Sarasota CCM v. Marshall, et al.

2003 DNH 100

• Court: District Court, D. New Hampshire
• Decided: June 11, 2003
• Docket: CV-02-401-M
• Status: Published

Opinion

Sarasota CCM v . Marshall, et a l . CV-02-401-M 06/11/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sarasota CCM, Inc., Plaintiff

v. Civil N o . 02-401-M Opinion N o . 2003 DNH 100 George Z . Marshall; John H . Marshall, III; and John V . Daly, Trustee of William Taylor Realty Trust, Kincaid Dozier Realty Trust and Mulherin Realty Trust, Defendants

O R D E R

Plaintiff, holder of a promissory note, has sued on that

note. Before the court is a motion to dismiss filed by two of

the note’s makers, George Z . Marshall and John H . Marshall, III

(“the Marshalls”) (document n o . 1 2 ) . The Marshalls raise

multiple grounds for dismissal, all but one of which were

rejected, by order dated January 2 7 , 2003, in response to John V .

Daly’s motion to dismiss. The only ground for dismissal that

remains unaddressed is the Marshalls’ argument that the court

lacks personal jurisdiction over them. Because their argument is

without merit, the Marshalls’ motion to dismiss is denied. The Marshalls argue that the court lacks jurisdiction under

New Hampshire’s long-arm statute and that plaintiff has made an

insufficient showing of relatedness and purposeful availment/

minimum contacts for this court’s exercise of personal

jurisdiction to be lawful under the due process clause of the

United States constitution. They also argue, without reference

to relevant gestalt factors, that it would not be reasonable for

this court to exercise personal jurisdiction over them. See

Sawtelle v . Farrell, 70 F.3d 1381, 1394 (1st Cir. 1995) (citing

Burger King Corp. v . Rudzewicz, 471 U.S. 4 6 2 , 477 (1985) (setting

out the five gestalt factors for assessing the reasonableness of

a court’s exercise of personal jurisdiction).

The exhibits appended to plaintiff’s objection to

defendants’ motion to dismiss provide affirmative proof of the

following facts: (1) plaintiffs are suing on a promissory note

executed in Manchester, New Hampshire; (2) BankEast, with a

principal place of business in Portsmouth, New Hampshire, was the

original holder; (3) defendants gave the note as part of a work-

out agreement between BankEast and, inter alia, George Z .

Marshall, John H . Marshall, I I I , Magnolia Corporation (a Delaware

2 corporation, registered to do business in New Hampshire, of which

George Z . Marshall was an officer), and Continental Properties (a

New Hampshire general partnership of which the Marshalls were

general partners); (4) Magnolia Corporation and Continental

Properties had a Portsmouth, New Hampshire, mailing address; (5)

the work-out agreement that gave rise to the promissory note

recites that Magnolia Corporation and Continental properties,

together with William Taylor Realty Trust and Kincaid Dozier

Realty Trust, operated a property in Portsmouth, New Hampshire,

as a joint venture.

Plaintiffs have offered affirmative proof justifying

application of New Hampshire’s long-arm statute, N . H . R E V . STAT.

A N N . § 510:4, I , and that meets the relatedness and minimum

contacts/purposeful availment prongs of the federal due process

test for personal jurisdiction. See Mass Sch. of Law v . Am. Bar

Ass’n, 142 F.3d 2 6 , 35 (1st Cir. 1998). The Marshalls, by virtue

of their involvement with Magnolia Corporation and Continental

property transacted business in New Hampshire, and purposely

availed themselves of the opportunity of doing s o , by:

registering Magnolia Corporation with the New Hampshire Secretary

3 of State, establishing Continental Properties as a general

partnership under New Hampshire law, participating in a joint

venture to operate a property in Portsmouth, granting a mortgage

on that property to BankEast, negotiating a work-out agreement

with BankEast, and making the promissory note at issue here as

part of that work-out agreement. Because plaintiff has made a

strong showing with regard to relatedness and purposeful

availment, and the Marshalls have made no showing with regard to

reasonableness, their motion to dismiss for lack of personal

jurisdiction is denied. See Sawtelle, 70 F.3d at 1394 (citing

Ticketmaster-New York, Inc. v . Alioto, 26 F.3d 2 0 1 , 210 (1st Cir.

1994) (explaining that after plaintiff make a showing on

relatedness and purposeful availment, defendant must demonstrate

unreasonableness); see also Danton v . Innovative Gaming Corp. of

Am., 246 F. Supp. 2d 6 4 , 71 (D. M e . 2003) (citations omitted)

(“Once the plaintiff makes a prima facie showing of relatedness

and minimum contacts/purposeful availment, the burden shifts to

the defendant to convince the court that the Gestalt factors

militate against the exercise of jurisdiction.”) (citations

omitted).

4 Conclusion

The motion to dismiss (document n o . 12) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

June 1 1 , 2003

cc: David C . Engel, Esq. Lawrence M . Edelman, Esq. Frank P. Spinella, Jr., Esq.