United States District Court, D. New Hampshire
J. MCAULIFFE UNITED STATES DISTRICT JUDGE.
Property and Casualty Insurance Company, as subrogee, brings
this action against Grohe Canada, Inc. Allstate claims that
Grohe Canada designed, manufactured, and/or sold a defective
valve (known as the “Tempress II”) that was a
component in a shower valve assembly installed in the home of
its insured. That valve allegedly failed, the insured's
home flooded, and, pursuant to its contractual obligations
under an insurance policy with the insured, Allstate paid
nearly $300, 000 to cover the damages. Allstate seeks to
recover that money, plus interest, and costs of this action.
In its complaint, Allstate advances three claims against
Grohe Canada: negligence, strict product liability, and
breach of warranty. It asserts that the court may properly
exercise subject matter jurisdiction pursuant to 28 U.S.C.
§ 1332 (diversity of the parties).
Canada counters that this is an inappropriate forum in which
to address the merits of Allstate's claims because this
court lacks personal jurisdiction over it. Accordingly, Grohe
Canada moves to dismiss all of Allstate's claims.
Allstate objects. Should the court conclude that it lacks
personal jurisdiction over Grohe Canada, Allstate asks the
court to transfer this suit to the United States District
Court for the Central District of California. See generally
28 U.S.C. § 1631.
reasons discussed, Grohe Canada's motion to dismiss is
granted, without prejudice. Allstate's motion to transfer
constitutional principles governing this court's exercise
of personal jurisdiction over a non-consenting defendant are
well-established and need not be recounted in detail. See
generally D'Jamoos v. Atlas Aircraft Center,
Inc., 669 F.Supp.2d 167 (D.N.H. 2009). It is sufficient
to note the following: First, Allstate invokes this
court's specific (rather than general) personal
jurisdiction over Grohe Canada. Additionally, the parties
have, by agreement, engaged in jurisdictional discovery, but
neither has requested an evidentiary hearing. Accordingly,
Allstate bears the burden of making a prima facie showing,
based upon specific facts set forth in the record, that Grohe
Canada has “certain minimum contacts with [New
Hampshire] such that the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice, ” Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)
(citation and internal punctuation omitted), and that Grohe
Canada's conduct bears such a “substantial
connection with the forum State” that it “should
reasonably anticipate being haled into court” here,
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-75
(1985) (citing WorldWide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)).
carry its burden, Allstate must satisfy a three-part test
articulated by the court of appeals.
First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant's forum-state
activities. Second, the defendant's instate contacts must
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. Third, the exercise of
jurisdiction must, in light of the Gestalt factors, be
United Elec., Radio & Mach. Workers of Am. v. 163
Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992).
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
Academy v. Howard Phillips Fund, Inc., 196 F.3d 284, 288
(1st Cir. 1999).
the court notes that the New Hampshire individual long-arm
statute, N.H. Rev. Stat. Ann. (“RSA”) 510:4,
provides jurisdiction over foreign defendants “to the
full extent that the statutory language and due process will
allow.” Phelps v. Kingston, 130 N.H.
166, 171 (1987). Likewise, New Hampshire's corporate
long-arm statute, RSA 293-A:15.10, authorizes jurisdiction
over foreign corporations and unregistered professional
associations to the full extent permitted by federal law. See
Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir.
1995). Stated another way, New Hampshire's individual and
corporate long-arm statutes are coextensive with the outer
limits of due process protection under the federal
constitution. Accordingly, the court need only determine
whether the exercise of personal jurisdiction over a foreign
defendant would comport with federal constitutional
those principles in mind, the court turns to Grohe
Canada's motion to dismiss, as well as Allstate's
motion to transfer this action pursuant to 28 U.S.C. §
Grohe Canada's Motion to Dismiss.
upon the undisputed evidence of record, the relevant facts -
at least as they relate to this court's exercise of
personal jurisdiction over Grohe Canada - are as follows.
Grohe Canada is a foreign corporation with a principal place
of business in Mississauga, Ontario, Canada. It has never
been licensed, registered, or otherwise authorized to do
business in New Hampshire. It does not have a registered
agent for service of process in New Hampshire. It has never
owned or leased any property in New Hampshire, nor has it
ever employed anyone in New Hampshire or maintained an office
in New Hampshire. Grohe Canada has no bank accounts in New
Hampshire, nor has it ever maintained a New Hampshire phone
number. Grohe Canada never sold, distributed, or delivered
any products directly to any customer in New Hampshire. Grohe
Canada did not design, test, build, repair, service, or
inspect the valve at issue in this case in New Hampshire - if
any of that occurred, it would have happened in either
Ontario, Canada, or at one of Grohe's suppliers in China.
Canada sold valve components to several Original Equipment
Manufacturers (OEMs) in the United States, none of which are
located in New Hampshire. Those OEMs then incorporated Grohe
Canada's valves into their products, which were
subsequently sold to end users and retailers in the United
States. Grohe Canada did not have any input into, or control
over, where those OEMs' products were ultimately sold.
Grohe Canada did not design the valve at issue to comply with
any New Hampshire-specific code or regulatory requirements.
Grohe Canada did not advertise its products in New Hampshire,
nor did it conduct any marketing efforts in New Hampshire.
See generally Affidavit of Herb Barnhart (document no. 11-2).
support of its assertion that the court may properly exercise
personal jurisdiction over Grohe Canada, Allstate says the
1. The “relatedness” element of the
jurisdictional inquiry is met because, “there is no
dispute that the Subject Valve was ultimately used in New
Hampshire. While Defendant did not sell the Subject Valve
directly to a New Hampshire-based customer, Defendant sold
its products to multiple United States-based entities.”
Plaintiff's Memorandum (document no. 22) at 4 (emphasis
2. The “purposeful availment” element is met
because “Defendant purposefully and voluntarily sold
its products to multiple United States-based entities. One of
those products, the Subject Valve, was ultimately used in New
Hampshire. While Defendant did not purposefully target New
Hampshire for the sale of its products, . . . . the Subject
Valve being used in New Hampshire was a foreseeable result of
Defendant selling its products to multiple U.S.-based
customers.” Id. (emphasis supplied); and,
3. It would be fair and reasonable to require Grohe Canada to
litigate in this forum because “Defendant's burden
of appearing in New Hampshire will be minimal. Defendant has
retained counsel in New Hampshire. Plaintiff is happy to
travel to wherever Defendant's representatives are
located for purposes of depositions. New Hampshire has an
interest in adjudicating this dispute, which arose within New
Hampshire's borders and injured a New Hampshire
homeowner. Plaintiff is certainly interested in obtaining
convenient and effective relief in New Hampshire.”
Id. at 5.
that seems to be little more than an argument that Grohe
Canada introduced the allegedly defective Tempress II valve
into the American stream of commerce and knew (or should have
known) that its product might, some day, end up in New
Hampshire. That is plainly an insufficient basis upon which
this court might properly rest the exercise of personal
jurisdiction over Grohe Canada.
than thirty years ago, the Supreme Court held that merely
introducing a product into the “stream of
commerce” is, standing alone, insufficient to support