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Michael Slocum, Executor of the Estate of Timothy Donovan, and Cathy v. Alexander Schleicher

March 15, 2012

MICHAEL SLOCUM, EXECUTOR OF THE ESTATE OF TIMOTHY DONOVAN, AND CATHY CARTER
v.
ALEXANDER SCHLEICHER, GMBH & CO. SEGELFLUGZEUGBAU, ET AL.



The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2012 DNH 055

MEMORANDUM AND ORDER

Timothy Donovan died in a glider accident that occurred in Washington State. His wife and his estate have brought wrongful death claims against (1) the German manufacturer of the glider, Alexander Schleicher, GmbH & Co. Segelflugzeugbau ("Schleicher"), (2) Schleicher's Ohio-based distributer, Eastern Sailplane, Inc., and (3) Eastern Sailplane's owner, John Murray. Eastern Sailplane and Murray move to dismiss the claims against them for lack of personal jurisdiction.

I. STANDARD OF REVIEW

In objecting to a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of persuading the court that personal jurisdiction exists. Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009). Because I have not held a hearing on the motion, plaintiffs must make a prima facie showing that the court has personal jurisdiction over Murray and Eastern Sailplane. Cossaboon v. Me. Med. Ctr., 600 F.3d 25, 31 (1st Cir. 2010).

A prima facie showing requires plaintiff to "proffer[]

evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction." Lechoslaw v. Bank of Am., N.A., 618 F.3d 49, 54 (1st Cir. 2010) (internal quotation marks omitted). I will consider plaintiffs' facts to the extent they are supported by the evidence and consider the facts offered by Murray and Eastern Sailplane "to the extent that they are uncontradicted." Cossaboon, 600 F.3d at 31 (internal quotation marks omitted). Despite the liberality of the prima facie standard, I will not "credit conclusory allegations or draw farfetched inferences." Negron-Torres v. Verizon Commc'ns, 478 F.3d 19, 23 (1st Cir. 2007). Plaintiffs bear "'the ultimate burden of showing by a preponderance of the evidence that jurisdiction exists.'" Lechoslaw, 618 F.3d at 54 (quoting Adams v. Adams, 601 F.3d 1, 4 (1st Cir. 2010)).

II. ANALYSIS

A. Law

Personal jurisdiction in a diversity action over non-resident defendants depends on satisfying the requirements of the forum state's long-arm statute and the due process requirements of the Fourteenth Amendment. See Cossaboon, 600 F.3d at 29 n.1; N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005). New Hampshire's long-arm statutes, RSA § 293-A:15.10 and RSA § 510:4, extend personal jurisdiction to the extent allowed by due process.*fn1 Hemenway v. Hemenway, 159 N.H. 680, 685 (2010); see also N. Laminate Sales, 403 F.3d at 24; Jet Wine & Spirits, Inc. v. Bacardi & Co., Ltd., 298 F.3d 1, 7 (1st Cir. 2002).

A court may exercise either general or specific personal jurisdiction, depending on the nature of the defendant's contacts with the forum state. Carreras v. PMG Collins, LLC, 660 F.3d 549, 552 (1st Cir. 2011). In this case, plaintiffs assert that specific personal jurisdiction applies. Specific personal jurisdiction has three parts. Adelson v. Hananel, 652 F.3d 75, 80 (1st Cir. 2011). The first part asks "whether the asserted causes of action arise from or relate to the defendant's contacts with the forum," the second asks "whether the defendant purposefully availed itself of the protections of the forum's laws by means of those contacts, such that the defendant could reasonably foresee being haled into the forum's courts," and the third asks "whether an exercise of jurisdiction is consistent with principles of justice and fair play." Carreras, 660 F.3d at 554 (internal quotation marks and citations omitted). All three requirements must be satisfied to support a finding of specific personal jurisdiction. Negron-Torres, 478 F.3d at 25.

This case turns on the relatedness requirement. The relatedness inquiry asks whether "the cause of action [underlying the litigation] either arises directly out of, or is related to, the defendant's forum-based contacts." Harlow v. Children's Hosp., 432 F.3d 50, 61 (1st Cir. 2005). When the plaintiff's claims sound in tort, as they do in this case, a court "must probe the causal nexus between the defendant's contacts and the plaintiff's cause of action." Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 289 (1st Cir. 1999). In undertaking this inquiry, courts ordinarily ask both whether "the injury would not have occurred 'but for' the defendant's forum-state activity" (cause in fact) and whether "the defendant's in-state conduct gave birth to the cause of action" (proximate cause). Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 35 (1st Cir. 1998). "Although 'strict adherence to a proximate cause standard in all circumstances is unnecessarily restrictive,' in most cases, 'the proximate cause standard better comports with the relatedness inquiry because it so easily correlates to foreseeability, a significant component of the jurisdictional inquiry.'" Harlow, 432 F.3d at 61 (quoting Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 715 (1st Cir. 1996).

B. Application

Plaintiffs assert that Eastern Sailplane and Murray are liable for negligence and breach of warranty. They seek to satisfy the relatedness requirement with respect to both causes of action primarily by citing to evidence suggesting that: (1) Donovan and Murray exchanged numerous pre- and post-sale communications concerning the glider at a time when Donovan was living and working in New Hampshire; (2) Donovan arranged for Murray to register the glider in the name of one of Donovan's New Hampshire corporations; (3) Murray arranged for glider parts to be shipped to Donovan in New Hampshire; and (4) the glider was present in New Hampshire on at least two occasions. Plaintiffs ...


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