United States District Court, D. New Hampshire
McCafferty United States District Judge.
the court is plaintiff Alejandro Rivera's motion
requesting that the substantive law of Nevada be deemed
“controlling” (doc. no. 58). Defendants Body
Armor Outlet, LLC (“Body Armor Outlet”) and Ace
Welding Co., Inc. (“Ace”) object and assert that
the substantive law of New Hampshire should apply. Finding
the motion premature, the court declines to rule on the
question at this time, and therefore denies Rivera's
motion without prejudice.
three reasons, the court concludes that the choice-of-law
issues presented in this case are better addressed at a later
there appears to be a dispute of fact regarding whether
Rivera agreed to a New Hampshire choice-of-law provision set
forth in the “Conditions of Use” on Body Armor
Outlet's website. Defendants allege that when Rivera
purchased the steel plates from Body Armor Outlet's
website, he checked a box labeled “Yes, I agree,
” next to the following statement:
With the confirmation of this purchase from Body Armor
Outlet, LLC I am confirming that I have read the shipping and
returns policy and fully understand the policy. By making
this purchase I am agreeing to the terms described in this
section for my order.
Doc. no. 60-2 at 2. Defendants assert that, by clicking the
checkbox, Rivera agreed to the website's Conditions of
Use. Rivera appears to challenge the claim that he made such
an agreement, stating that the Conditions of Use were an
“optional link” at the bottom of Body Armor
Outlet's website. Doc. no. 66 at 3.
court is not in a position to resolve this dispute. The
submissions before the court amount to screenshots of the
relevant webpages, along with unsworn factual statements of
each party's counsel relating to the operation of the
website and Rivera's purchase. The evidence is sparse
and, more importantly, unclear. In addition, Rivera appears
to make a claim that the Conditions of Use are
unconscionable, which is itself a “fact-laden”
determination. State Farm Mut. Auto. Ins. Co. v.
Koshy, 995 A.2d 651, 669 (Me. 2010) (discussing New
Hampshire law). Further discovery and development of the
record would help to clarify and resolve these disputes.
See, e.g., Picone v. Shire PLC, No. 16-cv-12396,
2017 WL 4873506, at *15 (D. Mass. Oct. 20, 2017) (collecting
cases for proposition that “it is premature to conduct
the choice-of-law analysis at the motion to dismiss stage
prior to discovery”).
the parties have not fully addressed a threshold legal
question that relates to the Conditions of Use. Specifically,
there may be a question as to whether the choice-of-law
provision extends to a products liability claim, as opposed
to a contract claim. The choice-of-law provision merely
states that New Hampshire law applies to all
“transactions, ” a term which could be
interpreted to encompass only contract claims. See
Black's Law Dictionary (10th ed. 2014) (defining
“transaction” as the “act or an instance of
conducting business . . . esp., the formation, performance,
or discharge of a contract”); see also Stonyfield
Farm, Inc. v. Agro-Farma, Inc., No. 08-cv-488-JL, 2009
WL 3255218, at *4-5 (D.N.H. Oct. 7, 2009) (discussing law on
whether choice-of-law provisions extend to tort claims). Only
Ace addresses this issue.
the parties have only explicitly identified one relevant
conflict between Nevada and New Hampshire law. See Levin
v. Dalva Brothers, Inc., 459 F.3d 68, 73 (1st Cir. 2006)
(“An initial task of a choice-of-law analysis is to
determine whether there is an actual conflict between the
substantive law of the interested jurisdictions.”).
Specifically, in strict products liability cases, New
Hampshire recognizes a defense of comparative fault-which
permits the jury to reduce the plaintiff's damages by the
percentage that the plaintiff's misconduct caused his
injuries, if not greater than 50%-while Nevada does not.
Compare Thibault v. Sears, Roebuck & Co., 395
A.2d 843, 850 (N.H. 1978), with Young's Mach. Co. v.
Long, 692 P.2d 24, 25-26 (Nev. 1984). Instead, Nevada
recognizes traditional defenses like assumption of the risk
and misuse of the product, which, if proven, bar recovery by
the plaintiff. See Long, 692 P.2d at 25.
alluding to additional conflicts, the parties do not fully
explain how Nevada and New Hampshire law otherwise conflict.
In his motion, Rivera asserts that, in Nevada, defendants are
subject to joint and several liability, but he does not
describe how New Hampshire law differs. Rivera also cites
numerous Nevada strict-liability principles, but he does not
suggest that those differ from New Hampshire law. Also, Ace
notes that New Hampshire law allows for apportionment of
liability to unnamed parties, but does not cite any Nevada
law to demonstrate a conflict. Finally, while the parties
assert that their preferred state law should govern the case
generally, they do not identify any conflicts with respect to
Rivera's other claims-misrepresentation and breach of
express and implied warranties. Thus, deferring consideration
on the choice-of-law question will not only allow the record
to be further developed, but it will give the parties an
opportunity to elaborate on the particular conflicts of law
that require resolution.
court makes one final point. Defendants argue that Rivera
waived any argument regarding the application of Nevada law
because in the joint discovery plan he agreed that New
Hampshire law would apply, and he relied on New Hampshire law
in previous filings. Likewise, Rivera argues that defendants
should be estopped from denying that Nevada law applies
because they relied on Nevada law in certain filings.
court does not find the parties' arguments persuasive.
Given the procedural machinations of this case, the court
does not consider it surprising that all of the parties have
alternatively relied on Nevada and New Hampshire law at
various points during this litigation. The court is not
convinced that such conduct rises to the level of waiver,
concession, or estoppel, particularly where it is still
relatively early in the litigation, there is little in the
way of demonstrable prejudice, and the issue has not been
previously addressed by the court. See Levin, 459
F.3d at 72 (stating that the point at which a party must
raise a choice-of-law argument is “based on [each]
case's own facts and equities”); see also
Grecon Dimter, Inc. v. Horner Flooring Co., Inc., 114
Fed.Appx. 64, 66 (4th Cir. 2004) (declining to find waiver
where party's reliance on other state's law
“ended early in the case”).
purported “agreement” in the discovery plan is
also ambiguous, in that it is unclear whether it constitutes
an agreement as to the applicable substantive law, a mutual
recognition that New Hampshire choice-of-law principles
apply, or a mere acknowledgement that choice of law is an
unresolved question. The pertinent paragraph appears under
the heading “QUESTIONS OF LAW”:
Based on the holding in Klaxon, the law of New Hampshire
should control this litigation. Consequently, New
Hampshire's choice-of-law rules would apply. When New
Hampshire is the forum for a suit in which one or more other
states also have an interest, a court treats potential
conflicts of law as follows: it first decides whether a
relevant law is substantive or procedural; if it is
substantive, the court determines whether it actually
conflicts with the laws of another interested state and, if
so, the court then conducts ...