D’Jamoos v. Atlas Aircraft, et al.

2009 DNH 170

• Court: District Court, D. New Hampshire
• Decided: November 9, 2009
• Docket: 08-CV-108-SM
• Status: Published

Opinion

D’Jamoos v . Atlas Aircraft, et a l . 08-CV-108-SM 11/09/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Theresa D’Jamoos, as Executrix of the Estate of Dawn Weingeroff, et a l . , Plaintiffs

v. Civil N o . 08-cv-108-SM Opinion N o . 2009 DNH 170 Atlas Aircraft Center, Inc. and Pilatus Aircraft, Ltd., Defendants

O R D E R

In March of 2005, a Pilatus PC-12 aircraft that had taken

off from Naples, Florida, crashed in State College, Pennsylvania,

during an instrument landing approach. All six people on board

died. This product liability and negligence action arises out of

that accident. Plaintiffs invoke this court’s diversity subject

matter jurisdiction over their state law claims. See 28 U.S.C. §

1332.

The plane was based in Rhode Island and those on board 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, and Pilatus

Aircraft, Ltd. (“Pilatus”), a Swiss corporation. Pilatus moves

to dismiss all of plaintiffs’ claims, asserting that it has insufficient contacts with the State of New Hampshire to support

this court’s exercise of personal jurisdiction over i t .

Plaintiffs, as well as Pilatus’s co-defendant, Atlas, object.

For the reasons set forth below, Pilatus’s motion to dismiss

for lack of personal jurisdiction is denied, as is its motion to

dismiss in favor of first-filed action.

Standard of Review

A. Personal Jurisdiction: Statutory and Constitutional Prerequisites.

It is well established that when this court’s diversity

subject matter jurisdiction is invoked, personal jurisdiction

over a nonresident defendant is determined, at least in part, by

the forum state’s long-arm statute. See Goldman, Antonetti,

Ferraiuoli, Axtmayer & Hertell v . Medfit Int’l, Inc., 982 F.2d

686, 690 (1st Cir. 1993). When personal jurisdiction is

contested, the plaintiff bears the burden of establishing that

the court has such jurisdiction. See Sawtelle v . Farrell, 70

F.3d 1381, 1387 (1st Cir. 1995); Kowalski v . Doherty, Wallace,

Pillsbury & Murphy, 787 F.2d 7 , 8 (1st Cir. 1986).

2 Allegations of jurisdictional facts are construed in the

plaintiff’s favor, see Buckley v . Bourdon, 682 F. Supp. 9 5 , 98

(D.N.H. 1988), and, if the court proceeds based upon the written

submissions of the parties without an evidentiary hearing, the

plaintiff need only make a prima facie showing that jurisdiction

exists. See Kowalski, 787 F.2d at 8 ; Boit v . Gar-Tec Products,

Inc., 967 F.2d 6 7 1 , 674-75 (1st Cir. 1992). Nevertheless, to

defeat a motion to dismiss, plaintiff’s demonstration of personal

jurisdiction must be based on specific facts set forth in the

record. See TicketMaster-New York, Inc. v . Alioto, 26 F.3d 2 0 1 ,

203 (1st Cir. 1994); Negron-Torres v . Verizon Communications,

Inc., 478 F.3d 1 9 , 23 (1st Cir. 2007). And, “[i]n reviewing the

record before i t , a court ‘may consider pleadings, affidavits,

and other evidentiary materials without converting the motion to

dismiss to a motion for summary judgment.’” VDI Technologies v .

Price, 781 F. Supp. 8 5 , 87 (D.N.H. 1991) (quoting Lex Computer &

Management Corp. v . Eslinger & Pelton, P.C., 676 F. Supp. 399,

402 (D.N.H. 1987)); see also Gar-Tec Products, 967 F.2d at 675-

76.

Before a court may exercise personal jurisdiction over a

non-resident defendant, the plaintiff must show, first, that the

forum state’s long-arm statute confers jurisdiction over the

3 defendant, and second, that the exercise of jurisdiction comports

with constitutional due process standards (by establishing that

the defendant has sufficient “minimum contacts” with the forum

state). See Kowalski, 787 F.2d at 9-10. New Hampshire’s

individual long-arm statute, N.H. Rev. Stat. Ann. (“RSA”) 510:4,

extends personal jurisdiction over foreign defendants “to the

full extent that the statutory language and due process will

allow.” Phelps v . Kingston, 130 N.H. 166, 171 (1987). Likewise,

New Hampshire’s corporate long-arm statute, RSA 293-A:15.10,

authorizes jurisdiction over foreign corporations and

unregistered professional associations to the full extent

permitted by federal law. See Sawtelle, 70 F.3d at 1388. Stated

another way, New Hampshire’s individual and corporate long-arm

statutes reach as far as the due process protection afforded by

the federal constitution will allow. Accordingly, the court need

only determine whether the exercise of personal jurisdiction over

a foreign defendant would comport with federal constitutional

guarantees.

To exercise personal jurisdiction over a foreign defendant

in a manner consistent with the Constitution, the plaintiff must

demonstrate that the defendant has “certain minimum contacts with

the forum such that the maintenance of the suit does not offend

4 traditional notions of fair play and substantial justice.”

Helicopteros Nacionales de Colombia, S.A. v . Hall, 466 U.S. 4 0 8 ,

414 (1984) (citation and internal punctuation omitted). And, to

conclude that a defendant has such “minimum contacts,” the court

must first be satisfied that the defendant’s conduct bears such a

“substantial connection with the forum State” that the defendant

“should reasonably anticipate being haled into court there.”

Burger King Corp. v . Rudzewicz, 471 U.S. 4 6 2 , 473-75 (1985)

(citing World-Wide Volkswagen Corp. v . Woodson, 444 U.S. 286, 297

(1980)).

B. General v . Specific Jurisdiction.

A court may exercise either general or specific personal

jurisdiction over a defendant. “General jurisdiction exists when

the litigation is not directly founded on the defendant’s forum-

based contacts, but the defendant has nevertheless engaged in

continuous and systematic activity, unrelated to the suit, in the

forum state.” United Elec. Workers v . 163 Pleasant S t . Corp.,

960 F.2d 1080, 1088 (1st Cir. 1992); see also Negron-Torres, 478

F.3d at 2 5 . Specific personal jurisdiction, on the other hand,

exists when the plaintiff’s cause of action arises directly out

o f , or relates t o , the defendant’s forum-based contacts. United

Elec. Workers, 960 F.2d at 1088-89.

5 In an effort to assist trial courts in determining whether

they may properly exercise specific personal jurisdiction, the

Court of Appeals formulated a three-part test:

First, the claim underlying the litigation must directly arise out o f , or relate t o , the defendant’s forum-state activities. Second, the defendant’s in- state contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state’s laws and making the defendant’s involuntary presence before the state’s courts foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable.

Id. at 1089; see also Negron-Torres, 478 F.3d at 2 4 . An

affirmative finding as to each of those three elements -

relatedness, purposeful availment, and reasonableness - is

necessary to support the court’s exercise of specific personal

jurisdiction over a defendant. See Phillips Exeter Academy v .

Howard Phillips Fund, Inc., 196 F.3d 2 8 4 , 288 (1st Cir. 1999).

With those principles in mind, the court turns to Pilatus’s

motion to dismiss.

Background

The PC-12 is a single-engine turbo-prop aircraft. Pilatus

manufactured the PC-12 at issue in Switzerland in 1999 and sold

6 it in Europe to a French buyer. Following several intervening

resales, the aircraft was purchased by a Rhode Island limited

liability company and, in 2003, it was transported to the United

States. According to plaintiffs, Atlas then inspected, serviced,

and maintained the aircraft on a continuous basis prior to March

2 6 , 2005 (the date of the crash).

Plaintiffs advance two causes of action against Pilatus,

which, reduced to their essence, allege the following:

1. Pilatus negligently designed, manufactured, and tested the Pilatus PC-12 model aircraft - conduct (and/or omissions) that proximately caused the fatal crash (the “Defective Aircraft Claim”).

2. Pilatus produced, sold, and otherwise distributed deficient maintenance manuals and specifications for the inspection and maintenance of the PC-12 and the procedures described in those manuals were followed, which proximately caused the fatal crash (the “Service Manuals Claim”).

And, say plaintiffs, Pilatus has sufficient contacts with this

forum to warrant the exercise of both general and specific

personal jurisdiction over i t . Pilatus disagrees.

7 Discussion

I. General Jurisdiction.

Although plaintiffs (and Defendant Atlas) assert that the

court may properly exercise general personal jurisdiction over

Pilatus, they have failed to demonstrate that Pilatus has engaged

in continuous and systematic activity, unrelated to the suit, in

this forum. See, e.g., D’Jamoos v . Pilatus Aircraft Ltd., 2008

WL 1902193 at *8-9 (E.D. P a . April 3 0 , 2008) (concluding, under

similar factual circumstances, that that court lacked general

personal jurisdiction over Pilatus), vacated in part on other

grounds, 566 F.3d 94 (3d Cir. 2009). 1 See also Platten v . HG

Bermuda Exempted Ltd., 437 F.3d 1 1 8 , 138 (1st Cir. 2006) (“The

standard for evaluating whether defendants’ alleged contacts

satisfy the constitutional general jurisdiction test is

considerably more stringent than that applied to specific

jurisdiction questions.”) (citation and internal punctuation

omitted).

1 Plaintiffs originally sued Pilatus in the United States District Court for the Eastern District of Pennsylvania. But, when it appeared that that court might not have personal jurisdiction over Pilatus, plaintiffs’ added Pilatus as a defendant in this case. For a relatively brief period, then, there was parallel litigation in this forum and Pennsylvania. As noted below, however, the Pennsylvania action against Pilatus has since been transferred to the District of Colorado.

8 Most of the forum-based activity to which plaintiffs point

was not carried out directly by Pilatus. Instead, it was

performed by its wholly-owned, Colorado-based subsidiary, Pilatus

Business Aircraft, Ltd. (“PBAL”). And, neither plaintiffs nor

Atlas has attempted to demonstrate that the court may properly

exercise personal jurisdiction over Pilatus based upon the forum

contacts of PBAL (e.g., they have not attempted to show that PBAL

is a sham corporation, or an alter ego of Pilatus, or an agent of

Pilatus). See, e.g., Andresen v . Diorio, 349 F.3d 8 , 12 (1st

Cir. 2003); Donatelli v . National Hockey League, 893 F.2d 459,

465 (1st Cir. 1990). As the District Court for the District of

Massachusetts has observed:

The First Circuit Court of Appeals has indicated that personal jurisdiction over parent companies “invariably” depends upon the finding of a “plus” factor, “something beyond the subsidiary’s mere presence within the bosom of the corporate family.” A plus factor of that sort exists 1 ) where the association between parent and subsidiary demonstrates an agency relationship between the two, 2 ) where the exercise of control by the parent over the subsidiary goes beyond that “degree of control innately inherent in the family relationship” or 3 ) where the subsidiary is “merely an empty shell.” In all such cases, the parent’s relationship to the subsidiary implies that it has availed itself of the benefits of the forum state where the subsidiary is subject to personal jurisdiction.

9 Ruiz v . Bally Total Fitness Holding Corp., 447 F. Supp. 2d 2 3 , 27

(D. Mass. 2006) (citing Donatelli, 893 F.2d at 465-66); see also

Platten, 437 F.3d at 139 (“The bar is set even higher in a case

like this one, in which plaintiffs seek to disregard the

corporate form. The mere fact that a subsidiary company does

business within a state does not confer jurisdiction over its

nonresident parent, even if the parent is sole owner of the

subsidiary. There is a presumption of corporate separateness

that must be overcome by clear evidence.”) (citations and

internal punctuation omitted).

Here, beyond merely identifying PBAL’s substantial forum

contacts, plaintiffs have not attempted to establish the

existence of the “plus” factor identified by the court of appeals

nor, necessarily, have they borne their burden of overcoming the

presumption of corporate separateness by clear evidence.

II. Specific Jurisdiction.

A. The Service Manuals Claim.

Plaintiffs have, however, adequately demonstrated that the

court may properly exercise specific personal jurisdiction over

Pilatus (at least as to the Service Manuals Claim). Among other

things, the parties’ jurisdictional discovery has revealed that

10 Pilatus sold more than 300 maintenance manuals, service

bulletins, and other technical documents directly to Atlas, with

knowledge that Atlas was using those documents to perform

required annual and 100-hour inspections on at least some of the

many PC-12 aircraft hangered in this state.2 Such purposeful

business-related contacts with this forum are sufficient for this

court to exercise specific personal jurisdiction over Pilatus

consistent with the requirements of due process. Stated somewhat

differently, consideration of each of the relevant factors -

relatedness, purposeful availment, and reasonableness - counsels

in favor of the exercise of specific personal jurisdiction over

Pilatus with respect to the Service Manuals Claim.

First, plaintiffs’ claims against Pilatus relate t o , and

arise directly out o f , Pilatus’s sale of the maintenance manuals

and service bulletins in this forum. See, e.g., Amended

Complaint at paras. 50(e) & (f) (alleging that Pilatus

“negligently provid[ed] maintenance specifications for the

inspection and maintenance of the airframe fuel filter and

fail[ed] to provide adequate warnings relating thereto” and

2 According to plaintiffs, “[t]he largest flying fleet of Pilatus PC-12 aircraft in the world is located in New Hampshire.” Plaintiffs’ memorandum in support of jurisdictional discovery (document n o . 37) at 6.

11 “negligently provid[ed] Service Bulletins, maintenance

instructions, and other specifications for maintenance and

inspection of the subject aircraft, and fail[ed] to provide

adequate warnings relating thereto”). Here, the relationship

between plaintiffs’ Service Manuals Claim and Pilatus’s sale of

those allegedly defective service and maintenance manuals in this

forum is neither attenuated nor indirect. See United Elec.

Workers, 960 F.2d at 1089. Rather, Pilatus’s sale of those

manuals to Atlas forms an “important, or at least material,

element of proof in the plaintiffs’ case,” id. (citation and

internal punctuation omitted) because Atlas allegedly relied upon

those materials when servicing the PC-12 at issue in this case.

See generally Harlow v . Children’s Hosp., 432 F.3d 5 0 , 60-61 (1st

Cir. 2005).

Next, by selling those maintenance manuals and service

bulletins directly to Atlas, Pilatus purposefully availed itself

of the privilege of conducting business activities in this forum.

“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. 7 7 0 , 774 (1984)). Here,

12 Pilatus’s sales of maintenance and service manuals in the state

of New Hampshire were not random, isolated, or fortuitous.

Rather, they were knowing and purposeful. According to the

record, Pilatus made such sales nearly every month from at least

April of 2003 through February of 2008. Under those

circumstances, Pilatus’s contacts with this forum were both

direct and voluntary. And, Pilatus certainly could have foreseen

that, should there be a liability claim arising from alleged

defects in one or more of those manuals, it would likely be haled

into court in this forum. See Ticketmaster, 26 F.3d at 207

(describing “voluntariness” and “foreseeability” as the

“cornerstones of purposeful availment”).

Finally, the exercise of personal jurisdiction over Pilatus

- at least as to plaintiffs’ Service Manuals Claim - would be

both fair and reasonable in light of the so-called “gestalt

factors.” Those factors are: (1) the burden on defendant to

appear in the forum; (2) the interests of the forum state in

adjudicating the plaintiff’s claims; (3) the convenience of the

plaintiff; (4) the interests of the judicial system in the

effective and efficient administration of justice; and (4) the

“common interests of all sovereigns in promoting substantive

social policies.” Sawtelle, 70 F.3d at 1395.

13 While defending against plaintiffs’ claims in this forum i s ,

to some extent, burdensome, Pilatus has not shown any “special or

unusual burden.” Pritzker v . Yari, 42 F.3d 5 3 , 64 (1st Cir.

1994). This is particularly true since, eventually, Pilatus will

have to defend against plaintiffs’ claims in some forum in this

country, whether it be New Hampshire or Colorado. See D’Jamoos

v . Pilatus Aircraft Ltd., 566 F.3d 9 4 , 108 (3d Cir. 2009)

(“[Plaintiffs] have made a prima facie showing that, given

Pilatus’s direct contacts within Colorado, the exercise of

general jurisdiction over Pilatus in Colorado would comport with

due process.”). 3

As for New Hampshire’s interest in providing a judicial

forum for the parties’ dispute, the court of appeals has noted

that a state has a “demonstrable interest in exercising

jurisdiction over one who causes tortious injury within its

3 Unless overturned by the Supreme Court, that decision is law of the case and, therefore, binding on the parties and the district court in Colorado. See D’Jamoos, 566 F.3d at 111 (“[W]e point out that by characterizing our jurisdictional finding as ‘prima facie,’ we do not suggest that our decision is tentative or preliminary. Rather, if the District Court determines on remand that a transfer is in the interest of justice and transfers the case to the District of Colorado, we believe that the Colorado court will be bound by our prima facie finding of personal jurisdiction insofar as that ruling will be law of the case.”) (citing Christianson v . Colt Indus. Operating Corp., 486 U.S. 8 0 0 , 816-17 (1988)).

14 borders.” Ticketmaster, 26 F.3d at 211. Additionally, the court

of appeals “has repeatedly observed that a plaintiff’s choice of

forum must be accorded a degree of deference with respect to the

issue of its own convenience.” Sawtelle 70 F.3d at 1395. Here,

given the fact that one of the defendants - Atlas - resides in

New Hampshire, it certainly makes sense that plaintiffs would

prefer to litigate their negligence and product liability claims

here (given, for example, the presence of relevant witnesses,

documents, e t c . ) .

Finally, it is difficult to say that the “common interests

of all sovereigns in promoting social policies” weighs heavily

either in favor o f , or against, this court’s exercise of personal

jurisdiction over Pilatus. But, because substantial discovery

has already taken place in this forum, and because one of the

defendants resides in this state (along with many of its

employees, some of whom are likely to be witnesses), the

interests of judicial economy and efficiency counsel in favor of

the exercise of personal jurisdiction over Pilatus - again, at

least as to plaintiffs’ Service Manuals Claim.

15 B. The Defective Aircraft Claim.

Because plaintiffs must demonstrate that the court has

personal jurisdiction over Pilatus as to each of their claims, it

is appropriate to consider whether there is an independent basis

to exercise specific personal jurisdiction over Pilatus with

respect to the Defective Aircraft Claim. See generally Phillips

Exeter Academy, 196 F.3d at 289 (“We commend the lower court’s

decision to analyze the contract and tort claims discretely.

Questions of specific jurisdiction are always tied to the

particular claims asserted.”).

Here, for largely the same reasons expressed by the Court of

Appeals for the Third Circuit, the court concludes that if

plaintiffs’ Defective Aircraft Claim were standing alone, the

court would lack specific personal jurisdiction over Pilatus.

See D’Jamoos, 566 F.3d at 103-06. In short, plaintiffs’ claim

that Pilatus defectively designed and manufactured (in Europe)

the PC-12 aircraft at issue in this case does not “directly arise

out o f , or relate t o , [Pilatus’s] forum-state activities.”

United Elec. Workers, 960 F.2d at 1089. As the Court of Appeals

for the Third Circuit observed with respect to personal

jurisdiction in Pennsylvania:

16 The record before us conclusively establishes that Pilatus’s direct contacts within Pennsylvania are quite limited . . . . Although Pilatus designed and manufactured the subject aircraft, it did so in Switzerland and then sold the plane in Europe. The aircraft later reached the United States via a series of third-party resales in which Pilatus was not involved, only arriving in Pennsylvania because it was making a stopover on an interstate flight. Pilatus did not profit from activities in Pennsylvania as a result of the aircraft’s initial sale or resales. And although a small number of Pilatus’s PC-12s are based in Pennsylvania, there is no record evidence indicating how those planes reached Pennsylvania. Certainly, we have no basis to believe that Pilatus sent the planes to Pennsylvania.

D’Jamoos, 566 F.3d at 103 (footnote omitted). Virtually the same

facts and legal analysis apply with regard to Pilatus’s contacts

with New Hampshire. The only distinction is that Pilatus

regularly sent the service and maintenance manuals discussed

above to Atlas. Those contacts with this forum are, however,

unrelated to plaintiffs’ claim that Pilatus designed,

manufactured, and sold a defective aircraft.

III. Pendent Personal Jurisdiction.

The doctrine of pendent personal jurisdiction (at least as

it applies in diversity cases) essentially provides that “where a

plaintiff has established jurisdiction over a non-resident

defendant with respect to one state law cause of action, the

court[] . . . will exercise jurisdiction over that defendant with

17 respect to related state claims” that would not, on their own,

support personal jurisdiction. Val Leasing, Inc. v . Hutson, 674

F. Supp. 5 3 , 56 (D. Mass. 1987). See also Anderson v . Century

Prods. Co., 943 F. Supp. 1 3 7 , 145 (D.N.H. 1996) (court exercised

pendent personal jurisdiction with respect to contract claim

after concluding that it had personal jurisdiction over defendant

as to plaintiff’s tort claims); Action Embroidery Corp. v .

Atlantic Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir. 2004)

(“When a defendant must appear in a forum to defend against one

claim, it is often reasonable to compel that defendant to answer

other claims in the same suit arising out of a common nucleus of

operative facts. We believe that judicial economy, avoidance of

piecemeal litigation, and overall convenience of the parties is

best served by adopting this doctrine.”); United States v .

Botefuhr, 309 F.3d 1263, 1273 (10th Cir. 2002) (“[T]he majority

of federal district courts and every circuit court of appeals to

address the question have upheld the application of pendent

personal jurisdiction, and we see no reason why, in certain

situations, the assertion of pendent personal jurisdiction would

be inappropriate.”) (citations omitted).

Professors Wright and Miller summarized the doctrine of

pendent personal jurisdiction as follows:

18 [T]he pendent personal jurisdiction doctrine in both the diversity and federal question contexts is best articulated as follows: a district court has discretion to exercise personal jurisdiction over a claim that it ordinarily lacks personal jurisdiction over only when that claim arises out of the same common nucleus of operative fact as does a claim that is within the in personam jurisdiction power of the court. . . Under this description of the doctrine, a district court may not reach beyond the forum state’s long-arm statute merely because doing so would promote efficiency. The court first must find that the additional claim is within the same common nucleus of operative fact as a claim that already falls within the ambit of the forum state’s long-arm statute.

4A C.A. Wright & M.K. Miller, Federal Practice and Procedure

§ 1069.7 (2d ed. 1995).

In the exercise of its discretion, the court concludes that

it is appropriate to apply that doctrine in this case. Because

both of plaintiffs’ claims against Pilatus arise out of the same

common nucleus of operative fact, the court may properly exercise

personal jurisdiction over Pilatus as to the Defective Aircraft

Claim. Both claims — the Defective Aircraft Claim and the

Service Manuals Claim — arise from the crash of the Pilatus

aircraft in Pennsylvania. By virtue of having personal

jurisdiction over Pilatus with regard to the Service Manuals

Claim, the court may properly exercise personal jurisdiction over

Pilatus as to any remaining related claims.

19 IV. Pilatus’s Motion to Dismiss First-Filed Action.

As noted above, the United States District Court for the

Eastern District of Pennsylvania - the court in which plaintiffs’

filed virtually identical claims against Pilatus - recently

transferred those claims to the United States District Court for

the District of Colorado. D’Jamoos v . Pilatus Aircraft Ltd.,

Case n o . 07-1153 (E.D. P a . Oct. 1 , 2009). See generally 28

U.S.C. § 1631. In the wake of that transfer, Pilatus has filed a

motion to dismiss this action in favor of the “first-filed”

action now pending in Colorado.

Plaintiffs object and, in response, say: (1) they have

consistently made clear their intention to litigate their claims

against Pilatus in a single forum; (2) they would prefer to

litigate those claims in New Hampshire, given the fact that they

are already litigating claims against Atlas here and because it

is reasonably close to Rhode Island - the state in which the

plaintiffs reside; and (3) “[s]hould this Court rule that it has

personal jurisdiction over Pilatus, the plaintiffs will

immediately dismiss their claims against Pilatus in Colorado.”

Plaintiff’s memorandum (document n o . 74) at 2 .

20 The judicial opinions (and the legal treatise) upon which

Pilatus relies in support of its motion to dismiss are not on

point. In those cases, the so-called “first-filed rule” arose

when, after a plaintiff had sued a defendant in a particular

forum, that defendant subsequently sued the plaintiff in a

different forum. The question then arose as to whether the two

related cases should be consolidated and, if s o , in which forum.

See TPM Holdings, Inc. v . Intra-Gold Indus., 91 F.3d 1 (1st Cir.

1996); Cianbro Corp v . Curran-Lavoie, Inc., 814 F.2d 7 (1st Cir.

1987). See also James Moore, Moore’s Federal Practice §

111.13[1][o] (2009) (“If two actions involving the same parties

and identical issues (‘mirror image’ actions) are pending in

different districts, whether filed in those courts originally or

removed there, competing motions to dismiss or transfer to the

other district frequently are made in both actions. In general,

under the ‘first-filed rule,’ the first-filed action will be

given priority and be allowed to proceed in favor of the later

action, unless convenience or other special circumstances dictate

departure from the rule.”) (footnotes omitted) (emphasis

supplied).

Here, however, both this case and the one that was recently

transferred to Colorado were filed by the estates of the six

21 victims of the crash. And, those plaintiffs have expressed a

preference to litigate their claims against Pilatus in this forum

(along with their claims against Atlas). They have also stated

that if this court concludes that it may properly exercise

personal jurisdiction over Pilatus (which it h a s ) , then they will

dismiss the identical claims currently pending in Colorado.

Given the somewhat unusual facts of this case, the

plaintiffs’ preference for litigating their claims in this forum,

and the fact that plaintiffs are already litigating claims

arising out of the crash in this forum against another defendant,

dismissing or transferring their claims against Pilatus to

Colorado would not represent an efficient use of judicial

resources. It would, however, cause the parties to unnecessarily

incur substantial additional legal fees and would likely impose

an unnecessary burden on at least some of the potential witnesses

in this proceeding (many of whom presumably live in New Hampshire

and Rhode Island).

Accordingly, in the exercise of its discretion, the court

declines Pilatus’s invitation to dismiss this case (or transfer

it to the United States District Court for the District of

Colorado for consolidation with the pending case in that forum).

22 Conclusion

Plaintiffs have carried their burden of demonstrating that

the court may, consistent with principles of due process and

fundamental fairness, exercise personal jurisdiction over the

defendant, Pilatus Aircraft, Ltd. Accordingly, Pilatus’s Renewed

Motion to Dismiss for Lack of Personal Jurisdiction (document no.

50) is denied. And, for the reasons discussed above, as well as

those set forth in plaintiffs’ memorandum (document no. 74),

Pilatus’s motion to dismiss in favor of first-filed action

(document no. 71) is denied.

Plaintiffs’ motion to strike (document no. 77), and their

motion to file a seven page reply brief (document no. 82) are

denied as moot.

SO ORDERED.

Steven J./McAuliffe Chief Judge

November 9, 2009

cc: Anthony Tarricone, Esq. Danial A. Nelson, Esq. Patrick T. Jones, Esq. Thomas R. Watson, Esq. Howard B. Klein, Esq. Mark B. Decof, Esq.

23 Peter J. Schneider, Esq. Corey J. Wright, Esq. Julie L . Belanger, Esq. Michael P. Lehman, Esq. William J. Katt, Esq. Bruce J. Berman, Esq. Jeffrey Baltruzak, Esq. Jeffrey A . Rossman, Esq. Garry R. Lane, Esq.