United States Court of Appeals For the First Circuit
No. 21-1567
VAPOTHERM, INC.,
Plaintiff, Appellant,
v.
CLAYTON SANTIAGO,
Defendant, Appellee,
VERO BIOTECH, LLC,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Thompson, Howard, and Gelpí, Circuit Judges.
Michael S. Lewis, with whom Michael K. O'Neil and Rath, Young and Pignatelli, P.C. were on brief, for appellant. Brett Walker, with whom Jay Gregory and Gordon Rees Scully Mansukhani, LLP were on brief, for appellee.
June 28, 2022 GELPÍ, Circuit Judge. This is an appeal from the
district court's dismissal for lack of personal jurisdiction over
the Defendant-Appellee, Clayton Santiago ("Santiago"), who was
previously employed by the Plaintiff-Appellant, Vapotherm, Inc.
("Vapotherm"). Vapotherm brought suit against Santiago in the
District of New Hampshire, alleging that he breached his employment
contract and violated a Non-Solicitation of Employees Clause by
encouraging three Vapotherm employees to leave the company and
join him at his new employment, Vero Biotech, LLC ("Vero"). We
affirm.
I. Background
Santiago was employed by Vapotherm for approximately
four years, beginning in January 2016 and ending in February 2020.
Vapotherm is a publicly traded medical device manufacturing
company. It is a Delaware corporation with its principal place of
business in New Hampshire. Santiago was employed primarily as an
account manager for Vapotherm, and was specifically assigned to
the territory within the State of Georgia.1 Throughout the
entirety of his employment with Vapotherm and at all other relevant
1 Santiago held various roles at Vapotherm, including account manager, principal account manager, sales director, regional business director, and account executive. In these roles, he focused on selling Vapotherm's product, the Precision Flow, within Florida and Georgia. He also supervised employees on both the sales team, which sold the product, and the clinical team, which expanded its use in hospitals.
- 2 - times, Santiago resided in Georgia. In February 2020, Santiago
left Vapotherm to work for Vero, and continues to work there as a
Regional Engagement Director.
Prior to beginning his employment with Vapotherm,
Santiago signed a "Confidentiality, Non-Compete, and Assignment of
Inventions Agreement" ("Agreement"). The Agreement included a
choice-of-law clause for the State of Maryland but did not include
a forum selection clause. Among other things, the Agreement
contained a Non-Solicitation of Employees Clause, which prohibited
Santiago from "solicit[ing] or encourag[ing] any employee of the
Company to terminate his or her employment with the Company or to
accept employment with any subsequent employer with whom Employee
is affiliated in any way" throughout his employment and for one
year thereafter. The Agreement was signed by Santiago and John
Landry, Vapotherm's Chief Financial Officer ("CFO").
Vapotherm alleges in its complaint that Santiago
violated the non-solicitation clause of the Agreement by
encouraging three of its former employees to join him at Vero after
he left Vapotherm. These three employees -- Benjamin Lonsway
("Lonsway"), Ryan Philpot ("Philpot"), and Kurt Wong ("Wong") --
were all clinical managers for Vapotherm during their employment.2
Lonsway was based in Georgia, while Wong and Philpot were both
2 As clinical mangers, Lonsway, Philpot, and Wong provided training and support to hospitals that use Vapotherm's product.
- 3 - based in Florida. Santiago knew all three employees, and indeed
supervised Lonsway and Wong for a few months. He later worked in
an oversight role with all three. On November 24, 2020, Lonsway,
Philpot, and Wong all submitted their letters of resignation to
Vapotherm and subsequently began working for Vero as clinical
educators.3 Vapotherm alleges that Santiago solicited these
employees to leave the company and join him at Vero in violation
of the Agreement.
During the course of his employment with Vapotherm,
Santiago had limited contact with the State of New Hampshire,
primarily arising from his communications with the company's
headquarters in Exeter. Santiago testified in his deposition that
during his four-year period of employment with Vapotherm, he
visited New Hampshire five to seven times to attend corporate
events, and in total spent approximately two weeks there. Santiago
communicated with Vapotherm's customer service representative,
located in New Hampshire, about once a month to process purchase
orders and other paperwork. He also communicated infrequently
with Vapotherm's technical support as well as its human resources
department. The product which Santiago sold, the Precision Flow,
was manufactured in New Hampshire. He was paid via direct deposit
3 As clinical educators, the three install Vero's product in hospitals and provide education and training to the hospital's employees.
- 4 - by Vapotherm, and stated in his deposition that he was unsure where
Vapotherm's banks were located.
Apart from these contacts, Santiago's work for Vapotherm
was primarily focused in the Southeast of the United States.
During the hiring process, after being contacted by a recruiter,
Santiago was interviewed in Atlanta, Georgia and Chicago,
Illinois. Throughout his employment, his direct supervisors were
located in Charleston, South Carolina. Santiago oversaw the
company's operations and employees located in Georgia and Florida.
Vapotherm originally filed suit against both Vero4 and
Santiago in the District of New Hampshire, alleging that Santiago
had violated the Agreement's non-solicitation clause, and brought
claims against him for breach of contract, intentional
interference with contractual relations, and unjust enrichment, as
well as requests for injunctive relief, specific performance, and
a declaratory judgment that Santiago breached the Agreement.
Following Santiago's challenge to personal jurisdiction over him,
the district court ordered limited jurisdictional discovery.5 Upon
4 Vapotherm voluntarily dismissed Vero following a motion to dismiss for lack of subject matter jurisdiction that contended that both Vapotherm and Vero were New Hampshire citizens. 5 Though Santiago did not file a motion to dismiss for lack of personal jurisdiction, the district court construed his "Motion to Stay Proceeding on Preliminary Injunction Until the Existence of Personal Jurisdiction of the Court Can Be Determined" as a challenge to personal jurisdiction. The court ordered briefing and discovery on the jurisdictional issue, and stated it would resolve said issue first. Following the district court's
- 5 - conclusion thereof, the district court agreed with Santiago. This
appeal followed.
II. Discussion
A. Standard of Review
"When a court's personal jurisdiction over a defendant
is contested, the plaintiff has the ultimate burden of showing by
a preponderance of the evidence that jurisdiction exists." Adams
v. Adams, 601 F.3d 1, 4 (1st Cir. 2010) (citing Ealing Corp. v.
Harrods Ltd., 790 F.2d 978, 979 & n.1 (1st Cir. 1986)). "Faced
with a motion to dismiss for lack of personal jurisdiction, a
district court 'may choose from among several methods for
determining whether the plaintiff has met [its] burden.'" Adelson
v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007) (alteration in
original) (quoting Daynard v. Ness, Motley, Loadholt, Richardson
& Poole, P.A., 290 F.3d 42, 50-51 (1st Cir. 2002)). Here, the
district court applied the prima facie method, using the parties'
proffered evidence to determine whether personal jurisdiction over
Santiago was proper. The parties engaged in limited discovery as
to the jurisdictional issue. We review both the use of the prima
facie method and the decision to grant the motion to dismiss de
novo. Id.
example, we refer to the proceedings as the court's action on a motion to dismiss.
- 6 - Neither party disputes the district court's use of the
prima facie method to resolve the motion to dismiss for lack of
personal jurisdiction. However, Vapotherm argues that the
district court applied the incorrect standard by weighing
evidence, making findings of fact, and ignoring its evidentiary
proffers in support of personal jurisdiction over Santiago.
Vapotherm alleges that the district court should have construed
its evidence "in the light most congenial to [its] jurisdictional
claim." Mass. Sch. of L. at Andover, Inc. v. Am. Bar Ass'n, 142
F.3d 26, 34 (1st Cir. 1998). Vapotherm further adduces that
crediting Santiago's version of the events is the only way the
district court could have reached its conclusion.
The prima facie approach does not require that we "credit
conclusory allegations or draw farfetched inferences."
Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.
1994). Instead, "[t]he prima facie showing of personal
jurisdiction must be based on evidence of specific facts set forth
in the record." Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675
(1st Cir. 1992) (citing Kowalski v. Doherty, Wallace, Pillsbury &
Murphy, 787 F.2d 7, 9 (1st Cir. 1986)). "Although the burden of
proof is light, [the plaintiff] may not rely on the mere
allegations of its complaint, but must point to specific facts in
the record that support those allegations." Jet Wine & Spirits,
Inc. v. Bacardi & Co., 298 F.3d 1, 8 (1st Cir. 2002) (citing
- 7 - Daynard, 290 F.3d at 51). Vapotherm "must go beyond the pleadings
and make affirmative proof." Boit, 967 F.2d at 675 (quoting
Chlebda v. H.E. Fortna & Bro., 609 F.2d 1022, 1024 (1st Cir.
1979)).
The district court correctly applied the prima facie
standard in its decision. The majority of Vapotherm's arguments
on this point seem to concern the district court's ultimate
conclusion as to the motion to dismiss rather than its method of
reaching that conclusion. Specifically, Vapotherm relied
primarily on Santiago's deposition testimony and its complaint to
establish important jurisdictional matters, such as where Santiago
was paid from and where his employment contract was executed,
rather than providing affirmative proof and developing specific
record facts to support its argument on these points. As we shall
discuss henceforth, the district court properly considered the
limited evidence Vapotherm proffered in ruling on the motion to
dismiss.
B. Personal Jurisdiction
The district court found that there were insufficient
minimum contacts to exercise personal jurisdiction over Santiago
in New Hampshire. Neither party disputes the district court's
finding that there is no general in personam jurisdiction over
Santiago. Therefore, the district court only evaluated the
exercise of specific personal jurisdiction over him.
- 8 - In a case such as this one, the federal court sitting in
diversity must determine whether the defendant's contacts with the
state satisfy both the state's long-arm statute as well as the Due
Process Clause of the Fourteenth Amendment. Sawtelle v. Farrell,
70 F.3d 1381, 1387 (1st Cir. 1995). New Hampshire's long-arm
statute permits jurisdiction over a defendant who "transacts any
business within [New Hampshire]" or "commits a tortious act within
[New Hampshire]." N.H. Rev. Stat. Ann. § 510:4, I. "[T]he Supreme
Court of New Hampshire interpreted the latter phrase to include
situations where a defendant's out-of-state activity results in an
injury within New Hampshire," precisely what Vapotherm alleges
occurred here. Sawtelle, 70 F.3d at 1388 (citing Estabrook v.
Wetmore, 529 A.2d 956, 958 (N.H. 1987)).
In any event, New Hampshire's long-arm statute has been
interpreted to allow jurisdiction over out-of-state defendants
such as Santiago "to the full extent that the statutory language
and due process will allow." Sawtelle, 70 F.3d at 1388 (quoting
Phelps v. Kingston, 536 A.2d 740, 742 (N.H. 1987)). Therefore, we
direct our attention to whether exercising personal jurisdiction
over Santiago in New Hampshire satisfies the constitutional
requirements under the Due Process Clause of the Fourteenth
Amendment. Id.
To exercise personal jurisdiction over a nonresident
defendant, the defendant must "have certain minimum contacts with
- 9 - it such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice.'" Int'l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)). A plaintiff attempting to
establish specific personal jurisdiction over an out-of-state
defendant must demonstrate that:
(1) [its] claim directly arises out of or relates to the defendant's forum-state activities; (2) the defendant's contacts with the forum state represent a purposeful availment of the privilege of conducting activities in that state, thus invoking the benefits and protections of that state's laws and rendering the defendant's involuntary presence in that state's courts foreseeable; and (3) the exercise of jurisdiction is ultimately reasonable.
Scottsdale Cap. Advisors Corp. v. The Deal, LLC, 887 F.3d 17, 20
(1st Cir. 2018) (citing A Corp. v. All Am. Plumbing, Inc., 812
F.3d 54, 59 (1st Cir. 2016)). Considering the above-named
requirements for specific personal jurisdiction in its discussion,
focusing primarily on the first two, the district court found that
Vapotherm failed to establish sufficient facts to support the
inference that personal jurisdiction over Santiago in New
Hampshire would be constitutional. We discuss the three
requirements seriatim.
1. Relatedness
First, we consider whether Vapotherm has offered
evidence establishing that its claims "directly arise[] out of or
relate[] to the defendant's forum-state activities." Id.
- 10 - Vapotherm's claims sound in both contract and tort so we consider
relatedness for both types of cases in turn.
For breach of contract claims, "we ask whether the
defendant's activity in the forum state was 'instrumental either
in the formation of the contract or its breach.'" Adelson, 510
F.3d at 49 (quoting Phillips Exeter Acad. v. Howard Phillips Fund,
Inc., 196 F.3d 284, 289 (1st Cir. 1999)). To argue that it was,
Vapotherm primarily relies on the fact that Santiago knowingly
entered into an employment relationship with a New Hampshire-based
company and subsequently breached that contract.
Nonetheless, looking closely at the matter, Santiago's
activity in New Hampshire was not instrumental in the formation of
the contract nor its breach. It remains unclear where exactly the
contract was executed. Vapotherm alleges that the contract was
executed in New Hampshire when CFO John Landry signed it there,
relying on (1) the signature of Landry on Santiago's employment
contract and (2) Santiago's deposition testimony that he
"believed" that the CFO worked out of Exeter, New Hampshire, but
that he was "not 100% sure on that" and that "for all [he] kn[e]w,"
he might have worked from home. Neither party, however, disputes
that Santiago did not sign the contract in New Hampshire. As the
district court correctly found, this does not support a finding of
relatedness to New Hampshire in the formation of the employment
contract. See Adams, 601 F.3d at 6 ("This is not a case in which
- 11 - the specific terms of a contract were 'formalized and entered into'
in the forum state." (quoting Adelson, 510 F.3d at 49)); see also
Boit, 967 F.2d at 674, 678, 680 (affirming a dismissal for lack
specific personal jurisdiction under the prima facie standard
where "[plaintiffs'] allegation that [defendant] sold [a] hot air
gun to [a codefendant with ties to the forum state] directly [was]
the cornerstone of their contention that [it] should have
'reasonably anticipated being haled' into court in [the forum
state]" but "the record no more support[ed] [that]
inference . . . than it d[id] an inference that [defendant] sold
to another company without knowledge that it might sell to [the
codefendant]"). Moreover, Santiago was not "subject to
'substantial control and ongoing connection to [the forum state]
in the performance of this contract.'" Adams, 601 F.3d at 6
(alteration in original) (quoting Phillips v. Prairie Eye Ctr.,
530 F.3d 22, 27 (1st Cir. 2008)). Although he contacted
Vapotherm's New Hampshire headquarters for general administrative
matters, he was not subject to substantial control there -- his
direct supervisors were located in South Carolina, and their
supervisor was based in Chicago.
As to whether Santiago's activities in New Hampshire
were instrumental to the contract's breach, Vapotherm fares no
better. None of the three employees that Santiago allegedly
solicited worked in New Hampshire, and none of the conversations
- 12 - that would constitute solicitation are alleged to have taken place
in New Hampshire. As the district court correctly held, Vapotherm
has proffered no evidence which links Santiago's solicitation of
Lonsway, Philpot, and Wong to New Hampshire.6
It is also instructive to consider our prior personal
jurisdiction precedent regarding employees and employers from
different states in comparison to the facts now before us. See
Cossart v. United Excel Corp., 804 F.3d 13 (1st Cir. 2015); C.W.
Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59 (1st
Cir. 2014); Adelson, 510 F.3d 43. In Cossart, we found relatedness
(and ultimately personal jurisdiction) in Massachusetts over an
out-of-state corporation because the contract was "procured with
a Massachusetts resident to be performed by the resident primarily
from Massachusetts." 804 F.3d at 20. That factual scenario is
markedly different from Santiago, a Georgia resident working
primarily in Georgia and Florida for a New Hampshire company
6 Vapotherm analogizes in its brief Bluetarp Financial, Inc. v. Matrix Construction Co., 709 F.3d 72 (1st Cir. 2013) to highlight the fact that here as well, Santiago knowingly returned the contract to Vapotherm in the forum state, knowing it would be executed there. Id. at 81 ("Most notably, faxing the credit application to [the forum state] is what created the contract that [the plaintiff] claims was breached."). However, as established supra, Vapotherm has not offered evidence that the contract was executed in New Hampshire, and has not even established that Santiago mailed the contract there after signing it. Moreover, in Bluetarp, there were other pertinent factors linking the contract to the forum state that are not present here, such as a choice- of-law clause and a permissive forum-selection clause for the forum state. Id.
- 13 - incorporated in Delaware. This case also differs from C.W. Downer
& Co., where we found relatedness based on an "ongoing connection
with [the forum state] in the performance under the contract."
771 F.3d at 66. Similarly, in Adelson, we found relatedness
satisfied as to an international employee because the contract was
entered into in the forum state, specific terms of employment were
negotiated and finalized in the forum state at an in-person
meeting, and the contract itself subjected the employee to
"substantial control and ongoing connection to [the forum state]
in the performance of this contract." 510 F.3d at 49. In contrast,
the evidence offered by Vapotherm at this stage -- primarily
Santiago's deposition -- does not establish that Santiago traveled
to New Hampshire to formalize the employment contract or that the
details of his contract were negotiated or discussed there. The
CFO merely signed it in New Hampshire. Santiago was also not
subject to substantial control or ongoing connection in New
Hampshire. His contacts with the forum state throughout the
duration of the employment agreement were limited and infrequent,
and primarily for administrative or company-wide matters.
With regards to the tort claim of intentional
interference with contract relations, Vapotherm argues that it
properly established jurisdiction by showing that Santiago's acts
of soliciting employees caused injury within New Hampshire by
financially harming a New Hampshire-based company "even if the
- 14 - injury [was] the result of acts outside the state." See N.
Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005)
(quoting Hugel v. McNell, 886 F.2d 1, 3 (1st Cir. 1989)). As
discussed supra, this seemingly satisfies New Hampshire's long-arm
statute. However, the exercise of personal jurisdiction over
Santiago must still comport with the requirements under the Due
Process Clause of the Constitution. See id. ("[H]aving satisfied
the requirements of the New Hampshire long-arm statute, our inquiry
now turns to the question of whether the exercise of jurisdiction
over [the defendant] in New Hampshire violates the Federal
Constitution.").
To determine relatedness for tort claims under the
requirements of the Due Process Clause, we "must probe the causal
nexus between the defendant's contacts and the plaintiff's cause
of action." Phillips Exeter Acad., 196 F.3d at 289. Again we
consider, specifically in regards to the tort claim, whether the
tort claim "arise[s] out of or relate[s] to the defendant's
contacts with the forum." Ford Motor Co. v. Mont. Eighth Jud.
Dist. Ct., 141 S. Ct. 1017, 1026 (2021) (emphasis omitted) (quoting
Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct. 1773,
1780 (2017)). Vapotherm alleges that the district court
incorrectly applied the standard for relatedness, as articulated
by the Supreme Court in Ford Motor Co., by requiring Vapotherm to
demonstrate that its injury would not have occurred "but for"
- 15 - Santiago's forum-state activity. The Court in Ford stated that "a
strict causal relationship between the defendant's in-state
activity and the litigation" is not necessary, however, it also
noted that "the phrase 'relate to' incorporates real limits, as it
must to adequately protect defendants foreign to a forum." Id.
Even considering the test set forth in Ford, Vapotherm
relies too heavily on the fact that Santiago's alleged solicitation
of Lonsway, Philpot, and Wong led to injury in the forum state as
the primary basis for relatedness of the tort claim.7 The cases
establish that in-state injury alone is not sufficient under the
Due Process Clause to prove relatedness for tort claims. See
Phillips Exeter Acad., 196 F.3d at 291 (Noting "[a]s to Exeter's
tort claim" that "the receipt of payment was merely an in-forum
effect of an extra-forum breach and, therefore, inadequate to
support a finding of relatedness"); Mass. Sch. of L., 142 F.3d at
36 ("We have wrestled before with this issue of whether the in-
7 Vapotherm also argues that Santiago's tortious acts were directed at the forum state, and cites Calder v. Jones, 465 U.S. 783 (1984), to argue that this is sufficient to establish personal jurisdiction. The factual situation here, however, differs significantly from Calder, a defamation case. There, the Court held that "[the forum state] is the focal point both of the story and of the harm suffered," despite the fact that the newspaper that published the story, the Enquirer, was based outside of the forum state. Id. at 785, 789. Here, contrary to Vapotherm's allegations, Santiago's tortious acts were not directed at the forum state as none of the three solicited employees worked in New Hampshire nor were they solicited there. Therefore, all that remains connecting Santiago's tortious acts to New Hampshire is the in-forum harm that Vapotherm alleges it suffered.
- 16 - forum effects of extra-forum activities suffice to constitute
minimum contacts and have found in the negative."); Walden, 571
U.S. at 289-90 ("[M]ere injury to a forum resident is not a
sufficient connection to the forum. Regardless of where a
plaintiff lives or works, an injury is jurisdictionally relevant
only insofar as it shows that the defendant has formed a contact
with the forum state."); cf. Sawtelle, 70 F.3d at 1390-91 (finding
weak relatedness when "the gravamen of the [plaintiff's] claim is
that they suffered in New Hampshire the 'effects' of the
defendants' negligence committed elsewhere"); Ford, 141 S. Ct. at
1032 (concluding that plaintiffs' allegations that "they suffered
in-state injury because of defective products that [the company]
extensively promoted, sold and serviced in [the forum states]" met
the relatedness prong). The actions which form the basis of the
tort claim, Santiago's alleged solicitation of Lonsway, Philpot,
and Wong, do not arise out of or relate to Santiago's contacts
with New Hampshire. Instead, the three employees are connected to
Santiago through their contacts in Florida and Georgia where they
all worked throughout the duration of their employment with
Vapotherm.
For the foregoing reasons, we agree with the district
court that the evidence for relatedness on both the contract and
tort claims is threadbare at best and insufficient to establish
personal jurisdiction.
- 17 - 2. Purposeful Availment
Though we have determined relatedness is not met and
therefore need not examine at length the other two jurisdictional
requirements, we take this opportunity to briefly explain that
purposeful availment also has not been demonstrated here. "The
two key focal points of this concept are voluntariness and
foreseeability." Adelson, 510 F.3d at 50. For voluntariness,
"the contacts must be voluntary and not based on the unilateral
actions of another party." Id. (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985)). As to foreseeability, the
defendant's contacts in the forum state must give him notice such
that he could "reasonably anticipate being haled into court there."
World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Vapotherm contends that Santiago purposefully availed
himself of New Hampshire law by entering into a contract there and
maintaining an employment relationship with a New Hampshire
company for four years. Vapotherm also makes much of the fact
that Santiago interfered with the employment contracts of Lonsway,
Philpot, and Wong, all of which were governed by New Hampshire
law. Vapotherm fails to establish, however, that Santiago was
aware of the choice-of-law clauses within the three employees'
contracts. See Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591
F.3d 1, 10 (1st Cir. 2009) (finding purposeful availment when the
defendant was "fully aware of the . . . Employee Agreement,
- 18 - including its [choice-of-law and forum-selection] provisions").
Indeed, Santiago's own employment contract had a choice-of-law
clause for Maryland, further indicating a lack of notice that he
would be haled into New Hampshire to defend himself. See Adams,
601 F.3d at 8 (declining to find purposeful availment when
contract's governing law was non-forum state); Burger King Corp.,
471 U.S. at 482 (finding purposeful availment based on a forum
state choice-of-law provision combined with defendant's
relationship to the state).
Santiago's connections with New Hampshire differ
significantly from those of the defendant in Adelson, where the
court held that being haled into the forum state was both voluntary
and foreseeable. 510 F.3d at 50-51. In Adelson, we relied on the
fact that the out-of-state defendant had sought out employment in
the forum state, formalized and executed his employment agreement
there, his business card indicated his relationship to the forum
state, and all of his financials were processed through that state.
Id. at 50. Here, Santiago was recruited to Vapotherm rather than
seeking it out, was interviewed in Georgia and Illinois, formalized
his portion of the employment agreement in Georgia, contacted New
Hampshire primarily for technical and customer support, and only
traveled there for company-wide corporate events. As Santiago
indicated in his deposition, "[T]he majority of our business, the
activities, the focus, the customers, 99-plus percent of
- 19 - everything that we do is in the accounts . . . . So all of the
focus is in your territories," and his accounts were located in
the Southeast of the United States, specifically Florida and
Georgia. Based on these facts, the district court properly found
that Santiago did not avail himself "of the privilege of conducting
activities in [New Hampshire], thereby invoking the benefits and
protections of [its] laws and making [his] involuntary presence
before the state's courts foreseeable." United Elec., Radio &
Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080,
1089 (1st Cir. 1992).
3. Reasonableness
The final requirement needed to exercise personal
jurisdiction over a defendant is that such exercise must be fair
and reasonable. Cossart, 804 F.3d at 22 (citing C.W. Downer &
Co., 771 F.3d at 69). Vapotherm asserts that exercising
jurisdiction over Santiago is reasonable because New Hampshire has
a strong interest in protecting its corporate residents and
Santiago has not shown that he would be unable to litigate in New
Hampshire, and indeed has already so litigated.
As we explicated supra, Vapotherm did not make a prima
facie showing as to either relatedness or purposeful availment.
Therefore, we need not reach the reasonableness analysis. See
Sawtelle, 70 F.3d at 1394 ("Moreover, we note that a failure to
demonstrate the necessary minimum contacts eliminates the need
- 20 - even to reach the issue of reasonableness"); Adams, 601 F.3d at 8
("We hold that [the plaintiff] has not
demonstrated . . . sufficient purposeful availment to allow for
the exercise of jurisdiction. Thus, we need not proceed to
consider the reasonableness prong of the analysis.").
III. Conclusion
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
- 21 -