United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO, District Judge.
lawsuit is the latest installment in an ongoing dispute
between R&R Auction Company, LLC, a New Hampshire-based
auction house, and Michael Johnson, a California resident.
After bidding in a number of the company's auctions
between 2005 and 2011, Johnson complained that items he had
acquired through R&R Auction were inauthentic. He filed suit
against R&R Auction in 2012 in California state court.
years of increasingly hostile litigation in California, R&R
Auction brought this action in 2015, alleging that Johnson
has acted improperly in the course of prosecuting his
California lawsuit. R&R Auction complains, among other
things, that Johnson created several websites that
incorporate R&R Auction's name, and posted information
online that has harmed R&R Auction's reputation. R&R
Auction's complaint includes a raft of federal and
state-law claims. Johnson has responded with a motion to
dismiss for lack of personal jurisdiction.
Auction is a limited liability company formed under New
Hampshire law, with its principal place of business in
Amherst, New Hampshire. It hosts auctions via a print catalog
and its website, rrauction.com. Johnson is a California
2003 until 2011, R&R Auction mailed, at Johnson's
request, auction catalogs to Johnson in California. From 2005
until 2011, Johnson participated in auctions through the
company's website, acquiring more than eighty items in
thirtythree auctions. Johnson also consigned for sale more
than twenty items through R&R Auction, and sold items in six
R&R Auction's catalog and website describe the terms and
conditions that must be met to participate in an auction. The
catalog provides that "[p]lacing a bid in this auction
constitutes full acceptance of all of the conditions, bidding
rules, and terms of sale presented [in the catalog], "
and similar language appears on the website. Doc. No. 1 at 8.
These terms include a "Guarantees" provision
regarding the authenticity of items acquired through R&R
Auction. According to this provision, "[t]he buyer's
only remedy under this guarantee is the cancellation of the
sale [of the inauthentic item] and the refund of the purchase
2011, Johnson began to claim that items he had acquired
through R&R Auction were inauthentic. When he and R&R Auction
were unable to reach an amicable resolution, Johnson filed
suit in 2012 in Santa Barbara County Superior Court in
California. Johnson alleged that R&R Auction had violated
California law by auctioning (reportedly) knockoff items.
the California lawsuit was ongoing, Johnson registered
several Internet domain names incorporating the term
"R&R Auction, " or the names of individuals
associated with R&R Auction. I describe these sites
collectively as "the Litigation
Website." Doc. No. 1 at 17. The Litigation
Website's stated purpose is to "provide a venue in
which interested parties may learn more about this case which
is currently in litigation in Santa Barbara Superior
Court." Id . To that end, the website includes
contact information for Johnson's attorneys, and allows
visitors to submit a "message regarding this potential
lawsuit." Id . The website also provides links
to Twitter, Facebook, and YouTube pages, reportedly operated
by Johnson, that were created in connection with the
California lawsuit. The website is accessible in New
Hampshire, and has been viewed by at least one New Hampshire
resident. Doc. No. 15 at 3.
began posting information about his lawsuit on the Litigation
Website and other websites. In September 2014, he made
several posts on complaintsboard.com, stating that a class
action lawsuit had been filed "against RR Auction
located in Amherst, New Hampshire, " and inviting
"potential class member[s]" to visit the Litigation
Website. Doc. No. 1 at 12-13. In January and February 2015,
Johnson posted video depositions taken of several R&R Auction
March 2015, Johnson posted to the Litigation Website the
so-called "Alleged Burris Affidavit, " a 2008
affidavit purportedly authored by Karen Burris, a former R&R
Auction employee. Id. at 20-26. Burris was R&R
Auction's office manager from 2001 until 2008, when R&R
Auction accused her of stealing more than $400, 000 from the
company. On April 2, 2008, the day after R&R Auction
forwarded information about the missing funds to law
enforcement, Burris committed suicide. Id. at 21.
Several months later, R&R Auction reached a confidential
settlement and non-disclosure agreement with Burris's
estate, her late husband, William Burris, and Mr.
Burris's company. Id . In February 2015,
Johnson's counsel subpoenaed Mr. Burris, then living in
Montana, for "[a]ll writings about or concerning R&R
Auction Company" in Mr. Burris's possession.
Id. at 22. Johnson's counsel then interviewed
Mr. Burris, without notifying R&R Auction. When Mr. Burris
turned over the "Alleged Burris Affidavit" to
Johnson, Johnson filed that document in court, and posted it
on his website.
various postings led to unwanted negative attention for R&R
Auction. Members of the press wrote articles about the
California litigation, often referring to materials posted on
the Litigation Website. Id. at 36-37. Bob Sanders
from the New Hampshire Business Review, for example,
contacted R&R Auction for comment, noting that he currently
"only [had] the plaintiffs side" but had "the
depositions on the plaintiffs website." Id. at
36. R&R Auction was criticized on social media, and certain
past, present, and potential R&R Auction customers have
contacted the company to express concern about Johnson's
lawsuit. Some ended their relationship with the company.
after years of increasingly bitter litigation in California,
R&R Auction filed this suit in New Hampshire. In its
fifteen-count complaint, R&R Auction alleges that "[a]s
a direct and proximate result of the California Litigation,
the Litigation Website, and Mr. Johnson's other conduct,
RR Auction has suffered a material decline in business."
Id. at 44.
STANDARD OF REVIEW
defendant challenges the court's personal jurisdiction
under Federal Rule of Civil Procedure 12(b)(2), the plaintiff
bears the burden of establishing a basis for asserting
jurisdiction. See Mass. Sch. Of Law at Andover, Inc. v.
Am. Bar. Ass'n., 142 F.3d 26, 34 (1st Cir. 1998).
Because I did not hold an evidentiary hearing in this case,
R&R Auction need only make a prima facie showing of
jurisdiction. See Cossaboon v. Me. Med. Ctr., 600
F.3d 25, 31 (1st Cir. 2010).
this standard, R&R Auction must "adduce evidence of
specific facts" that support its jurisdictional claim.
Foster-Miller, Inc. v. Babcock & Wilson Can., 46
F.3d 138, 145 (1st Cir. 1995). I accept "specific facts
affirmatively alleged by the plaintiff as true (whether or
not disputed) and construe them in the light most congenial
to the plaintiff's jurisdictional claim." Mass. Sch.
Of Law, 142 F.3d at 34. I need not, however, "credit
conclusory allegations or draw farfetched inferences."
Id . (citation omitted). I may also consider
uncontested facts submitted by the defendant. Id .
In conducting this analysis, I assess "whether the facts
duly proffered, [when] fully credited, support the exercise
of personal jurisdiction." Alers-Rodriguez v.
Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir. 1997).
jurisdiction over an out-of-state defendant turns on both (1)
constitutionally sufficient "minimum contacts, "
and (2) service of process in accordance with Federal Rule of
Civil Procedure 4(k). For claims based on federal law, the
Fifth Amendment's due process clause sets the
constitutional limits of the court's jurisdiction.
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610,
618 (1st Cir. 2001). The Fifth Amendment demands only that
the defendant have sufficient "minimum contacts"
with the United States as a whole. Id . State law
claims, however, are governed by the Fourteenth
Amendment's due process clause, which requires that the
defendant have sufficient contacts with the particular state
in which the court sits. Id . Here, R&R Auction has
brought both federal and state law claims.
Rule of Civil Procedure 4(k) authorizes extraterritorial
service of process either when allowed by a federal statute,
or when "permitted by the law of the state in which the
district court sits." United Elec., Radio & Mach.
Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080,
1086 (1st Cir. 1992) (internal quotation marks omitted);
Fed.R.Civ.P. 4(k). In this case, R&R Auction has not
identified a federal statute authorizing it to serve Johnson
in New Hampshire. See Sarah's Hat Boxes, L.L.C. v. Patch
Me Up, L.L.C., 2013 DNH 058, 9 n.4 (noting that the Lanham
Act does not allow nationwide service of process). Instead,
it relies exclusively on New Hampshire's long-arm
statute. New Hampshire's long-arm statute, in turn, is
coextensive with the Fourteenth Amendment. See Presby Patent
Trust v. Infiltrator Sys., Inc., 2015 DNH 111, 2-3.
Therefore, in order to satisfy Rule 4, R&R Auction must
satisfy the Fourteenth Amendment's due process clause
with respect to both its state and federal claims. Situation
Management Systems v. ASP Consulting Grp., 2006 DNH 092, 5.
Fourteenth Amendment requires that a defendant have
sufficient "minimum contacts" with the forum such
that "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) (internal quotation and punctuation
omitted). This "minimum contacts" inquiry is
necessarily fact-specific, requiring "an individualized
assessment and factual analysis of the precise mix of
contacts that characterize each case." Pritzker v.
Yari, 42 F.3d 53, 60 (1st Cir. 1994). A defendant cannot
be subjected to personal jurisdiction based upon merely
"random, fortuitous, or attenuated contacts" with
the forum. Burger King v. Rudzewicz, 471 U.S. 462,
475 (1985) (internal punctuation omitted). Instead, there
must 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.
jurisdiction comes in two varieties - general and specific -
depending upon the nature of the defendant's contacts
with the forum. Sarah's Hat Boxes, 2013 DNH 058, 11.
General jurisdiction exists where the defendant has engaged
in "continuous and systematic" activity in the
forum "sufficient to establish jurisdiction in that
state over all matters including matters unrelated to the
defendant's contacts in the forum state."
Id . (citing Northern Laminate Sales, Inc. v.
David, 403 F.3d 14, 24 (1st Cir. 2005). Specific
jurisdiction "exists only when the cause of action
arises from or relates to the defendant's contacts with
the forum state." Id . R&R Auction asserts that
specific personal jurisdiction exists here.
First Circuit applies a three-part test to decide whether
specific jurisdiction exists: (1) whether the claims arise
out of, or are related to, the defendant's forum-related
activities ("relatedness"), (2) whether the
defendant has purposefully availed himself of the protections
and benefits of the forum state's laws ("purposeful
availment"), and (3) whether the exercise of
jurisdiction is reasonable under the circumstances (the
"gestalt factors"). Phillips v. Prairie Eye
Ctr., 530 F.3d 22, 27 (1st Cir. 2008). The plaintiff