Purnell v. Shoreway Acres Resort CV-96-251-SD 03/10/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Anne Purnell
v. Civil No. 96-251-SD
Shorewav Acres Resort, Inc.; Terence L. Dineen
O R D E R
In this diversity action, plaintiff Anne Purnell seeks
relief against defendants Shoreway Acres Resort, Inc. (Shoreway)
and its owner, Terence Dineen, for injuries plaintiff sustained
while a guest at Shoreway. Currently before the court is
defendants' motion to dismiss for lack of personal jurisdiction
or, alternatively, for improper venue. Plaintiff objects.
Background
Purnell, a resident of New Hampshire, is a member of a
senior citizen social group called the "Newport Seniors." In
1995 the group had planned several trips for the year, including
a trip to Cape Cod, Massachusetts.
The Cape Cod trip was organized and arranged by Tye's Top
Tour and Travel Agency (Tye's), a New Hampshire travel agency
which had been arranging trips for the Newport Seniors for approximately four years. Affidavit of Patricia L. Murphy
(Attachment #2 to Plaintiff's Objection). The travel agency
booked accommodations for the group at the Shoreway Resort in
Massachusetts. Tye's and Shoreway had maintained an ongoing
working relationship for approximately four years, during which
time Tye's received guotes and directly booked tours for New
Hampshire groups by telephone, fax, etc. Id.
In the process of arranging the accommodations for the
Newport Seniors' trip, Tye's made direct contact with Shoreway,
which included telephone calls discussing availability and price
negotiations. Shoreway and Tye's also exchanged guotes and
account sheets via fax. Id. The final plan called for the group
to arrive at Shoreway on September 13, 1995.
On September 14, 1995, plaintiff, while a registered guest
of Shoreway, slipped on a slippery porch and broke her hip. She
now seeks to recover damages from defendants.
Discussion
1. Defendants' Motion to Dismiss for Lack of Personal
Jurisdiction
a. Standard of Review
When personal jurisdiction is contested, plaintiff bears the
burden of demonstrating that jurisdiction over the defendant is
2 proper. Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995).
To meet this burden, plaintiff must make a prima facie showing
that jurisdiction is appropriate by offering "evidence that, if
credited, is enough to support findings of all facts essential to
personal jurisdiction." Bolt v. Gar-Tec Prods., Inc., 967 F.2d
671, 675 (1st Cir. 1992).1 "[T]he plaintiff ordinarily cannot
rest upon the pleadings, but is obliged to adduce evidence of
specific facts," which are set forth in the record. Foster-
Miller , supra note 1, 46 F.3d at 145. However, "a [p]laintiff's
written allegations of jurisdictional facts are construed in
[its] favor," Kowalski v. Doherty, Wallace, Pillsbury & Murphy,
787 F.2d 7, 9 (1st Cir. 1986), and the court "must accept the
plaintiff's (properly documented) evidentiary proffers as true,"
Foster-Miller, supra note 1, 46 F.3d at 145; accord Ticketmaster-
New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994).
_____ b. The New Hampshire Long-Arm Statute
The New Hampshire long-arm statute applicable to individual
defendants is New Hampshire Revised Statutes Annotated (RSA)
510:4, I (Supp. 1995), which reads:
1In some circumstances, the court may go beyond the prima facie standard and reguire an evidentiary hearing. See Bolt, supra, 967 F.2d at 676; Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 146 (1st Cir. 1995).
3 Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of the state as to any cause of action arising from or growing out of the acts enumerated above.
This statute has been interpreted "to afford jurisdiction
over foreign defendants 'to the full extent that the statutory
language and due process will allow.'" Sawtelle, supra, 70 F.3d
at 1388 (citing Phelps v. Kingston, 130 N.H. 166, 171, 536 A.2d
740 (1987)). When a state's long-arm statute is coextensive with
the outer limits of due process, the issue then collapses into
whether the exercise of personal jurisdiction satisfies the
constitutional reguirements of due process. Sawtelle, supra, 70
F.3d at 1388.
A similar conclusion is reached with respect to New
Hampshire's authority to exercise jurisdiction over an out-of-
state corporation. New Hampshire's corporate long-arm statute,
RSA 293-A:15.10, has been interpreted "to authorize jurisdiction
over foreign corporations to the full extent allowed by federal
law." McClary v. Erie Engine & Mfg. Co., 856 F. Supp. 52, 55
(D.N.H. 1994). Accordingly, the personal jurisdiction inguiry
collapses into "the single guestion of whether the constitutional
reguirements of due process have been met." Pelchat v. Sterilite
4 Corp., 931 F. Supp. 939, 944 (D.N.H. 1996) (citing Sawtelle,
supra, 70 F.3d at 1388).
c. Due Process
In order for personal jurisdiction to comport with the Due
Process Clause of the Fourteenth Amendment, certain "minimum
contacts" must exist between the defendant and the forum state.
International Shoe Co. v. State of Washington, 326 U.S. 310, 316
(1945); accord Ticketmaster, supra, 26 F.3d at 206. The First
Circuit employs a three-part analysis to determine whether a
defendant's contacts are sufficient to permit the exercise of
specific personal jurisdiction:2 (1) the claim must be related to
the defendant's forum state activities; (2) the defendant must
purposely avail itself of the privilege of conducting business in
the state, thereby "invoking the benefits and protections of that
state's laws" such that "the defendant's involuntary presence
before the state's courts [is] foreseeable;" and (3) "exercise of
2There are two different avenues by which a court may arrive at personal jurisdiction--general and specific jurisdiction. "'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.'" Foster- Miller, supra, 46 F.3d at 144 (guoting United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir. 1992)). While plaintiff discusses general jurisdiction, the focus of her assertion was specific jurisdiction. Therefore, the court's analysis will be limited to specific jurisdiction.
5 jurisdiction must . . . be reasonable." United Elec. Workers,
supra, 960 F.2d at 1089; accord Sawtelle, supra, 70 F.3d at 1388.
(1) Relatedness
The first prong of the analysis is whether the plaintiff's
claim arises out of, or relates to, defendants' activities in New
Hampshire. Id. (citing Ticketmaster, supra, 26 F.3d at 206).
"The relatedness reguirement is not met merely because a
plaintiff's cause of action arose out of a general relationship
between the parties; rather, the action must directly arise out
of the specific contacts between the defendant and the forum
state." Fournier v. Best Western Treasure Island Resort, 962
F.2d 126, 127 (1st Cir. 1992). Specifically, it focuses on "the
nexus between [the] plaintiff's claim and the defendant's
contacts with the forum." Ticketmaster, supra, 26 F.3d at 206.
The defendants' contacts with New Hampshire involved an
exchange of materials with Tye's, a New Hampshire business, to
host a trip for the Newport Seniors. Specifically, defendants
contacted Tye's through the mail, telephone, and facsimile
transmissions. The First Circuit has noted that "[t]he
transmission of information into New Hampshire by way of
telephone or mail is unguestionably a contact for purposes of our
analysis." Sawtelle, supra, 70 F.3d at 1389-90. However, the
6 defendants' contacts must somehow be "related" to the plaintiff's
injury in order to satisfy the first prong of the specific
jurisdiction analysis.
The court finds that the defendants' contacts with New
Hampshire had a sufficient nexus to plaintiff's subsequent harm
in Massachusetts such that the two can be deemed "related." As
support for this conclusion, the court turns to a recent First
Circuit case which dealt with this precise issue, Nowak v. Tak
How Investments, Ltd., 94 F.3d 708, 713-16 (1st Cir. 1996) . In
Nowak, a Massachusetts resident drowned in a Hong Kong hotel and
then brought a wrongful death diversity action in the United
States District Court for the District of Massachusetts. The
court found that when a foreign corporation directly targets
residents in an effort to forge a business relationship, the
necessary "relatedness" could exist when the resident is
subsequently harmed while engaged in activities "integral to the
relationship the corporation sought to establish." Id. at 715.
Where, as here, a defendant directly targets residents in an
ongoing effort to further a business relationship and achieves
its purpose, it is reasonable to conclude that its contacts with
the forum are "related" to the tortious result. See id. at 715.
As the "relatedness" prong has been met, the court proceeds to
the "purposeful availment" requirement.
7 (2) Purposeful Availment
"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, supra, 70 F.3d at 1391 (quoting Keeton
v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). The focus
of this requirement is whether the defendant has "engaged in any
purposeful activity related to [New Hampshire] that would make
the exercise of jurisdiction fair, just, or reasonable." Id.
(quoting Rush v. Savchuk, 444 U.S. 320, 329 (1980)).
Specifically, the two focal points of purposeful availment are
voluntariness and foreseeability. Nowak, supra, 94 F.3d at 716
(citing Ticketmaster, supra, 26 F.3d at 207) .
To be considered voluntary, the contacts with New Hampshire
must not be "based on the unilateral actions of another party or
third person." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1984). Rather, the contacts must "amount[] to a purposeful
decision by the nonresident to 'participate' in the local
economy." Bond Leather Co. v. O.T. Shoe Mfg. Co., 764 F.2d 928,
934 (1st Cir. 1985).
In this instance, there is at least minimal activity by
Shoreway which indicates a decision on its part to make itself
available to the New Hampshire traveling public. Shoreway's actions of sending bids and quotes to Tye's for the Newport
Seniors' tour package indicates that Shoreway voluntarily
contacted New Hampshire to solicit New Hampshire residents to
stay at Shoreway Acres. See Nowak, supra, 94 F.3d at 717
(finding Hong Kong defendant's correspondence with plaintiff's
husband's employer to be a voluntary contact with Massachusetts).
As for foreseeability, the defendants' contacts with New
Hampshire must be such that they should reasonably anticipate
being haled into court there. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980). In other words, it must be
foreseeable that the defendants would be subject to suit in New
Hampshire.
Defendants assert that soliciting New Hampshire residents
through advertising with Tye's does not make it reasonably
foreseeable that they would have to defend a suit in New
Hampshire. Defendants' Memorandum at 5. In support of their
assertion, they rely on Mulhern v. Holland America Cruises, 393
F. Supp. 1298, 1303 (D.N.H. 1975), which found that it was not
foreseeable for a Dutch defendant cruise line to be subject to
personal jurisdiction in New Hampshire for providing promotional
brochures to New Hampshire travel agencies. While merely
providing promotional and advertising materials to a travel
agency may not give rise to foreseeability, this court finds that Shoreway did much more in this case.
During their four-year "working" relationship with Tye's,
Shoreway provided guotes and bids on specially designed tour
packages for New Hampshire residents. Many of these bids
resulted in bookings of New Hampshire residents at Shoreway
Acres, thereby indicating that Shoreway has generated a financial
interest in New Hampshire.
The First Circuit has found that when a defendant
purposefully derives economic benefits from its forum state
activities, exercising jurisdiction in that forum is appropriate.
Pritzker v. Yari, 42 F.3d 53, 61-62 (1st Cir. 1994), cert.
denied, ___ U.S. ___, 115 S. C t . 1959 (1995).
(3) Gestalt Factors
Personal jurisdiction may only be exercised if it comports
with traditional notions of "fair play and substantial justice."
International Shoe Co., supra, 326 U.S. at 320. Courts evaluate
a series of factors, known as the gestalt factors, to ascertain
whether it would be fair to subject a nonresident to a foreign
tribunal. Burger King, supra, 471 U.S. at 477. These factors
are as follows:
(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
10 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.
(a) Burden of Appearance for Defendant
It is almost always inconvenient and costly for a party to
litigate in a foreign jurisdiction. Pritzker, supra, 42 F.3d at
64. Therefore, for this particular factor, the defendant must
show more than a hardship in litigating in a foreign
jurisdiction. It must demonstrate that "exercise of jurisdiction
in the present circumstances is onerous in a special, unusual, or
other constitutionally significant way." Id. The court finds
that the defendants, who will have to travel only approximately
100 miles, have not satisfied their burden here.
(b) Interest in the Forum
While a forum's interest is diminished where the injury
occurred outside the forum state, Sawtelle, supra, 70 F.3d at
1395, "[t]he purpose of [this] inguiry is not to compare the
forum's interest to that of some other jurisdiction, but to
determine the extent to which the forum has an interest."
Foster-Miller, supra, 46 F.3d at 151.
Even though the plaintiff's injury occurred in
11 Massachusetts, significant events took place in New Hampshire,
thereby giving New Hampshire an interest in adjudicating this
dispute. Specifically, Shoreway's continued contacts with Tye's
directly resulted in the plaintiff's and the Newport Seniors
group's staying at the hotel. C f . Nowak, supra, 94 F.3d at 719
(finding that Hong Kong corporation's solicitation of business in
Massachusetts provided that state with "a strong interest in
exercising jurisdiction even though the injury took place in Hong
Kong").
Therefore, as New Hampshire has an interest in protecting
its citizens from the unsafe services of out-of-state businesses
who actively pursue New Hampshire markets, and further, in
providing those citizens with a convenient forum to litigate
their claims, the court finds that New Hampshire has a strong
interest in exercising jurisdiction over Shoreway in this case.
(c) Plaintiff's Convenience
The First Circuit has repeatedly observed that a plaintiff's
choice of forum must be accorded a degree of deference with
respect to their convenience. See Foster-Miller, supra, 46 F.3d
at 151; Sawtelle, supra, 70 F.3d at 1395; Nowak, supra, 94 F.3d
at 718. Here, in view of plaintiff's age and physical
infirmities, it would unguestionably be more convenient for
12 plaintiff Purnell to litigate her tort claim in New Hampshire.
(d) Administration of Justice
This factor focuses on the judicial system's interest in
obtaining the most effective resolution of the controversy.
Defendants assert that this consideration would be best satisfied
by litigating the case in Massachusetts, where most of their
witnesses are located, while plaintiff asserts that most of her
witnesses reside in New Hampshire. In viewing this factor, "the
interest of the judicial system in the effective administration
of justice does not appear to cut in either direction" here. See
Ticketmaster, supra, 26 F.3d at 211.
(e) Pertinent Policy Arguments
The final gestalt factor reguires the court to consider the
common interests of all sovereigns in promoting substantive
social policies. New Hampshire has an interest in protecting its
citizens from out-of-state providers of goods and services as
well as affording its citizens a convenient forum in which to
bring their claims. Both of these interests would be better
served by exercising jurisdiction in New Hampshire. On the other
hand, Massachusetts has an interest in protecting its tourism
industry and businesses and in providing parties to a dispute
13 with a convenient forum. Balancing the two forums' interests,
the court finds that this final gestalt factor tips slightly more
in plaintiff's favor. See Nowak, supra, 94 F.3d at 719.
In sum, the gestalt factors weigh strongly in favor of
jurisdiction in New Hampshire. This finding, coupled with
plaintiff's adeguate showing on the relatedness and purposeful
availment prongs of the constitutional test, lead to a finding
that the exercise of jurisdiction in New Hampshire is reasonable
and does not offend the notions of fair play and substantial
justice.
2. Defendants' Motion to Dismiss for Improper Venue
Defendants assert that New Hampshire is not a proper venue
for this action. The relevant section of Title 28 of the United
States Code provides:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in . . . a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . .
28 U.S.C. § 1391(a)(2).
"Under this section, there may be several districts that
gualify for proper venue." F.A.I. Electronics Corp. v. Chambers,
944 F. Supp. 77, 80 (D. Mass. 1996); accord VDI Technologies v.
Price, 781 F. Supp. 85, 94 (D.N.H. 1991) . The determination of
14 proper venue is not a question of which district is the "best"
venue; rather, it is a question of whether the plaintiff chose a
district that has a substantial connection to the claim,
reqardless of whether or not other forums had qreater contacts.
Setco Enterprises v. Robbins, 19 F.3d 1278, 1281 (8th Cir. 1994).
As discussed supra, the defendants had substantial contacts
with New Hampshire throuqh their involvement with Tye's and the
economic benefit they derived from bookinq tour qroups of New
Hampshire citizens into their resort. It was these same contacts
that led plaintiff to be at Shoreway, where she fell and broke
her hip. Therefore, as applied to the case at bar, 28 U.S.C. §
1391(a)(2) renders New Hampshire a proper venue in which to
litiqate this action.
Conclusion
For the foreqoinq reasons, the court denies defendants'
motion to dismiss for lack of personal jurisdiction and improper
venue (document 4).
SO ORDERED.
Shane Devine, Senior Judqe United States District Court
March 10, 1997
15 cc: David W. Hess, Esq. Robert J. Meagher, Esq.