UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kurt Stokinger et al.
v. Case No. 23-cv-428-PB-TSM Opinion No. 2024 DNH 056 Armslist, LLC
MEMORANDUM AND ORDER
Kurt Stokinger, a former Boston police officer, was shot in the line of
duty by a felon in possession of a handgun that was at one point sold via
Armslist.com, a website that hosts firearms classifieds. Stokinger and his
spouse sued Armslist for negligence and other torts, alleging that Armslist’s
failure to institute certain safeguards on its website enabled the shooter to
unlawfully obtain the handgun. Armslist has moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(2), arguing that this court
lacks personal jurisdiction to hear the claims. I agree and therefore grant the
motion to dismiss. 1
1 Armslist filed a concurrent motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. 20. That motion is denied as moot in light of my conclusion that I lack jurisdiction to hear the plaintiffs’ claims. I. BACKGROUND
A. Facts
1. Armslist’s Website and Business Model
Armslist is a limited liability company organized and headquartered in
Pennsylvania. Doc. 21-2 at 2. Armslist owns and operates Armslist.com,
which is a “craigslist-style, for-profit, online firearms marketplace that
enables users to sell firearms and firearm-related accessories to private
individuals through website postings.” Doc. 21-9 at 4.
The website enables users to create listings offering to either buy or sell
various products. Doc. 21-2 at 5. When creating a listing, users are prompted
to input certain information, including their location, email address, and a
description of the item for sale. Id. at 4-5. To locate listings of interest, users
can input a keyword into a search bar and then filter the results by various
criteria, including location. Id. at 3. This filtering function allows users to
limit their results to items listed for sale in a particular state, including New
Hampshire. Id. Users can then respond to listings by either utilizing an email
link embedded in the listing or contacting the seller directly using
information provided in the listing. Id. at 5-6. All transactions occur offline,
without any further involvement from Armslist. Id.
Generally speaking, Armslist’s users fall into one of two categories.
“Private parties” are individual users who wish to make an occasional sale or
2 purchase. Id. at 4. Private parties are not required to register an account
with Armslist and can make a limited number of postings, free of charge. Id.
at 4, 6. “Premium vendors,” in contrast, are typically federally-licensed
firearms dealers seeking to engage in more regular sales. Id. at 3. Premium
vendors must register an account and are subject to Armslist’s approval. Id.
To obtain approval, a vendor must provide evidence of its federal firearms
license or else commit to selling only non-firearm products, such as gun
holsters or other accessories. Id. Premium vendors pay recurring membership
fees and, in exchange, are permitted to create an unlimited number of
listings. Id.
Armslist derives revenue from the membership fees of its premium
vendors and fees charged to third-party advertisers who purchase advertising
space on the website. Id. at 6. Armslist does not obtain any revenue directly
from private parties or their listings. Id.
2. Underlying Facts
In 2015, Derek McNamara posted a Glock Model 27 handgun for
private sale on Armslist. Doc. 34-1 at 12. Sara Johnson, a resident of New
Hampshire, responded to McNamara’s listing with an offer to purchase the
handgun. Id. McNamara agreed and, after confirming that Johnson had the
required permits, he transferred the firearm to her in Warner, New
Hampshire. Id. at 12-13.
3 Unbeknownst to McNamara, Johnson was a gun trafficker who had
used Armslist to purchase dozens of firearms, often acting as a straw
purchaser for her then-boyfriend, Daniel Sullivan. Id. at 5; Doc. 1 at 29.
Plaintiffs allege that Johnson later sold McNamara’s firearm to Grant
Headley, a prohibited person with several felony convictions, either directly
or indirectly through Sullivan. Doc. 1 at 29-30.
On January 8, 2016, Headley used the handgun that he allegedly
obtained from Johnson to shoot Stokinger multiple times in the leg while
Stokinger was working as a police officer in Boston, Massachusetts. Id. at 3-4.
Stokinger suffered permanent injuries as a result, prematurely ending his
career as a police officer. Id. at 42-43.
B. Procedural History
In October 2018, Stokinger and his wife brought suit against Armslist
in Massachusetts state court for negligence and other torts. Doc. 21-5 at 28-
38. Armslist responded with two separate motions to dismiss. The first
asserted that the court lacked personal jurisdiction and the second argued
that the plaintiffs’ claims failed on the merits because they were preempted
by Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Doc. 21-
10 at 5.
The Massachusetts Superior Court granted Armslist’s second motion to
dismiss on the merits, but declined to address Armslist’s personal jurisdiction
4 argument. Doc. 21-6 at 2 n.3. Armslist filed a motion for partial
reconsideration, asking the court to address its personal jurisdiction motion
in order to preclude a potential remand on that basis should the plaintiffs
appeal. Doc. 21-9 at 3. The court issued a brief order concluding that it lacked
personal jurisdiction based on the present record but that the plaintiffs were
granted leave to obtain jurisdictional discovery. Id.
Although most of the plaintiffs’ discovery was aimed at Armslist’s
contacts with Massachusetts, several requests also sought information
related to Armslist’s contacts with New Hampshire. For example, the
plaintiffs requested documents pertaining to Armslist’s communications with
New Hampshire-based users and third-party advertisers, as well as
Armslist’s marketing efforts in the state. Doc. 21-7 at 5-14. After initially
objecting to the requests, Armslist agreed to provide the plaintiffs with
limited discovery on its contacts with New Hampshire. Doc. 21-8 at 3-4.
Armslist responded to the plaintiffs’ document requests, but only as to its
contacts with New Hampshire in 2015 and 2016, which Armslist viewed as
the relevant time period for determining personal jurisdiction. Id.
Armslist represented that it had 8 New Hampshire-based premium
vendors in 2015 and 11 in 2016, which resulted in $1,670 in revenue in 2015
and $2,910 in 2016. Doc. 21-2 at 7. Armslist provided the plaintiffs with all
documents regarding its communication with and solicitation of New
5 Hampshire-based premium vendors during this time frame, which consisted
of a single email from a New Hampshire firearms dealer providing Armslist
with a copy of the dealer’s federal firearm license. Doc. 21-8 at 3, 6-7.
Armslist denied having any documents pertaining to its advertising in New
Hampshire or other efforts to increase sales in the state in 2015 or 2016. Id.
at 3. It also denied having any documents pertaining to its communications
with New Hampshire-based private parties or third-party advertisers in 2015
or 2016. Id. Following the close of jurisdictional discovery, the Massachusetts
Superior Court concluded that it lacked personal jurisdiction over Armslist
and again dismissed the plaintiffs’ claims. Doc. 21-9 at 10.
Approximately two years later, in September 2023, the plaintiffs filed a
complaint against Armslist in this court. Doc. 1 at 1. The complaint is
substantially similar to the complaint filed in Massachusetts and advances
the same theories of liability: negligence, aiding and abetting tortious
conduct, public nuisance, loss of spousal consortium, and loss of support. Id.
at 31-43. The crux of the plaintiffs’ claims is that Armslist “negligently and
recklessly designed [its website] in such a way that it actively encourages,
assists, and profits from the illegal sale and purchase of firearms.” Id. at 2.
These defects, the plaintiffs allege, proximately caused Stokinger’s injuries
because they enabled Headley to unlawfully obtain the handgun used in the
shooting. Id.
6 II. ANALYSIS
Under the Due Process Clause of the Fourteenth Amendment, a court
may only exercise jurisdiction over individuals who “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.’” 2 Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S.
457, 463 (1940)). Armslist moves to dismiss the plaintiffs’ complaint under
Rule 12(b)(2) for lack of personal jurisdiction, asserting that the plaintiffs
cannot establish that it had the constitutionally-required minimum contacts
with New Hampshire. The plaintiffs argue that jurisdiction can be found
based on the current record but ask the court, in the alternative, to defer a
ruling on the motion and allow jurisdictional discovery if personal jurisdiction
cannot be established on the current record. I begin by first considering
whether the plaintiffs have established jurisdiction on the current record
before turning to their alternative request for jurisdictional discovery.
2 Where, as here, a case is brought pursuant to the court’s diversity jurisdiction, the plaintiff must demonstrate that the “defendant’s contacts with the state satisfy both the state’s long-arm statute as well as the Due Process Clause of the Fourteenth Amendment.” Vapotherm, Inc. v. Santiago, 38 F.4th 252, 258 (1st Cir. 2022). Because New Hampshire’s long-arm statute is “coextensive with the outer limits of due process,” my analysis focuses exclusively on the constitutional inquiry. Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995).
7 A. Personal Jurisdiction
When faced with a motion to dismiss for lack of personal jurisdiction,
the plaintiff bears the burden of establishing that the court has jurisdiction
over the defendant. Rosenthal v. Bloomingdales.com, LLC, 101 F.4th 90, 94
(1st Cir. 2024). “[A] district court may choose from among several methods for
determining whether the plaintiff has met [this] burden.” Kuan Chen v. U.S.
Sports Acad., Inc., 956 F.3d 45, 51 (1st Cir. 2020) (quoting Baskin-Robbins
Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016)).
Where, as here, the motion to dismiss is filed “at the inception of the case and
the issue of jurisdiction is not intertwined with the merits, the prima facie
approach controls.” Motus, LLC v. CarData Consultants, Inc., 23 F.4th 115,
121 (1st Cir. 2022).
Under this approach, the plaintiff must “proffer evidence which, taken
at face value, suffices to show all facts essential to personal jurisdiction.”
Baskin-Robbins, 825 F.3d at 34. The plaintiff’s evidence must be taken as
true and construed in the light most favorable to the plaintiff’s jurisdictional
claim. Nandjou v. Marriott Int’l, Inc., 985 F.3d 135, 147 (1st. Cir. 2021). In
addition to evidence proffered by the plaintiff, I may also consider facts
proffered by the defendant, but only to the extent that they are
uncontradicted. A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir.
2016).
8 The plaintiffs claim only specific jurisdiction, which exists where the
“case relates sufficiently to, or arises from, a significant subset of contacts
between the defendant and the forum.” Phillips Exeter Acad. v. Howard
Phillips Fund, 196 F.3d 284, 288 (1st Cir. 1999). To establish the existence of
specific jurisdiction, the plaintiffs must demonstrate that:
(1) their 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, thus invoking the benefits and protections of that state’s laws and rendering the defendant’s involuntary presence in that state’s courts foreseeable; and (3) the exercise of jurisdiction is ultimately reasonable.
Scottsdale Cap. Advisors Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir.
2018). “Failure to make any one of these showings dooms any effort to
establish specific personal jurisdiction.” Id. Because I find that the plaintiffs
have failed to establish purposeful availment, I conclude that personal
jurisdiction cannot be based on the current record without addressing the
remainder of the tripartite test. See Motus, 23 F.4th at 124.
The purposeful availment requirement “ensures that a defendant will
not be haled into a jurisdiction solely as a result of random, fortuitous, or
attenuated contacts, or of the unilateral activity of another party or a third
person.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (cleaned
up). To this end, the “purposeful availment inquiry focuses on the defendant’s
intentionality and rests on two cornerstones: voluntariness and
9 foreseeability.” Rosenthal, 101 F.4th at 96 (cleaned up). Voluntariness
requires that the defendant’s contacts with the forum proximately result from
the defendant’s own actions, rather than those of the plaintiff or other third
parties. Id. Foreseeability, in turn, requires that the defendant’s contacts
with the forum “are such that [the defendant] should reasonably anticipate
being haled into court there.” Burger King, 471 U.S. at 474 (quoting World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
Although the purposeful availment inquiry “often proves dispositive” in
“website cases,” Motus, 23 F.4th at 124, the Supreme Court has yet to
“definitively answer[] how a defendant’s online activities translate into
contacts” for the purposes of personal jurisdiction, Plixer Int’l, Inc. v.
Scrutinizer GmbH, 905 F.3d 1, 7 (1st Cir. 2018). Despite the limited guidance
on the matter, “[o]ne baseline principle has emerged: a website operator does
not necessarily purposefully avail itself of the benefits and protections of
every state in which its website is accessible.” Plixer, 905 F.3d at 8 (collecting
cases). Rather, to justify the exercise of jurisdiction over an out-of-state
website operator, “there must be more,” such as “evidence of specific targeting
of forum residents” or “evidence that the website has generated ‘substantial
revenue from forum residents.’” Motus, 23 F.4th at 125 (quoting Chen, 956
F.3d at 60).
10 The plaintiffs principally rely on two facts to demonstrate purposeful
availment: first, that Armslist created a filtering feature for users to isolate
New Hampshire-based listings, and second, that Armslist derived revenue
from a handful of New Hampshire-based premium vendors. These facts,
however, do not reveal the sort of substantial and voluntary connection to
New Hampshire that due process demands.
In the plaintiffs’ view, Armslist specifically targeted New Hampshire
residents by instituting a filtering function that enabled users to isolate
listings in New Hampshire. While it is true that a website’s references to the
forum state may sometimes demonstrate intentional targeting, see, e.g.,
Sarah’s Hat Boxes, LLC v. Patch Me Up, LLC, 2013 DNH 058, 2013 WL
1563557, at *6-7 (D.N.H. Apr. 12, 2013), the plaintiffs read too much into
Armslist’s inclusion of New Hampshire in its 50-state filtering feature. The
decision to include New Hampshire alongside the other 49 states indicates
that Armslist is amenable to serving the New Hampshire market, but it does
not indicate that Armslist specifically targeted New Hampshire. Afterall,
“[t]o target every user everywhere . . . is to target no place at all.” Johnson v.
TheHuffingtonPost.com, Inc., 21 F.4th 314, 321-322 (5th Cir. 2021). Stated
differently, because the filtering feature is necessarily designed to benefit
users regardless of their location, it does not render the website “more likely
to solicit or serve customers in [New Hampshire] than anywhere else” and
11 therefore does not specifically target New Hampshire. Motus, 23 F.4th at 123;
cf. Sarah’s Hat Boxes, 2013 WL 1563557, at *2, 6 (finding that a “defendant
designed [its] website to reach into New Hampshire” by including a
circumscribed list of specific states and towns where it shipped its products,
including New Hampshire and several of its towns).
The courts of appeals have similarly refused to find specific targeting
based solely on the forum state’s inclusion in a website feature that merely
references all 50 states. For example, in Fidrych v. Marriott International,
Inc., the Fourth Circuit concluded that a hotel website did not target South
Carolina residents by “includ[ing] South Carolina as an option in the drop-
down menu used by customers to select their state of residence when making
reservations.” 952 F.3d 124, 142-143 (4th Cir. 2020). Noting that the drop-
down menu also listed “every other state in the country,” the court reasoned
that the feature indicated the hotel’s willingness “to accept reservations from
South Carolina residents” but did not demonstrate that the hotel was
specifically “targeting South Carolina residents through its website.” Id. “To
the contrary,” the court explained, “the list of options confirms that the
website was accessible to all but targeted at no one in particular.” Id. at 143.
Similarly, in NexLearn, LLC v. Allen Interactions, Inc., the Federal
Circuit rejected the plaintiff’s argument that the defendant’s website
“specifically targeted Kansas residents” by allowing customers to “select
12 ‘Kansas’ from a dropdown menu in the billing-address section” when placing
an order on the website. 859 F.3d 1371, 1377 (Fed. Cir. 2017). Like the
Fourth Circuit, the Federal Circuit reasoned that the feature merely
indicated the website’s “amenability to selling [its products] to Kansas
residents,” but did not demonstrate that the defendant purposefully availed
itself of Kansas law. Id. at 1378.
The reasoning exemplified by these opinions comports with the purpose
behind due process limitations on specific jurisdiction, which is “to ensure
that States with ‘little legitimate interest’ in a suit do not encroach on States
more affected by the controversy.” Ford Motor Co. v. Montana, 592 U.S. 351,
360 (2021) (quoting Bristol-Myers Squibb Co. v. California, 582 U.S. 255, 262
(2017)). Including New Hampshire in the 50-state filtering feature simply
renders the website as useful in New Hampshire as it is in every other state
and therefore amounts to little more than making the website available in
New Hampshire. If this, standing alone, were enough to justify the exercise of
jurisdiction, “the universality of websites in the modern world would
overwhelm constitutional limitations on the exercise of personal jurisdiction.”
Chen, 956 F.3d at 60.
Accordingly, the filtering feature alone is not enough to demonstrate
specific targeting. Yet the plaintiffs have not proffered any other evidence to
demonstrate that Armslist sought to attract New Hampshire residents to its
13 website. Cf. Gather, Inc. v. Gatheroo, LLC, 443 F. Supp. 2d 108, 116 (D.
Mass. 2006) (finding purposeful availment where a website not only
permitted filtering by state, but also “accept[ed] members from [the forum
state],” “solicit[ed] their continued business,” and “communicat[ed] directly
with [forum state] users”). For example, there is no evidence that Armslist
advertised in New Hampshire or otherwise solicited New Hampshire
residents to use its website. Cf. Nowak v. Tak How Invs., Ltd., 94 F.3d 708,
717 (1st Cir. 1996) (finding purposeful availment where the defendant
“advertised its hotel in national and international publications that
circulated in Massachusetts;” “solicited by direct mail some of its previous
guests residing in Massachusetts;” and “listed its hotel in various hotel
guides used at travel agencies in Massachusetts”). Nor is there evidence that
Armslist affirmatively accepted or encouraged posts from New Hampshire
users; to the contrary, it is undisputed that Armslist does not review listings
in the regular course of business. Cf. Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1126 (W.D. Pa. 1997) (finding purposeful availment where
a website “repeatedly and consciously chose to process [forum state]
residents’ applications [for an account] and to assign them passwords”). And,
with the exception of a single email from a New Hampshire-based firearms
dealer that apparently went unanswered, there is no evidence that Armslist
has ever communicated with any New Hampshire residents. Cf. Gather, 443
14 F. Supp. 2d at 116 (finding purposeful availment based in part on the
defendant’s direct communications with users in the forum state). Given the
absence of evidence that Armslist intentionally and specifically sought to
serve the New Hampshire market, the fact that New Hampshire was one of
50 states included in the website’s filtering function is of little value.
The plaintiffs’ reliance on Armslist’s receipt of revenue from New
Hampshire-based premium vendors fares no better. That a handful of New
Hampshire-based firearms dealers paid for a premium membership does not
indicate that Armslist sought to serve the New Hampshire market given the
lack of evidence that Armslist did anything to recruit or solicit premium
vendors in the state. See Chen, 956 F.3d at 61 (finding no purposeful
availment where the defendant’s contacts with the state “stem[ed] from [a
third party’s] unilateral activity”). Indeed, the only evidence in the record is
that Armslist “did not actively recruit Premium Vendors in New Hampshire”
or “attend[] any trade shows or gun shows in New Hampshire” between 2015
and 2016. Doc. 21-2 at 7. See Chen, 956 at 56 (noting that facts proffered by
the defendant may be treated as undisputed, even if challenged by the
plaintiff, where the plaintiff fails to offer evidence to the contrary).
Furthermore, that Armslist received some amount of profit from these
premium vendors does not establish that it engaged in the sort of “regular
flow or regular course of sale in the forum [that] could make the exercise of
15 jurisdiction foreseeable[.]” Knox v. MetalForming, Inc., 914 F.3d 685, 691-692
(1st Cir. 2019) (cleaned up). Armslist received less than $3,000 per year in
revenue from its New Hampshire premium vendors in 2015 and 2016,
constituting no more than 0.4% of the company’s total revenue. Doc. 21-2 at
7. Such negligible sales stand in stark contrast to the kind of business
dealings that courts have generally found sufficient to confer personal
jurisdiction. Cf. Plixer, 905 F.3d at 10 (collecting cases and finding purposeful
availment where the defendant obtained “nearly $200,000 in business [from
forum residents] over three-and-a-half years”); Knox, 914 F.3d at 692 (finding
purposeful availment where the defendant engaged in hundreds of
transactions with forum state residents which “led to nearly $1.5 million of
Massachusetts sales”); see also Oticon, Inc. v. Sebotek Hearing Sys., LLC,
865 F. Supp. 2d 501, 514-515 (D.N.J. 2011) (relied on in Plixer, 905 F.3d at
11) (finding that a defendant’s “scant sales activity” could not “justify the
exercise of specific jurisdiction” where the defendant made less than ten sales
in the forum, “total[ing] less than $3,383.00 in revenue”).
Moreover, Armslist’s relationship with the New Hampshire premium
vendors does not appear to have been particularly meaningful. See PREP
Tours, Inc. v. Am. Youth Soccer Org., 913 F.3d 11, 23 (1st Cir. 2019) (noting
that an “ongoing and close-working relationship” with a forum resident
“could establish the requisite substantial connection between the defendants
16 and the forum”). Nothing in the record indicates that Armslist engaged in
regular communications with or otherwise attempted to foster an ongoing
relationship with the New Hampshire vendors. To the contrary, it appears as
though Armslist’s interaction with the premium vendors was limited to
verifying that they met the requirements for a premium account and
accepting their membership payments. Cf. id. at 25-26 (finding no purposeful
availment, despite evidence that the defendant communicated with the in-
forum plaintiff on multiple occasions regarding the plaintiff’s provision of
services within the forum). All told, neither the filtering function nor
Armslist’s dealings with the New Hampshire premium vendors, either alone
or in combination, demonstrates that Armslist had a “substantial connection
with the forum State” sufficient to authorize the exercise of jurisdiction. 3
3 Although the plaintiffs primarily argue that purposeful availment can be found based on Armslist’s intentional targeting of the forum, they argue in the alternative that purposeful availment could “be found under a stream-of- commerce theory.” Doc. 28-1 at 18. In order to succeed on such a theory, the plaintiffs would need to demonstrate the existence of certain “‘plus’ factors evincing a corporate defendant’s deliberate attempt to serve the forum state, that is, factors indicating something over and above the defendant’s mere awareness that its products were entering a given market in the stream of commerce.” Rosenthal, 101 F.4th at 96 (quoting Motus, 23 F.4th at 124-125). The plaintiffs’ alternative “stream-of-commerce” theory is premised on the same evidence as their primary intentional targeting theory; that is, “Armslist’s state-specific search function and New Hampshire premium vendors[.]” Doc. 28-1 at 18. For the reasons I explained, this evidence is insufficient to demonstrate that Armslist intended to serve the New Hampshire market, regardless of how it is couched. See Rosenthal, 101 F.4th at 96.
17 Burger King, 471 U.S. at 475 (quoting McGee v. Int’l Life Ins. Co., 355 U.S.
220, 223 (1957)).
The only other evidence proffered by the plaintiffs in support of
purposeful availment pertains to the number of New Hampshire-based
listings posted to Armslist in recent years. For example, the plaintiffs point to
data that, from 2018 and 2020, Armslist hosted an average of 16,277 listings
per year from New Hampshire-based private parties. Doc. 28-5 at 2-3. The
plaintiffs also supplied evidence that, as of January 2024, there were 1,607
active listings for items located in New Hampshire. Doc. 28-4 at 2.
Although the plaintiffs make passing reference to this evidence
throughout their brief, they fail to articulate a developed argument as to how
it supports their showing of jurisdiction. Regardless, the evidence does not
indicate that Armslist purposefully and voluntarily availed itself of the
privilege of conducting activities in New Hampshire. 4
4 I note that there is a substantial question as to whether evidence postdating when the cause of action arose is even relevant to specific jurisdiction. Armslist relies on Harlow v. Children’s Hospital for the proposition that “in most cases, contacts coming into existence after the cause of action arose will not be relevant” to the specific jurisdiction inquiry. 432 F.3d 50, 62 (1st Cir. 2005). Plaintiffs counter that Harlow is inapplicable because their public nuisance claim raises a continuing tort, which the court in Plixer found falls outside Harlow’s “general rule.” 905 F.3d at 11. I need not stake out a position on this legal issue because the evidence the plaintiffs rely on is not sufficient to establish purposeful availment in any event.
18 As I explained, the purposeful availment inquiry turns on the
defendant’s own actions, and not those of third parties. Thus, “any contacts
that cannot be attributed ‘proximately’ to the defendant’s own activities
constitute ‘unilateral’ activity that cannot establish purposeful availment.”
PREP Tours, Inc., 913 F.3d at 20 (quoting Burger King, 471 U.S. at 475).
Without any evidence that Armslist solicited New Hampshire citizens to use
its website or otherwise involved itself in their posts, the New Hampshire-
based listings can only be regarded as the unilateral activity of third parties
who happen to reside in New Hampshire. Cf. be2 LLC v. Ivanov, 642 F.3d
555, 559 (7th Cir. 2011) (finding no purposeful availment based on evidence
that multiple forum residents created profiles on the defendant’s website and
noting that, absent evidence of specific targeting, the website users may have
created profiles “unilaterally by stumbling across the website”).
Furthermore, because private parties can create listings for free, the
sheer number of New Hampshire-based listings does not demonstrate that
Armslist knowingly derived “substantial revenue from forum residents.”
Chen, 956 F.3d at 60. While it could be inferred that Armslist obtained at
least some amount of third-party advertising revenue from the New
Hampshire listings, the record lacks any basis on which to conclude that this
revenue was at all significant. There is no evidence as to how much of
Armslist’s advertising revenue can be linked to the New Hampshire listings
19 and, absent evidence that the New Hampshire listings accounted for a
significant portion of the overall activity on the website, I cannot infer that
any such revenue would constitute a sufficiently substantial portion of
Armslist’s business. Cf. Rancourt v. Meredith Corp., No. 22-cv-10696-ADB,
2024 WL 381344, at *8 (D. Mass. Feb. 1, 2024) (finding purposeful availment
where the plaintiffs produced evidence that forum-based users of a free
mobile application accounted for “over $66,000 or 2% of the App’s total U.S.
ad revenue”).
At bottom, the plaintiffs have failed to proffer evidence that Armslist
voluntarily developed the sort of substantial connection with New Hampshire
that would render the exercise of jurisdiction foreseeable. Accordingly, the
plaintiffs have not met their burden of establishing specific jurisdiction.
B. Jurisdictional Discovery
In light of this conclusion, the question then becomes whether the
plaintiffs should be granted leave to pursue additional jurisdictional
discovery. The plaintiffs acknowledge that they received some amount of
discovery regarding Armslist’s contacts with New Hampshire in 2015 and
2016 through the Massachusetts action but request additional discovery as to
Armslist’s contacts with New Hampshire between 2016, when the shooting
20 occurred, and 2023, when the complaint was filed. 5
A plaintiff seeking jurisdictional discovery “must make a colorable
claim of jurisdiction and must show that it has been diligent in preserving its
rights” to such discovery. Motus, 23 F.4th at 128 (cleaned up). To satisfy this
burden, the plaintiff must “present facts to the court which show why
jurisdiction would be found if discovery were permitted.” Negro-Torres v.
Verizon Comm’ns, Inc., 478 F.3d 19, 27 (1st Cir. 2007). “Mere conjecture or
speculation is not enough.” Williams v. Romarm, SA, 756 F.3d 777, 786 (D.C.
Cir. 2014) (cleaned up).
Although “[a] timely and properly supported request for jurisdictional
discovery merits solicitous attention,” district courts enjoy “broad discretion
to determine whether jurisdictional discovery is warranted,” Motus, 23 F.4th
at 128 (cleaned up). Thus, “even when the plaintiff has been diligent and has
made a colorable claim for personal jurisdiction,” the court retains discretion
to conclude that discovery is not warranted. United States v. Swiss Am.
Bank, Ltd., 274 F.3d 610, 525 (1st Cir. 2001).
5 As I explained, see supra note 4, there is a substantial question as to whether post-tort contacts are even relevant to the plaintiffs’ demonstration of jurisdiction. Of course, if such contacts cannot be used to establish jurisdiction, the plaintiffs’ request would fail on its face. See Noonan v. Winston, 135 F.3d 85, 95 (1st Cir. 1998) (holding that jurisdictional discovery was not warranted where it was aimed at an irrelevant time period). However, I need not resolve the matter on this basis given my conclusion that jurisdictional discovery is not warranted even assuming that post-tort contacts are relevant.
21 The plaintiffs’ request for jurisdictional discovery must be denied for
several reasons. Rather than formally moving for jurisdictional discovery
before responding to the motion to dismiss, the plaintiffs opposed Armslist’s
motion to dismiss on the merits, and only requested jurisdictional discovery
should I disagree. Presenting a request for jurisdictional discovery in this
way contravenes both this court’s Local Rules and the Federal Rules of Civil
Procedure.
Local Rule 7.1(a)(1) provides that parties may not “combine multiple
motions seeking separate and distinct relief into a single filing,” which the
plaintiffs violated by asking in their opposition to Armslist’s motion to
dismiss that I stay ruling on the motion and allow jurisdictional discovery if I
was not willing to deny the motion on the existing record. Additionally,
Federal Rule of Civil Procedure 7(b) requires that a request for a court order
be made via written motion. As a general rule, “informal requests for court
orders contained within . . . opposition papers” are “insufficient to satisfy
[this] motion requirement[.]” Wright & Miller, 5 Federal Practice &
Procedure § 1191 (4th ed. 2023). Accordingly, the First Circuit has recognized
that parties do not properly present a request for jurisdictional discovery by
“merely mention[ing] the option of jurisdictional discovery in [an] opposition
to [a] motion to dismiss." Motus, 23 F.4th at 127-128; see also United Techs.
Corp. v. Mazer, 556 F.3d 1260, 1280-1281 (11th Cir. 2009) (affirming the
22 denial of jurisdictional discovery where the plaintiff “never formally moved
the district court for jurisdictional discovery but, instead, buried such
requests in its briefs as a proposed alternative” to granting the motion to
dismiss).
Even if I were to disregard the plaintiffs’ procedural missteps, policy
considerations counsel against granting such requests for discovery in the
alternative to a request for a ruling on the merits. Cf. N.Y. State Teamsters
Conf. Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648 (2d Cir.
2005) (“a party’s failure to seek discovery under Rule 56(f) before responding
to a summary judgment motion is ‘itself sufficient grounds to reject a claim
that the opportunity for discovery was inadequate.’”) (quoting Williams v.
R.H. Donnelly, Corp., 368 F.3d 123, 126 n.1 (2d Cir. 2004)). Requesting a
ruling on the merits before seeking discovery potentially burdens both the
court and the parties with the need to engage in two rounds of briefing on the
same issue: one prior to the receipt of discovery, and one after. These
inefficiencies can, and should, be avoided by undertaking a clear-eyed
assessment of the evidence at the outset and moving for whatever additional
discovery is needed to establish jurisdiction, without first attempting to
oppose the motion with an incomplete record.
The plaintiffs’ request for jurisdictional discovery is also deficient
because it does not identify the discovery they seek or explain how it would
23 confer jurisdiction. The plaintiffs’ opposition brief generally asserts that they
should be “entitled to probe Armslist’s assertions and obtain updated
evidence,” but fails to offer any specifics. Doc. 28-1 at 22. The plaintiffs
provided at least some additional substance to their request at the motion
hearing, where they clarified that they were seeking discovery on Armslist’s
post-tort contacts with New Hampshire. Doc. 35 at 8, 21-22 (expressing the
belief that jurisdictional discovery would reveal “many more premium
vendors, more advertising, more significant contacts, [and] more sales in New
Hampshire that were brokered by Armslist”).
But absent from the plaintiffs’ proffer are any “factual allegations
suggesting with reasonable particularity the possible existence of contacts”
sufficient to confer jurisdiction. Eurofins Pharma U.S. Holdings v.
BioAlliance Pharma SA, 623 F.3d 147, 156 (3d Cir. 2010). For example, the
plaintiffs have not explained what sort of “significant contacts” they expect to
discover, nor have they provided any basis for their belief that Armslist has
engaged in “more advertising” or obtained “more premium vendors.” Cf.
Doane v. Benefytt Techs., Inc., No. 22-10510-FDS, 2023 WL 2465628, at *14
(D. Mass. March 10, 2023) (denying a request for jurisdictional discovery
based on a proffer couched in “conclusory terms” without “specific facts of any
kind in support of [the plaintiff’s] contentions”).
24 The plaintiffs’ failure to provide a more specific proffer is all the more
concerning given that they received at least some amount of New Hampshire-
specific jurisdictional discovery during the Massachusetts action. See Rice v.
Electrolux Home Prods., Inc., 4:15-cv-00371, 2020 WL 247284, at *11 (M.D.
Pa. Jan. 15, 2020) (collecting cases and noting that, “[w]here a plaintiff has
had the opportunity to conduct jurisdictional discovery, and then fails to
make out a prima facie case of personal jurisdiction, courts are entitled to
deny the plaintiff’s request for further jurisdictional discovery”). The
plaintiffs’ nonspecific and conclusory proffer thus should be denied because it
raises the specter of an impermissible “fishing expedition based only upon
bare allegations.” Univ. of Mass. v. L’Oreal SA, 36 F.4th 1374, 1385 (Fed. Cir.
2022) (quoting Eurofins, 623 F.3d at 157).
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss for lack of
personal jurisdiction (Doc. 21) is granted and its motion to dismiss for failure
to state a claim (Doc. 20) is denied as moot. The clerk of court shall enter
judgment accordingly and close the case.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge July 15, 2024
cc: Counsel of record