Steir v. Girl Scouts CV-00-456-B 09/10/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Linda J. Steir, m/n/f Marika Steir
v. Civil N o . 00-456-B 2002 DNH 167 Girl Scouts of the USA and Spar & Spindle Council of the Girl Scouts
MEMORANDUM AND ORDER
Marika Steir (“Marika”), through her mother Linda Steir
(“Steir”), brings this action against the Girl Scouts of the
United States of America (“GSUSA”) and the Spar & Spindle Council
(“Spar & Spindle”) alleging that the GSUSA and Spar & Spindle
failed to make reasonable accommodation for Marika in violation
of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., and the New Hampshire Law Against Discrimination
(“LAD”), N.H. Rev. Stat. Ann. ch. 354-A (1995 & Supp. 2001).
Steir also brings a common law intentional infliction of
emotional distress claim, alleging that one or more incidents
giving rise to this suit caused Marika severe emotional distress. Defendant GSUSA moves to dismiss for lack of personal
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). For the
reasons that follow, I deny the motion.
I. BACKGROUND1
GSUSA is a federally chartered, non-profit membership
organization. See 36 U.S.C. § 80301. Its purposes are:
(1) to promote the qualities of truth, loyalty, helpfulness, friendliness, courtesy, purity, kindness, obedience, cheerfulness, thriftiness, and kindred virtues among girls, as a preparation for their responsibilities in the home and for service to the community; (2) to direct and coordinate the Girl Scout movement in the United States and territories and possessions of the United States; and (3) to fix and maintain standards for the movement that will inspire the rising generation with the highest ideals of character, patriotism, conduct, and attainment.
36 U.S.C. § 80302. The national organization charters 317
regional councils throughout the United States, which in turn
oversee local troops. To obtain a charter, a regional council
1 The background facts are drawn from the parties’ evidentiary submissions and are considered in the light most favorable to the plaintiffs. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995).
-2- must agree to subscribe to the purposes and adhere to the
policies and guidelines of GSUSA. A regional council must make
reports of its work to GSUSA and pay a charter fee. A charter
confers upon a regional council the right to be identified with
GSUSA and use the term “Girl Scouts.”
Charters are valid for four years. Eighteen months before a
regional council’s charter is to expire, GSUSA conducts a review
of the council’s performance. Findings from a review are
presented to committees, and, ultimately, to GSUSA’s Board of
Directors. If a charter is renewed, it is done so with an
accompanying letter outlining the strengths and weaknesses of the
regional council. Should a council be found to be particularly
deficient, the Board of Directors can renew a charter with
qualifications, or not renew a charter at all. The Board of
Directors also has the right to conduct compliance audits of
regional councils.
GSUSA has issued a charter to Spar & Spindle to use the Girl
Scout name in New Hampshire. GSUSA nevertheless maintains that
its connection with Spar & Spindle is too attenuated, and its
contacts with New Hampshire too minimal, for this court to
maintain personal jurisdiction over i t . In support of this
-3- contention, GSUSA notes that it does not own, lease or operate
any real estate or other property in New Hampshire, does not have
an agent or personal representative in New Hampshire, nor has it
ever been licensed to do business in New Hampshire. It also
alleges that it does not maintain an office or a bank account,
and does not have any paid employees in New Hampshire.
II. STANDARD OF REVIEW
When a defendant contests personal jurisdiction under Fed.
R. Civ. P. 12(b)(2), the plaintiff bears the burden of showing
that a basis for asserting jurisdiction exists. See Mass. Sch.
of Law at Andover, Inc. v . Am. Bar Ass’n., 142 F.3d 2 6 , 34 (1st
Cir. 1998); Rodriguez v . Fullerton Tires Corp., 115 F.3d 8 1 , 83
(1st Cir. 1997). Because I have not held an evidentiary hearing,
Steir need only make a prima facie showing that the court has
personal jurisdiction over GSUSA. See Sawtelle v . Farrell, 70
F.3d 1381, 1386 n.1 (1st Cir. 1995) (citing United Elec. Radio
and Mach. Workers of Am. (UE) v . 163 Pleasant S t . Corp., 987 F.2d
3 9 , 43 (1st Cir. 1993) [hereinafter Pleasant S t . I I ] ) .
To make a prima facie showing of jurisdiction, Steir may not
rest on the pleadings. Rather, she must “adduce evidence of
-4- specific facts” that support her jurisdictional claim. Foster-
Miller, 46 F.3d at 145; Pleasant S t . I I , 987 F.2d at 4 4 . I take
the facts offered by the plaintiff as true and construe them in
the light most favorable to the plaintiff’s claim. See Mass.
Sch. of Law, 142 F.3d at 3 4 ; Foster-Miller, 46 F.3d at 145. I do
not act as a fact-finder; instead, I determine “whether the facts
duly proffered, [when] fully credited, support the exercise of
personal jurisdiction.” Rodriguez, 115 F.3d at 84 (citing Boit
v . Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)).
While the prima facie standard is liberal, I need not
“‘credit conclusory allegations or draw farfetched inferences.’”
Mass. Sch. of Law, 142 F.3d at 34 (quoting Ticketmaster-New York,
Inc. v . Alioto, 26 F.3d 201, 203 (1st Cir. 1994)). I also
consider facts offered by the defendant, but only to the extent
that they are uncontradicted. See id.
When assessing personal jurisdiction over a non-resident
defendant in a diversity of citizenship case,2 “a federal court
2 Steir might alternatively argue that the court has federal question jurisdiction over her ADA claim and supplemental jurisdiction over her state law claims. Personal jurisdiction in a federal question case is governed by the Fifth Amendment’s due process clause rather than by its Fourteenth Amendment counterpart. United States v . Swiss Am. Bank, Ltd., 274 F.3d
-5- exercising diversity jurisdiction ‘is the functional equivalent
of a state court sitting in the forum state.’” Sawtelle, 70 F.3d
at 1387 (quoting Ticketmaster, 26 F.3d at 2 0 4 ) . Accordingly, I
must determine whether an exercise of jurisdiction is proper
under both the New Hampshire long-arm statute and the due process
requirements of the federal constitution. See id.; Foster-
Miller, 46 F.3d at 144. The New Hampshire long-arm statute,
which permits the exercise of personal jurisdiction over a
defendant who “transacts any business within [the] State” or
“commits a tortious act within [the] State,” N.H. Rev. Stat. Ann.
§ 510:4, I (Supp. 1994), is coextensive with the federal due
610, 618 (1st Cir. 2001). Under the Fifth Amendment, “a plaintiff need only show that the defendant has adequate contacts with the United States as a whole, rather than with a particular state.” Id. In a case such as this, however, where the federal question arises under a statute that does not provide for nationwide service of process, Rule 4(e) of the Federal Rules of Civil Procedure requires a court to also look to the forum state’s long-arm statute to determine the existence of personal jurisdiction. See United Elec., Radio and Mach. Workers of Am. v . 163 Pleasant S t . Corp., 960 F.2d 1080, 1086 (1st Cir. 1992); Sculptchair, Inc. v . Century Arts, Ltd., 94 F.3d 623, 626-27 (11th Cir. 1996). Because, as I have noted, New Hampshire’s long-arm statute is co-extenstive with the Fourteenth Amendment’s due process standard, the personal jurisdiction analysis is the same in this case regardless of whether the court’s subject matter jurisdiction rests on federal question jurisdiction or diversity jurisdiction.
-6- process standard. See Phelps v . Kingston, 130 N.H. 166, 171
(1987); Seymour v . Parke, Davis & Co., 294 F. Supp. 1257, 1259
(D.N.H. 1969) (N.H. Rev. Stat. Ann. § 293-A:15.10 reaches as far
as due process allows). Therefore, I proceed directly to the
constitutional due process analysis.
III. ANALYSIS
The Due Process Clause precludes a court from asserting
jurisdiction over a defendant unless “the defendant’s conduct and
connection with the forum State are such that [it] should
reasonably anticipate being haled into court there.” World-Wide
Volkswagen Corp. v . Woodson, 444 U.S. 286, 297 (1980). Because
the constitutional inquiry is founded on “‘traditional
conception[s] of fair play and substantial justice,’” Burger King
Corp. v . Rudzewicz, 471 U.S. 462, 464 (1985) (quoting Int’l Shoe
Co. v . Washington, 326 U.S. 310, 320 (1945)) (alteration in
original), determining personal jurisdiction has always been
“more an art than a science,” Ticketmaster, 26 F.3d at 206
(quoting Donatelli v . Nat’l Hockey League, 893 F.2d 459, 468 n.7
(1st Cir. 1990)).
-7- The “constitutional touchstone” for personal jurisdiction is
“whether the defendant purposefully established ‘minimum
contacts’ in the forum State.” Burger King, 471 U.S. at 474
(citing Int’l Shoe, 326 U.S. at 3 1 6 ) ; see also Sawtelle, 70 F.3d
at 1388. The inquiry into “minimum contacts” is necessarily
fact-specific, “involving an individualized assessment and
factual analysis of the precise mix of contacts that characterize
each case.” Pritzker v . Yari, 42 F.3d 5 3 , 60 (1st Cir. 1994). A
defendant cannot be subjected to a forum state’s jurisdiction
based solely on “random,” “fortuitous,” or “attenuated” contacts.
Burger King, 471 U.S. at 475 (quoting Keeton v . Hustler Magazine,
Inc., 465 U.S. 770, 774 (1984); World-Wide Volkswagen, 444 U.S.
at 299) (internal quotation marks omitted). Rather, “it is
essential in each case that there be some act by which the
defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.” Id. (quoting Hanson v .
Denckla, 357 U.S. 235, 253 (1958)).
A court may assert authority over a defendant by means of
either general or specific jurisdiction. See Mass. Sch. of Law,
-8- 142 F.3d at 34 (citing Donatelli, 893 F.2d at 462-63); Foster-
Miller, 46 F.3d at 144. A defendant who has engaged in
continuous and systematic activity in a forum is subject to
general jurisdiction in that forum with respect to all causes of
action, even those unrelated to the defendant’s forum-based
activities. See Phillips Exeter Acad. v . Howard Phillips Fund,
Inc., 196 F.3d 284, 288 (1st Cir. 1999) (citing Helicopteros
Nacionales de Colombia, S.A. v . Hall, 466 U.S. 408, 414 (1984);
Donatelli, 893 F.2d at 462-63). A court may exercise specific
jurisdiction, by contrast, only when the cause of action arises
from, or relates t o , the defendant’s contacts with the forum.
See id.; Pritzker, 42 F.3d at 6 0 . Here, I evaluate Steir’s claim
that this court has general personal jurisdiction.
Two criteria must be met to establish general jurisdiction:
(1) “‘continuous and systematic general business contacts’” must
exist between the defendant and the forum; and (2) the exercise
of jurisdiction must be reasonable as demonstrated by certain
“gestalt factors.” United States v . Swiss America Bank, Ltd.,
274 F.3d 6 1 0 , 619 (1st Cir. 2001), (quoting Helicopteros
Nacionales de Columbia, S.A. v . Hall, 466 U.S. 408, 416 (1984)).
-9- The standard for such a showing is high. See Helicopteros, 466
U.S. at 414 (1984); Donatelli, 893 F.2d at 463.
Steir argues that GSUSA has continuous and systematic
contacts with New Hampshire because: (1) GSUSA receives
membership dues from each girl who registers as a Girl Scout in
New Hampshire; (2) GSUSA receives royalty income from sales of
Girl Scout cookies in New Hampshire; (3) GSUSA sells to New
Hampshire residents Girl Scout uniforms, clothing, badges, pins,
manuals and other paraphernalia through its catalog and website;
(4) GSUSA offers training sessions and collects registrations
fees for the sessions from New Hampshire troop leaders and other
volunteers; (5) GSUSA has held at least one regional training
session in New Hampshire; (6) GSUSA insures the activities of all
local Girl Scout troops; and (7) GSUSA’s manuals set safety and
performance requirements for local troops.
In response, GSUSA argues that any revenue derived from New
Hampshire residents is both minimal and indirect. The dues
revenue collected from New Hampshire Girl Scouts accounts for
less than one hundredth of one percent of its total dues revenue,
and the dues are first paid to the local troop or regional
-10- council, which then sends the money to GSUSA; revenues derived
from uniform and other equipment sales in New Hampshire are
minimal; and only one training session was held in New Hampshire
during the time period relevant to this lawsuit.
If revenues derived from cookie and uniform sales were the
only consideration, I would agree that GSUSA lacks the “minimum
contacts” necessary for this court to exercise general
jurisdiction. See Brock Supply C o . v . Moulding Assocs., Inc., 81
F. Supp. 2d 3 3 8 , 342-43 (D.P.R. 2000). However, GSUSA’s forum
contacts are far more extensive. GSUSA exists for the purpose of
recruiting members and having them participate in activities that
are governed by guidelines it sets. See 36 U.S.C. § 80301.
GSUSA conducts extensive reviews of regional councils on a
regular basis, and revokes or qualifies charters if the councils
are not maintaining enough members or adhering to guidelines.
GSUSA has the exclusive rights to badges, emblems, words and
phrases associated with the Girl Scouts, see 36 U.S.C. § 80305,
which it permits regional councils and local troops to use only
after confirming that these entities comply with GSUSA’s
standards. Without GSUSA’s permission to associate itself with
the “Girl Scouts,” undoubtedly Spar & Spindle would not attract
-11- and keep anywhere near as many members.
GSUSA’s reliance on the First Circuit’s decision in
Donatelli v . Nat’l Hockey League, 893 F.2d 459 (1st Cir. 1990) is
misplaced. There, the court noted that the National Hockey
League (“NHL”) had no meaningful presence in Rhode Island, and so
it focused on the control that the NHL exercised over its member
hockey teams. See Donatelli, 893 F.2d at 470-71. It concluded
that the NHL had “very slight influence” over teams, and that
“the Bruins entered the Rhode Island market by their own choice
and for their own benefit, not as the association’s handmaiden.”
Id. In this case, the opposite is true. Spar & Spindle exists
as an arm of GSUSA, and carries out GSUSA’s goals and purposes.
In short, Spar & Spindle and the local troops it governs cannot
exist as they do without the approval of GSUSA in the form of a
charter. Because GSUSA exercises considerable control over
regional councils, I find that the contacts between GSUSA and New
Hampshire are continuous and systematic.
In addition to a finding of continuous and systematic
contacts, the exercise of jurisdiction must be reasonable in
order for this court to have general jurisdiction over a
defendant. See Sawtelle, 70 F.3d at 1395. In assessing
-12- reasonableness, the First Circuit has set forth five factors,
known as the “gestalt factors.” Id. (citing Burger King, 471 U.S.
at 4 7 7 ) . The five gestalt factors are: (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 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. In the instant case, the gestalt factors
weigh in favor of exercising jurisdiction.
a. Burden of Appearing
GSUSA is a federally chartered corporation with its
principal place of business in New York. Because New Hampshire
is a foreign jurisdiction for GSUSA, litigating in New York would
be more convenient. The ordinary inconvenience that GSUSA may
confront in litigating in a nearby state, however, does not tip
the first factor in favor of GSUSA. Since litigating in a
foreign jurisdiction is usually expensive and inconvenient, the
First Circuit has held that this factor is “only meaningful where
a party can demonstrate some kind of special or unusual burden.”
Pritzker, 42 F.3d at 6 4 ; accord Sawtelle, 70 F.3d at 1395.
-13- Because GSUSA has not demonstrated that its burden is special or
unusual, this factor is not meaningful and therefore does not
support a finding of unreasonableness.
b . Forum State’s Adjudicatory Interest
In analyzing this second factor, “[t]he purpose of [this]
inquiry is not to compare the forum’s interests to that of some
other forum, but to determine the extent to which the forum has
an interest.” Sawtelle, 70 F.3d at 1395 (citing Foster-Miller,
46 F.3d at 151) (alteration and emphasis in original). The State
of New Hampshire certainly has an interest in protecting its
disabled citizens from discrimination. In addition, Marika’s
claims are not based solely on the federal ADA, but invoke the
New Hampshire LAD. N.H. Rev. Stat. Ann. ch. 354-A. According to
LAD, discriminating against disabled persons in New Hampshire is
a matter of state concern that “threatens the rights and proper
privileges of its inhabitants.” N.H. Rev. State. Ann. § 354-A:1.
Marika has also raised a common law tort claim. A state has a
demonstrable interest in exercising jurisdiction over a person
who commits a tort within its borders. Ticketmaster, 26 F.3d at
211. The State’s adjudicatory interest is significant. Thus,
this factor favors the exercise of jurisdiction over GSUSA.
-14- c. The Plaintiffs’ Interest in Obtaining Convenient Relief
The First Circuit has repeatedly held that “a plaintiff’s
choice of forum must be accorded a degree of deference with
respect to the issue of its own convenience.” Sawtelle, 70 F.3d
at 1395; see, e.g., Foster-Miller, Inc., 46 F.3d at 151;
Pritzker, 42 F.3d at 6 4 . In addition, Marika is disabled and
wheelchair bound making it inconvenient for her to travel to New
York for trial. In light of the deference I must accord Marika
and her particular need for a convenient forum for relief, this
factor counsels in favor of reasonableness in exercising
jurisdiction over GSUSA. See id.
d. Administration of Justice
In this third factor, I must analyze the judicial system’s
interest in obtaining the most effective resolution of the
controversy. See id. Courts often find that this factor does
not weigh in either direction. See Ticketmaster, 26 F.3d at 211.
In this case, however, substantial discovery has taken place and
a second lawsuit between Steir and GSUSA has been filed in this
court (Civil Action No. 02-236-B). Therefore, in the interest of
judicial economy and efficiency, the fourth factor favors this
court retaining its jurisdiction.
-15- e . Pertinent Policy Arguments
The final gestalt factor requires that I consider the common
interests of all sovereigns in promoting substantive social
policies. See Sawtelle, 70 F.3d at 1395, Ticketmaster, 26 F.3d
at 211. This case is unlike Sawtelle, where “the only prominent
policy implicated is the ability of a state to provide a
convenient forum for its residents to redress injuries inflicted
by out-of-forum actors.” Sawtelle. 70 F.3d at 1395. Here, the
injury alleged is linked to the important substantive social
issue of preventing the discrimination against the disabled.
Marika is a disabled citizen of New Hampshire and an allegation
has been made that an out-of-state actor has discriminated
against her.
Because the gestalt factors weigh in favor of the retaining
jurisdiction, it is reasonable for this court to do s o . The
contacts between GSUSA and the State of New Hampshire are
continuous and systematic and it is proper for this court to
exercise general personal jurisdiction over GSUSA.3
3 A second lawsuit between Steir and GSUSA has recently been filed in this court (Civil Action N o . 02-236-B). For the same reasons put forth in this order, I find that general jurisdiction over GSUSA exists in that case as well.
-16- IV. CONCLUSION
I deny GSUSA’s motion to dismiss for lack of personal
jurisdiction under Fed. R. Civ. P. 12(b)(2) (Doc. N o . 4 9 ) .
SO ORDERED.
Paul Barbadoro Chief Judge September 1 0 , 2002
cc: Kenneth Kirschner, Esq. James E . Higgins, Esq. Paul T . Muniz, Esq. Jennifer L . Parent, Esq. John Bisson, Esq.
-17-