v.
Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)). In
order to make its prima facie showing, the plaintiff "ordinarily
may not rest upon the pleadings but is obliged to adduce evidence
of specific facts." Foster-Miller, Inc. v. Babcock & Wilcox
Can., 46 F.3d 138, 145 (1st Cir. 1995). The court, in turn, must
take those facts "affirmatively alleged by the plaintiff as true
2 (whether or not disputed) and construe them in the light most
congenial to the plaintiff's jurisdictional claim." Mass. Sch.
of Law, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998) .
II. Background
Symbol Technologies, Inc. ("Symbol") designs, manufactures,
and sells various computer related products. The plaintiffs,
Clearview Software International, Inc. ("Clearview"), and Blue
Ivy Solutions, Inc. ("Solutions")--both companies with a
principal place of business in New Hampshire--are authorized
resellers of Symbol's products. At all times relevant to this
complaint, the defendant worked for Symbol as its Northeast
Channel Account Manager, covering the plaintiffs' New Hampshire
offices, which entailed:
• coordinating all business activities that involve Symbol products, services, personnel, business partners, and distributors or resellers; • coordinating all financing and ordering; • facilitating introductions between Symbol partners; • facilitating trade show activities; • managing equipment training and certification; • managing conflict in the Symbol business environment, including conflict among Symbol partners or their employees; and • providing sales prospects to the Symbol resellers in its region.
3 Ware also managed the accounts of resellers, distributors, and
customers of Symbol's products, and served as their primary point
of contact. With respect to Symbol's clients located in New
Hampshire, which included Solutions, Ware regularly communicated
with their representatives and visited them at their offices to
conduct business. Solutions' current Chief Executive Officer has
alleged that Ware had "weekly, and at times daily" contact with
Solutions' employees via telephone calls, e-mails, and face-to-
face meetings. In support of these claims, the plaintiffs have
identified seven e-mails that Ware sent to Solutions' executives
between December 5, 2005, and November 10, 2006.
According to the plaintiffs' Amended Complaint, Ware, in his
capacity as Symbol's regional manager, conspired with Solutions'
competitors to:
1. Misappropriate trade secrets and other proprietary information owned by the plaintiffs, including computer hardware and software, the TEA-Perishable software, customer lists, business pipelines, and customer proposals;
2. Use this information to secure contracts and business with customers of the plaintiffs; and
3. Inform customers of the plaintiffs that Blue Ivy Mobility Solutions, LLC-- another company that directly competes with Solutions--is, in fact. Solutions with a new name, and has been diverting business.
4 contracts and customers of the plaintiffs to its competitors.
The plaintiffs allege that these claims arise directly out of
Ware's specific contacts with New Hampshire. In particular, the
plaintiffs point to an e-mail Ware sent to Gary Bowser, the then-
President of Solutions who has since gone to work for Blue Ivy
Mobility Solutions, a competitor of Solutions, inquiring about
"the new company." The plaintiffs argue that "this e-mail
evidences the defendant's role in facilitating, through his
contacts with Bowser in the State of New Hampshire, the
establishment of [Blue Ivy] Mobility [Solutions] as a Symbol
distributor standing in the shoes of Solutions."
Ill. Analysis
Based on the evidence before the court, it is unclear
whether Ware possesses sufficient minimum contacts with New
Hampshire "such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice." Int'1
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) . The plaintiffs
have, however, presented a claim of jurisdiction that is, at
least, colorable. See U.S. v. Swiss Am. Bank, Ltd., 274 F.3d
610, 626 (1st Cir. 2001) ("a diligent plaintiff who sued an out-
of-state corporation and who makes out a colorable case for the
5 existence of in personam jurisdiction may well be entitled to a
modicum of jurisdictional discovery"). As the plaintiffs have
produced specific e-mails that Ware apparently directed to
Solutions' employees in New Hampshire, and which relate, at least
arguably, to the plaintiffs' underlying claims, the court
concludes that jurisdictional discovery is likely to shed light
on whether jurisdiction over Ware is appropriate. See id. at 625
(explaining the district court's broad discretion to order
jurisdictional discovery).
IV. Conclusion
Ware's motion to dismiss (document no. 5) is denied without
prejudice to its reinstatement after the plaintiff has had an
opportunity to conduct jurisdictional discovery. The court
grants the plaintiffs 60 days to conduct limited discovery,
restricted to specific facts that bear on the issue of personal
jurisdiction. The permitted discovery is limited to 20 written
interrogatories, and 15 document requests. The clerk is directed
to schedule a show-cause hearing 60 days from the issuance of
this order to provide the plaintiffs with an opportunity to
persuade the court that its complaint should not be dismissed for
lack of personal jurisdiction.
6 SO ORDERED.
( / K. Joseyn N. Uni/ed States District Judge
Dated: September 30, 2008
cc : Cyrus F. Rilee, III, Esq. Jennifer Turco Beaudet, Esq. Paul R. Kfoury, Sr., Esq. Daniel E. Will, Esq. Jonathan M. Shirley, Esq. Leigh S. Willey, Esq.