D’Jamoos v . Atlas Aircraft, et a l . 08-CV-108-SM 11/25/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Theresa D’Jamoos, as Executrix of the Estate of Dawn Weingroff, et a l . , Plaintiffs
v. Civil N o . 08-cv-108-SM Opinion N o . 2008 DNH 203 Atlas Aircraft Center, Inc. and Pilatus Aircraft, Ltd., Defendants
O R D E R
This product liability and negligence action arises out of
an accident involving a Pilatus PC-12 aircraft. In March of
2005, after taking off from Naples, Florida, the plane crashed in
State College, Pennsylvania, during an instrument landing
approach. All six people on board were killed. The plane had
been based in Rhode Island and all six passengers were residents
of Rhode Island. The plaintiffs - the estates of the six victims
- have named as defendants Atlas Aircraft Center, Inc. (“Atlas”),
a New Hampshire corporation with its principal place of business
in Manchester, New Hampshire, and Pilatus Aircraft, Ltd.
(“Pilatus), a Swiss corporation.
The PC-12 is a single-engine turbo-prop aircraft. Pilatus
says, and plaintiffs do not dispute, that it manufactured the PC-
12 at issue in Switzerland in 1999 and sold it in Europe to a French buyer. After several intervening resales, the aircraft
was finally purchased by a Rhode Island limited liability company
and transported to the United States in 2003. Pilatus now moves
to dismiss all of plaintiffs’ claims, asserting that it has
insufficient contacts with the State of New Hampshire for this
court to properly exercise personal jurisdiction over i t . In
response, plaintiffs move the court to permit them to engage in
limited discovery, aimed at determining the nature and extent of
Pilatus’s contacts with this forum.
Discussion
As this court (Muirhead, M.J.) has previously held, under
certain circumstances, plaintiffs are entitled to limited
jurisdictional discovery before responding to a motion to
dismiss.
Under First Circuit law, if defendants move to dismiss for lack of personal jurisdiction, plaintiffs may be entitled to a “modicum of jurisdictional discovery” to establish facts that demonstrate why jurisdiction may properly be exercised over defendants. See Negron- Torres v . Verizon Commc’ns. Inc., 478 F.3d 1 9 , 27 (1st Cir. 2007); see also Fed. R. Civ. P. 12(b)(2).
It is within the trial court’s discretion whether or not to grant plaintiffs’ motion for jurisdictional discovery. See U.S. v . Swiss Am. Bank, Ltd., 274 F.3d 610, 625 (1st Cir.2001) (explaining the district court’s broad discretion). The motion must be “timely and properly supported,” must proffer a “colorable claim” for jurisdiction, and must “present facts to the
2 court which show why jurisdiction would be found if discovery were permitted.” Id. at 625, 626. Plaintiffs must specify the type of evidence they think they will find and provide detailed descriptions of any “‘additional pertinent avenues of inquiry’ that [they] hope[ ] 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. (citing Crocker v . Hilton Int’l Barbados, Ltd., 976 F.2d 7 9 7 , 801 (1st Cir.1992)).
Nordica USA Corp. v . Ole Sorensen, 475 F. Supp.2d 1 2 8 , 133-34
(D.N.H. 2007) (Muirhead, M . J . ) . See also Clearview Software
Int’l v . Ware, 2008 DNH 182 (D.N.H. Sept. 3 0 , 2008).
Here, plaintiffs originally requested such discovery before
Pilatus responded to the complaint, but that motion was denied,
without prejudice, as premature. In response to Pilatus’s motion
to dismiss for lack of personal jurisdiction, plaintiffs renewed
their motion. The request for jurisdictional discovery i s , then,
timely. See, e.g., Platten v . HG Bermuda Exempted Ltd., 437 F.3d
118, 139-40 (1st Cir. 2006).
The next question is whether plaintiffs have properly
supported their request with a “colorable claim” that, if
discovery is permitted, it will likely reveal facts sufficient to
permit the court to properly exercise personal jurisdiction over
Pilatus. They have.
3 Among other things, plaintiffs allege that Atlas inspected,
tested, certified, and serviced the Pilatus PC-12 at issue in
this case. And, say plaintiffs, Pilatus negligently provided
Atlas with “Service Bulletins, maintenance instructions, and
other specifications for maintenance and inspection of the
subject aircraft” and failed “to provide adequate warnings
relating thereto.” Amended complaint, para. 5 0 . In short,
plaintiffs allege that Pilatus committed a tort in the State of
New Hampshire and, therefore, assert that this court may properly
exercise personal jurisdiction over i t .
Plaintiffs also say that Atlas and Pilatus are in exclusive
possession of documentation that will demonstrate the scope of
Pilatus’s contacts with, and business i n , this forum. Based upon
information currently available to them, plaintiffs assert that:
(1) the largest flying fleet of Pilatus PC-12 aircraft in the
world is located in New Hampshire and operated by Alpha Flying,
Inc.; (2) Alpha Flying, Inc. expects to purchase an additional
twenty-five PC-12 Pilatus aircraft by the year 2010; (3)
presently, there are at least 30 Pilatus aircraft registered in
New Hampshire to New Hampshire owners or operators; (4) until
February of 2008, Atlas operated as the exclusive Pilatus
aircraft maintenance service center and Pilatus aircraft sales
distribution center in New England, New York, New Jersey,
4 Delaware, and Michigan for the Pilatus PC-12; (5) Pilatus’s
records reveal the existence of 125 subscriptions to Pilatus
technical publications, including Service Bulletins, with
addresses in New Hampshire; (6) Atlas ordered 107 of those
subscriptions in 2008, which were delivered in New Hampshire; and
(7) while most parts shipped to New Hampshire are routed through
Pilatus’s wholly-owned subsidiary in Colorado, plaintiffs believe
that Pilatus ships some parts directly from Switzerland to New
Hampshire. Plaintiffs’ memorandum in support of jurisdictional
discovery (document n o . 37-2) at 6-8.
In light of the foregoing, plaintiffs say it is not
unreasonable for them to think that Pilatus maintains (and has
maintained) sufficient contacts with the State of New Hampshire
to warrant the exercise of personal jurisdiction over i t . And,
they go on to assert that they reasonably expect jurisdictional
discovery will lead to the unearthing of facts that reveal: (1)
Pilatus derives substantial revenue from the sale of its aircraft
in New Hampshire; (2) prior to February of 2008, Atlas was
Pilatus’s exclusive sales and service agent for PC-12 aircraft in
the New England region and, after that date, Pilatus directly
coordinated the sale and marketing of its aircraft in New
Hampshire; (3) Pilatus, either directly or through its wholly-
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D’Jamoos v . Atlas Aircraft, et a l . 08-CV-108-SM 11/25/08 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Theresa D’Jamoos, as Executrix of the Estate of Dawn Weingroff, et a l . , Plaintiffs
v. Civil N o . 08-cv-108-SM Opinion N o . 2008 DNH 203 Atlas Aircraft Center, Inc. and Pilatus Aircraft, Ltd., Defendants
O R D E R
This product liability and negligence action arises out of
an accident involving a Pilatus PC-12 aircraft. In March of
2005, after taking off from Naples, Florida, the plane crashed in
State College, Pennsylvania, during an instrument landing
approach. All six people on board were killed. The plane had
been based in Rhode Island and all six passengers were residents
of Rhode Island. The plaintiffs - the estates of the six victims
- have named as defendants Atlas Aircraft Center, Inc. (“Atlas”),
a New Hampshire corporation with its principal place of business
in Manchester, New Hampshire, and Pilatus Aircraft, Ltd.
(“Pilatus), a Swiss corporation.
The PC-12 is a single-engine turbo-prop aircraft. Pilatus
says, and plaintiffs do not dispute, that it manufactured the PC-
12 at issue in Switzerland in 1999 and sold it in Europe to a French buyer. After several intervening resales, the aircraft
was finally purchased by a Rhode Island limited liability company
and transported to the United States in 2003. Pilatus now moves
to dismiss all of plaintiffs’ claims, asserting that it has
insufficient contacts with the State of New Hampshire for this
court to properly exercise personal jurisdiction over i t . In
response, plaintiffs move the court to permit them to engage in
limited discovery, aimed at determining the nature and extent of
Pilatus’s contacts with this forum.
Discussion
As this court (Muirhead, M.J.) has previously held, under
certain circumstances, plaintiffs are entitled to limited
jurisdictional discovery before responding to a motion to
dismiss.
Under First Circuit law, if defendants move to dismiss for lack of personal jurisdiction, plaintiffs may be entitled to a “modicum of jurisdictional discovery” to establish facts that demonstrate why jurisdiction may properly be exercised over defendants. See Negron- Torres v . Verizon Commc’ns. Inc., 478 F.3d 1 9 , 27 (1st Cir. 2007); see also Fed. R. Civ. P. 12(b)(2).
It is within the trial court’s discretion whether or not to grant plaintiffs’ motion for jurisdictional discovery. See U.S. v . Swiss Am. Bank, Ltd., 274 F.3d 610, 625 (1st Cir.2001) (explaining the district court’s broad discretion). The motion must be “timely and properly supported,” must proffer a “colorable claim” for jurisdiction, and must “present facts to the
2 court which show why jurisdiction would be found if discovery were permitted.” Id. at 625, 626. Plaintiffs must specify the type of evidence they think they will find and provide detailed descriptions of any “‘additional pertinent avenues of inquiry’ that [they] hope[ ] 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. (citing Crocker v . Hilton Int’l Barbados, Ltd., 976 F.2d 7 9 7 , 801 (1st Cir.1992)).
Nordica USA Corp. v . Ole Sorensen, 475 F. Supp.2d 1 2 8 , 133-34
(D.N.H. 2007) (Muirhead, M . J . ) . See also Clearview Software
Int’l v . Ware, 2008 DNH 182 (D.N.H. Sept. 3 0 , 2008).
Here, plaintiffs originally requested such discovery before
Pilatus responded to the complaint, but that motion was denied,
without prejudice, as premature. In response to Pilatus’s motion
to dismiss for lack of personal jurisdiction, plaintiffs renewed
their motion. The request for jurisdictional discovery i s , then,
timely. See, e.g., Platten v . HG Bermuda Exempted Ltd., 437 F.3d
118, 139-40 (1st Cir. 2006).
The next question is whether plaintiffs have properly
supported their request with a “colorable claim” that, if
discovery is permitted, it will likely reveal facts sufficient to
permit the court to properly exercise personal jurisdiction over
Pilatus. They have.
3 Among other things, plaintiffs allege that Atlas inspected,
tested, certified, and serviced the Pilatus PC-12 at issue in
this case. And, say plaintiffs, Pilatus negligently provided
Atlas with “Service Bulletins, maintenance instructions, and
other specifications for maintenance and inspection of the
subject aircraft” and failed “to provide adequate warnings
relating thereto.” Amended complaint, para. 5 0 . In short,
plaintiffs allege that Pilatus committed a tort in the State of
New Hampshire and, therefore, assert that this court may properly
exercise personal jurisdiction over i t .
Plaintiffs also say that Atlas and Pilatus are in exclusive
possession of documentation that will demonstrate the scope of
Pilatus’s contacts with, and business i n , this forum. Based upon
information currently available to them, plaintiffs assert that:
(1) the largest flying fleet of Pilatus PC-12 aircraft in the
world is located in New Hampshire and operated by Alpha Flying,
Inc.; (2) Alpha Flying, Inc. expects to purchase an additional
twenty-five PC-12 Pilatus aircraft by the year 2010; (3)
presently, there are at least 30 Pilatus aircraft registered in
New Hampshire to New Hampshire owners or operators; (4) until
February of 2008, Atlas operated as the exclusive Pilatus
aircraft maintenance service center and Pilatus aircraft sales
distribution center in New England, New York, New Jersey,
4 Delaware, and Michigan for the Pilatus PC-12; (5) Pilatus’s
records reveal the existence of 125 subscriptions to Pilatus
technical publications, including Service Bulletins, with
addresses in New Hampshire; (6) Atlas ordered 107 of those
subscriptions in 2008, which were delivered in New Hampshire; and
(7) while most parts shipped to New Hampshire are routed through
Pilatus’s wholly-owned subsidiary in Colorado, plaintiffs believe
that Pilatus ships some parts directly from Switzerland to New
Hampshire. Plaintiffs’ memorandum in support of jurisdictional
discovery (document n o . 37-2) at 6-8.
In light of the foregoing, plaintiffs say it is not
unreasonable for them to think that Pilatus maintains (and has
maintained) sufficient contacts with the State of New Hampshire
to warrant the exercise of personal jurisdiction over i t . And,
they go on to assert that they reasonably expect jurisdictional
discovery will lead to the unearthing of facts that reveal: (1)
Pilatus derives substantial revenue from the sale of its aircraft
in New Hampshire; (2) prior to February of 2008, Atlas was
Pilatus’s exclusive sales and service agent for PC-12 aircraft in
the New England region and, after that date, Pilatus directly
coordinated the sale and marketing of its aircraft in New
Hampshire; (3) Pilatus, either directly or through its wholly-
owned United States subsidiary, Pilatus USA, ships a high volume
5 of aircraft, component parts, service manuals and bulletins,
aircraft literature, and sales information into New Hampshire;
and (4) the technical publications Pilatus sent directly to Atlas
(in New Hampshire) include the bulletins and technical manuals
that plaintiffs allege are defective and incomplete.
Conclusion
In light of the showing made by plaintiffs, the court, in
the exercise of its discretion, concludes that they should be
afforded a limited opportunity to engage in jurisdictional
discovery. Accordingly, plaintiffs’ motion (document no. 37) is
granted. On or before January 23, 2009, plaintiffs shall
complete discovery limited to whether the court may properly
exercise personal jurisdiction over Pilatus. If, based upon that
discovery, plaintiffs believe there is a good faith basis upon
which to object to Pilatus’s motion to dismiss, they shall do so
on or before February 27, 2009.
SO ORDERED.
Steven J. __McAuliffe Chief Judge
November 25, 2008
6 cc: Jeffrey Baltruzak Julie L . Belanger, Esq. Bruce J. Berman, Esq. Mark B . Decof Patrick T . Jones, Esq. William J. Katt, Esq. Howard B . Klein, Esq. Garry R. Lane, Esq. Michael P. Lehman, Esq. Danial A . Nelson, Esq. Jeffrey A . Rossman, Esq. Peter J. Schneider, Esq. Anthony Tarricone, Esq. Thomas R. Watson, Esq. Corey J. Wright