UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sturm, Ruger & Co., Inc., Plaintiff
v. Case No. 14-cv-194-SM Opinion No. 2015 DNH 148 Armscor Precision International, Inc., Rock Island Armory Exports, Inc., and Arms Corporation of the Philippines, Defendants
O R D E R
Sturm, Ruger & Co., Inc. (“Ruger”) brought suit against
Armscor Precision International, Inc. (“API”), Rock Island Armory
Exports, Inc. (“RIA”) (collectively “domestic defendants”), and
Arms Corporation of the Philippines (“ACP” or “Philippines
defendant”), (collectively “defendants”) for alleged trade dress
infringement and dilution, and for allegedly violating New
Hampshire’s Consumer Protection Act (“CPA”), N.H. Rev. Stat. Ann.
358-A:2. Ruger asserts that by manufacturing, marketing, and
selling a copycat of one of its firearms, the 10/22 (alleged to
be one of the most popular .22 caliber semi-automatics on the
market for over 50 years), defendants misappropriated and diluted
plaintiff’s trade dress and confused Ruger’s customers, causing
them to purchase defendants’ rifles. Defendants move to dismiss
the entire action for lack of personal jurisdiction or, in the
alternative, to transfer venue to the District of Nevada. Defendants also move to dismiss plaintiff’s CPA claim. Plaintiff
objects. As explained below, plaintiff has made a sufficient
prima facie showing of personal jurisdiction over defendants, and
defendants have not shown that venue is improper in this
district, or that transfer is nonetheless appropriate.
Consequently, defendants’ motion to dismiss and motion to
transfer venue are denied.
The Legal Standard
Pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure, when considering a motion to dismiss for lack of
personal jurisdiction, the court takes the facts pled in the
complaint as true, and construes them “in the light most
congenial to the plaintiff’s jurisdictional claim.” Negrón-
Torres v. Verizon Commc’ns, Inc., 478 F.3d 19, 23 (1st Cir.
2007); see Fed. R. Civ P. 12(b)(2), (6). In a case such as this,
where the court rules based on the “prima facie record,” the
pleadings, affidavits, and other written materials, in the
absence of an evidentiary hearing, the plaintiff need only make a
“prima facie” showing that the defendants are subject to personal
jurisdiction. See C.W. Downer & Co. v. Bioriginal Food & Science
Corp., 771 F.3d 59, 65 (1st Cir. 2014); Dagesse v. Plant Hotel
N.V., 113 F. Supp. 2d 211, 214-15 (D.N.H. 2000); Presby Patent
Trust v. Infiltrator Sys., Inc., No. 14-cv-542, 2015 WL 3506517,
2 at *2 (D.N.H. June 3, 2015). In making a prima facie showing of
jurisdiction, a plaintiff need not, and indeed may not, rely only
on the allegations in the complaint. See Dagesse, 113 F. Supp.
2d at 215; Presby Patent Trust, No. 14-cv-542, 2015 WL 3506517,
at *2. “Rather, he or she must adduce evidence of specific facts
that support jurisdiction.” Dagesse, 113 F. Supp. 2d at 215. To
proffer these facts, a plaintiff may rely on “documents attached
to an opposition, even if they contain hearsay, so long as that
evidence ‘bears circumstantial indicia of reliability.’” Presby
Patent Trust, No. 14-cv-542, 2015 WL 3506517, at *8 n.2. The
court then takes the facts as pleaded and the “evidentiary
proffers as true and construe them in the light most favorable to
the plaintiff’s claim . . . .” C.W. Downer & Co., 771 F.3d at
65.
The court also considers uncontradicted facts put forth by
the defendant, but does not “credit conclusory allegations or
draw farfetched inferences.” Negrón-Torres, 478 F.3d at 23.
(citations and quotation marks omitted) (emphasis added).
Background
The relevant facts, construed in the light most favorable to
Ruger, are as follows. Ruger is a Delaware corporation, with
corporate headquarters in Southport, Connecticut. The facility
3 at which it manufactures the 10/22 rifle is located in Newport,
New Hampshire. Ruger manufactures all its 10/22 rifles at the
New Hampshire plant, where it also keeps its plans, drawings, and
equipment related to the 10/22. Pertinent Bureau of Alcohol,
Tobacco, and Firearms regulations require each rifle to be marked
with its manufacturing origin. Ruger conspicuously marks each
10/22 rifle barrel with the following embossment, “RUGER,
NEWPORT, NH USA.” Ruger has been manufacturing the 10/22 in
Newport since 1964.
Domestic defendants, API and RIA are Nevada corporations
with principal places of business in Nevada. Defendant Arms
Corporation of the Philippines is incorporated in the
Philippines, with a principle place of business in Manila. Arms
Corporation of the Philippines is the parent company of API and
RIA, its United States subsidiaries. Defendants are not
registered to do business in New Hampshire; do not hold any
licenses to do business in New Hampshire; do not have a
registered agent in New Hampshire; do not maintain a mailing
address, real property, offices, facilities, employees, or bank
accounts in New Hampshire; have never paid New Hampshire taxes;
and do not manufacture or source products in New Hampshire.
4 However, dating back to at least November of 2013,
defendants have been marketing, distributing, and selling a
virtually identical copy of the Ruger 10/22 in New Hampshire,
under the trade names Armscor Rock Island Armory M22, Rock Island
Armory M22, and Rock Island Armory RIA22. As required by law,
these rifles are embossed with “ACP PHILIPPINES” to identify the
manufacturer and “APINTL—PAHRUMP NV” to identify the importer.
Those stamps connect the domestic and Philippines defendants to
the allegedly infringing rifles that are being marketed and sold
in New Hampshire by at least one agent of defendants.1 Regarding
the allegations of trade dress infringement specifically, at
least one trade publication, citing an Armscor staffer as its
source, recognized that the M22/RIA22 “is an exact copy of the
10/22 . . . .”
Further, according to the president of Southern Ohio Gun
Distributors (“SOG”), one of defendants’ wholesale distributors,
acting as an agent for defendants’ marketing and sales in the
1 In addition, plaintiff has proffered evidence that Martin Tuason, whose family started ACP in 1905, is the CEO of all three defendants, and speaks of all three entities as a single unit, “the Armscor group of companies.” Tuason confirmed in an April 2014 interview that API and RIA, the domestic defendants, are simply an extension of ACP in the United States. In the same interview, Tuason conceded that he lives in Las Vegas and works “from home” in Pahrump, NV, on a Philippine time schedule. For purposes of this motion, the court accepts those facts as true and will treat defendants as a single corporate entity.
5 United States and in New Hampshire in particular,2 asked
defendants’ CEO, Tuason, “how can Armscor/RIA sell a rifle that
is identical to the Ruger 10/22?” Tuason allegedly responded
that Ruger’s “patent ha[d] run out.” SOG then distributed a
sales flyer to all FFL holders, including 1,170 in New Hampshire,
one of which was Rody’s Gun Shop, LLC, located half a mile from
Ruger’s manufacturing facility in Newport, NH. The flyer
disclosed that the RIA22 is a “well made copy of a very popular
22LR 10 shot rifle (Ruger’s patent expired). All mags and
accessories that fit that model will fit this.”
For their part, defendants do not deny that they solicit and
sell the allegedly infringing rifles in New Hampshire via their
wholesale-distributor agents. Rather, the vice president of
defendants, Stephen Anderson, represents in a sworn affidavit
only that defendants “did not directly solicit or sell any
products in New Hampshire that relate to this current suit by
Ruger.” (emphasis added). In addition, defendants’ domestic
website identifies at least one retailer, in addition to Rody’s,
2 Plaintiff has proffered evidence demonstrating that firearms manufacturers in the United States typically do not sell directly to ultimate consumers, but rather they sell to wholesale distributors with valid federal firearms licenses (“FFL”), who act as agents and market and sell the manufacturer’s firearms to licensed retailers in various states.
6 from whom their products can be purchased in New Hampshire —
Merrimack Firearms in Merrimack, NH.
Based on the foregoing allegations, Ruger asserts claims of
trade dress infringement (Count I) and trade dress dilution
(Count II) under the Lanham Act, 15 U.S.C. §§ 1125(a), (c), and
unfair and deceptive trade practices under New Hampshire Revised
Statutes Annotated (“RSA”) 358-A:2 (Count III).
Discussion
Defendants first move to dismiss the complaint for lack of
personal jurisdiction. Ruger counters that by manufacturing,
marketing, and selling a copycat of one of its best selling
firearms, defendants have misappropriated and diluted plaintiff’s
trade dress and confused Rugers’ customers, both in New Hampshire
and around the world, causing them to purchase defendants’
rifles. As a result, Ruger claims to have suffered foreseeable
injury in New Hampshire, subjecting defendants to jurisdiction in
this state. Alternatively, defendants move to transfer venue to
the District of Nevada. Defendants also move to dismiss
Plaintiff’s CPA claim for failure to state a claim.
7 I. Motion to Dismiss for Lack of Personal Jurisdiction
A. Statutory and Constitutional Prerequisites
When a defendant challenges personal jurisdiction, the
plaintiff bears the burden of demonstrating “the existence of
every fact required to satisfy both the forum’s long-arm statute
and the Due Process Clause of the Constitution.” See Negrón-
Torres, 478 F.3d at 24 (quoting U.S. v. Swiss Am. Bank, Ltd., 274
F.3d 610, 618 (1st Cir. 2001)); see also C.W. Downer & Co. v.
Bioriginal Food & Science, 771 F.3d 59, 65 (1st Cir. 2014).
Where, as here, the state’s long-arm statute is coextensive
with the constitutional limits of due process, the two inquiries
become one, focusing solely on whether jurisdiction comports with
due process. See id. “Due process requires only that in order
to subject a defendant to a judgment in personam, if he be not
present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the suit
does not offend traditional notions of fair play and substantial
justice.” Astro-Med, Inc. v. Nihon Kohden America, Inc., 591
F.3d 1, 9 (1st Cir. 2009) (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 319 (1945)). “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.’” Medicus Radiology, LLC v. Nortek
8 Med. Staffing, Inc., No. 10-cv-300, 2011 WL 9373, at *2 (D.N.H.
Jan. 3, 2011) (quoting Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.
1994)).
B. General v. Specific Jurisdiction
Personal jurisdiction comes in two varieties: specific and
general. See Negrón-Torres, 478 F.3d at 24. Key to both is the
existence of “minimum contacts” between the nonresident defendant
and the forum. Id. “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 St. Corp.,
960 F.2d 1080, 1088 (1st Cir. 1992) (citing Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-416 & n.9
(1984)). Ruger does not contend that defendants engaged in
“continuous and systematic activity” in New Hampshire, nor does
it ask the court to exercise general jurisdiction over them.
Accordingly, if the court may properly exercise personal
jurisdiction over the defendants, it must be specific
jurisdiction.
A court may exercise specific jurisdiction “where the cause
of action arises directly out of, or relates to, the defendant’s
9 forum-based contacts.” United Elec. Workers, 960 F.2d at 1088-89
(citation omitted). In an effort to assist trial courts in
determining whether they may properly exercise specific
jurisdiction, the court of appeals for this circuit has
formulated a three-part test:
(1) whether the claim “directly arise[s] out of, or relates to, the defendant’s forum state activities; (2) whether the defendant’s instate contacts 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; and (3) whether the exercise of jurisdiction is reasonable.
C.W. Downer & Co., 771 F.3d at 65. An affirmative finding as to
each of those three elements — relatedness, purposeful availment,
and reasonableness — is necessary to support the court’s exercise
of personal jurisdiction over a defendant. See Phillips Exeter
Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir.
1999).
1. Relatedness
The “relatedness prong requires a plaintiff to show a
‘demonstrable nexus between [its] claims and the [defendant’s]
forum-based activities, such . . . [that] the litigation itself
is founded directly on those activities.’” C.W. Downer & Co. v.
Bioriginal Food & Science Corp., 771 F.3d 59, 66 (1st Cir. 2014)
10 (citation omitted) (alterations in original). The court
explained in Downer that “this test is a flexible, relaxed
standard.” Id. (quotation marks and citation omitted); Astro-
Med, Inc., 591 F.3d at 9.
The relatedness requirement is tied to the particular claims
asserted. Phillips Exeter Acad., 196 F.3d at 289 (citing United
Elec. Workers, 960 F.2d at 1089. All three of Ruger’s counts
sound in trademark infringement or unfair competition. Trademark
infringement claims and unfair competition claims are analyzed as
tort claims. PFIP v. Planet Fitness Enters., Inc., No. Civ. 04-
250, 2004 WL 2538489, at *5 (D.N.H. Nov. 10, 2004) (citing Hard
Rock Café Licensing Corp. v. Concession Servs., Inc., 955 F.2d
1143, 1150 (7th Cir. 1992)). “When the plaintiff’s claims sound
in tort, a court ‘must probe the causal nexus between the
defendant’s contacts and the plaintiff’s cause of action.’”
Medicus Radiology, LLC, No. 10-cv-300, 2011 WL 99373, at *3
(D.N.H. Jan. 3, 2011) (quoting Phillips Exeter Acad., 196 F.3d at
289). That analysis is conducted “with reference to the contacts
the defendant creates with the forum state, though those contacts
may be ‘intertwined’ with the activities of the plaintiff.” C.W.
Downer & Co., 771 F.3d at 66 (quoting Walden v. Fiore, 134 S. Ct.
1115, 1122-23 (2014)).
11 When, as here, the torts alleged are, at least in part,
intentional torts, “[c]onsistent with Calder v. Jones, 465 U.S.
783, 789 (1984), a defendant ‘need not be physically present in
the forum state to cause injury (and thus ‘activity’ for
jurisdictional purposes) in the forum state.’” Astro-Med, Inc.,
591 F.3d at 10 (quoting Northern Laminate Sales, Inc. v. Davis,
403 F.3d 14, 25 (1st Cir. 2005)); see Edvisors Network, Inc., v.
Educational Advisors, Inc., 755 F. Supp. 2d 272, 283 (D. Mass.
2010). Citing Calder, the Supreme Court explained in Walden that
a “forum State’s exercise of jurisdiction over an out-of-state
intentional tortfeasor must be based on intentional conduct by
the defendant that creates the necessary contacts with the
forum,” one of which can be the “effects” of the defendant’s
alleged intentionally tortious conduct aimed at the forum state.
See Walden, 134 S. Ct. at 1123-24.
In this case, plaintiff’s claims are trade dress
infringement and dilution under 15 U.S.C. § 1125(a), (c), and
unfair and deceptive trade practices under RSA 358-A:2. To prove
its trade dress claims, plaintiff must demonstrate, among other
elements, that the trade dress is inherently distinctive, has
acquired distinctiveness through secondary meaning, or, for
dilution, is famous, and that prospective purchasers of the
products are likely to be confused about the source of the
12 products. See Yankee Candle Co. v. Bridgewater Candle Co., 259
F.3d 25, 38 (1st Cir. 2001). A plaintiff can prove a design has
acquired secondary meaning or has been diluted in part by
showing, as Ruger alleges here, that the defendant copied the
plaintiff’s design intentionally. Plaintiff can prove its state
law unfair competition claim by showing, among other acts, that
defendants passed off goods as those of Ruger, or by causing a
likelihood of confusion or misunderstanding as to the source,
sponsorship, approval, or certification of the goods.
Plaintiff contends that defendants’ contacts with New
Hampshire that give rise to its trade dress and unfair
competition claims include intentionally copying the trade dress
of its 10/22; sending advertising flyers through a wholesale
distributing agent to 1,170 FFL holders in New Hampshire,
including Rody’s Gun Shop;3 providing on their website the name
and location of a licensed retailer where the infringing rifles
are offered for sale in New Hampshire; and causing the infringing
products to be sold in and delivered to New Hampshire.
3 It is well established that forum-related contacts made by an agent acting within the scope of its authority are attributable to the principal. See Dagesse v. Plant Hotel N.V., 113 F Supp. 2d 211, 216 n.2 (D.N.H. 2000) (citing Noonan v. Winston Co., 135 F.3d 85, 90 n.3 (1st Cir. 1998)).
13 Because, plaintiff argues, its claims for infringement,
dilution, and consumer confusion arise directly out of
defendants’ contacts with New Hampshire, the contacts are related
to plaintiff’s claims. In support of its argument, plaintiff
points to Astro-Med. There, the defendant approached an employee
of the plaintiff outside the forum state to entice him to leave
the plaintiff and work for the defendant, knowing that the
employee had entered into a contract in the forum state with the
plaintiff, that the contract contained a choice of law provision
favoring the forum state, that the employee submitted to
jurisdiction in the forum state by virtue of the contract, and
that the contract contained a non-compete covenant because the
defendant’s tortious conduct outside the forum state “was a cause
of the breach of contract — the actual injury — that occurred in
[the forum state].” Id. at 10. Because plaintiff’s “in-forum
injury was clearly related to [its] tortious interference claim”
the relatedness prong of the minimum contacts analysis was
satisfied. Id.
In Bose Corp. v. Neher, No. 09-cv-11479, 2010 WL 3814886 (D.
Mass. July 30, 2010), the court found the relatedness prong
satisfied and exercised specific personal jurisdiction over an
out-of-state defendant in a trademark case when the defendant
advertised the sale of an allegedly counterfeit product on the
14 internet, accessible to forum residents, and allegedly sold at
least one counterfeit item to a forum state resident via the
website. Id. at *1, *4, *7; compare with Presby Patent Trust v.
Infiltrator Sys. Inc., No. 14-cv-542, 2015 WL 3506517, at *3
(D.N.H. June 3, 2015) (declining to exercise personal
jurisdiction over an out-of-state defendant in a patent
infringement case because the plaintiff failed to allege or
produce any evidence that the defendant “makes, sells, uses, or
offers for sale its accused [infringing product] in New
Hampshire,” so that the plaintiffs claims could not arise out of
the defendant's contacts with the forum state).
On the other hand, defendants point to this court’s decision
in Neodevices, Inc. v. Newmed, Inc., No. 08-cv-375, 2009 WL
689881 (D.N.H. Mar. 12, 2009), to support its argument that
personal jurisdiction should not lie in this case. In
NeoDevices, the plaintiff brought claims for state law trademark
dilution and defamation, among other claims, against a non-
resident defendant for using identical product serial numbers to
trick buyers into buying its products on the internet rather than
the plaintiff’s, and making disparaging false statements about
the plaintiff's products. Id. at *1-*2. The court concluded
that the plaintiff failed to proffer any evidence that the
defendant’s infringement outside the state caused injury felt
15 inside New Hampshire. Id. at *5. Further, the plaintiff failed
to provide any evidence, or even allegations, that the defendant
used the deceptively similar product codes in New Hampshire,
because the plaintiff failed to identify any potentially
misinformed consumers or distributors located in New Hampshire.
Id. Similarly, the plaintiff failed to identify any New
Hampshire customers or distributors to whom the defendant related
any disparaging information about plaintiff. Id. at *4.
As in Astro-Med and Bose Corp., plaintiff in this case has
offered evidence that defendants’ contacts with New Hampshire
include infringing conduct targeted at a New Hampshire resident,
i.e. advertising for sale and selling infringing rifles in New
Hampshire, and, acting through its agent, SOG, distributing
advertisements of its infringing products to hundreds of New
Hampshire licensed firearms retailers. Those contacts, including
the concomitant injury to Ruger, give rise to its claims for
trade dress infringement, dilution felt in New Hampshire, and
unfair competition. Plaintiff has satisfied the relatedness
inquiry.
2. Purposeful Availment
The second prong of the specific jurisdiction test requires
the court to consider whether the defendant’s contacts with the
16 forum state “‘represent a purposeful availment of the privilege
of conducting activities in the forum state.’” Sawtelle v.
Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995) (quoting United Elec.
Workers v. 163 Pleasant St. Corp., 960 F.2d at 1089).
Specifically, the court looks to whether the defendant “engaged
in any purposeful activity related to the forum that would make
the exercise of jurisdiction fair, just, or reasonable.” Id. at
1391. The court of appeals has explained that the “purposeful
availment prong represents a rough quid pro quo: when a defendant
deliberately targets its behavior toward the society or economy
of a particular forum, the forum should have the power to subject
the defendant to judgment regarding that behavior.” C.W. Downer
& Co., 771 F.3d at 66. “The cornerstones of [the purposeful
availment] inquiry are voluntariness and foreseeability. This
places the emphasis on the defendant’s intentions and prohibits
jurisdiction based on random, fortuitous, or attenuated
contacts.” Id. (internal quotation marks and citations omitted).
With these basic principles in mind, the court turns to the
parties’ arguments on the issue of purposeful availment.
Plaintiff contends that under the principles set out in
Calder and Walden, defendants have purposefully availed
themselves of the privilege of conducting activities in New
Hampshire and should reasonably expect to be haled into court
17 here because they copied the trade dress of a product they knew
was manufactured in the state, advertised their allegedly
infringing products for sale in New Hampshire, offered their
allegedly infringing products for sale at licensed retailers in
New Hampshire, and knew that plaintiff would feel the effects of
that intentional conduct in New Hampshire.
The Calder “effects” test focuses on the effects of the
defendant’s conduct. Calder, 465 U.S. at 788-89. With respect
to claims involving harm to intellectual property rights, courts
in this circuit have held that “damage to intellectual property
rights (infringement of a patent, trademark or copyright) by
definition takes place where the owner suffers the damage,” and
“for purposes of constitutional inquiry, the situs of tortious
injury arising from interference with intellectual property is
the place of plaintiff’s residence.” Anderson v. Century Prods.
Co., 943 F. Supp. 137, 143 (D.N.H. 1996); see Bose Corp. v.
Heher, 2010 WL 3814886, at *5 (“Even assuming that [the
defendant] never sold any allegedly counterfeit [goods] to a
[forum state] address, the purposeful availment prong is still
met if plaintiff demonstrates her alleged trademark infringement
against a [forum-state] company.”).
18 The plaintiff in Calder brought a libel action in California
state court against the National Enquirer, a Florida corporation
with its principal place of business in Florida. Two other
individual defendants, Calder and South, were Florida residents
responsible for researching and writing the allegedly defamatory
article. South researched the article in Florida, in part via
phone calls he made to California. The Calder court held that
jurisdiction existed over the defendants in the forum state
where:
(i) [the defendants’] intentional actions were aimed at the forum State, (ii) they knew that the article was likely to have a devastating impact on the plaintiff, and (iii) they knew that the brunt of the injury would be felt by the plaintiff in the forum State where she lived, worked and the article would have the largest circulation.
Hugel v. McNell, 886 F.2d 1, 4 (1st Cir. 1989) (emphasis added)
(citing Calder, 465 U.S. at 789-90). The defendants’ knowledge
that the major impact of their article would be felt in the forum
state was held to constitute a purposeful contact from which the
authors could reasonably expect to be haled into the forum
state’s courts to defend their actions. Calder, 465 U.S. at 789-
90.
In this case, while the intentional conduct aimed at New
Hampshire is perhaps less dramatic than that in Calder, it
19 remains significant. As set out above, plaintiff proffers
evidence that defendants reached in to New Hampshire and
deliberately copied plaintiff’s design for its M22 and RIA22
rifles. Plaintiff’s rifle is conspicuously marked that it is
made in New Hampshire, and its instruction manual and website
indicate an address in New Hampshire as the source of replacement
parts for the Ruger 10/22, and the place where the rifles can be
repaired. In the advertisement targeted at New Hampshire,
defendants state that they are able to so precisely mimic
plaintiff’s design and features because plaintiff’s patent had
expired. That declaration suggests intentional targeting of the
New Hampshire market, as well as knowledge that defendants’
design is a copy of plaintiff’s. Defendants also promoted a New
Hampshire sales location on its website, thereby directing
consumers in New Hampshire to a store where defendants’
infringing rifles could be purchased in New Hampshire. Thus,
defendants knew that sales of their rifles, in or outside New
Hampshire, would have an adverse economic effect on Ruger, in
terms of lost revenue from sales of the Ruger 10/22, sales,
replacement parts, and repairs, but also in injury to the Ruger
marks.
Defendants contend that Walden essentially gutted the Calder
effects test as a basis for finding purposeful availment by
20 requiring that the defendant’s forum-based contacts be completely
independent of its relationship with the plaintiff. See Walden,
135 S. Ct. at 1122, 1126. Specifically, Walden provided that the
“mere fact that [defendant’s] conduct affected plaintiffs with
connections to the forum State does not suffice to authorize
jurisdiction,” that the relationship between the defendant and
the forum “must arise out of contacts that the ‘defendant
himself’ creates with the forum,” and that “the plaintiff cannot
be the only link between the defendant and the forum.” Id.
In Walden, a Georgia police officer working as a Drug
Enforcement Administration agent at the Atlanta airport
approached the plaintiff and her companion at their departure
gate where they were about to board a flight to Las Vegas,
Nevada. Id. at 1119. The agent had been informed that the
plaintiffs had residences in Nevada and California. Id. The
agent questioned the plaintiffs about the $97,000 in cash they
were carrying and seized the cash following a positive dog sniff
for drugs. The plaintiffs filed suit against the agents in
federal district court in Nevada for return of the money. Id. at
1119-20. Although the Court acknowledged that “a defendant’s
contacts with the forum State may be intertwined with his
transactions or interactions with the plaintiff or other
parties,” it held that Nevada could not exercise jurisdiction
21 over the Georgia defendant because the plaintiffs’ “claimed
injury [did] not evince a connection between [the agent] and
Nevada.” Id. at 1125. The only connection the case had to
Nevada was that “Nevada [was] where [the plaintiffs] chose to be
at a time when they desired to use the funds seized by [the
agent].” Id.
A plain reading of Walden reveals, however, that the Court
cited Calder for support, distinguished Walden on its facts, and
explained that “Calder made clear that mere injury to a forum
resident is not a sufficient connection to the forum . . . .”
Id. The Walden court ultimately held that “[u]nlike the broad
publication of the forum-focused story in Calder, the effects of
[the agent’s] conduct on [plaintiffs] are not connected to the
forum State in a way that makes those effects a proper basis for
jurisdiction.” Id. at 1125. Defendants’ suggestion that Walden
somehow overruled Calder is not persuasive.
Defendants next point to Advanced Tactical Ord. Sys., LLC v.
Real Action Paintball, Inc., 751 F.3d 796 (7th Cir. 2014), a
Seventh Circuit case post-Walden in which the plaintiff sued a
California company in Indiana for trade dress infringement and
other claims, as an indication that Walden rejects asserting
personal jurisdiction based on the Calder effects test for
22 purposeful availment. In Advanced Tactical, the court reversed
the district court’s exercise of jurisdiction over a non-resident
defendant who knew that the plaintiff was an Indiana resident,
could foresee harm in Indiana, and filled a limited number of
orders for the allegedly infringing product in Indiana in part
because to “hold otherwise would mean that a plaintiff could
bring suit in literally any state where the defendant shipped at
least one item.” 751 F.3d at 801.
Advanced Tactical is of course not controlling in this
circuit. Even so, based on the language of Walden itself, as
well as our circuit’s decision in C.W. Downer & Co., which cites
Walden in stressing that “the purposeful availment inquiry is
focused on contacts between the defendant and the forum state,
not between the defendant and the plaintiff,” 771 F.3d at 67, as
well as other district court decisions that interpret Walden as a
case that applies the minimum contacts and Calder effects tests,4
4 See Exobox Tech. Corp. v. Tsambis, No. 14-cv-501, 2015 WL 82886, at *5 (D. Nev. Jan. 6, 2015) (holding that Walden was “decided . . . narrowly on the facts” and did not change existing juridictional law); Bittorrent, Inc. v. Bittorrent Mktg. GMB, No. 12-cv-2525, 2014 WL 5773197, at *5 (N.D. Cal. Nov. 5, 2014) (“After careful consideration . . ., the Court agrees that Walden does not significantly limit the jurisdictional analysis [in existing case law].”); MRL Dev. I, LLC v. Whitecap Inv. Corp., No. 13-cv-48, 2014 WL 5441552, at *3-*4 (D.V.I. Oct. 26, 2014) (The defendant “relies on Walden for the extremely broad proposition that a defendant must deal directly with the forum state in order for personal jurisdiction to be proper. This reliance is misplaced. This broad proposition cannot be found in
23 the court declines defendant’s invitation to read into Walden
more than is apparent from the face of the decision.
Thus, based on defendants’ purposeful contacts with New
Hampshire, including its alleged trade dress infringement, the
over 1,000 advertising flyers sent to New Hampshire retailers,
and the indication on defendants’ website that its allegedly
infringing rifles are available from at least one New Hampshire
retailer, and its sales of infringing products in New Hampshire,
in addition to the economic injury targeted at New Hampshire in
the form of diverted sales, reduced income, and injury to Ruger’s
marks, plaintiff has satisfied the purposeful availment prong
with respect to all counts.
3. Reasonableness
Because plaintiff has met both the relatedness and the
purposeful availment standards, the court will now examine
whether it is fair and reasonable to hale defendants into court
in New Hampshire, applying the familiar “gestalt” factors:
(1) the defendant’s burden of appearing [in the forum state], (2) the forum state’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the judicial
the text of Walden, or any other case addressing personal jurisdiction by the Supreme Court.”)
24 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.
C.W. Downer & Co., 771 F.3d at 69 (citations omitted). “These
factors typically ‘play a larger role in cases . . . where the
minimum contacts question is very close.’” Id. (quoting Adelson
v. Hananel, 510 F.3d 43, 51 (1st Cir. 2007)).
Defendants argue that the first factor, the defendant’s
burden of appearing, would be significant, especially for the
Philippines defendant, for whom defendants argue the burden is
“extraordinary, if not insurmountable,” and weighs against the
court exercising personal jurisdiction. While this factor weighs
in favor of defendants, our circuit has recognized that “mounting
an out-of-state defense most always means added trouble and
cost,” but “modern travel creates no especially ponderous burden
for business travelers.” C.W. Downer & Co., 771 F.3d at 70
(internal quotation marks and citations omitted). “For this type
of burden to affect the analysis, the defendant must show that it
is ‘special or unusual.’” Id. Like the Canadian defendant who
was unable to demonstrate a “special or unusual” burden in C.W.
Downer & Co., defendants, even the Philippines defendant, have
not done so in this case.
25 Here, the CEO of all three defendants, Tuason, concedes that
he resides in Las Vegas, Nevada, and works in Pahrump, Nevada,
essentially “work[ing] from home with a Philippine time
schedule,” while maintaining that “[t]echnically” his main office
is in the Philippines. Thus, while “technically” CPA is a
Philippines defendant, it has demonstrated no greater burden than
the domestic defendants would bear in defending this action in
New Hampshire. Traveling from Nevada to New Hampshire is not
particularly inconvenient given modern air travel, and
communication is easy and effective. The burden of travel here
is hardly “special or unusual,” and courts in this circuit have
commonly expected defendants to travel from out-of-state to
defend against an action in which they had minimum contacts with
the forum related to the suit and had purposefully availed
themselves of the opportunity of doing business in the forum
state. See C.W. Downer & Co., 771 F.3d at 70 (finding no
substantial burden in traveling between Saskatchewan, Canada, and
Massachusetts); Pritzker v. Yarl, 42 F.3d 53, 64 (1st Cir. 1994)
(finding no burden solely in the travel between Puerto Rico and
New York); Bose Corp., 2010 WL 3814886, at *6 (finding no special
or unusual burden in the travel between Iowa and Massachusetts).
In Medicus Radiology, LLC v. Nortek Med. Staffing, Inc., the
court concluded that requiring a defendant to travel from Texas
26 to New Hampshire “is onerous,” when the defendant had no presence
in the forum state. 2011 WL 9373 at *5. However, the court
there gave these factors considerable weight because of what it
saw as a “meager showing” on the relatedness and purposeful
availment prongs, with the only contact between defendant and the
forum state being the plaintiff’s injury. See id. at *6.
Due to plaintiff’s adequate, though not overwhelming,
showing of relatedness and purposeful availment, the burden
imposed on defendants by requiring them to appear in New
Hampshire is no more than ordinary. To the extent that burden
increases as the case moves forward, as recognized in C.W. Downer
& Co., the reality of modern legal practice is that “[m]ost
logistical challenges can be resolved through the use of
affidavits and video devices.” 771 F.3d at 70. Thus, while this
factor favors defendants, it does not tip the scale against the
exercise of jurisdiction.
The second factor, “the interest of [the forum state] in
hearing this suit weighs in favor of the [p]laintiff.” Bose
Corp., 2010 WL 3814886, at *6 (quoting Northern Light Tech. v.
Northern Lights Club, 97 F. Supp. 2d 96, 107 (D. Mass. 2000)
(providing that in a trademark case, “the alleged trademark
infringement would likely have significant effects [in the forum
27 state])). In Bose Corp., the court concluded that “Massachusetts
has an interest in preventing trademark infringement against
those subject to the protections and requirements of its laws.”
Bose Corp., 2010 WL 3814886, at *6 (quoting Hasbro, Inc. v. Clue
Computing, Inc., 994 F. Supp. 34, 45 (D. Mass. 1997)).
Similarly, in C.W. Downer & Co., the court recognized that
“Massachusetts has significant interests in providing a
convenient forum for disputes involving its citizens and in
ensuring that its companies have easy access to a forum when
their commercial contracts are said to be breached by out-of-
state defendants.” 771 F.3d at 70. So, too, does New Hampshire
when out-of-state defendants are said to have inflicted tortious
injury on its citizens.
The third factor, plaintiff’s convenience weighs in favor of
plaintiff for obvious reasons. As in Bose Corp., where the
plaintiff was based in Massachusetts, a significant amount of the
evidence here would originate in New Hampshire, and Ruger’s
counsel and relevant executives resided in New Hampshire or
nearby. 2010 WL 3814886, at *7. And, as in Bose Corp., “this
court will accord deference to the plaintiff's choice of . . .
forum.” Id. (internal quotation marks, citations, and
alterations omitted).
28 The fourth factor, the administration of justice, seems to
be in equipoise. While Ruger’s manufacturing facility is in New
Hampshire, and the relevant design and manufacturing witnesses
are here, defendants’ CEO is in Nevada, and their relevant
witnesses, documents, and electronic storage devices are likely
in Nevada or in the Philippines (defendants provide very little
data or argument on this factor).
Finally, aside from the social policy promoted by courts in
exercising jurisdiction over defendants who allegedly infringe on
intellectual property interests of its forum residents, already
addressed by the second factor, the parties point to no
overarching social policy counseling in favor of, or against,
exercising personal jurisdiction in this case.
Thus, like in Bose Corp., “[i]n sum and balance, the
exercise of personal jurisdiction over defendant[s] is reasonable
and fundamentally fair. There is no indication that doing so
would offend traditional notions of fair play and substantial
justice.” 2010 WL 3814886, at *7 (citing Burger King Corp. v.
Rudzewicz, 481 U.S. 462, 477-78 (1985)). As the court concluded
after a similar balancing analysis in C.W. Downer & Co., “To the
limited extent that the gestalt factors are meaningful, they
weigh in favor of jurisdiction even considering the international
29 context.” 771 F.3d at 71. For these reasons, the court
concludes that exercising jurisdiction over defendants in this
case is fair and reasonable.
II. Motion to Transfer Venue
In the alternative, defendants urge the court to dismiss
this case or transfer it to federal court in Nevada pursuant to
28 U.S.C. § 1406(a), because venue is improper in this district,
or if the court determines venue is proper, to nonetheless
transfer it pursuant to § 1404(a), which provides that “for the
convenience of parties and witnesses, in the interest of justice,
a district court may transfer any civil action to any other
district or division where it might have been brought.”
A. Transfer for Improper Venue
Defendants contend that venue is improper in New Hampshire,
so the court should either dismiss the case or transfer it to the
District of Nevada pursuant to 28 U.S.C. § 1406(a). United
States Code § 1391 governs proper venue analysis. In relevant
part it provides, “A civil action may be brought in . . . a
judicial district in which any defendant resides . . . .”
28 U.S.C. § 1391(b)(1). It further provides that for “all venue
purposes[,] . . . an entity with the capacity to sue and be sued
. . . shall be deemed to reside, if a defendant, in any judicial
30 district in which such defendant is subject to the court’s
personal jurisdiction with respect to the civil action in
question . . . . [A] defendant not resident in the United States
may be sued in any judicial district, and the joinder of such a
defendant shall be disregarded in determining where the action
may be brought with respect to the other defendants.”
§ 1391(c)(2), (3).
While plaintiff has the burden of demonstrating that venue
is proper when challenged by a defendant, see Johnson v. Gen.
Dynamics Info. Tech., Inc., 675 F. Supp. 2d 236, 239 (D.N.H.
2009), in this case, plaintiff carried that burden by making a
prima facie showing that the defendants are subject to personal
jurisdiction in this district. See also Astro-Med, Inc. v. Nihon
Kohden America, Inc., 591 F.3d at 11, n.6. Thus, the court
concludes that venue is proper in the District of New Hampshire.
B. Transfer for the Convenience of the Parties
Defendants alternatively move the court pursuant to 28
U.S.C. § 1404(a) to transfer venue to the District of Nevada “for
the convenience of the parties and witnesses,” and “in the
interest of justice.” See 28 U.S.C. § 1404(a). Our circuit has
recognized that “[s]ection 1404(a) is intended to place
discretion in the district court to adjudicate motions for
31 transfer according to an ‘individualized, case-by-case
consideration of convenience and fairness.’” Astro-Med, Inc.,
591 F.3d at 12. When a district court considers a discretionary
motion to transfer venue, “[n]ot only does the burden of proof
rest with the party seeking to transfer; there is a ‘strong
presumption in favor of the plaintiff’s choice of forum.’” Id.
at 13 (quoting Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st
Cir. 2000); see also Society of Lloyd’s v. Carter, No. 02-cv-452,
55 Fed. R. Serv. 3d 265, at *2 (D.N.H. Mar. 14, 2003). “Finally,
whether to transfer an action for convenience is a matter totally
within the discretion of the trial court.” Society of Lloyd’s,
No. 02-cv-452, 55 Fed. R. Serv. 3d 265, at *2.
Here, there is no doubt that Ruger could have brought this
action in the District of Nevada, based on defendants’ claims
that they are Nevada residents, with the exception of the
Philippines defendant. However, like the court in Society of
Lloyd’s, “[this] court is hard pressed to see how [defendants]
have met their burden of proving that transfer is warranted.”
Id.
A consideration of the factors relevant to determining
whether defendants have met their substantial burden persuades
this court that transfer should not be granted. The factors to
32 be considered in determining whether to transfer a case for the
convenience of the parties are: “the convenience of the parties
and witnesses, . . . the availability of documents; the
possibility of consolidation; and the order in which the district
court obtained jurisdiction.” Coady, 223 F.3d at 11.
Section 1404(a) and the circuit direct the court to first
consider the convenience of the parties. That factor is, at
best, a wash. As defendants contend, it will no doubt be
comparatively inconvenient for them and their witnesses to
litigate this case in New Hampshire rather than Nevada. It would
be no less burdensome, however, for plaintiff to litigate in
Nevada, because it would have to bear the financial burden of
transporting itself and its witnesses, including non-party
witnesses such as the licensed New Hampshire retailers who
received advertising flyers from defendants or their agent or who
are actively selling defendants’ allegedly infringing rifles, as
well as New Hampshire consumers, who have been confused by
defendants’ rifle offerings. Further, all of the design and
manufacturing evidence is here at Ruger’s manufacturing plant.
“Since there is a presumption in favor of plaintiff’s choice,
transfer is not appropriate where its effect is merely to shift
the inconvenience from one party to the other.” Anderson v.
Century Prods. Co., 943 F. Supp. 137, 148 (D.N.H. 1996).
33 Defendants attempt to persuade the court that plaintiff should
bear the burden because it is a “billion dollar publically traded
corporation.” Defendants bear the burden of proof, and
defendants comprise a successful international conglomeration in
their own right. The scales are roughly balanced on that score,
or, if tilted, they tilt in favor of plaintiff.
The factors concerning consolidation and the first-filed
rule are not relevant in this case, thus, with the applicable
factors either weighing even or slightly favoring plaintiff, and
considering the weight to be afforded plaintiff’s choice of
forum, defendants have failed to carry their burden to establish
such substantial relative inconvenience, and the court denies the
motion to transfer.
III. Motion to Dismiss New Hampshire CPA Claim
Lastly, defendants have moved to dismiss Count III of
plaintiff's complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P.
12(b)(6), for failure to state a claim upon which relief can be
granted. A Rule 12(b)(6) motion will be granted only if,
accepting all of the plaintiff’s factual averments contained in
the complaint as true, and drawing every reasonable inference
helpful to the plaintiff’s cause, plaintiff has failed to “set
forth a plausible claim upon which relief may be granted.” Foley
34 v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(citations and internal quotation marks omitted). A claim is
“facially plausible” when “the factual allegations are sufficient
to support the reasonable inference that the defendant is
liable.” Cardigan Mountain School v. New Hampshire Ins. Co., 787
F.3d 82, 84 (1st Cir. 2015) (citations and internal quotation
marks omitted). By this standard, at this stage, the court’s
inquiry is a limited one, focusing not on “whether a plaintiff
will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974).
Defendants ask the court to dismiss Count III brought under
New Hampshire’s Consumer Protection Act, RSA 358–A (1993), on the
ground that defendants’ alleged conduct is not covered by the
CPA. However, under New Hampshire law, the CPA is “to be broadly
applied.” Gilmore v. Bradgate Assoc., Inc., 135 N.H. 234, 238
(1992), overruled on other grounds. This court has previously
held that the CPA covered the conduct of a seller of products who
wrongfully appropriated another’s idea in designing those
products. Curtis Mfg. Grp. v. Plasti-Clip Corp., 888 F. Supp.
1212, 1227-28 (D.N.H. 1994). The facts of Curtis are
sufficiently analogous to the facts here that this case is
controlled by Curtis’s holding. Consequently, the court will not
35 dismiss Ruger’s CPA claim under Federal Rule of Civil Procedure
12(b), at least not at this early stage.
Conclusion
Because plaintiff has met its modest burden at this stage of
demonstrating that the court may exercise specific personal
jurisdiction over defendants, defendants’ motion to dismiss or,
in the alternative, to transfer venue (document no. 13) is denied
without prejudice.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
July 28, 2015
cc: James F. Laboe, Esq. R. Matthew Cairns, Esq.