NEC v. Drew University et al.

• Court: District Court, D. New Hampshire
• Decided: February 17, 2009
• Docket: CV-08-424-JL
• Status: Published

Opinion

NEC v. Drew University et al. CV-08-424-JL 02/17/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

New England College

v. Civil No. 08-cv-424-JL Opinion No. 2 009 DNH 016 Drew University, and Anne Marie Macari

O R D E R

Before the court is Drew University's ("Drew") motion to

dismiss the complaint against it for lack of personal

jurisdiction. See Fed. R. Civ. P. 12(b)(2). The plaintiff. New

England College ("NEC") objects, arguing that exercising

jurisdiction over Drew would not violate the constitution's due

process clause.1 See U.S. Const, amend XIV. For the following

reasons, Drew's motion to dismiss is denied without prejudice.

I . Jurisdictional analysis

"To hear a case, a court must have personal jurisdiction

over the parties, that is, the power to require the parties to

obey its decrees." Davnard v. Ness, Motley, Loadholt, Richardson

1 NEC has summarized its jurisdictional argument as follows: "[I]t is NEC's position that Drew University's intentional interference with a New Hampshire-based contract {the employment relationship between NEC and Anne Marie Macari) is itself a New Hampshire contact by Drew University that authorizes this Court to exercise personal jurisdiction over Drew University." (Pl.'s Surreply in Opp'n to Mot. to Dismiss 2). & Poole, P .A . , 290 F.3d 42, 50 (1st Cir. 2002) (internal

quotation omitted). When jurisdiction is contested, the

plaintiff bears the burden of establishing it. See Phillips v.

Prairie Eve Ctr., 530 F.3d 22, 26 (1st Cir. 2008). "Under the

prima facie standard, the inquiry is whether the plaintiff has

proffered evidence which, if credited, is sufficient to support

findings of all facts essential to personal jurisdiction." Id.

Unlike the customary approach applicable to motions to dismiss

under Rule 1 2 (b), the focus in a jurisdictional dispute is on the

facts and evidence, as opposed to pleadings and allegations. See

also Barrett v. Lombardi, 239 F.3d 23, 26 (1st Cir. 2001)

("plaintiff cannot rest upon mere averments, but must adduce

competent evidence of specific facts"). "The court must accept

the plaintiff's (properly documented) evidentiary proffers as

true for the purpose of determining the adequacy of the prima

facie jurisdictional showing and construe them in the light most

congenial to the plaintiff's jurisdictional claim." Phillips,

530 F.3d at 26 (internal quotation marks and citations omitted).

There is no claim here of general jurisdiction. See Harlow

v. Children's Hosp., 432 F.3d 50, 57 (1st Cir. 2005) (describing

difference between general and specific jurisdiction). NEC bases

its claim of specific personal jurisdiction over Drew on the New

Hampshire long-arm statute. Under that statute, "jurisdiction

2 over nonresidents may be exercised whenever the requirements of

the Due Process Clause of the United States Constitution are

satisfied." Alacron, Inc. v. Swanson, 145 N.H. 625, 628 (2000).

The court thus proceeds directly to the due process analysis.

The Fourteenth Amendment's due process clause precludes a

court from asserting jurisdiction over a nonresident defendant

unless its contacts with the forum state are such that it has

"fair warning" that it may be subject to suit there. See Shaffer

v. Heitner, 433 U.S. 186, 218 (1977) (Stevens, J., concurring);

see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)

(noting that the "constitutional touchstone" for personal

jurisdiction is "minimum contacts"). The "fair warning"

requirement is satisfied if the defendant has "purposefully

directed" its activities at residents of the forum, see Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 774 (1984) (purposeful

availment prong), and the plaintiff's cause of action "is related

to or arises out of" those activities. See Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)

(relatedness prong). Where a plaintiff has established

constitutionally significant contacts between the forum, the

defendant, and the litigation, jurisdiction must still comport

with "fair play and substantial justice." Int'1 Shoe C o . v .

Washington, 326 U.S. 310, 320 (1945) (reasonableness prong).

3 While the court must accept evidence proffered by the

plaintiff as true, courts "do not credit conclusory allegations

or draw farfetched inferences." Mass. Sch. of Law at Andover,

Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998) . Here,

NEC has failed to proffer sufficient evidence on either of the

first two prongs of the due process inquiry: purposeful

availment and relatedness. While NEC makes colorful allegations

regarding the role Drew played in bringing about its

injuries--NEC claims that (1) Drew secretly conspired with

Macari, its co-defendant in the present matter, to develop a

competing MFA poetry program, and (2) Macari, "with Drew

University's encouragement and approval," secretly solicited

NEC's students and faculty to affiliate with that program--it has

failed to present evidence to support these claims.

The entirety of the evidence before the court relating to

Drew's contacts with New Hampshire shows that:

• Several weeks after Macari resigned from NEC, Drew's president contacted NEC's president to respond to her inquiry regarding Macari's decision to leave, and

• Drew periodically sends representatives to New Hampshire to attend college fairs and high school visits, and to scout for sports teams.

NEC does not argue that its injuries arose out of these

established contacts. Rather, NEC asks the court to conjecture,

as NEC has, that because Macari helped Drew develop its MFA

4 poetry program, and because part of NEC's faculty left to teach

in Drew's newly developed program, then Drew must have secretly

conspired with Macari to cause the injuries it has suffered

(i.e., losing faculty and students, present and potential, to

Drew's program). The court is not--and in fact is not permitted

to be--persuaded by a jurisdictional argument based on

speculation without any evidentiary foundation. See Barrett, 239

F.3d at 27 (requiring plaintiff to "verify the facts alleged

through materials of evidentiary quality").

A. The "effects" theory of jurisdiction

The "effects" theory of personal jurisdiction, first

recognized by the Supreme Court in Calder v. Jones, 465 U.S. 783

(1984), does not help NEC. Under that theory, a court may

properly assert jurisdiction where a defendant has committed an

act outside of the forum state that was intended to and does in

fact cause injury within the forum. See id. at 788; Northern

Laminate Sales, Inc. v. Davis, 403 F.3d 14, 25 (1st Cir. 2005)

("a defendant need not be physically present in the forum state

to cause injury (and thus 'activity' for jurisdictional purposes)

in the forum state"). Appearing to advance the "effects" theory,

NEC argues that jurisdiction over Drew is proper

5 because, even if all of the communications and meetings between Drew University and Macari had occurred outside New Hampshire, Drew University nonetheless engaged in New Hampshire 'activity' by tortiously interfering with the relationship between NEC and Macari thereby causing NEC to suffer economic and other injury in New Hampshire.

(Pl.'s Opp'n to Mot. to Dismiss 11) (emphasis in original). But

in all of the cases cited by NEC, there was evidence that

intentional conduct attributable to the nonresident defendants

caused the plaintiffs' in-forum injury. See, e.g.. Northern

Laminate, 403 F.3d at 18-20 (nonresident defendant invited in­

forum plaintiff to meeting in New York during which defendant

made allegedly fraudulent misrepresentations); Jet Wine &

Spirits, Inc. v. Bacardi & Co., 298 F.3d 1, 3-6 (1st Cir. 2002)

(nonresident defendants, a national liquor distributor and

related companies, unilaterally terminated plaintiff's

contractual right to exclusively promote and sell various brands

of liquor in New Hampshire); Pritzker v. Yari, 42 F.3d 53, 57-58

(1st Cir. 1994) (nonresident defendant acquired financial

interest in forum-based lawsuit); Huqel v. McNeil, 886 F.2d 1, 2-

3 (1st Cir. 1989) (nonresident defendant authored defamatory

newspaper article regarding in-forum plaintiff). Here, NEC has

surmised the role Drew played in causing its injuries, but has

yet to submit (through documents or affidavits), or even proffer.

6 evidence of Drew's conduct relating to its claims. See supra pp.

3-4. Personal jurisdiction over Drew, thus, cannot be justified

under the "effects" theory of jurisdiction. See Calder, 465 U.S.

at 7 88.

B. The conspiracy theory of jurisdiction

Implicit in NEC's jurisdictional argument,2 which seeks to

bring Drew under the jurisdiction of this court based upon

Macari's actions, is its presumption that the "conspiracy theory

of jurisdiction" is recognized by this court. See Glaros v.

Perse, 628 F.2d 679, 682 (1st Cir. 1980). Under that theory,

"jurisdiction can be obtained over out-of-state defendants who

have conspired with in-state defendants." Id. The First

Circuit, however, has never recognized the doctrine, see id. at

682 n.4 ("we do not mean to imply that we would adopt [another

court's] rather liberal approach to conspiracy pleading, or to

decide that we would recognize a conspiracy theory of personal

2 For example, in explaining the source of its injuries, NEC states that "[a]s a result of Macari's acts and omissions, for the Spring 2008 term, NEC's MFA Poetry Program enrolled only five students." (Pl.'s Opp'n to Mot. to Dismiss 11). But NEC makes no claim that Drew solicited these students itself; rather, NEC argues that Macari, acting "with Drew University's apparent encouragement and approval," (Id. at 7), persuaded "NEC students and prospective NEC students to choose Drew University's program over that of NEC." (Id. at 2).

7 jurisdiction at all"), and the Supreme Court has labeled the

conspiracy doctrine in the venue context as having "all the

earmarks of a frivolous albeit ingenious attempt to expand the

[venue] statute." Bankers Life & Cas. Co. v. Holland, 346 U.S.

379, 384 (1953). District courts in this circuit have similarly

called the conspiracy theory of jurisdiction into question. See,

e.g.. In re New Motor Vehicles Canadian Exp. Antitrust Litiq.,

307 F. Supp. 2d 145, 158 (D. Me. 2004) ("I do not believe that

the First Circuit would recognize a conspiracy theory of personal

jurisdiction"); In re Lupron Mktq. & Sales Practices Litiq., 245

F. Supp. 2d 280, 294 (D. Mass. 2003) ("Assuming . . . that the

conspiracy theory of jurisdiction could, in an appropriate

factual context, pass federal constitutional scrutiny, due

process requires more than a bare allegation of the existence of

a conspiracy"). The court in Glaros went on to note that in

jurisdictions that recognize the theory, courts still "require[]

something more than the presence of a co-conspirator within the

forum state, such as substantial acts performed there in

furtherance of the conspiracy and of which the out-of-state

co-conspirator was or should have been aware." 628 F.2d at 682.

Here, even assuming, arguendo, the conspiracy theory is good law

in this circuit, there is no evidence to support NEC's claim that

(1) a conspiracy existed between Drew and Macari, or (2) Drew was aware that Macari was committing any "substantial acts" in

furtherance of that conspiracy in New Hampshire.

I I . Jurisdictional discovery

NEC has asked that, in the event that the court is inclined

to grant Drew's motion to dismiss, that it be permitted to engage

in jurisdictional discovery. " [A] diligent plaintiff who sues an

out-of-state corporation and who makes out a colorable case for

the existence of in personam jurisdiction may well be entitled to

a modicum of jurisdictional discovery if the corporation

interposes a jurisdictional defense." Sunview Condo. Ass'n v.

Flexel Int'1, 116 F.3d 962, 964 (1st Cir.1997). While the court

is inclined to grant Drew's motion to dismiss, NEC has presented

a claim of jurisdiction that is, at least, colorable. See U.S.

v. Swiss Am. Bank, Ltd., 274 F.3d 610, 626 (1st Cir. 2001). The

court thus concludes that jurisdictional discovery is likely to

shed light on whether jurisdiction over Drew is appropriate. See

id. at 625 (explaining the district court's broad discretion to

order jurisdictional discovery). The request for jurisdictional

discovery is granted.

9 Ill. Conclusion

The court denies Drew's motion to dismiss (document no. 8)

without prejudice to its reinstatement after NEC has had an

opportunity to conduct jurisdictional discovery. The permitted

discovery is confined to 15 written interrogatories, 5 document

requests, and 2 depositions per side. To be considered by the

court, both parties' interrogatories and document requests must

be propounded by February 27, 2009 and answered on or before

March 30, 2009. Depositions must be conducted no later than

April 3, 2009. Each party may, but is not required to, submit a

supplemental filing--not to exceed 10 pages--by April 17, 2009,

apprising the court of its respective position regarding personal

jurisdiction.

Because the court previously allowed Macari to amend her

counterclaims to include specific allegations of defamation,

NEC's Rule 12(b)(6) motion to dismiss her counterclaims (document

no. 16) is denied as moot. See DM Research, Inc. v. College of

American Pathologists, 170 F.3d 53, 56 (1st Cir. 1999) (noting

that the party opposing a motion to dismiss for failure to state

a claim "was perfectly free to respond to the motion to dismiss

by providing the district court with additional facts to make its

complaint concrete and plausible"). At Macari's request.

10 however, the portion of her counterclaims alleging malicious

prosecution is dismissed without prejudice.

SO ORDERED.

Dated: February 17, 2009

cc: William D. Pandolph, Esq. John J. Peirano, Esq. Kimberly A. Capadona, Esq. Martha Van Oot, Esq. John G. Vanacore, Esq.