United States District Court, D. New Hampshire
McCafferty, United States District Judge.
Sonny Vu sues defendant RSI Racing Solutions, Inc.
(“RSI”) for claims arising out of the
parties' agreements regarding upgrades to a Dodge Viper
automobile. RSI moves to dismiss this action pursuant to
Federal Rule of Civil Procedure 12(b)(2), claiming that the
court lacks personal jurisdiction over it. Doc. no.
Alternatively, RSI requests that the court transfer this case
to the United States District Court for either the Eastern or
Northern District of Texas pursuant to 28 U.S.C. §
1404(a). Doc. no. 15. Vu objects to both motions. Doc. nos.
17 & 19. On October 11, 2019, the court heard oral
argument on these motions. Because Vu has failed to make a
prima facie showing that this court has personal jurisdiction
over RSI, the court cannot exercise jurisdiction over this
suit. Instead of dismissing this action, however, the court
will transfer the case to the United States District Court
for the Eastern District of Texas.
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.
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. (internal quotation marks
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).
all relevant times, Vu lived part-time in New Hampshire and
part-time in Vietnam. He paid taxes as a resident of Salem,
New Hampshire and held a New Hampshire driver's license.
wanted to buy a used Dodge Viper automobile and sought the
assistance of an experienced Viper mechanic or dealer to help
him. In November 2015, Vu found RSI's website,
www.racingsolutions.com. RSI is a corporation incorporated in
Texas, with its principal and sole place of business in
Plano, Texas. RSI does not have a physical office in New
Hampshire or own any assets or property in this state.
RSI's website advertises it as “the leader in Dodge
Viper performance” and explains that it provides
“retail or wholesale product sales, manufacturing,
tuning and turn-key installations.” Doc. nos. 11 at
¶ 8, 19-4 at 3. The website also advertises that
“in less than 4 weeks you could be driving your very
own RSI Twin Turbo Gen 5 Viper!” Doc. no. 19-4 at 2.
contacted RSI via email about visiting RSI while Vu was in
Texas. Doc. no. 14-3 at 3. RSI's owner responded to
Vu's email and informed him of RSI's business hours.
After visiting RSI's shop in Texas, Vu entered into a
written contract with RSI to purchase a used 2014 Dodge Viper
located in West Virginia. Doc. no. 14-4. Pursuant to the
contract, an RSI representative traveled to West Virginia on
Vu's behalf, inspected the 2014 Dodge Viper, purchased
it, and transported it back to RSI's shop in Plano,
Texas. Vu paid RSI $82, 500.00 for the cost of the vehicle,
inspection, and transportation.
RSI subsequently made multiple oral agreements, via email and
telephone, regarding modifications and upgrades to the Viper.
See, e.g., doc. no. 14-7 at 2-4. RSI initiated these
agreements by calling Vu or sending him emails to convince
him to agree to and pay for additional upgrades. See doc. no.
19-3. RSI mailed the sales orders for these upgrades to
Vu's mailing address in New Hampshire. Doc. no.
November 2015 and August 2016, Vu sent RSI six additional
payments totaling over $150, 000.00 for upgrades to the
Viper. Vu submitted all payments to RSI via wire transfer
from a bank in New Hampshire. RSI initially promised that the
modifications and upgrades would be completed during the
first half of 2016. It then postponed the completion date
2019, when Vu filed this suit, the modifications remained
incomplete and RSI retained possession of the Viper. Vu filed
an amended complaint in August 2019. Doc. no. 11. The amended
complaint alleges six claims: breach of contract; unjust
enrichment; breach of implied covenant of good faith and fair
dealing; violation of the New Hampshire Consumer Protection
Act (“CPA”); intentional misrepresentation; and
conversion. According to Vu, these claims are not premised on
breach of the parties' written contract; rather, they
arise from the parties' subsequent oral agreements for
modifications and upgrades to the Viper.
moves to dismiss Vu's suit, arguing that this court lacks
personal jurisdiction over RSI. Alternatively, RSI requests
that this court transfer the action to a district court in
Texas. The court addresses each motion in turn.
Motion to Dismiss for Lack of Personal Jurisdiction
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). Vu
argues only that this court has specific jurisdiction over
RSI. The court limits its analysis accordingly.
jurisdiction allows the court to hear a case if the action
“relates sufficiently to, or arises from, a significant
subset of contacts between the defendant and the
forum.” Baskin-Robbins Franchising LLC v. Alpenrose
Dairy, Inc., 825 F.3d 28, 35 (1st Cir. 2016) (internal
quotation marks omitted). To determine whether specific
jurisdiction exists, courts consider three elements:
relatedness, purposeful availment, and reasonableness.
Phillips v. Prairie Eye Center, 530 F.3d 22, 27 (1st Cir.
2008). Plaintiff must prove that each of these three
requirements is met. Id. The court assumes for the
sake of argument that Vu can satisfy the relatedness prong of
the tripartite test and focuses its analysis on the
purposeful availment inquiry. See Copia Commc'ns, LLC
v. AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016)
(skipping to purposeful availment inquiry and resting
decision on plaintiff's failure to meet that
requirement); Adams v. Adams, 601 F.3d 1, 6 (1st
Cir. 2010) (assuming for the sake of argument that plaintiff
could satisfy relatedness element and focusing on purposeful
purposeful availment requirement relates to the
defendant's “intentionality” with respect to
the forum state. Adams, 601 F.3d at 6. In considering this
element, the court must ask “whether a defendant has
deliberately targeted its behavior toward the society or
economy of a particular forum such that the forum should have
the power to subject the defendant to judgment regarding that
behavior.” Baskin-Robbins, 825 F.3d at 36
(internal quotation marks and brackets omitted). This
requirement ensures that a defendant will not be subjected to
the exercise of jurisdiction based “solely on random,
isolated or fortuitous contacts with the forum state.”
Id. (internal quotation marks omitted).
“cornerstones” of purposeful availment are
voluntariness and foreseeability. PREP Tours, Inc. v. Am.
Youth Soccer Org.,913 F.3d 11, 19-20 (1st Cir. 2019).
Voluntariness requires that the defendant's contacts with
the forum state result from actions of the defendant itself;
not from the unilateral actions of the plaintiff. See
Id. at 20. Foreseeability in this context means that
defendant's conduct and connection to the forum state
“are such that he should ...