Diane O’Neil v. Somatics, LLC and Elektrika, Inc.

2020 DNH 208

• Court: District Court, D. New Hampshire
• Decided: December 1, 2020
• Docket: 20-cv-175-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Diane O’Neil Case No. 20-cv-175-PB v. Opinion No. 2020 DNH 208

Somatics, LLC and Elektrika, Inc.

MEMORANDUM AND ORDER

In this diversity action, Diane O’Neil, a New Hampshire

resident, has sued two out-of-state corporate defendants,

Somatics, LLC and Elektrika, Inc., stemming from injuries she

allegedly sustained as a result of electroconvulsive therapy

with the Thymatron instrument. Elektrika has moved to dismiss

the claims against it for lack of personal jurisdiction. In

response, O’Neil contends that she requires jurisdictional

discovery to show that there is specific personal jurisdiction

over Elektrika in New Hampshire. For the following reasons, I

grant O’Neil’s request for limited jurisdictional discovery and

deny without prejudice Elektrika’s motion to dismiss.

I. BACKGROUND

The Thymatron is an instrument used to treat severe

psychiatric disturbances by inducing a major motor seizure

through a brief but intense electrical current applied to a

patient’s head in a process known as electroconvulsive therapy. Compl. ¶ 6. O’Neil underwent electroconvulsive therapy with a

Thymatron at the Elliot Hospital in Manchester, New Hampshire,

from August 2016 until February 2017. Compl. ¶ 57. She

allegedly suffered brain damage and permanent neurocognitive

injuries as a result of that treatment. Compl. ¶ 2.

The complaint alleges that Elektrika is “a manufacturer and

exclusive supplier” of the Thymatron device, and that Somatics

is its “manufacturer, labeler, promoter and distributor.”

Compl. ¶¶ 6-7. The defendants are allegedly liable for, among

other things, failing to warn O’Neil about the risks of

undergoing electroconvulsive therapy and misrepresenting the

safety of the Thymatron device.

In support of its motion to dismiss, Elektrika submitted an

affidavit of its president, Jesse Pavel. See Aff. of Jesse

Pavel, Doc. No. 15-2 ¶ 3. Pavel states that Elektrika is

incorporated and headquartered in New York. Doc. No. 15-2 ¶ 5.

It has no offices, facilities, employees, agents, or other

representatives in New Hampshire. Doc. No. 15-2 ¶ 6. He

further states that Elektrika does not conduct business, sell

products, or market in New Hampshire. Doc. No. 15-2 ¶ 8.

According to Pavel, Elektrika manufactures the main body of the

Thymatron in New York and ships it to Somatics in Florida. Doc.

No. 15-2 ¶¶ 11-14. Somatics then completes the assembly,

conducts testing, and sells the finished product to healthcare

2 providers. Doc. No. 15-2 ¶¶ 15-16. Pavel states that Somatics

“is exclusively responsible for the marketing, sale, and

distribution of finished Thymatron instruments,” and that

Elektrika “does not have direct contact with purchasers or end

users of finished Thymatron instruments.” Doc. No. 15-2 ¶¶ 17,

19.

In her opposition to the motion, O’Neil has not presented

evidence establishing the existence of personal jurisdiction

over Elektrika. Instead, she contends that jurisdictional

discovery would yield such evidence. O’Neil points to

Elektrika’s exclusivity agreement with Somatics, which provides

that Elektrika is “responsible for handling any repairs of the

Thymatrons sent to be serviced.” Ex. 3 to Pl.’s Obj., Doc. No.

16-3 at 2. As a result, O’Neil anticipates that discovery will

show that Elektrika interacted with the Thymatron purchasers in

New Hampshire who requested maintenance and repair services.

O’Neil also expects to find evidence that Elektrika marketed the

Thymatron device in New Hampshire jointly with Somatics. She

bases this expectation on a 1997 contract between the two

companies, which states in its preamble that Elektrika and

Somatics have closely collaborated “in the design, manufacture,

and marketing of the Thymatron ECT device and accessories

worldwide.” Ex. B to Pl.’s Sur-reply, Doc. No. 18-3 at 2.

Finally, O’Neil points to evidence that Elektrika purchases

3 component parts for the Thymatron box from vendors located in

New York, New Jersey, and Massachusetts. See Ex. 2 to Pl.’s

Obj., Doc. No. 16-2 at 2. She contends that discovery may show

that Elektrika also utilized New Hampshire-based vendors.

II. STANDARD OF REVIEW

District courts enjoy broad discretion when deciding

whether to grant a request for jurisdictional discovery. See

United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 625-26 (1st

Cir. 2001). The request must be “timely and properly

supported,” must proffer a “colorable claim” for jurisdiction,

and must “present facts to the court which show why jurisdiction

would be found if discovery were permitted.” Id. (internal

quotation marks omitted). The plaintiff must specify the type

of evidence she expects to find and provide detailed

descriptions of any “‘additional pertinent avenues of inquiry’

that [she] hope[s] to pursue.” Id. at 626 (quoting Whittaker

Corp. v. United Aircraft Corp., 482 F.2d 1079, 1086 (1st Cir.

1973)). “Failure to allege specific contacts, relevant to

establishing personal jurisdiction, in a jurisdictional

discovery request can be fatal to that request.” Id. at 626-27

(citing Crocker v. Hilton Int’l Barbados, Ltd., 976 F.2d 797,

801 (1st Cir. 1992)).

4 III. ANALYSIS

O’Neil timely requested jurisdictional discovery as part of

her objection to Elektrika’s motion to dismiss. See Nordica USA

Corp. v. Ole Sorensen, 475 F. Supp. 2d 128, 134-35 (D.N.H. 2007)

(holding that request for jurisdictional discovery raised in

objection to Rule 12(b)(2) motion was timely). Thus, the only

question is whether she has proffered a colorable claim that

Elektrika is subject to specific jurisdiction in New Hampshire.

When assessing personal jurisdiction in a diversity case, a

federal court “is the functional equivalent of a state court

sitting in the forum state.” Baskin-Robbins Franchising LLC v.

Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016) (quoting

Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995)). The

court must determine whether an exercise of jurisdiction is

proper under both the forum state’s long-arm statute and the due

process requirements of the U.S. Constitution. C.W. Downer &

Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 65 (1st Cir.

2014). Because New Hampshire’s long-arm statute is coextensive

with the federal due process standard, however, I need only

consider whether exercising personal jurisdiction would comport

with due process. Phillips Exeter Acad. v. Howard Phillips

Fund, 196 F.3d 284, 287 (1st Cir. 1999).

5 Due process requires that a defendant “have certain minimum

contacts with [the forum] such that the maintenance of the suit

does not offend ‘traditional notions of fair play and

substantial justice.’” Plixer Int’l, Inc. v. Scrutinizer GmbH,

905 F.3d 1, 7 (1st Cir. 2018) (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945)). When a plaintiff asserts

specific personal jurisdiction, due process requires that (1)

her “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 Capital

Advisors Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir.

2018).

The relatedness prong is intended to be a “flexible,

relaxed standard” that requires “only a demonstrable nexus

between the complaint’s claims and the activities in the forum

that properly may be attributed to the defendant[], such that

the litigation itself is founded directly on those activities.”

PREP Tours, Inc. v. Am. Youth Soccer Org., 913 F.3d 11, 18 (1st

Cir. 2019) (internal quotation marks omitted). The thrust of

O’Neil’s claims is that her injury resulted from the defendants’

failure to warn her about the risks of using the Thymatron

device and their misrepresentations about its safety. If

6 proven, O’Neil’s allegations that Elektrika participated in

marketing the device to New Hampshire residents or provided

maintenance and repair services for the Thymatron to New

Hampshire customers could show that her claims are related to

Elektrika’s in-forum conduct.

The purposeful availment prong is met “when the defendant

purposefully and voluntarily directs his activities toward the

forum so that he should expect, by virtue of the benefit he

receives, to be subject to the court’s jurisdiction based on

these contacts.” Swiss Am. Bank, 274 F.3d at 624. The two

“cornerstones” of purposeful availment are “voluntariness and

foreseeability.” C.W. Downer, 771 F.3d at 66. For the

defendant’s contacts with the forum to be considered voluntary,

they must proximately result from the defendant’s own actions,

rather than the plaintiff’s unilateral activities. PREP Tours,

913 F.3d at 20. Foreseeability in this context means that “the

defendant’s conduct and connection with the forum State are such

that he should reasonably anticipate being haled into court

there.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S.

462, 474 (1985)). This standard ensures that an exercise of

jurisdiction is not based on the defendant’s “random,

fortuitous, or attenuated [forum] contacts.” Carreras v. PMG

Collins, LLC, 660 F.3d 549, 555 (1st Cir. 2011) (quoting Burger

King, 471 U.S. at 475).

7 For purposes of this prong, O’Neil relies on the “stream of

commerce plus” theory of personal jurisdiction. See Asahi Metal

Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1987);

Boit v. Gar–Tec Prods., Inc., 967 F.2d 671, 683 (1st Cir. 1992).

Under that theory, “[t]he placement of a product into the stream

of commerce, without more, is not an act of the defendant

purposefully directed toward the forum State.” Asahi, 480 U.S.

at 112. To establish purposeful availment, the plaintiff must

demonstrate some additional conduct by the defendant directed

toward the forum state, such as “advertising in the forum State,

establishing channels for providing regular advice to customers

in the forum State, or marketing the product through a

distributor who has agreed to serve as the sales agent in the

forum State.” Id.; see Knox v. MetalForming Inc., 914 F.3d 685,

691-92 (1st Cir. 2019). Evidence tying Elektrika to the

Thymatron marketing efforts in New Hampshire or ongoing

maintenance and repair services to New Hampshire purchasers of

the device could constitute “plus” factors evincing Elektrika’s

deliberate attempt to serve New Hampshire. O’Neil has,

therefore, presented a colorable claim that she could satisfy

the purposeful availment prong.

Lastly, the reasonableness prong focuses on five factors

that gage the extent to which the exercise of jurisdiction over

a nonresident is fair and reasonable. Nowak v. Tak How

8 Investments, Ltd., 94 F.3d 708, 717 (1st Cir. 1996). These so-

called “Gestalt factors” are:

(1) the defendant’s burden of appearing [in the forum state], (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.

Id. (internal quotation marks omitted). Elektrika presents no

persuasive arguments as to why the assertion of jurisdiction

would be unreasonable here. For example, it has not shown that

litigating the case in New Hampshire would be “onerous in a

special, unusual, or other constitutionally significant way.”

Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994). Considering

that the injury occurred in New Hampshire to a New Hampshire

resident, I have little trouble concluding that the Gestalt

factors weigh in favor of the exercise of jurisdiction.

In sum, O’Neil has set out a colorable claim that discovery

could yield evidence in support of each element of the specific

jurisdiction test. The evidence she seeks is in Elektrika’s

exclusive possession. Accordingly, I grant her request for

limited jurisdictional discovery, which must be focused on the

specific jurisdictional issues relevant in this case. The

discovery must be completed within 90 days and is confined to 15

9 written interrogatories, 5 document requests, and a video

deposition of Jesse Pavel not to exceed one hour.

IV. CONCLUSION

I deny Elektrika’s motion to dismiss (Doc. No. 15) without

prejudice to its renewal after O’Neil has had an opportunity to

conduct limited jurisdictional discovery delineated above.

Should Elektrika renew its motion, the briefing will be limited

to a memorandum in support of Elektrika’s motion to dismiss and

a memorandum in opposition to the motion. In lieu of reply and

sur-reply briefs, the court will schedule oral argument on an

expedited basis.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

December 1, 2020

cc: Bijan Esfandiari, Esq. James J. Bianco, Jr., Esq. Joseph M. Desmond, Esq. David Viens, Esq. James M. Campbell, Esq. Kathleen Marie Guilfoyle, Esq.