Gray v . S t . Martin's Press, Inc. CV-95-285-M 03/28/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert K. Gray, Plaintiff, v. Civil N o . 95-285-M S t . Martin's Press, Inc.; and Susan Trento, Defendants.
O R D E R
Plaintiff, Robert Gray, sues defendants, Susan Trento and
S t . Martin's Press, Inc. ("St. Martin's"), for defamation.
Trento now moves to dismiss Gray's complaint, Fed. R. Civ. P.
12(b)(2), on the ground that this court lacks personal
jurisdiction over her. For the reasons discussed below, Trento's
motion is denied.
I. FACTUAL BACKGROUND
This suit arises out of statements contained in a book, The
Power House, Robert Keith Gray and the Selling of Access and
Influence in Washington ("The Power House"), which was authored
by Trento and published by S t . Martin's in July 1992. The book
contains at least eight passages that allegedly defame Gray by
portraying him as someone who improperly influenced national politicians. S t . Martin's sold 30,817 copies of The Power House
in the United States; 61 of those copies were sold to retailers
in New Hampshire.
Trento, the author of The Power House, is a resident of the
Commonwealth of Virginia. She apparently has had no personal
contact with New Hampshire relative to the book (excluding the
book's distribution here). Trento, of course, was aware prior to
publication that S t . Martin's was a national publisher and would
be distributing the book on a national scale.
S t . Martin's is a New York corporation which sells books
nationwide and regularly distributes a substantial number of
books in New Hampshire. According to the standard "St. Martin's
Press Contract" ("Contract") that formed the publishing agreement
between Trento and S t . Martin's, Trento granted S t . Martin's the
"sole and exclusive right to print, publish, distribute and sell"
The Power House "throughout the world." Contract ¶ 1 ( a ) . The
Contract further provides that all decisions as to "matters
involving terms of sale, distribution, advertising and promotion
of the Work shall be within the Publisher's sole discretion."
Id. at ¶ 2 ( c ) . In return for granting S t . Martin's the right to
publish her book, Trento received "[a] royalty at the rate of ten
per cent (10%) of the list price on the first ten thousand
2 (10,000) copies sold [and] fifteen per cent (15%) of the list
price on copies sold thereafter." Id. at ¶ 5(a)(i). The
Contract is governed by New York law. Id. at ¶ 2 9 .
Plaintiff Gray is a Florida resident. From 1954 to 1993 he
was employed in Washington, D.C., first as a White House aide and
later as a registered lobbyist. In 1956 and 1960 Gray spoke
publicly in New Hampshire during its presidential primary
election season, but his contacts with this state are generally
insignificant.
II. STANDARD OF REVIEW
When a defendant moves to dismiss for lack of personal
jurisdiction, Fed. R. Civ. P. 12(b)(2), the plaintiff bears the
burden of proving that jurisdiction lies in the forum state.
Sawtelle v . Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995). In
determining whether the plaintiff has met that burden, the court
may utilize the "prima facia" method when, as here, the case does
not involve incredible affidavits or material issues of
credibility. Foster-Miller, Inc. v . Babcock & Wilcox Canada, 46
F.3d 1 3 8 , 145-46 (1st Cir. 1995); Boit v . Gar-Tec Prods., Inc.,
967 F.2d 6 7 1 , 675-76 (1st Cir. 1992).
3 To make a prima facia showing, the plaintiff must go beyond
the pleadings and "adduce evidence of specific facts." Foster-
Miller, 46 F.3d at 145. Thus, the court draws "the facts from
the pleadings and the parties supplementary filings, including
affidavits, taking facts affirmatively alleged by plaintiff as
true and construing disputed facts in the light most hospitable
to plaintiff." Ticketmaster-New York, Inc. v . Alioto, 26 F.3d
201, 203 (1st Cir. 1994).
Rule 12(d), Fed. R. Civ. P., provides that the defense of
lack of personal jurisdiction "shall be heard and determined
before trial on application of any party, unless the court orders
that the hearing and determination thereof be deferred until the
trial." Id. I f , before trial, the court denies the defendant's
motion to dismiss, it is implicitly ordering that final
determination of the propriety of personal jurisdiction be
deferred until the trial. Boit, 967 F.2d at 676.
III. DISCUSSION
A. The New Hampshire Long-Arm Statute
In a diversity case, the district court's power to assert
personal jurisdiction over a nonresident defendant is limited by
the forum state's long-arm statute and the Due Process Clause of
4 the Fourteenth Amendment. Sawtelle, 70 F.3d at 1387. New
Hampshire's long-arm statute permits the exercise of personal
jurisdiction over a nonresident defendant who "in person or
through an agent . . . commits a tortious act within this state .
. . ." N.H. Rev. Stat. Ann. § 510:4, I (1983). The New Hampshire Supreme Court has interpreted this statute
as authorizing the assertion of personal jurisdiction over
nonresident tortfeasors to the full extent allowed by the Due
Process Clause. Phelps v . Kingston, 130 N.H. 166, 1 7 1 , 536 A.2d
740, 742 (1987). The First Circuit recently noted that "when a
state's long-arm statute is coextensive with the outer limits of
due process, the court's attention properly turns to the issue of
whether the exercise of personal jurisdiction comports with
federal constitutional standards." Sawtelle, 70 F.3d at 1388.
Thus, the constitutional inquiry alone determines whether the court may properly assert personal jurisdiction over Trento in
this case.
B. The Due Process Clause
In order for the assertion of personal jurisdiction to
comport with the Due Process Clause of the Fourteenth Amendment,
certain "minimum contacts" must exist between the defendant and
5 the forum state. Sawtelle, 70 F.3d at 1388 (quoting
International Shoe C o . v . State of Washington, 326 U.S. 310
(1945)). This Circuit utilizes a three-part test in order to
determine if sufficient contacts exist to exercise specific1
personal jurisdiction:
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.
Sawtelle, 70 F.3d at 1389 (citations and quotations omitted).
Application of this tripartite test is fact sensitive - so much
so that the task of "[d]ivining personal jurisdiction is `more an
1 The extent of the necessary jurisdictional showing varies depending upon whether the plaintiff asserts jurisdiction under a theory of "general" or "specific" jurisdiction. See Ticketmaster, 26 F.3d at 204 n.3 (citing Donatelli v . National Hockey League, 893 F.2d 459, 462-63 (1st Cir. 1990)). Here, as in Ticketmaster, "plaintiff's case stands or falls on a theory of specific jurisdiction." Id.
6 art than a science.'" Id. at 1388 (quoting Ticketmaster, 26 F.3d
at 2 0 6 ) .
At each of the three steps, the court must analyze the
contacts attributable to each individual defendant. Sawtelle, 70
F.3d at 1389. See also Rush v . Savchuk, 444 U.S. 3 2 0 , 332 (1980)
("The requirements of International Shoe . . . must be met as to
each defendant over whom a . . . court exercises jurisdiction.").
Here, because only Trento, the author of The Power House,
contests personal jurisdiction, the court must be careful to
credit only those contacts legally attributable to her, and not
those solely attributable to S t . Martin's.
1. Relatedness
Under the tripartite formula, the court must first consider
whether Gray's claim arises out o f , or relates t o , Trento's in-
forum activities. Gray contends that because the tort of libel
is generally held to occur wherever the offending material is
circulated, see Keeton v . Hustler Magazine, Inc., 465 U.S. 7 7 0 ,
779 (1984), and copies of the allegedly libelous book were sold
in New Hampshire, his claim relates to Trento's in-forum
activities. Trento counters that S t . Martin's, not she,
distributed The Power House in New Hampshire, and, as a result,
7 S t . Martin's, not she, conducted the in-forum activities to which
Gray's suit relates.
In formulating its law of defamation, New Hampshire
generally adheres to the rules set out in the Restatement
(Second) of Torts. See, e.g., Independent Mech. Contractors,
Inc. v . Gordon T . Burke & Sons, Inc., 138 N.H. 1 1 0 , 119, 635 A.2d
487, 492 (1993); Keeton v . Hustler Magazine, Inc., 131 N.H. 6, 8 ,
549 A.2d 1187, 1188 (1988); Nash v . Keene Publishing Corp., 127
N.H. 2 1 4 , 219, 498 A.2d 3 4 8 , 351 (1985). Under certain
circumstances, the Restatement assigns liability for harm caused
by a third party's repetition of a defamatory statement to the
party who originally published that statement.2 Specifically,
"[i]f the repetition is authorized or intended by the originator
of the defamation, he is liable for the harmful effects of the
actions of the person or persons to whom the authorized or
intended repetition is made." Restatement (Second) of Torts §
576, cmt. c (1977) (emphasis added).
2 In the libel context, of course, "publication" simply means "communication intentionally or by a negligent act to one other than the person defamed." Restatement (Second) of Torts § 577 (1977). Trento, therefore, published the allegedly defamatory statements to S t . Martin's when she submitted her manuscript for The Power House.
8 Here, Trento authorized and intended, indeed contracted with
S t . Martin's for, the republication of her allegedly defamatory
statements about Gray and is liable for the harmful effects of
the republication. In that regard, this case is distinguishable
from Ticketmaster, 26 F.3d at 206-07, relied upon heavily by
Trento, in which the defendant, a reporter's source for a
published newspaper story, made an allegedly defamatory statement
in response to an unsolicited telephone interview.
"It is settled New Hampshire law that a party commits, for
jurisdictional purposes, a tortious act within the state when
injury occurs in New Hampshire . . . ." Hugel v . McNell, 886
F.2d 1 , 3 (1st Cir. 1989), cert. denied, 494 U.S. 1079 (1990)
(emphasis added). Therefore, Trento committed a tortious act in
New Hampshire if she is liable for any injury caused by S t .
Martin's republication of the allegedly defamatory passages here.
Gray alleges, and offers evidence in support of his claim,
that the 61 copies of The Power House that S t . Martin's
distributed in New Hampshire tortiously injured his reputation
here. See Keeton, 465 U.S. at 777. Therefore, he presents a
prima facia case that Trento committed a tortious act in New
Hampshire. Because it is precisely this in-state act that
motivates Gray's suit, it can be said that Gray's claim "arises
9 out o f , or relates t o , [Trento's] in-forum activities."
Sawtelle, 70 F.3d at 1389. Thus, the first part of the
tripartite due process test is satisfied.
2. Purposeful Availment
In order to satisfy the second part of the jurisdictional
test, a plaintiff must show that the defendant's contacts with
the forum represent "a purposeful availment of the privilege of
conducting activities in the forum state." Sawtelle, 70 F.3d at
1389. "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." Id. at 1391 (quoting Keeton, 465 U.S. at 7 7 4 ) .
The First Circuit has identified "two cornerstones of
purposeful availment." Ticketmaster, 26 F.3d at 207. One
cornerstone is foreseeability: The "defendant's `conduct and
connection with the forum State [must be] such that he should
reasonably anticipate being haled into court there.'" Id.
(quoting World-Wide Volkswagen Corp. v . Woodson, 444 U.S. 286,
297 (1980)) (alteration in Ticketmaster). The second cornerstone
is voluntariness: "Jurisdiction may not rest on the `unilateral
activity of another party or a third person.'" Id. at 207-08
10 (quoting Burger King Corp. v . Rudzewicz, 471 U.S. 4 6 2 , 475
(1985)). With these basic principles in mind, the court turns to
the parties arguments on the question of purposeful availment.
a. Calder "Effects" Test
At the outset, the court notes that the mechanism through
which a libel plaintiff typically establishes minimum contacts
between an author and the forum state is unavailable to Gray
here. In Calder v . Jones, 465 U.S. 783 (1984), the Supreme Court
outlined certain situations in which the focus of the court's
jurisdictional inquiry shifts from the relationship among the
defendant, the forum, and the litigation, to the contacts between
the plaintiff and the forum. The Court stated, "The plaintiff's
lack of `contacts' will not defeat otherwise proper jurisdiction,
but they may be so manifold as to permit jurisdiction when it
would not exist in their absence." Id. at 788 (citation
omitted). The Calder Court then found that jurisdiction existed
over the authors of an allegedly libelous article distributed by
their publisher in the forum state where:
(i) [the authors'] intentional actions were aimed at the forum State, (ii) they knew that the article was likely to have a devastating impact on the plaintiff, and (iii) they knew that the brunt of the injury would be felt by the plaintiff in the forum State where she
11 lived, worked and the article would have the largest circulation. Hugel v . McNell, 886 F.2d 1 , 4 (1st Cir. 1989) (emphasis added)
(citing Calder, 465 U.S. at 789-90). The authors' knowledge that
the major impact of their article would be felt in the forum
state was held to constitute a purposeful contact whereby the authors could reasonably expect to be haled into the forum
state's courts to defend their actions. Calder, 465 U.S. at 789-
90.
In contrast, Gray has had almost no prior contacts with the
State of New Hampshire. He never lived or worked in this state,
and only 61 copies of The Power House ever reached the forum.
Therefore, it cannot be said that Trento "knew" that the brunt of
any harm from her allegedly defamatory statements would be felt
in New Hampshire. Therefore, personal jurisdiction over Trento
cannot be justified under Calder.
b. Liability as a Joint Venturer
In the absence of any significant relationship between him
and this forum, Gray resorts to the law of agency to show that
Trento purposefully availed herself of the New Hampshire market.
S t . Martin's and Trento, Gray argues, were engaged in a joint
venture to author and market The Power House. Because the two
12 parties were joint venturers, the argument continues, S t .
Martin's clear purposeful availment of the New Hampshire market
is attributable to Trento as well. While creative, the argument
fails because the Contract between Trento and S t . Martin's
creates neither a joint venture nor an agency relationship.
All parties agree that the Contract that forms the
publishing agreement between S t . Martin's and Trento i s , by its
express terms, governed by New York law. See Wolf v . Gruntal &
Co., 45 F.3d 5 2 4 , 527 n.3 (1st Cir. 1995) (courts should
generally respect contractual choice of law provisions).
According to New York law: In order to form a joint venture, (1) two or more persons must enter into a specific agreement to carry on an enterprise for profit; (2) their agreement must evidence their intent to be joint venturers; (3) each must make a contribution of property, financing, skill, knowledge, or effort; (4) each must have some degree of joint control over the venture; and (5) there must be a provision for the sharing of both profits and losses.
Itel Containers Int'l Corp. v . Atlanttrafik Express Serv. Ltd.,
909 F.2d 6 9 8 , 701 (2d Cir. 1990). All of these elements must be
present before joint venture liability may be imposed. Id. Gray
has failed to demonstrate the existence of at least two of these
five elements.
13 First and foremost, the Contract does not evince the
parties' intent to engage in a joint venture. Rather, the
Contract is a straightforward publishing agreement under which
the author grants the publisher the exclusive right to distribute
and sell her literary work in exchange for royalties. This type
of contract has long been held not to create a joint venture.
Steinbeck v . Gerosa, 4 N.Y.2d 3 0 2 , 317-18, 151 N.E.2d 1 7 0 , 179
(1958).
Second, under New York law, "the crucial element of a joint
venture is the existence of `a mutual promise or undertaking of
the parties to share in the profits . . . and submit to the
burden of making good the losses.'" Mallis v . Bankers Trust Co.,
717 F.2d 683, 690 (2d Cir. 1983) (quoting Steinbeck, 4 N.Y.2d at
317) (emphasis in Steinbeck). Here, the Contract does not
obligate Trento to share in the losses of marketing,
distributing, and selling The Power House. Rather, Trento owns
the simple contractual right to receive royalties on copies sold.
Thus, this case is easily distinguishable from In re Grace's
Will, 308 N.Y.S.2d 136 (Sur. C t . 1970), relied upon by Gray, in
which the author received no royalties but, instead, contracted
for one half of "all profits . . . after defraying the expenses
of printing, publishing, and selling the book." Id. at 139.
14 While no one can deny that Trento and S t . Martin's had a
community of interest and a common economic objective, "[t]he
relationship between an author and a publisher is not that of
joint venturers merely because the publisher is to pay the author
on the basis of receipts from the sale of books." Steinbeck, 4
N.Y.2d at 318. Therefore, the law of agency does not help Gray
in his effort to show that Trento purposefully availed herself of
the forum state through S t . Martin's.
c. Stream of Commerce
While Gray advances an agency theory to support
jurisdiction, Trento relies heavily on a "stream of commerce"
theory in her effort to defeat jurisdiction. The First Circuit
has followed a plurality of four Supreme Court justices in
explicitly rejecting the notion that a defendant purposely avails
herself of the forum state merely by placing a product into the
stream of commerce with the knowledge that the product could end
up in the forum state. Boit v . Gar-Tec Products, Inc., 967 F.2d
671, 682-83 (1st Cir. 1992) (citing Asahi Metal Indus. C o . v .
Superior Court, 480 U.S. 102 (1987) (O'Connor, J., plurality
opinion)).
15 "[A] defendant's awareness that the stream of commerce may
or will sweep the product into the forum state does not convert
the mere act of placing the product into the stream into an act
purposefully directed toward the forum state." Boit, 967 F.2d at
682 (quoting Asahi, 480 U.S. at 112 (O'Connor, J., plurality opinion)) (alteration in Boit). Therefore, "[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 (O'Connor, J., plurality opinion)
(emphasis added). Rather, a plaintiff seeking to support the
assertion of personal jurisdiction must demonstrate that the
defendant engaged in "additional conduct" that indicates her
"intent or purpose to serve the market in the forum State." Id.
(emphasis added).
Trento argues that, at most, she placed The Power House into the stream of commerce when she sold S t . Martin's the right to
publish the book. The Contract, she points out, grants S t .
Martin's sole discretion in matters of marketing, distributing,
and selling the book, Contract ¶ 2 ( c ) , and her conceded knowledge
that S t . Martin's would distribute The Power House nationwide is
not enough to show purposeful availment. World-Wide Volkswagen
Corp., 444 U.S. at 295.
16 Were there no "additional conduct" on the part of Trento reflective of her intent or purpose to serve the New Hampshire market, this court could not exercise personal jurisdiction over her. However, the evidence before the court, when viewed in a light most favorable to Gray, does suffice to show that Trento purposefully availed herself of the New Hampshire market. Most of this evidence is contained in the Contract that governed the relationship between Trento and S t . Martin's.
Trento did not simply sell a product, her manuscript for The Power House, to S t . Martin's. Rather, she granted S t . Martin's the "sole and exclusive right to print, publish, distribute and sell" The Power House "throughout the world." Contract ¶ 1 ( a ) . Trento retained the copyright and "all other rights in the Work not granted to the Publisher." Id. at ¶ 3 , 6 ( c ) . Unlike the defendants in Asahi and Boit, Trento did not simply sell a product to a third party, completely transferring her ownership interest in the product. Instead, she sold the right to sell a product in which she retained an interest. National distribution of The Power House, including distribution within the State of New Hampshire,3 was the raison d'etre of the Contract between
3 There is no evidence that Trento intended to exclude particular fora from the otherwise national distribution of The Power House. The book's subject matter is not geographically
17 Trento and S t . Martin's. Therefore, Trento purposefully directed
The Power House to New Hampshire through S t . Martin's,
notwithstanding the fact that S t . Martin's retained control over
distribution.
Closely related is the fact that Trento retained a direct
and continuing financial stake in the widespread distribution of
The Power House. The defendants in Boit and Asahi sold products
to third parties who, in turn, sold those products to others. It
i s , of course, to every supplier's financial advantage when the
third party to whom it sells its product resells that product;
the more units the third party sells, the more additional units
it will order from the supplier. But the supplier's financial
interest is directly linked to the number of units it sells to
the third party, not to the number of units the third party sells
to others.
In contrast, Trento supplied S t . Martin's with a manuscript
and, in return, received a portion of the price of each copy of
The Power House S t . Martin's sold to others, including those
limited, unlike, for instance, a guidebook to the hiking trails of Northern California might b e . Therefore, it can be said that by purposefully contracting to distribute nationally a book in which she retained the copyright and from the sale of which she would obtain royalties, Trento purposefully contracted to distribute the book in New Hampshire.
18 copies sold in New Hampshire. Contract ¶ 5(a)(i). Her
compensation was directly linked to the number of copies S t .
Martin's sold; if S t . Martin's sold no copies, Trento received no
royalties. As a result, Trento had a direct and continuing
financial incentive to see that the book reached as many willing
buyers as possible. This payment mechanism also evidences
Trento's intent to serve every forum encompassed by the Contract,
including consumers in the State of New Hampshire.
In short, this case does not present a simple stream of
commerce scenario. The record shows that Trento engaged in
"additional conduct," indicating an intent or purpose to serve
the New Hampshire market. While this evidence of purposeful
availment is not particularly strong, it is sufficiently strong
to satisfy the basic due process concerns of foreseeability and
voluntariness. By executing a contract with a national publisher
for the national and international distribution of a book with
nationwide appeal, Trento should reasonably have anticipated
being haled into court in New Hampshire, a forum regularly served
by S t . Martin's and one in which the book was actually sold. The
terms of the Contract, including the financial incentives it
creates, also show that S t . Martin's in-state distribution of The
Power House was not the distinct unilateral act of a third party,
19 but an act intended by Trento. Therefore, Gray has made a prima
facia showing that Trento purposefully availed herself of the New
Hampshire marketplace.
3. The Gestalt Factors
"In constitutional terms, the jurisdictional inquiry is not
a mechanical exercise. The Court has long insisted that concepts
of reasonableness must inform a properly performed minimum
contacts analysis." Ticketmaster, 26 F.3d at 209. Once the
plaintiff has demonstrated that his claim is related to the
defendant's in-forum activities and that the defendant purposely
availed herself of the forum state, the court must consider "a
panoply of other factors which bear upon the fairness of
subjecting a nonresident to the authority of a foreign tribunal."
Id. The Supreme Court has identified five such factors:
(1) the defendant's burden of appearing, (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. (citing Burger King, 471 U.S. at 4 7 7 ) .
20 These five so-called "gestalt factors" are not ends in
themselves but are, instead, means of determining whether the
assertion of jurisdiction is fundamentally reasonable and
comports with constitutional concepts of fair play and
substantial justice. Id. "[T]he reasonableness prong of the due
process inquiry evokes a sliding scale: the weaker the
plaintiff's showing on the first two prongs . . . , the less a
defendant must show in terms of unreasonableness to defeat
jurisdiction." Id. at 210. Thus, a showing of unfairness may
trump a minimally sufficient showing of relatedness and
purposefulness. Id. Here, Gray made a decent showing of
relatedness and a weaker, but sufficient, showing of
purposefulness. As a result, Trento must make a solid showing of
unreasonableness in order to defeat jurisdiction.
a. The Burden of Appearance
The defendant is a Virginia resident. Forcing Trento to
appear in court in New Hampshire would burden her in terms of
both time and money. However, "defending in a foreign
jurisdiction almost always presents some measure of
inconvenience, and hence this factor becomes meaningful only
where a party can demonstrate a `special or unusual burden.'"
21 Sawtelle, 70 F.3d at 1395 (quoting Pritzker v . Yari, 42 F.3d 5 3 ,
64 (1st Cir. 1994), cert. denied, 115 S . C t . 1959 (1995)).
Trento admits that, as a material witness in Gray's suit
against S t . Martin's, she will be required to travel to New
Hampshire and attend portions of the trial whether she is named
as a party or not. Nonetheless, she argues that as a party she
would be burdened with the additional cost of mounting a defense.
That cost, however, is not a cost specific to being haled into
court in New Hampshire; the cost of defending would be roughly
similar were she haled into court in any forum, convenient or
not. In light of the fact that Trento's presence in New
Hampshire will be required in any event, her burden of appearing
is neither special nor unusual and, therefore, "falls short of
reaching constitutional significance." Id.
b. New Hampshire's Adjudicatory Interest
Gray is suing for damages he allegedly suffered in New
Hampshire. "And it is beyond dispute that New Hampshire has a
significant interest in redressing injuries that actually occur
within the state." Keeton, 465 U.S. at 776 (citing Leeper v .
Leeper, 114 N.H. 2 9 4 , 319 A.2d 626 (1974)). "This interest
extends to libel actions brought by nonresidents." Id.
22 c. Gray's Interest in Obtaining Convenient and Effective Relief
Ordinarily, the plaintiff's choice of forum is entitled to
substantial deference with respect to his own convenience.
Sawtelle, 70 F.3d at 1395. In this case, however, New Hampshire
is clearly not a convenient forum for Gray, a Florida resident. But the plaintiff also has an interest in obtaining effective,
though inconvenient, relief. It appears that Gray has sued
Trento in New Hampshire for the once familiar reason that the
statue of limitations has run in other, possibly more convenient,
fora. As the Supreme Court has stated, plaintiff's "successful
search for a State with a lengthy statute of limitations is no
different from the litigation strategy of countless plaintiffs
who seek a forum with favorable substantive or procedural rules
or sympathetic local populations." Keeton, 465 U.S. at 779. So
Gray may legitimately take account of New Hampshire's (since
modified) favorable rules when seeking effective relief for the
injuries he allegedly suffered.
d. Judicial System's Interest in Obtaining the Most Effective Resolution of the Controversy
"New Hampshire also has a substantial interest in
cooperating with other States, through the `single publication
23 rule,' to provide a forum for efficiently litigating all issues
and damage claims arising out of a libel in a unitary
proceeding." Keeton, 465 U.S. at 777. The single publication
rule reduces the burden libel cases may otherwise impose on the
judicial system and protects defendants from the burden of
defending multiple suits. Id. The great majority of states now
follows the single publication rule. Id. at 777 n.3. Therefore,
"New Hampshire's interest . . . in cooperating with other States
in the application of the [rule] demonstrates the propriety of
requiring [defendant] to answer to a multistate libel action in
New Hampshire." Id. at 777-78.
e. Pertinent Policy Arguments
There appear to be no broad social policies at stake in this
jurisdictional dispute apart from those already taken into
account in the relatedness and purposefulness inquiries and the
other four gestalt factors. See Sawtelle, 70 F.3d at 1395-96;
Ticketmaster, 26 F.3d at 211-12. This is particularly true in
light of the Supreme Court's finding that First Amendment
concerns should not enter into the jurisdictional analysis.
Calder, 465 U.S. at 790.
24 C. Tallying the Results
Taken together, the gestalt factors militate in favor of a
finding that the assertion of jurisdiction over Trento is
reasonable and, therefore, comports with basic notions of fair
play and substantial justice contemplated by the Due Process Clause. Combined with the court's earlier findings that Gray has
made a prima facia showing sufficient to satisfy the relatedness
and purposefulness prongs of the tripartite test, this conclusion
seals Trento's jurisdictional fate. This court may assert
specific personal jurisdiction over Trento consistent with both
the Due Process Clause of the Fourteenth Amendment and the New
Hampshire long-arm statute.
IV. CONCLUSION
Because this court may assert personal jurisdiction over
Trento consistent with New Hampshire's long-arm statute and the
United States Constitution, Trento's motion to dismiss for lack
of personal jurisdiction (document n o . 9 ) is denied.
25 SO ORDERED.
Steven J. McAuliffe United States District Judge March 2 8 , 1996
cc: James G. Walker, Esq. Mark D. Balzli, Esq. Cletus P. Lyman, Esq. William L . Chapman, Esq. Gayle M . Braley, Esq.