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Conroy v. The Dow Chemical Co.

United States District Court, D. New Hampshire

November 8, 2018

Robert L. Conroy
The Dow Chemical Company, et al



         Robert 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.


         When a 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).

         The 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).


         Conroy 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.

         During 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, 101-02.[1]

         Sudbury 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 3.

         Conroy 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.


         “Personal 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.

         Personal 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 ...

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