UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sig Sauer, Inc.
v. Civil No. 22-cv-078-LM Opinion No. 2022 DNH 083 P Jeffrey S. Bagnell, Esq., LLC & Jeffrey S. Bagnell
ORDER
Plaintiff Sig Sauer brought this action against Defendants Jeffrey S. Bagnell
and his law firm, Jeffrey S. Bagnell, Esq., LLC.1 Sig Sauer brings claims against
them for defamation, violating § 43(a) of the Lanham Act, and violating the New
Hampshire Consumer Protection Act, RSA 358-A.
Sig Sauer’s claims relate to a computer-generated animation that Bagnell
uploaded to the law firm’s website and to YouTube. The animation is about a pistol
designed and manufactured by Sig Sauer called the P320. Sig Sauer alleges that
the animation, which shows how certain defects in the P320’s design or
manufacture can cause the P320 to fire without a trigger pull, incorrectly depicts
some of the P320’s internal geometry. Sig Sauer also claims that the animation
makes assertions about the mechanics of the P320 that are physically impossible.
Sig Sauer has moved for a preliminary injunction requiring Bagnell to
remove the animation from YouTube, the law firm’s website, and “from any other
1 The parties do not distinguish between Bagnell or the law firm with respect to the claims or the personal jurisdiction issues discussed in this order. Accordingly, the court generally refers to Bagnell and the law firm together as just “Bagnell.” Any statement the court makes about “Bagnell” is equally applicable to the law firm. location over which they have control.” Doc. no. 29-1 at 5. The preliminary
injunction would also restrain Bagnell from publishing the animation elsewhere in
the future. Bagnell objected to the motion for preliminary injunction, contending,
among other arguments, that the court cannot exercise personal jurisdiction over
him and the law firm. The court scheduled a hearing on the preliminary injunction
motion for June 15, 2022.
Bagnell then moved for expedited consideration of the personal jurisdiction
issue. The court granted that motion and converted the June 15 hearing on the
preliminary injunction motion into oral argument on the subject of personal
jurisdiction.
For the reasons that follow, the court finds that it lacks personal jurisdiction
over the defendants.
STANDARD OF REVIEW
Once a challenge to personal jurisdiction has been raised, the plaintiff—Sig
Sauer—bears the burden of demonstrating personal jurisdiction. Daynard v. Ness,
Motley, Loadhold, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002). In the
absence of an evidentiary hearing,2 the court uses the prima facie standard to
evaluate whether the court has personal jurisdiction over a defendant. De Laire v.
2 Although the court scheduled an evidentiary hearing on this and other issues
related to Sig Sauer’s motion for a preliminary injunction, the parties agreed that the court should address the matter of personal jurisdiction on the papers and with the aid of oral argument.
2 Voris, No. 21-cv-131-JD, 2021 WL 1227087, at *2 (D.N.H. Apr. 1, 2021). Under the
prima facie standard, the court takes the plaintiff’s properly supported proffers of
evidence as true and construes those proffers in the light most favorable to the
plaintiff. Nandjou v. Marriott Int’l, Inc., 985 F.3d 135, 147 (1st Cir. 2021); see Lin
v. TipRanks, Ltd., 19 F. 4th 28, 33 (1st Cir. 2021) (explaining that the court takes
the “specific facts affirmatively alleged by the plaintiff as true” regardless of
whether they are disputed but, at the same time, does not credit “conclusory
allegations” or “conclusory averments” without “evidence of specific facts”). The
court also considers any undisputed facts offered by the defendant. Kuan Chen v.
U.S. Sports Acad., Inc., 956 F.3d 45, 54 (1st Cir. 2020).
BACKGROUND
The parties have no material dispute about the facts as they relate to
personal jurisdiction. This case revolves around the P320 pistol. Sig Sauer, whose
headquarters are in New Hampshire, designed and manufactures the P320 in New
Hampshire.
Bagnell and his law firm are Connecticut residents. Bagnell’s practice
includes representing plaintiffs in lawsuits against Sig Sauer alleging that Sig
Sauer’s negligent design and manufacture of the P320 allows it to be fired without a
trigger pull. In other words, according to Bagnell and his clients, the P320
sometimes fires when it is not supposed to fire—such as when it is holstered and
subjected to certain external forces.
3 Bagnell commissioned the computer-generated animation at issue in this
case in 2020. A Colorado-based company produced the animation. Doc. no. 22-1
¶ 42. The animation purports to depict how the P320 can fire without someone
pulling the trigger. That is, the animation shows how the safety mechanisms in the
P320 can fail, resulting in the gun firing in unexpected situations. Bagnell
uploaded the animation to YouTube and the law firm’s website in 2021. Prior to its
removal pending the court’s decision on Sig Sauer’s preliminary injunction motion,
the animation was viewed at least 36,000 times on YouTube. The parties did not
submit evidence about how many times the animation was viewed on the law firm’s
website.
As noted, Sig Sauer alleges that the animation falsely depicts certain
components of the P320 and its mechanics. Sig Sauer brings claims for defamation,
violation of § 43(a) of the Lanham Act, and unfair competition under RSA 358-A.
DISCUSSION
Bagnell contends that this court lacks personal jurisdiction because he and
his law firm are Connecticut residents and the animation was posted to the firm’s
website and to YouTube from Connecticut. Bagnell adds that Sig Sauer has failed
to allege that any New Hampshire resident watched the animation and then
decided not to purchase a Sig Sauer gun. Thus, Bagnell asserts, the only connection
between the relevant facts and New Hampshire is Sig Sauer’s headquarters, and
the court cannot exercise personal jurisdiction over a defendant based only on the
4 plaintiff’s contacts with the forum state. See Walden v. Fiore, 571 U.S. 277, 284
(2014).
Sig Sauer responds that this court has personal jurisdiction over Bagnell
because the allegedly defamatory material targets a company headquartered in
New Hampshire that is one of New Hampshire’s largest employers. Sig Sauer adds
that the alleged defamatory material involves New Hampshire-based activity—
namely, the design and manufacture of the P320 pistol.
The Fourteenth Amendment’s Due Process Clause3 prohibits a court from
asserting personal jurisdiction over a defendant unless the defendant has sufficient
minimum contacts with the forum state to allow the defendant to reasonably
anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S.
462, 474 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). The court may have personal jurisdiction over a defendant through either
“general” or “specific” jurisdiction. See PREP Tours, Inc. v. Am. Youth Soccer Org.,
913 F.3d 11, 17 (1st Cir. 2019). In this case, Sig Sauer seeks to establish specific
jurisdiction. The test for determining specific jurisdiction has three prongs, all
3 The Fourteenth Amendment’s Due Process Clause applies to the extent Sig
Sauer relies on federal-question jurisdiction because the Lanham Act does not authorize nationwide service of process and New Hampshire’s long-arm statute, RSA 510:4(I), is coextensive with the Fourteenth Amendment. See 15 U.S.C. § 1125; United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085-86 (1st Cir. 1992) (explaining the interaction between the Fifth Amendment, Fourteenth Amendment, and Federal Rule of Civil Procedure 4 that results in the Fourteenth Amendment’s application in some federal question cases); Sarah’s Hat Boxes, L.L.C. v. Patch Me Up, L.L.C., No. 12-cv-399-PB, 2013 WL 1563557, at *3 n.4 (D.N.H. Apr. 12, 2013) (applying Fourteenth Amendment due process analysis to Lanham Act claim).
5 three of which must be met if the court is to exercise personal jurisdiction over a
defendant:
First, the claim underlying the litigation must directly arise out of, or relate to, the defendant’s forum-state activities. Second, the defendant’s in-state contacts 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 be reasonable.
Id. (emphases added) (quoting United Elec., Radio & Mach. Workers of Am., 960
F.2d at 1089).
The court addresses only the second prong, purposeful availment, because Sig
Sauer has failed to show it here. The purposeful availment prong is met if the
defendant engaged in purposeful activity with the forum state that makes the
forum state’s exercise of jurisdiction fair, just, and reasonable. Sawtelle v. Farrell,
70 F.3d 1381, 1391 (1st Cir. 1995). “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.” Id. It is
a “highly ‘fact-specific’” inquiry. PREP Tours, Inc., 913 F.3d at 17 (quoting United
Elec., Radio & Mach. Workers of Am, 960 F.2d at 1089).
In the context of defamation claims, the court applies the “effects” test
derived from Calder v. Jones, 465 U.S. 783, 788-89 (1984), to determine whether a
defendant’s contacts are sufficient to make the exercise of jurisdiction fair, just, and
reasonable. E.g., Hugel v. McNell, 886 F.2d 1, 4 (1st Cir. 1989); Brown v. Dash,
2020 WL 6806433, at *9-*10 (D. Mass. Nov. 18, 2020). Under the effects test, the
6 court considers the nature of the allegedly defamatory material and its publication,
asking whether the forum state was the focal point of the defamatory material and
the plaintiff’s alleged injuries. Calder, 465 U.S. at 789.
Although the effects test looks at how the alleged defamation harmed the
plaintiff in the forum state, purposeful availment still “focuses on the defendant’s
intentionality.” See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 623 (1st
Cir. 2001). The Supreme Court has “consistently rejected attempts to satisfy the
defendant-focused ‘minimum contacts’ inquiry by demonstrating contacts between
the plaintiff (or third parties) and the forum State.” Walden, 571 U.S. at 284. The
place where the injury occurred and where the plaintiff resides “is jurisdictionally
relevant only insofar as it shows that the defendant has formed a contact with the
forum State.” Id. at 290.
For example, in Calder, the plaintiff’s residency and employment in the
forum state were jurisdictionally relevant because the defendants gathered
information for a defamatory story from sources in the forum state, the defendants
aimed the defamatory story at the forum state, and the defendants published the
story in a tabloid with wide circulation in the forum state “knowing that the injury
would be felt in the forum.” Swiss Am. Bank, Ltd., 274 F.3d at 624 (citing and
discussing Calder’s holding). Specifically, the plaintiff in Calder was a well-known
entertainer and California resident who brought an action for libel against the
author and editor of a National Enquirer story. 465 U.S. at 785. Both defendants
were Florida residents. Id. The National Enquirer, however, had a very large
7 circulation in California that was nearly twice the circulation of the next highest
state. Id. In researching the libelous story, the author called sources in California.
Id. But, beyond writing, editing, and publishing the libelous story, neither
defendant had relevant contacts with California. Id.
Critically, however, “[t]he allegedly libelous story concerned the California
activities of a California resident. It impugned the professionalism of an
entertainer whose television career was centered in California.” Id. at 788. Given
those facts plus the defendants’ other contacts with California (the author’s calls to
sources in California and the wide publication of National Enquirer in California)
the Supreme Court found that “California is the focal point both of the story and of
the harm suffered.” Id. at 788-89. Accordingly, the Court held that jurisdiction was
proper in California based on how the defendants’ conduct in Florida affected the
plaintiff in California. See id. at 789. That is, if a defendant intentionally aims
defamatory material at the forum state and knows or should know that the effects
of the defamatory material are likely to have a “devastating impact” on the plaintiff
in the forum state, then the defendant’s knowledge about the defamatory material’s
effects in the forum state becomes “a purposeful contact or substantial connection
whereby the intentional tortfeasor could reasonably expect to be haled into the
forum State’s courts to defend his actions.” See Hugel, 886 F.2d at 4-5 (citing
Calder, 465 U.S. at 789-90).
Calder, however, must be read in light of Walden v. Fiore, a more recent
Supreme Court decision that further clarifies the Supreme Court’s reasoning in
8 Calder. In Walden, the defendant, a police officer in Georgia, wrongfully seized a
large sum of money from the plaintiffs while they were travelling from Georgia to
their residence in Nevada. 571 U.S. at 279-81. The defendant knew that the
plaintiffs lived in Nevada, and the plaintiffs felt the harm resulting from the
seizure—the loss and delayed return of their money—in Nevada. Id. After the
plaintiffs brought suit in Nevada, the defendant moved to dismiss for lack of
personal jurisdiction. Id. at 281. The Supreme Court thus addressed “whether a
court in Nevada may exercise personal jurisdiction over a defendant on the basis
that he knew his allegedly tortious conduct in Georgia would delay the return of
funds to plaintiffs with connections to Nevada.” Id. at 279.
Despite Nevada being the plaintiffs’ place of residence and the place where
they were likely to feel the most harm resulting from the defendant’s tortious
conduct, the Supreme Court held that the Nevada court could not exercise personal
jurisdiction over the defendant. Id. at 290. The Court emphasized that contacts
between the plaintiff and the forum state alone do not suffice to show purposeful
contacts between the defendant and the forum state. Id. (“Calder made clear that
mere injury to a forum resident is not a sufficient connection to the forum.”). “Put
simply, however significant the plaintiff’s contacts with the forum may be, those
contacts cannot be ‘decisive in determining whether the defendant’s due process
rights are vindicated.’” Id. at 285.
The Court acknowledged that, in Calder, it held that “the reputation-based
‘effects’ of the alleged libel connected the defendants to California, not just to the
9 plaintiff.” Id. at 287. But personal jurisdiction did not exist in Calder merely
because the plaintiff happened to live in California. Id. at 287, 290. Rather, the
defendants’ actions—reaching out to sources in California and writing an article for
publication in California “that was read by a large number of California citizens” in
combination “with the various facts that gave the article a California focus, sufficed
to authorize the California court’s exercise of jurisdiction.” Id. at 288. In contrast,
in Walden, the defendant’s actions and the effects of his actions were not “tethered
to Nevada in any meaningful way”—at least not beyond the fortuitous circumstance
that the plaintiffs happened to live there. See id. at 290.
Turning to the facts before the court, Sig Sauer has not established under the
effects test that Bagnell has sufficient minimum contacts with New Hampshire for
the court to assert personal jurisdiction. Merely making the animation generally
available over the internet, such that it was accessible to New Hampshire residents,
is not sufficient to show that the animation was aimed at New Hampshire. See
McBee v. Delica Co., Ltd., 417 F.3d 107, 124 (1st Cir. 2005) (“To put the principle
broadly, the mere existence of a website that is visible in a forum and that gives
information about a company and its products is not enough, by itself, to subject a
defendant to personal jurisdiction in that forum.”); BroadVoice, Inc. v. TP
Innovations LLC, 733 F. Supp. 2d 219, 225 (D. Mass. 2010) (finding that a
“defamatory website” was not aimed at Massachusetts merely because it was about
a Massachusetts business and could be accessed by Massachusetts residents).
10 Further, there is no evidence that Bagnell targeted or directed the website,
the YouTube page, or the animation to New Hampshire residents specifically.
Although the animation concerns claimed defects of the P320, which was designed
and is manufactured in New Hampshire, the animation does not identify where the
P320 is designed and manufactured. There is no evidence that New Hampshire was
mentioned on the YouTube page where the animation was uploaded or on the law
firm’s website.
The only mention of New Hampshire in the animation occurs for a few
seconds just before the animation ends, when the animation briefly displays a press
release that—according to the release— was issued by Sig Sauer to rebut “social
media rumors questioning the safety of the P320 pistol . . . .” The beginning line of
that press release states the location of the release as Newington, New Hampshire.
The display of a press release that happens to reference New Hampshire in passing
is insufficient to show that Bagnell aimed the animation at New Hampshire and
intended the injurious effects of the animation to be felt primarily in New
At bottom, the only link between the animation and New Hampshire is Sig
Sauer’s own connection to New Hampshire. See Walden, 571 U.S. at 287-88. And,
during oral argument, Sig Sauer could not identify a single action by Bagnell
related to creating or publishing the animation that occurred in New Hampshire
and none is apparent from the record. Thus, the fact that Sig Sauer’s headquarters,
design, and manufacturing are in New Hampshire “is entirely fortuitous in the
11 context of the conduct on which plaintiff bases its claims.” See NeoDevices, Inc. v.
NeoMed, Inc., No. 08-cv-375-SM, 2009 WL 689881, at *10 (D.N.H. Mar. 12, 2009)
(applying effects test and finding purposeful availment prong not met when
allegedly false statements about a New Hampshire-based business were not
intentionally directed toward New Hampshire); BroadVoice, Inc., 733 F. Supp. 2d at
225.
Sig Sauer argues that this case is similar to de Laire v. Voris and Hugel v.
McNell, both of which applied the effects test and found the purposeful availment
prong met when individuals suffered reputational harm in New Hampshire. In de
Laire, the court applied the effects test and exercised jurisdiction over an out-of-
state defendant who published on the internet an allegedly defamatory article
concerning the professional activities of a pastor of a New Hampshire parish. 2021
WL 1227087, at *5. When preparing the article, its author travelled to and spoke
with sources in New Hampshire. Id. at *4-*5. Given these facts, the court found
that the article’s author knew that New Hampshire was the location where the
defendant would feel the effects of the defamatory material the most. Id.
And in Hugel, the plaintiff “had an established reputation as a businessman
and public servant” in New Hampshire and the defamatory material attacked the
plaintiff’s honesty, which resulted in a particular and specific impact on the plaintiff
in New Hampshire. Like de Laire, the likelihood that the impact would be felt
principally in New Hampshire was obvious and known to the defendants. See
Hugel, 886 F.2d at 5.
12 In contrast to de Laire and Hugel, as well as Calder, in this case there are
insufficient facts that would have put Bagnell on notice that the animation would
have a focused impact on Sig Sauer in New Hampshire. Sig Sauer highlights the
extent of its operations in New Hampshire and compares itself to the individuals
involved in Calder, de Laire, and Hugel. But Sig Sauer’s New Hampshire
operations do not necessarily make it like an individual who suffers reputational
harm in a forum state as a result of defamation. In other words, the plaintiffs in
Calder, de Laire, and Hugel each suffered focused reputational injuries in their
respective forum states: the entertainer in California (Calder), the pastor of a New
Hampshire parish (de Laire), and the New Hampshire businessperson (Hugel). By
contrast, in this case there is no evidence that Sig Sauer’s business—selling
firearms—is so focused in New Hampshire that the reputational harm suffered by it
creates a meaningful contact between Bagnell and New Hampshire.
In sum, Sig Sauer argues that the court should exercise personal jurisdiction
over Bagnell based on Sig Sauer’s own contacts with New Hampshire, namely, its
various operations in the state. But those contacts cannot be imputed to Bagnell.
Without allegations or evidence that Bagnell intentionally acted to aim the
defamatory material at New Hampshire and knew or should have known that the
effects of the allegedly defamatory material would be focused on New Hampshire,
Sig Sauer’s operations in New Hampshire do not establish the minimum contacts
necessary to confer personal jurisdiction.
13 CONCLUSION
The court lacks personal jurisdiction over Bagnell. During oral argument,
Sig Sauer requested that, in lieu of outright dismissal, the court transfer this suit to
the District of Connecticut in light of the extensive briefing that has already
occurred on the preliminary injunction motion. Bagnell objected but did not
articulate a compelling basis to deny transfer. The court finds that it is in the
interest of justice to transfer the case to the District of Connecticut. See 28 U.S.C.
§ 1631 (stating that if the “court finds that there is want of jurisdiction, the court
shall, if it is in the interest of justice, transfer such action . . . to any other such
court” where the action could have been brought when it was filed); Cimon v.
Gaffney, 405 F.3d 1, 7 & n.21 (1st Cir. 2005) (indicating that § 1631 allows transfer
when the court lacks personal jurisdiction or subject matter jurisdiction); Belmont
v. Bower, No. 19-cv-1155-LM, 2020 WL 1290356, at *4-*5 (D.N.H. Mar. 18, 2020)
(explaining that a presumption in favor of transfer exists under § 1631).
Accordingly, the court directs the clerk of court to transfer this case to the
United States District Court for the District of Connecticut.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
July 12, 2022
cc: Counsel of Record.