Sawtelle v . Farrell CV-94-392-M 04/28/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Arthur F. Sawtelle and Judith M . Sawtelle as Administrators of The Estate of Corey A . Sawtelle, Plaintiffs, v. Civil N o . 94-392-M
George E . Farrell, Esq.; Speiser, Krause, Madole & Lear, A Partnership; Michael S . Olin, Esq.; and Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Defendants.
O R D E R
This case raises an issue of substantial interest to those
rendering professional services previously considered local in
nature, but which, due to increasing ease of travel and
communication, now routinely touch or relate to distant people
and jurisdictions. The precise question of law presented in this
case is not entirely new, but neither is it completely settled:
How much contact with a foreign client's state must a lawyer have
before he or she may properly be brought before the courts of
that state to answer charges of professional negligence? In this age of advanced telecommunications, it is not
uncommon for a lawyer to represent a geographically distant
client without meeting the client in person or traveling to the
state in which the client resides. Transactions of all sorts are
now routinely initiated, negotiated, and resolved via
teleconference. Documents are easily generated, reviewed,
edited, and transmitted by facsimile, electronic mail, or
overnight express to the remotest of locations. While ease of
communication has facilitated representation of distant clients,
it has also raised difficult questions concerning the legitimate
exercise of in personam jurisdiction when those distant clients
seek to hale their attorneys into local forums.
This is a legal malpractice action in which plaintiffs seek
to recover damages allegedly sustained as a result of negligent
representation provided by two attorneys and their law firms in
connection with litigation in the State of Florida. Plaintiffs
are residents of New Hampshire and none of the defendants resides
i n , nor is any licensed to practice law in New Hampshire. Before
the court are motions to dismiss for lack of personal
jurisdiction filed by defendants George Farrell, Esquire
("Farrell"), Michael Olin, Esquire ("Olin"), Podhurst, Orseck,
2 Josefsberg, Eaton, Meadows, Olin & Perwin, P.A. (the "Podhurst firm"), and Speiser, Krause, Madole & Lear (the "Speiser firm"). 1 Fed.R.Civ.P. 12(b)(2).
Factual Background.
Plaintiffs Arthur Sawtelle and Judith Sawtelle are residents of Jaffrey, New Hampshire. On May 2 1 , 1989, their son Corey was killed in an airplane accident following a mid-air collision over the New Hampshire and Vermont border. Several months after their son's death, plaintiffs contacted a New Hampshire attorney to discuss the possibility of bringing a wrongful death suit on behalf of their son's estate.2 The local attorney (who is not a defendant here) referred plaintiffs to Attorney Juanita Madole, of Speiser, Krause, Madole & Cook, a California based law firm, with offices in other states as well. That referral was
1 Plaintiffs initially failed to serve defendant Farrell in a timely fashion and agreed to his dismissal from this case, without prejudice. They then brought a separate action against Farrell, based upon the same underlying facts as those giving rise to this action. The court consolidated the cases and now addresses each of the pending motions to dismiss. 2 Under New Hampshire law, wrongful death claims are choses in action that belong to and are brought by and on behalf of the decedent's estate. N.H. RSA 556:12.
3 presumably based on the firm's reputation for expertise in the
field of aircraft accident litigation.
In March, 1990, Attorney Madole sent duplicate originals of a retainer agreement, which she had already executed on behalf of Speiser, Krause, Madole & Cook (not a defendant) and its Washington, D.C. affiliate, the Speiser firm. Plaintiffs signed the agreement in New Hampshire and, as instructed by Attorney Madole, returned an executed original to her. Attorney Madole then transferred the case to the Speiser firm in Washington, D.C., where it was assigned to defendant Attorney George Farrell. Although Farrell never met plaintiffs in person, he spoke to them on the telephone and sent at least fifteen letters to them in New Hampshire during the course of his representation.
After reviewing the circumstances of Corey's death and the
applicable law in various forums that might be available to the
estate, Attorney Farrell recommended Florida, where the
underlying defendants resided, as the most advantageous place to
bring the estate's wrongful death case and plaintiffs' own
related claims. Plaintiffs agreed, and Farrell engaged the
Podhurst firm to assist as local counsel. The Podhurst firm, a
4 Florida professional association, is engaged in the practice of
law in the State of Florida. Defendant Michael Olin is a
resident of Florida and is a member of the Podhurst firm. He is
licensed to practice law in Florida. He is not, however,
licensed to practice law in New Hampshire. At no time during the
course of their representation of plaintiffs and the estate did
Olin or any other member of the Podhurst firm enter New Hampshire
or solicit or conduct business in New Hampshire; all work
performed for or on behalf of plaintiffs and the estate was done
in Florida.
On March 2 6 , 1991, defendant Olin filed a wrongful death action on behalf of the estate (and plaintiffs individually) in the Broward County (Florida) Judicial Circuit Court. Olin signed the complaint for the estate on behalf of both the Speiser firm and the Podhurst firm.
Plaintiffs allege that the estate's attorneys were negligent
in their handling of the matter. They say defendants negotiated
a woefully inadequate settlement of the estate's wrongful death
claim, without having taken any depositions, without having
secured an economist's projection of the decedent's lost earning
5 capacity, and without having consulted any liability experts, or
engaging in any substantial investigative efforts. Plaintiffs
further allege that defendants negligently advised them to accept
the inadequate settlement proposal ($155,000.00) which, in
reliance upon counsels' apparent expertise, they did.
Sometime later, plaintiffs discovered that the estate of Ronald Brown (Corey's flight instructor, who was killed in the same accident) had also filed a wrongful death suit in Florida (the "Brown Action"), and that the Brown Action had been consolidated with the case brought by Corey's estate. After plaintiffs had finally settled the estate's claim for $155,000.00, they learned that the similar Brown Action had settled for $500,000.00.
Plaintiffs explain the disparity between the two settlements
as the direct result of their attorneys' negligent preparation
and handling of the wrongful death action and negligent advice to
accept an inadequate settlement offer. Defendants move to
dismiss plaintiffs' suit, asserting the absence of in personam
jurisdiction over them in New Hampshire.
6 Standard of Review.
It is well established that in a diversity case personal
jurisdiction over a nonresident defendant is governed, at least
in part, by the forum state's long-arm statute. Goldman,
Antonetti, Ferraiuoli, Axtmayer & Hertell, Partnership v . Medfit
Int'l, Inc., 982 F.2d 686, 690 (1st Cir. 1993). And, when
personal jurisdiction is contested, the plaintiff bears the
burden of establishing that the court has such jurisdiction.
Kowalski v . Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7 , 8
(1st Cir. 1986).
Allegations of jurisdictional facts are construed in the
plaintiff's favor, Buckley v . Bourdon, 682 F.Supp. 9 5 , 98 (D.N.H.
1988), and, if the court proceeds based upon the written
submissions of the parties without an evidentiary hearing, the
plaintiff need only make a prima facie showing that jurisdiction
exists. Kowalski, 787 F.2d at 8 ; Boit v . Gar-Tec Products, Inc.,
967 F.2d 6 7 1 , 674-75 (1st Cir. 1992). Nevertheless, the
plaintiff's demonstration of personal jurisdiction must be based
on specific facts set forth in the record in order to defeat a
defendant's motion to dismiss. And, "in reviewing the record
before i t , a court `may consider pleadings, affidavits, and other
7 evidentiary materials without converting the motion to dismiss to
a motion for summary judgment.'" VDI Technologies v . Price, 781
F.Supp. 8 5 , 87 (D.N.H. 1991) (quoting Lex Computer & Management
Corp. v . Eslinger & Pelton, P.C., 676 F.Supp. 399, 402 (D.N.H.
1987))
Before a court may exercise personal jurisdiction over a
non-resident defendant, the plaintiff must show, first, that the
forum state's long-arm statute confers jurisdiction over the
defendant, and second, that the exercise of jurisdiction comports
with constitutional due process standards (by establishing that
the defendant has sufficient "minimum contacts" with the forum
state). Kowalski, 787 F.2d at 9-10. The New Hampshire
individual long-arm statute, N.H. RSA 510:4, "provides
jurisdiction over foreign defendants to the full extent that the
statutory language and due process will allow." Estate of Mullen
by Mullen v . Glick, N o . 94-377-L, 1994 U.S. Dist. LEXIS 16020 at
*5 (D.N.H. November 3 , 1994) (quoting Phelps v . Kingston, 130
N.H. 166, 177 (1987)). Likewise, New Hampshire's corporate long-
arm statute, N.H. RSA 293-A:15.10, authorizes jurisdiction over
foreign corporations to the full extent permitted by federal law.
8 McClary v . Erie Engine & Mfg. Co., 856 F.Supp. 5 2 , 54 (D.N.H. 1994). 3
Stated another way, New Hampshire's individual and corporate
long-arm statutes are coextensive with the outer limits of due process protection under the federal constitution. Accordingly,
the court's "proper inquiry . . . focuses on whether jurisdiction
comports with federal constitutional guarantees." Mullen, supra,
at * 6 ; see also McClary, supra, at 5 2 . Before a court may
exercise personal jurisdiction over a foreign defendant in a
manner consistent with the Constitution, the plaintiff must
demonstrate that the defendant has "certain minimum contacts with
the forum such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice."
3 In McClary v . Erie Engine & Mfg. Co., 856 F.Supp. 52 (D.N.H. 1994), this court (Devine, J.) held: [T]he Legislature's elimination of the restrictive long-arm language contained in [the former statute] and its provision for the service of foreign corporations by mail demonstrate that it intended RSA 293-A:15.10 to authorize jurisdiction over foreign corporations to the full extent allowed by federal law. Because RSA 293-A:15.10 reaches to the federal limit, the traditional two-part personal jurisdiction inquiry collapses into the single question of whether the constitutional requirements of due process have been met.
Id., at 5 5 .
9 Helicopteros Nacionales De Colombia, S.A. v . Hall, 466 U.S. 4 0 8 ,
414 (1984). And, before finding that a defendant has such
"minimum contacts," the court must be satisfied that the
defendant's conduct bears such a "substantial connection with the
forum state" that the defendant "should reasonably anticipate
being haled into court there." Burger King Corp. v . Rudzewicz,
471 U.S. 4 6 2 , 473-75 (1985) (citing World-Wide Volkswagen Corp.
v . Woodson, 444 U.S. 286, 297 (1980)).
A court may exercise either general or specific jurisdiction
over a defendant. "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." United Elec. Workers v . 163 Pleasant Street Corp.,
960 F.2d 1080, 1088 (1st Cir. 1992). Plaintiffs do not contend
that their attorneys engaged in "continuous and systematic
activity" in New Hampshire, nor do they ask the court to exercise
general jurisdiction over them. Accordingly, if the court may
properly exercise personal jurisdiction over these defendants, it
must be specific jurisdiction.
10 A court may exercise specific jurisdiction when the cause of
action arises directly out o f , or relates t o , the defendant's
forum-based contacts. United Elec. Workers, 960 F.2d at 1088-89.
In an effort to assist district courts in determining whether
they might properly exercise specific jurisdiction, the Court of
Appeals has formulated a three-part test:
First, the claim underlying the litigation must directly arise out o f , or relate t o , the defendant's forum-state contacts. Second, the defendant's in-state activities 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.
United Elec. Workers, 960 F.2d at 1089.
Discussion.
A. Relatedness.
In explaining the application of the "relatedness" prong of
the test, the Court of Appeals has:
suggested an analogy between the relatedness requirement and the binary concept of causation in tort law under which both elements - cause in fact (i.e., the injury would not have occurred "but for" the defendant's forum-state activity) and legal cause (i.e., the defendant's in-state conduct gave birth to
11 the cause of action) - must be satisfied to find causation sufficient to support specific jurisdiction.
United Elec. Workers, 960 F.2d at 1089. Here, plaintiffs claim
the following factors satisfy the "relatedness" requirement: (i)
plaintiffs executed the retainer agreement with the Speiser firm in New Hampshire; (ii) defendants directed legal advice to
plaintiffs in New Hampshire, both by telephone and through the
mail; (iii) defendants forwarded settlement documents to
plaintiffs for their execution in New Hampshire; and (iv) the
settlement proceeds were distributed in New Hampshire.
Plaintiffs conclude that, "[t]he claim underlying the litigation,
therefore, `directly arises out o f , or relates t o , the
defendant's forum-state activities.'" Plaintiffs' Memorandum at
11 (quoting United Elec. Workers, 960 F.2d at 1089).
In general then, plaintiffs say that by directing
communications to plaintiffs in New Hampshire and, more
pointedly, by negligently causing harm which plaintiffs suffered
in New Hampshire, defendants submitted themselves to the
jurisdiction of this court. See e.g. Phelps v . Kingston, 130
N.H. 166 (1987). Phelps was a malpractice action brought by a
New Hampshire resident against a Maine dentist in which the court
12 held that defendant had sufficient minimum contacts with New
Hampshire to support the exercise of in personam jurisdiction
under the state's long-arm statute. In reaching its conclusion,
the New Hampshire Supreme Court found that, while "[t]he acts
allegedly constituting the tort . . . arguably occurred entirely
in Maine . . . the injury or damage for which the plaintiff now
seeks recovery . . . apparently occurred predominantly in New
Hampshire." Id., at 172-73.
Here, however, not only did the acts allegedly constituting
the tort occur primarily, if not entirely, outside New Hampshire,
but the injury or damage also occurred predominantly outside New
Hampshire —— in Florida. This case is more closely analogous to
Kowalski v . Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7 (1st
Cir. 1986) than to Phelps. In Kowalski the court of appeals
examined whether this court (Loughlin, J.) properly dismissed a
legal malpractice action for lack of personal jurisdiction over
the defendant attorneys. The plaintiff, a New Hampshire resident
at the time of her suit, alleged that the foreign law firm
committed legal malpractice by allowing a Massachusetts wrongful
death case to be dismissed for inattention and lack of
13 prosecution. Affirming the district court's dismissal, the Court
of Appeals noted:
Plaintiffs allege that the law firm knew of Larochelle's residence in New Hampshire and argue that the "effects" of its negligence were felt in New Hampshire. This, they say, amounts to a situation where an injury is caused in New Hampshire by activity or conduct directed at that forum. We do not think New Hampshire law justifies such a quantum leap.
Id. at 1 1 . The court of appeals concluded by holding that,
"[t]he injury occurred when the suit was dismissed by the
Massachusetts court. The consequence of the dismissal is that
plaintiffs are barred from bringing a wrongful death action in
the Massachusetts courts. The injury, if any, occurred in
Massachusetts." Id., at 1 1 .
The Court of Appeals for the Ninth Circuit recently followed
suit, rejecting a similar claim by an Oregon plaintiff who
asserted that an Oregon court had personal jurisdiction over a
California law firm:
Bryant, an Oregon resident, employed defendants as counsel in a California lawsuit. In his complaint, Bryant alleged that he was injured as a result of the defendants' failure to properly serve in California a defendant company in the California lawsuit. . . . Bryant's injury did not occur in Oregon, but in California. The [district] court found that Bryant's
14 injury occurred in California because that was where ineffective service resulted in the dismissal of the defendant company in the California action. Bryant argues, without citing any authority, that his injury actually occurred in Oregon because that is where his net worth was affected by improper service on the defendant company. To permit a plaintiff to bring a suit in his own state solely on the basis that that is where he incurred an economic loss resulting from an out of state act, however, would ignore the requirement that there be sufficient `minimum contacts with the forum state' to comport with due process.
Bryant v . Weintraub, Genshlea, Hardy, Erich & Brown, 1994 U.S.
App. LEXIS 29199 at *3-4 (9th Cir. October 1 1 , 1994) (quoting
Burger King Corp. v . Rudzewicz, 471 U.S. 4 6 2 , 472 (1985)).
In another situation similar to that presented here, the
Court of Appeals for the Seventh Circuit rejected a Wisconsin
resident's claim that a Wisconsin district court had personal
jurisdiction over an out-of-state law firm:
Neither Wadel nor anyone else in his firm ever set foot in Wisconsin in connection with this matter. The only significant connection between the suit and Wisconsin is that the plaintiff lives there; and you cannot get jurisdiction over a nonresident just by showing that you are a resident and would prefer to sue in your own state's courts. By that reasoning, there would be no limits to personal jurisdiction over nonresidents.
Cote v . Wadel, 796 F.2d 9 8 1 , 984 (7th Cir. 1986). The Seventh
Circuit then concluded that, "The handful of letters and phone
15 calls that passed between [plaintiff] and the Wadel firm is not
enough to close the gap. Personal jurisdiction over nonresidents
of a state is a quid for a quo that consists of the state's
extending protection or other services to the nonresident, a
feature lacking here." Id,. at 984 (citations omitted). Here
also, plaintiffs have failed to allege a quid pro quo sufficient
to support this court's exercise of personal jurisdiction.
If plaintiffs have suffered harm, it is that they received
inadequate compensation in settlement of the estate's wrongful
death action, brought in Florida, which action has since been
dismissed with prejudice. As in Kowalski, supra, "[t]he
consequence of the dismissal is that plaintiffs are barred from
bringing a wrongful death action in the [Florida] courts. The
injury, if any, occurred in [Florida]," Kowalski, 787 F.2d at
1 1 , upon settlement of that litigation. It cannot be said that
both elements of the binary test for jurisdiction established in
United Elec. Workers, supra, are present here. It is defendants'
conduct in the course of representing plaintiffs in Florida, not
New Hampshire, which ultimately gives rise to plaintiffs' claims
of malpractice.
16 B. Purposeful Availment. To satisfy the "purposeful availment" prong of the
jurisdictional test, plaintiffs must show that defendants took
some affirmative action sufficient to promote the transaction of
business in the State of New Hampshire. United Elec. Workers, 960 F.2d at 1089-90; Sher v . Johnson, 911 F.2d 1357, 1362 (9th
Cir. 1990). Plaintiffs argue that because defendants entered
into an attorney-client relationship with them, thereby assuming
a continuing obligation to advise them with regard to the Florida
wrongful death action, defendants did "purposefully avail"
themselves of the privilege of doing business in New Hampshire.
The court is compelled to disagree.
Defendants' contacts with the State of New Hampshire simply
do not constitute "purposeful availment" of the privilege of
doing business here. While it is true that defendants agreed to
provide legal advice and representation to plaintiffs, whom
defendants knew were residents of New Hampshire, defendants'
contacts with New Hampshire were limited to communicating with
their clients at the place their clients happened to b e . The
litigation was ongoing in Florida and professional services were
delivered in Florida and perhaps elsewhere outside New Hampshire.
17 Defendants' limited contacts with New Hampshire cannot provide a
sufficient basis upon which to exercise personal jurisdiction in
a manner consistent with constitutional notions of due process.
A reported decision that would seem to support plaintiffs' position is Marlot Carpentry, Inc. v . Phillips, N o . 85-0097-WF,
1993 U.S. Dist. LEXIS 5108 at *14 (D.Ma. March 2 6 , 1993), in
which the court held that a New York attorney had submitted
himself to the jurisdiction of Massachusetts' courts by
maintaining control over Massachusetts litigation (through local
counsel), by representing to third parties that he was counsel to
one of the litigants in the Massachusetts proceeding, and by
deliberately seeking the assistance of a Massachusetts-licensed
attorney to assist him in that matter. Based upon these factors,
the court held that the out-of-state attorney had "transacted
business" in and established "minimum contacts" with the
Commonwealth sufficient to satisfy due process requirements. But
that case is distinguishable.
Here the court is not presented with an out-of-state
attorney who has exercised control over in-state litigation, but
rather with foreign counsel exercising control over foreign
18 litigation on behalf of New Hampshire residents. This case is
better compared to cases like Austad C o . v . Pennie & Edmonds, 823
F.2d 223 (8th Cir. 1987). In Austad C o . the Eighth Circuit
considered whether a New York law firm which represented a South
Dakota corporation in patent litigation filed in the federal
district court in Maryland was subject to the jurisdiction of the
federal district court in South Dakota. After reviewing the
pertinent jurisdictional facts, the court of appeals held that
the defendant law firm's contacts with South Dakota were
insufficient to satisfy the "purposeful availment" inquiry:
[C]ontacts asserted by [plaintiff] include numerous phone calls between New York and South Dakota, the use of courier services (at [plaintiff's] expense), monthly billings mailed to South Dakota, and checks paid by a South Dakota bank. These contacts, [plaintiff] contends, amounted to an ongoing attorney-client relationship between [plaintiff] and Pennie & Edmonds sufficient to warrant a finding of personal jurisdiction in this case.
While we do not dispute [plaintiff's] claim that an attorney-client relationship existed between [plaintiff] and Pennie & Edmonds, we do not believe that Pennie & Edmonds had sufficient contacts with South Dakota to confer personal jurisdiction.
Id., at 226. The Eighth Circuit has consistently held that the
use of interstate mail, telephone, and banking facilities are,
standing alone, insufficient to satisfy constitutional due
19 process prerequisites to the exercise of long-arm jurisdiction.
T.J. Raney & Sons, Inc. v . Security Savings & Loan Ass'n, 749
F.2d 523, 525 (8th Cir. 1984); Institutional Food Marketing
Associates, Ltd. v . Golden State Strawberries, Inc., 747 F.2d
448, 456 (8th Cir. 1984); Scullin Steel C o . v . National Railway
Utilization Corp., 676 F.2d 309, 314 (8th Cir. 1982); Federal
Deposit Ins. Corp. v . Malmo, N o . 89-1266-C-5, 1990 U.S. Dist.
LEXIS 20108 (E.D.Mo. March 1 2 , 1990), aff'd 939 F.2d 535 (8th
Cir. 1991).
The Court of Appeals for the Ninth Circuit has similarly
held that attorneys' telephone calls and mailings directed at the
client's state of residence are, standing alone, insufficient to
constitute "purposeful availment:"
Krug, a California resident, initially retained Lomonaco in October 1990 to represent Krug in a pending Tennessee action. . . . The normal incidents of Lomonaco's representation of Krug, such as making telephone calls and sending letters to California, do not constitute purposeful availment. Furthermore, the mere fact that Lomonaco performed services for Krug in connection with the California actions is too attenuated to create "substantial connection" with California.
Krug v . Lomonaco, 1993 U.S. App. LEXIS 20258 at * 2 , 4 (9th Cir.
August 5 , 1993).
20 Here, the defendant attorneys' contacts with the State of
New Hampshire are also limited to written and telephonic
communications with their clients. Plaintiffs do not allege that
defendants were licensed to practice law in New Hampshire, nor do
they claim that any defendant physically appeared in New
Hampshire. Defendants did not advertise their services in New
Hampshire and did not contact plaintiffs to solicit their or the
estate's business. Rather, plaintiffs sought out and retained
defendants, through a local attorney, in the jurisdictions where
defendants do practice law. But see, e.g., Clinton Paper C o . v .
Stimmel, N o . 92-11418-NG, 1994 U.S. Dist. LEXIS 8798 at *9 (D.Ma.
June 2 0 , 1994) ("Although [defendant's] firm did not actually
solicit [plaintiff's] business here, it is non-dispositive that
the plaintiffs made the initial solicitations . . . What is
significant is that defendant's contacts with the forum were
deliberate and not fortuitous.").
In Clinton Paper, supra, a federal district court held that
during the course of representing a Massachusetts corporation in
West Virginia litigation, the partners of a West Virginia law
firm "transacted business" in Massachusetts and were subject to
the jurisdiction of Massachusetts' courts under the
21 Commonwealth's long-arm statute. Specifically, the court found
that representatives of the defendants met with plaintiff in
Massachusetts, sent correspondences to plaintiff in
Massachusetts, and made a number of telephone calls to plaintiff
in Massachusetts. The court then concluded that these contacts
with the Commonwealth of Massachusetts were deliberate and non-
fortuitous and, therefore, supported the exercise of in personam
jurisdiction in a manner consistent with constitutional due
process requirements. The district court did not view Kowalski
as controlling precedent because it found the facts of Clinton
Paper to be distinguishable from those in Kowalski.
Here, however, the facts are quite similar to those in
Kowalski, and that decision does constitute controlling
precedent. Defendants' contacts with New Hampshire were limited:
written and telephonic communications with their clients, who
happened to live in this state. More is required. See e.g. Sher
v . Johnson, 911 F.2d 1357, 1363 (9th cir. 1990) ("[Defendant's]
three trips to California were discrete events arising out of a
case centered entirely in Florida; they appear to have been
little more than a convenience to the client, who would otherwise
have had to travel to Florida. . . . The same cannot be said when
22 we consider in addition the deed of trust . . . . By requiring
the execution of a deed to California real estate, the
[defendant] was looking to the laws of California to secure its
right to payment under its contract with [plaintiff.]"). There
is no indication in the pleadings that defendants sought to
invoke the protections of New Hampshire law, either by obtaining
security for payment of fees, as in Sher, or otherwise.
Plaintiffs also argue that defendant Speiser firm delivered
its legal services into the national stream of commerce by
"cultivating [its] reputation as a nationwide expert in the field
of aviation tort litigation."4 Plaintiffs claim that by holding
themselves out as national aviation law experts, defendants
purposefully derive benefits from their interstate activities,
including deliberate contact with New Hampshire. The Court of
Appeals for the First Circuit has, however, rejected the so-
called "stream of commerce" theory as a means of supporting the
4 Plaintiffs also allege that they obtained the name of the Speiser firm through an advertisement in AOPA Magazine, a magazine published by the Aircraft Owners and Pilots Association. Affidavit of Arthur Sawtelle, at para. 4 . Defendants deny having advertised in AOPA magazine and have submitted the affidavit of an advertising assistant at the Aircraft Owners and Pilots Association who states that she has personally reviewed the classified advertising in the AOPA magazine for the years 1988 through 1991 and found no advertising by the Speiser law firm.
23 exercise of personal jurisdiction over out-of-state defendants.
Boit v . Gar-Tec Products, Inc., 967 F.2d 671 (1st Cir. 1992).
And, while the fact that a defendant has introduced its product
into the national stream of commerce might well remain a relevant
consideration in personal jurisdictional analysis, plaintiffs
have still generally failed to demonstrate that defendants
"purposefully availed" themselves of the privilege of conducting
business in New Hampshire.
The totality of defendants' contacts with New Hampshire are
insufficient to meet the "purposeful availment" element of the
jurisdictional test. If it is to remain at all meaningful,
jurisdictional analysis must extend beyond a superficial
determination of the residence of the plaintiff. Here, analysis
of the pertinent facts and controlling law leads inevitably to
the firm conviction that exercising personal jurisdiction over
these defendants would contravene both Constitutional guarantees
of due process and traditional notions of fair play. Defendants'
New Hampshire contacts were not of a kind or extent that
defendants should have reasonably anticipated being haled into
court here.
24 C. The Gestalt Factors.
Finally, the "Gestalt factors," which comprise the third
part of the prescribed jurisdictional analysis, require
consideration o f :
[T]he plaintiff's interest in obtaining convenient and effective relief; the burden imposed upon the defendant by requiring [them] to appear; the forum's adjudicatory interest; the interstate judicial system's interest in the place of adjudication; and the common interest of all affected sovereigns, state and federal, in promoting substantive social policies.
Donatelli v . National Hockey League, 893 F.2d 459, 465 (1st Cir.
1990) (citations omitted). Plaintiffs convincingly argue that
the burden of litigating in New Hampshire imposed on the Speiser
firm and Farrell (Virginia residents) would not be substantively
different from the burden of litigating in Florida (of course,
the comparative burden New Hampshire litigation would pose for
the Podhurst firm and Olin, Florida residents, would be much
greater). Nevertheless, the remaining Gestalt factors weigh
against the exercise of personal jurisdiction over defendants.
While litigating their claims in New Hampshire would
obviously be most convenient to plaintiffs, that consideration is
not outcome determinative. Plaintiffs do not allege that they
25 cannot obtain fair and just relief in another forum. And, aside from plaintiffs' residency in New Hampshire, few, if any, other factors suggest that New Hampshire has a strong sovereign or social policy interest in providing the forum for resolving this dispute, particularly because the defendants are residents of other states, their professional services were performed elsewhere, those services were regulated (licensed) elsewhere, the malpractice, if any, must be judged against the prevailing standard in a foreign jurisdiction, and the harm if any occurred as a result of settlement, which occurred in Florida, the state in which plaintiffs chose to litigate. Because the underlying litigation was brought in Florida (where plaintiffs knowingly and voluntarily submitted themselves to jurisdiction and where they purposefully appeared through counsel) and because at least some of the defendants are residents of Florida and licensed to practice law there, Florida would appear to have a much greater interest in resolving the plaintiffs' allegations of malpractice than does New Hampshire. Donatelli, 893 F.2d at 465.
Conclusion.
For the foregoing reasons, the motions to dismiss submitted
by defendant Speiser, Krause, Madole & Lear (document n o . 5 ) ,
26 defendant George Farrell (document n o . 2 8 ) , and defendants
Michael Olin and Podhurst, Orseck, Josefsberg, Eaton, Meadow,
Olin & Perwin, P.A. (document n o . 11) are granted.
SO ORDERED.
Steven J. McAuliffe United States District Judge
April 2 8 , 1995 cc: Mark A . Abramson, Esq. Joseph M . Kerrigan, Esq. Paul R. Kfoury, Esq.