United States District Court, D. New Hampshire
Robert L. Conroy
The Dow Chemical Company, et al
MCCAFFERTY UNITED STATES DISTRICT JUDGE.
Conroy alleges that he suffered serious injuries when the
contents of a can of foam sealant manufactured by The Dow
Chemical Company (“Dow”) and distributed by
Sudbury Lumber Company, Inc. (“Sudbury Lumber”)
exploded on him. He sued Dow and Sudbury Lumber in New
Hampshire Superior Court, and Dow removed the action to this
court based on diversity jurisdiction. Sudbury Lumber moves
to dismiss the claim against it pursuant to Federal Rule of
Civil Procedure 12(b)(2), claiming that the court lacks
personal jurisdiction over it. Conroy objects. Because Conroy
has failed to make a prima facie showing that this court has
either specific or general jurisdiction over Sudbury Lumber,
the court grants Sudbury Lumber's motion.
defendant contests personal jurisdiction under Rule 12(b)(2),
the plaintiff bears the burden of persuading the court that
jurisdiction exists. See Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir.
1998). Where, as here, the court considers a Rule 12(b)(2)
motion without holding an evidentiary hearing, the court
applies the prima facie standard. See Sawtelle v.
Farrell, 70 F.3d 1381, 1386 n.1 (1st Cir. 1995). To make
a prima facie showing of jurisdiction, a plaintiff cannot
rest on the pleadings, but must adduce evidence of specific
facts supporting jurisdiction. See Foster-Miller,
Inc. v. Babcock & Wilcox Canada, 46 F.3d
138, 145 (1st Cir. 1995).
court “draws the facts from the pleadings and the
parties' supplementary filings, including affidavits,
taking facts affirmatively alleged by the plaintiff as true
and viewing disputed facts in the light most favorable to
plaintiff.” Sawtelle, 70 F.3d at 1385. The
court may also consider the facts posited by defendant, to
the extent they are uncontradicted. See Mass. Sch.
of Law, 142 F.3d at 34. But the court need not
“credit conclusory allegations or draw farfetched
inferences.” Id. (quotation omitted). In
short, the court does not sit as a fact-finder; it
“ascertains only whether the facts duly proffered,
fully credited, support the exercise of personal
jurisdiction.“ Rodriguez v. Fullerton Tires
Corp., 115 F.3d 81, 84 (1st Cir. 1997).
owns and operates a small carpentry business. In November
2016, he was working on a renovation project in which he
planned to install insulation in a home. To complete the
project, Conroy decided to use GREAT STUFF™, a foam
sealant product. Dow manufactures Great Stuff and advertises
it as an effective foam sealant, ideal “for a
do-it-yourselfer.” Doc. no. 1-1 at ¶ 15.
the project, a worker handed Conroy a can of Great Stuff that
had recently been purchased at Sudbury Lumber. Conroy began
shaking the can, per the instructions. While doing so, the
can slipped out of his hands, fell to the floor, and
exploded. The contents of the can sprayed onto his face and
hands, causing serious chemical burns. Conroy alleges a claim
of products liability against both Sudbury Lumber and Dow,
claiming that “Dow, by and through its authorized
retailer, Sudbury Lumber, provided products to [him]”
that were defective or unreasonably dangerous, resulting in
injury. Id. at ¶¶ 92-93,
Lumber is a Massachusetts corporation with its principal
office in Sudbury, Massachusetts. Sudbury Lumber asserts that
it has no retail location or office, no registered agent, no
employees, no mailing address, and no bank account in New
Hampshire. Doc. no. 11-1 at 2. It also avers that it is not
registered to do business in New Hampshire. Id. at
does not dispute any of these assertions. Nevertheless, he
contends that the court may exercise personal jurisdiction
because of Sudbury Lumber's website. Sudbury Lumber does
not dispute that it maintains a website. Id. at 2.
According to Conroy, the website allows customers to search
Sudbury Lumber's catalog-which includes Dow products-and
add items to a shopping cart. Doc. no. 10 at 2. Once
customers have placed items in a shopping cart, they have the
option to “[e]mail for [a] quote, ” which
commences a transaction between the customer and Sudbury
Lumber. Id. Sudbury Lumber may respond to that
communication to secure the customer's business. Conroy
does not allege that customers can buy products directly
through Sudbury Lumber's website.
jurisdiction implicates the power of a court over a
defendant.” Foster-Miller, 46 F.3d at 143.
“An exercise of jurisdiction must be authorized by
state statute and must comply with the Constitution.”
Harlow v. Children's Hosp., 432 F.3d 50, 57 (1st
Cir. 2005). New Hampshire's long-arm statute reaches as
far as the Constitution allows. Phillips Exeter Acad.
v. Howard Phillips Fund, 196 F.3d 284, 287 (1st
Cir. 1999). Therefore, the court's inquiry is whether the
constitutional requirements of due process have been met. See
Id. “The Due Process Clause prohibits a court
from imposing its will on persons whose actions do not place
them in a position where they reasonably can foresee that
they might be called to account in that jurisdiction.”
Id. Grounded in principles of fundamental fairness,
the court's personal jurisdiction inquiry focuses on the
quality and quantity of defendant's contacts with the
forum state. See Id. at 288.
jurisdiction may be either specific or general. Cossaboon
v. Maine Med. Ctr.,600 F.3d 25, 31 (1st Cir. 2010).
Specific jurisdiction “may only be relied upon where
the cause of action arises directly out of, or relates to,
the defendant's forum-based contacts.” Id.
(quotation omitted). By contrast, “[g]eneral
jurisdiction exists when the litigation is not directly
founded on the defendant's forum-based contacts, but the
defendant has nevertheless engaged in continuous and
systematic activity, unrelated to the suit, in the forum
state.” Foster-Miller, 46 F.3d at 144
(quotation omitted). The Supreme Court has recently clarified
that, to justify general jurisdiction, defendant's forum
state contacts must be so continuous and systematic “as
to render [defendant] essentially at home in the forum
State.” Daimler AG v ...