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R&R Auction Company, LLC v. Johnson

United States District Court, D. New Hampshire

May 23, 2016

R&R Auction Company, LLC
Michael Johnson Opinion No. 2016 DNH 195



         In 2015, R&R Auction, a New Hampshire company, sued Michael Johnson, a California resident, in this court. R&R Auction brought a raft of federal and state-law claims, alleging that Johnson acted improperly in prosecuting his own lawsuit against R&R Auction in California state court. Johnson responded with a motion to dismiss for lack of personal jurisdiction, which I granted. See Doc. No. 33. R&R Auction then filed a motion for reconsideration. Doc. No. 35.


         Reconsideration is “an extraordinary remedy which should be used sparingly.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). Reconsideration is “appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009); see L.R. 7.2(d). Accordingly, a party cannot use a motion for reconsideration “to undo its own procedural failures” or to “advances arguments that could and should have been presented” earlier. Id. A motion for reconsideration is not “a mechanism to regurgitate old arguments previously considered and rejected.” Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014) (internal punctuation omitted).

         II. ANALYSIS

         Although R&R Auction raises a number of issues, its arguments largely turn on two pieces of evidence that the company presents, for the first time, in its motion for reconsideration. Federal Rule of Civil Procedure 59(e) “contemplates reconsideration based on newly discovered evidence.” Id. at 931. A district court may nonetheless “conclude in its discretion that the moving party's supposedly new evidence could have been presented prior to summary judgment.” Id. Courts will therefore “deny a motion for reconsideration based on the ‘new evidence’ exception if that evidence in the exercise of due diligence could have been presented earlier.” Allen, 573 F.3d at 53 (alterations and punctuation omitted). “[A] party who seeks relief from a judgment based on newly discovered evidence must, at the very least, offer a convincing explanation as to why he could not have proffered the crucial evidence at an earlier stage of the proceedings.” Karak v. Bursaw Oil Corp., 288 F.3d 15, 19-20 (1st Cir. 2002).

         Here, R&R Auction presents newly discovered evidence that several New Hampshire residents have visited Johnson’s so-called “Litigation Website.” See Doc. No. 35-2. The company also points out, for the first time, that Johnson initiated his communication with a New Hampshire reporter, during which Johnson allegedly defamed R&R Auction. See Doc. No. 35-3. Neither piece of evidence changes my decision to grant Johnson’s motion to dismiss.

         A. Litigation Website

         R&R Auction brought Lanham Act and state-law claims against Johnson, based upon Johnson’s unauthorized use of the term “R&R Auction” on his Litigation Website.[1] Relying in part upon the First Circuit’s recent decision in A Corp. v. All American Plumbing, 812 F.3d 54 (1st Cir. 2016), I concluded that R&R Auction had not satisfied the relatedness requirement with respect to those claims. See Doc. No. 33 at 12-15. As I explained, the fact that Johnson’s website is accessible in New Hampshire, allegedly causes injury in New Hampshire, and has been viewed by at least one New Hampshire resident was inadequate to meet R&R Auction’s burden. Id.

         R&R Auction has returned with evidence that at least six (“[t]here very well may be more”) New Hampshire residents have viewed Johnson’s website. See Doc. No. 35-1 at 13. The company argues that I should consider that evidence here because, it claims, R&R Auction only learned of these additional website visitors after responding to Johnson’s motion to dismiss. Id. R&R Auction also contends that it did not appreciate the significance of this evidence when it filed its briefs, because the First Circuit had not yet handed down A. Corp. Id. at 6-7.

         These arguments are unpersuasive. Although A Corp. clarified the jurisdictional analysis for claims based upon a defendant’s infringing website, it did not change the legal landscape. Rather, it has long been true that the mere fact that a website is visible in the forum, and injures a forum-based company, is insufficient to subject a defendant to suit in the forum. See McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir. 2005). “Something more is necessary.” Id.

         R&R Auction’s newly submitted evidence -- that at least a handful of New Hampshire residents have now visited Johnson’s website -- does not provide that “something more.” Even when I consider this evidence, the company has not adequately alleged, for example, that Johnson designed his site to target New Hampshire residents, or provided any services to New Hampshire consumers through the site. Cf. Sarah’s Hat Boxes, 2013 DNH 058, 16-17. Instead, R&R Auction has merely shown that some number of people in the forum have seen the site. That is not enough. Otherwise, “given the omnipresence of Internet websites today, allowing personal jurisdiction to be premised on such a contact alone would ‘eviscerate’ the limits on a state's jurisdiction over out-of-state or foreign defendants.” McBee, 417 F.3d at 124.

         B. NHBR Contacts

         R&R Auction also brought claims arising from Johnson’s allegedly defamatory statements about R&R Auction to a New Hampshire Business Review (“NHBR”) reporter. Relying upon the First Circuit’s decision in Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201 (1st Cir. 1994), I determined that R&R Auction had satisfied the relatedness and purposeful availment requirements as to these claims. See Doc. No. 33 at 18-22. I further concluded, however, that the company had presented only minimally sufficient evidence to meet its burden. I based that conclusion, in part, on ...

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