BLUETARP FINANCIAL INC v. MATRIX CONSTRUCTION CO INC

Filing 14

ORDER ON MOTION TO DISMISS granting 7 Motion to Dismiss By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BLUETARP FINANCIAL, INC,
Plaintiff,
v.
MATRIX CONSTRUCTION CO. INC.,

Defendant.

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) Docket No. 2:11-cv-290-GZS
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ORDER ON MOTION TO DISMISS
Before the Court is Defendant‟s Motion to Dismiss Plaintiff‟s Complaint (Docket # 7).
As explained herein, the Court GRANTS the Motion.

I.

LEGAL STANDARD
Defendant seeks dismissal of this case pursuant to Fed. R. Civ. P. 12(b)(2), (3), and (6).
A motion to dismiss under Rule 12(b)(2) seeks dismissal based on lack of personal jurisdiction.
The personal jurisdiction of a federal court sitting in diversity is equivalent to that of a state court
sitting within the forum. Tice v. Taiwan Shin Yeh Enterprise Co., Ltd., 608 F. Supp. 2d 119,
121 (D. Me. 2009) (citing Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 712 (1st Cir. 1996)).
Thus, to establish personal jurisdiction over a defendant, the plaintiff must demonstrate both that
Maine‟s long-arm statute grants jurisdiction and that exercise of jurisdiction under the statute is
consistent with the Due Process Clause of the United States Constitution. Id. (citing Daynard v.
Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002)). Because
Maine‟s long-arm statute is coextensive with the permissible exercise of personal jurisdiction

under the Constitution, the due process inquiry controls the instant case. See 14 M.R.S.A. § 704A; Murphy v. Keenan, 667 A.2d 591, 593 (Me. 1995).
Plaintiff has the burden to persuade the Court that it has personal jurisdiction over
Defendant. See Mass. Sch. of Law v. Am. Bar Ass‟n, 142 F.3d 26, 34 (1st Cir. 1998). To assess
whether Plaintiff has met its burden, the Court applies the prima facie standard, and accepts
Plaintiff‟s proffered facts construing them in the light most favorable to Plaintiff.

See id.

Additionally, the Court considers any uncontradicted facts put forward by Defendant. See id. In
making this showing, Plaintiff may not rely on unsupported allegations in its factual pleadings,
but is obligated to adduce evidence of specific facts.1 See id.
The filing of a Rule 12(b)(3) motion likewise places the burden on the plaintiff to
demonstrate the propriety of venue. See McGinley v. Wahoo Funding, Inc., 2007 WL 1810712,
at *1 (D. Me. June 21, 2007) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1352 at 321-22 (3d ed. 2004)). The procedural analysis applied in
determining a challenge of venue follows the procedure for analysis employed in a motion under
Rule 12(b)(2).2 See Salisbury Cove Associates, Inc. v. Indcon Design (1995), Ltd., 211 F. Supp.
2d 184, 187 (D. Me. 2002).
Finally, a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6)3
tests the “legal sufficiency” of a complaint. Gomes v. Univ. of Maine Sys., 304 F. Supp. 2d 117,
120 (D. Me. 2004). “To survive a motion to dismiss, a complaint must contain sufficient factual
1

To determine the relevant jurisdictional facts, the Court has considered the affidavits and other materials submitted
by the parties in addition to the pleadings. Such consideration of materials outside the pleadings in the context of a
motion under Fed. R. Civ. P. 12(b)(2) does not require conversion to a motion for summary judgment. See Fed. R.
Civ. P. 12(b).
2

Because of the Court‟s ruling on the motion to dismiss for lack of personal jurisdiction, the Court need not
consider the question of venue.
3

In the First Circuit, courts view motions to dismiss based on forum selection clauses through the lens of Rule
12(b)(6). See Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009).

2

matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v.
Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation and
internal punctuation omitted).
Of course, the Court must accept as true all well-pleaded factual allegations in a
complaint and draw all reasonable inferences in a plaintiff's favor. See id. at 1949-50; Rivera v.
Centro Médico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009). In distinguishing sufficient
from insufficient pleadings, “a context-specific task,” the Court must “draw on its judicial
experience and common sense.” Ashcroft, 129 S.Ct. at 1950.

II.

FACTUAL BACKGROUND
Defendant Matrix Construction Company (“Matrix” or “Defendant”) is a South Carolina
corporation with a principal place of business in Anderson, South Carolina. Matrix has never
had an office in Maine, has never bid on a construction project in Maine, has never worked on a
construction project in Maine, and has never purchased construction supplies from suppliers
located in Maine.
In 2010, Matrix was retained as the general contractor for construction projects at three
schools in South Carolina. In accordance with its role as general contractor, Matrix solicited
bids from subcontractors and building materials suppliers. Matrix accepted a bid from Contract
Supply LLC (“Contract Supply”) to provide wood doors and hollow metal frames for the
projects. Contract Supply is a South Carolina company with a principal place of business in
Maudin, South Carolina. After Matrix accepted the bid, Contract Supply informed Matrix that it

3

could not enter into an agreement until Matrix completed a commercial credit application. On
May 24, 2010, Contract Supply faxed a note to Matrix asking that Matrix complete a commercial
credit application. Although Matrix preferred to pay for supplies by check and already had a line
of credit with a local bank at a favorable rate, Matrix agreed to complete the application.
Matrix‟s office manager, Cyndi Durham signed the commercial credit application in South
Carolina but left the “Requested Credit Line” blank, because, as Matrix alleges, Matrix did not
intend to purchase materials using the line of credit provided by Contract Supply. Durham then
faxed the completed application back to Contract Supply in South Carolina.
Shortly thereafter, on May 24, 2010, Matrix received a fax from BlueTarp Financial, Inc.
(“BlueTarp” or “Plaintiff”) thanking Matrix for applying for credit with BlueTarp but informing
Matrix that its application could not be processed because Matrix had failed to fill out the
“Requested Credit Line” and had failed to have the application signed by a corporate officer. On
June 2, 2010, Matrix faxed an updated application to BlueTarp in Portland, Maine. The updated
application had been signed by Matrix President H.M. King, Jr. in South Carolina and listed
$5,000 in the “Requested Credit Line.”4 The second page of the application contained an
Account Agreement (the “Agreement”). BlueTarp approved the application and on June 8, 2010
sent a welcome letter to Matrix advising Matrix of its initial credit limit, providing billing and
payment information, and setting forth the terms and conditions of the Agreement, which
contained provisions stating that the agreement between the parties “will be governed by the
laws of the State of Maine” and that “[i]n the event of default in payment, BlueTarp … may
institute suit against you in the courts of the State of Maine, regardless of where you are
geographically located or conduct business.” (See Docket # 7-18, PageID 131-32.)

4

Matrix asserts that it requested only $5,000 because it did not intend to purchase any building supplies from
Contract Supply on credit from BlueTarp.

4

Matrix submitted three purchase orders to Contract Supply dated June 11, 2010, January
14, 2011, and May 5, 2011, respectively. (See Docket # 7-19, PageID 133-35.) These purchase
orders totaled more than $167,000. Contract Supply invoiced Matrix directly for the purchase
orders Matrix placed with Contract Supply. These invoices spanned from September 2010 to
May 2011. (See Docket # 7-20, PageID 136-61.) From September 2010 to March 2011, Matrix
paid Contract Supply directly by check.5 (See Docket # 7-21, PageID 162-173.) Between July
2010 and May 2011, Matrix received a total of twelve billing statements from BlueTarp. Each of
these statements contained an Atlanta, Georgia mailing address and instructions to send payment
to BlueTarp in Atlanta, Georgia. (See Docket # 7-23, PageID 176-210.) During this eleven
month span, correspondence from BlueTarp also indicated that Matrix‟s credit line was increased
first to $10,000 and later to $144,000.6 Moreover, BlueTarp and Matrix exchanged several
additional communications over these eleventh months, a majority of these communications
concerned collections.
In June 2011, Matrix learned that Contract Supply had not paid its suppliers for the
materials purchased by Matrix. Soon thereafter, Matrix suspended payments to Contract Supply.
On June 15, BlueTarp collections manager Theresa Gouzie sent Matrix office manager Cyndi
Durham an email demanding payment of $118,201.50 for “purchases outstanding against your
BlueTarp Account.” (See Docket # 7-24, PageID 211.) On August 31, 2011, Matrix received a
letter from Contract Supply demanding payment for building materials orders.
Matrix contends that it never placed purchase orders with Contract Supply through
BlueTarp, never made any payments to BlueTarp for the building materials Matrix purchased
5

Matrix asserts that it never placed purchase orders with Contract Supply through BlueTarp nor communicated with
BlueTarp regarding these orders.
6

Matrix asserts that it never requested a credit limit increase and that Matrix never discussed such a credit limit
increase with BlueTarp.

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from Contract Supply, nor communicated with BlueTarp concerning the purchase orders. Matrix
asserts that it made all of its purchase orders from Contract Supply directly and that it paid
Contract Supply directly by check. Meanwhile, BlueTarp asserts that between July 1, 2010 and
May 11, 2011, it approved $169,217.58 in charges made on Matrix‟s BlueTarp credit account at
Contract Supply.7
On July 28, 2011, BlueTarp filed the present action in this Court seeking to recover those
amounts under the terms of the credit line that had been established for Matrix. On August 11,
2011, Matrix filed a suit against BlueTarp, Contract Supply and one other defendant in state
court in South Carolina.

III.

DISCUSSION
At this early stage of this case, the parties appear to agree that they have a dispute
requiring judicial intervention. They disagree on the proper forum. Plaintiff‟s filing of the
pending complaint evinces a clear desire to have their dispute heard by this Court. However, the
pending Motion to Dismiss asserts that this Court lacks personal jurisdiction over Defendant
under both the forum selection clause and under recognized limits of personal jurisdiction. In
Defendant‟s view, this case is “a dispute between a Delaware corporation (BlueTarp) and a
South Carolina corporation (Matrix) over a contract executed in South Carolina for the purchase
of supplies from another South Carolina company (Contract Supply) for construction projects in
South Carolina allegedly to be paid in Georgia” and cannot be heard by a federal court sitting in
Maine. (Def. Reply (Docket # 13) at 6.)

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Matrix contends that it paid Contract Supply directly for these purchase orders. Apparently, Matrix made several
payments to Contract Supply that Contract Supply then forwarded to the BlueTarp lock box designated for
payments. However, BlueTarp was not aware that Matrix was addressing these checks to Contract Supply, because
all deposits in the lock box were credited regardless of the payee.

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A. Forum Selection Clause
The credit agreement that serves as the source of the parties‟ relationship and dispute
contains the following language:
You agree that in the event of default in payment, BlueTarp Financial may
institute suit against you in the courts of the State of Maine, regardless of where
you are geographically located or conduct business.
(Agreement (Docket # 1-1) at PageID 5.)
Defendant asserts that this forum selection clause in the parties‟ contract is nothing more
than a consent to personal jurisdiction in Maine‟s state courts and, therefore, that the forum
selection clause prohibits this federal Court from exercising jurisdiction over this case. Plaintiff
contends that the forum selection clause requires that Defendant be subjected to this Court‟s
jurisdiction because by consenting to jurisdiction in Maine state courts, Defendant consented to
jurisdiction in federal district court in Maine.8
It is well-settled that contractual forum selection clauses are prima facie valid.9 See, e.g.,
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1977). And because Maine law is
coextensive with federal common law concerning the interpretation of forum selection clauses,
the Court may apply federal common law to interpret the forum selection clause in this case.10
See Fairchild Semiconductor Corp. v. Third Dimension (3D) Semiconductor, 589 F. Supp. 2d

8

The contract between the parties includes a choice of law provision, which provides that Maine law shall govern
the contract. As neither party disputes the applicability of Maine law, and because there is a reasonable basis for
employing Maine law, the Court determines that Maine law governs its analysis of the forum selection clause.
9

Under Bremen, the forum selection clause controls “absent a strong showing that it should be set aside.” 407 U.S.
at 15. The party resisting enforcement bears the heavy burden of demonstrating why the clause should not be
enforced. Id. at 17. Here, however, neither party contests whether the forum selection clause is enforceable;
accordingly, the Court need not evaluate the grounds for finding a forum selection clause unenforceable. See
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 632-33 (1985) (discussing the factors).
10

In addition, because both the First Circuit and Maine courts recognize and enforce forum selection clauses, this
Court need not decide the Erie issue of what law applies in deciding the enforceability of the forum selection clause
and whether it is procedural or substantive. See Fairchild Semiconductor Corp., 589 F. Supp. 2d at 89 n. 36 (citing
Lambert v. Kysar, 983 F.2d 1110 (1st Cir. 1993)).

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84, 89 & nn.35, 36 (D. Me. 2008) (“The First Circuit routinely enforces forum selection clauses.
The Maine Law Court also recognizes and enforces them.”); see also Huhtamaki Co. Mfg. v.
CKF, Inc., 648 F. Supp. 2d 167, 180 (D. Me. 2009) (interpreting forum selection clause naming
Maine law and Maine courts under federal common law); Genujo Lok Beteiligungs GmbH v.
Zorn, 943 A.2d 573, 580 (Me. 2008).
The key question in interpreting the forum selection clause is whether the clause is
permissive or mandatory. “Permissive forum selection clauses, often described as „consent to
jurisdiction‟ clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit
litigation elsewhere.” Rivera v. Centro Medico De Turabo, Inc., 575 F.3d 10, 17 (1st Cir. 2009)
(quoting 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3803.1 (3d ed. 1998)). “In contrast, mandatory forum selection clauses contain clear
language indicating that jurisdiction and venue are appropriate exclusively in the designated
forum.” Id. Defendant argues that the forum selection clause is mandatory – that it was intended
to affirmatively confer jurisdiction upon Maine‟s state courts and limit the jurisdiction of the
federal district court in Maine. Plaintiff, on the other hand, does not argue that the forum
selection clause is permissive in the classic sense; rather, Plaintiff makes the novel argument that
regardless of whether Defendant has established sufficient minimum contacts in Maine, by
consenting to suit in Maine state court Defendant consented to suit in federal district court in
Maine. Both arguments miss the mark.
The First Circuit instructs that “there is no general rule” for interpreting whether forum
selection clauses are mandatory or permissive; rather, the determination depends “on the specific
language of the contract at issue.” Id. In Autoridad de Energia Electrica de Puerto Rico v.
Ericsson Inc., the First Circuit analyzed a forum selection clause with language substantially

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similar to the language at issue in this case and held that the forum selection clause was
permissive. 201 F.3d 15, 18-19 (1st Cir. 2000) (citing similar interpretations of forum selection
clauses by the Second, Fifth, and Ninth Circuits). In relevant part, the forum selection clause in
Ericsson stated: “the parties agree to submit to the jurisdiction of the courts of the
Commonwealth of Puerto Rico,” and the Court of Appeals held the clause to be permissive. Id.
In contrast, First Circuit cases holding forum selection clauses to be mandatory note the
clauses‟ stricter language. See, e.g., Rivera, 575 F.3d at 17-18. In Rivera, for example, the First
Circuit held that the forum selection clause was mandatory because it required the hospital
patient to assert any cause of action he might have against the hospital in the Commonwealth
courts of Puerto Rico. Rivera, 575 F.3d at 18. The relevant language stated: “In the event that
by act or omission I consider that physical emotional or economic damages have been caused to
me, I expressly agree to submit to [Puerto Rico‟s Commonwealth courts] for any possible
claim.” Id. at 14. The Court of Appeals in Rivera specifically contrasted the “I expressly agree
to submit” language with the lack of such language in the forum selection clause at issue in
Ericsson. Rivera, 575 F.3d at 17-18. In Silva v. Encyclopedia Britannica Inc., the Court of
Appeals held that the forum selection clause was mandatory because the clause contained
language stating that “all actions involving this agreement must be brought in the State of
Illinois.” 239 F.3d 385, 386, 389 (1st Cir. 2001). The Court of Appeals ruled that inclusion of
the word “must” in the forum selection clause “expresses the intention of the parties to make the
courts of Illinois the exclusive forum for disputes arising under the contract.” Id. at 389; see also
LFC Lessors, Inc. v. Pacific Sewer Maint. Corp., 739 F.2d 4, 5-7 (1st Cir. 1984).
Here, the language of the forum selection clause is similar to the language at issue in
Ericsson. The relevant language in this case provides that Matrix “agree[s] that in the event of

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default in payment, BlueTarp Financial may institute suit against you in the courts of the State of
Maine….” (Agreement at PageID 5 (emphasis added).) This language stands in contrast to the
language in Rivera (“I expressly agree”) and Silva (“all actions … must be brought”). Like the
language in Ericsson, and perhaps even more so because of the word “may,” the forum selection
clause in this case indicates an intention of the parties to permit, but not require, jurisdiction in
Maine state courts. Accordingly, the Court holds that based on the language of the parties‟
forum selection clause, BlueTarp is not limited to bringing its action in Maine state court.
However, because the parties are not in state court, BlueTarp must show that federal jurisdiction
is proper in this case. The Court, therefore, turns to the question of personal jurisdiction.11
B. Personal Jurisdiction
There are two means of establishing personal jurisdiction over a defendant under the
Fourteenth Amendment: general and specific jurisdiction. General personal jurisdiction is
established upon a finding that a defendant has maintained “continuous and systematic contacts
with a particular state,” in which case personal jurisdiction exists as to “all matters, even those
unrelated to the forum contacts.” Reed & Reed, Inc. v. George R. Cairns & Sons, Inc., 519 F.
Supp. 2d 148, 153 (D. Me. 2007) (citing Phillips Exeter Acad. v. Howard Phillips Fund, Inc.,
196 F.3d 284, 288 (1st Cir. 1999)). Absent general personal jurisdiction, which clearly does not
exist in this case, the Court must assess its jurisdiction over Matrix in the context of the specific
case and by examining Matrix's case-related contacts with the forum.

11

On the record presented it is not clear to any legal certainty that Bluetarp‟s claims are in actuality for less than
$75,000 as required by 28 U.S.C. 1332(a). In short, the Court believes that Plaintiffs have established a basis for
diversity jurisdiction over the subject matter.

10

To satisfy the requirements of due process for specific jurisdiction over the defendant, the
Court must consider “three distinct components.”12 Mass. Sch. of Law, 142 F.3d at 35 (internal
citations and quotations omitted). The first, relatedness, asks “whether the defendant's forumbased activities are instrumental in the formation of the contract.” Id. The second component
looks at whether the defendant has established “minimum contacts” with the forum by purposely
availing himself of the benefits of doing business in the forum. See id. Finally, the Court
considers the “reasonableness” of the defendant being required to litigate in the forum. Id. The
Court considers each component in turn.
1. Relatedness
To satisfy “relatedness,” BlueTarp‟s claims must “arise out of” or “relate to” Matrix‟s
purposeful contacts with Maine. In contracts cases, the existence of a contract is not enough.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985). “The relatedness requirement is not
satisfied merely because a claim arose out of the parties‟ general relationship. The action must
arise out of the specific contacts between the forum and the defendant.” See Reed & Reed, 519
F. Supp. 2d at 154 (citing Phillips Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d 284,
289-90 (1st Cir. 1999). The Court considers any nexus – between the forum state and the
formation, performance or breach of the contract – that would give the forum state a legitimate
interest in litigation arising out of the alleged breach of contract. See Phillips Exeter Academy,
196 F.3d at 289-90. A prima facie showing of such a nexus requires more than “the mere
existence of a contractual relationship between an out-of-state defendant and an in-state
12

The Maine Supreme Court sitting as the Law Court has previously adopted a similar three-part test for considering
whether a court's exercise of personal jurisdiction comports with due process. The Law Court specifically requires
that (1) Maine have a legitimate interest in the subject matter of the litigation; (2) the defendant, by [its] conduct,
reasonably could have anticipated litigation in Maine; and (3) the exercise of jurisdiction by Maine's courts
comports with traditional notions of fair play and substantial justice. See Murphy v. Keenan, 667 A.2d 591, 593
(Me. 1995). For purposes of this case, “the difference between the test laid out by the Law Court and the three
components laid out by the First Circuit is purely semantic.” Telford Aviation, Inc. v Raycom National, Inc., 122 F.
Supp. 2d 44, 46 n.3 (D. Me. 2000).

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plaintiff.” See id. at 290 (discussing and citing Burger King Corp., 471 U.S. at 478-79). The
action must arise out of the specific contacts between the forum and Defendant. Therefore, the
Court must “evaluate the parties‟ prior negotiations and contemplated future consequences, along
with … [their] actual course of dealing” and consider whether “defendant‟s contacts with the
forum were instrumental either in the formation of the contract or in its breach.” Reed & Reed,
Inc., 519 F. Supp. 2d at 154.
With regard to formation, BlueTarp asserts that Matrix reached into Maine to obtain a
contract for the issuance of credit. On the other hand, the uncontradicted facts submitted by
Matrix demonstrate that the relevant contract was formed when Matrix signed the commercial
credit application in South Carolina in order to facilitate its relationship with Contract Supply, a
South Carolina building supply provider. The contract at issue facilitated Matrix‟s purchase of
supplies from the South Carolina supplier for Matrix‟s construction projects in South Carolina.
Defendant‟s only contact with Maine concerning contract formation occurred when BlueTarp
notified Matrix of its incomplete credit application and Matrix returned a completed application
to BlueTarp in Maine. Prior to that contact, Matrix and BlueTarp had never communicated.
Matrix and BlueTarp engaged in no prior negotiations and discussed no future consequences of
the credit agreement.
With regard to the breach of contract, the alleged breach arises from Matrix‟s failure to
pay the balance due on the credit agreement. BlueTarp asserts that this breach occurred in Maine
to the extent that amounts due have not been sent to BlueTarp‟s office in Portland, Maine.
Matrix has shown, however, that the BlueTarp invoices sent to Matrix provided that payment
should be made to an address in Atlanta, Georgia, not Maine. Accordingly, the location of any
alleged breach was Georgia – not Maine. Regardless, “the location where payments are due

12

under a contract … alone does not possess decretory significance.” Phillips Exeter Academy,
196 F.3d at 291. Moreover, while the record reflects that there were several communications
between Matrix and BlueTarp during the course of their contractual relationship, the record
shows that almost all of those communications were initiated by BlueTarp and focused almost
exclusively on collections. There is no evidence to suggest that Matrix purposefully directed
communications toward the State of Maine.
Therefore, the Court is left to consider any nexus between the contract and the State of
Maine based on Defendant faxing the credit application to Maine, Defendant‟s alleged failure to
deliver payment to an address in Georgia, and communications between Defendant in South
Carolina and Plaintiff in Maine. The contacts relating to the execution of the contract and the
communications between Matrix and BlueTarp simply do not constitute purposeful acts directed
by Matrix to the State of Maine sufficient to establish personal jurisdiction over Matrix. The
Court concludes first that these contacts do not create a nexus between Defendant and the forum
and second that BlueTarp‟s cause of action does not arise out of or relate to Matrix‟s activities in
Maine.
2. Purposeful Availment
Next, the Court considers whether Matrix‟s contacts with Maine, described above,
constitute purposeful availment of the benefits and protections of Maine law such that Matrix, by
its conduct, reasonably could have anticipated litigation in Maine.

Nowak v. Tak How

Investments, Ltd., 94 F.3d 708, 716 (1st Cir. 1996). This prong of the analysis requires attention
to whether Matrix‟s connection with Maine was voluntary – not that of a third party – and
whether Maine-based litigation was foreseeable. Reed & Reed, 519 F. Supp. 2d at 154. The
purposeful availment requirement protects defendants from jurisdiction based solely on “random,

13

fortuitous, or attenuated contacts” or the “unilateral activity of another party.” See Telford
Aviation, 122 F. Supp. 2d at 47 (quoting Burger King, 471 U.S. at 475).
Thus, the Court must consider whether Matrix‟s communications with BlueTarp, and the
fact that Matrix faxed the corrected commercial credit application to BlueTarp in Maine,
constitute purposeful availment. The fact that Matrix‟s contacts took the form of mail, fax, or
email communications rather than physical presence is not determinative. See id. (citing Burger
King, 471 U.S. at 476).
Initially, the Court notes that the vast majority of the relevant actions took place in South
Carolina. Defendant‟s construction projects were based in South Carolina and the relevant
supplier for this case, Contract Supply, was based in South Carolina.

As for the credit

agreement, Matrix received the BlueTarp commercial credit application from Contract Supply in
South Carolina, and Matrix returned the application to Contract Supply in South Carolina.
BlueTarp did not solicit Matrix‟s business, and the parties did not engage in any negotiations
concerning the credit agreement. Matrix only sent the credit application to BlueTarp in Maine
because it was required to do so in order to maintain its relationship with Contract Supply.
Faxing the credit application to BlueTarp was Matrix‟s first contact with Maine. The fact that
Contract Supply provided Defendant with a credit application from a company in Maine – rather
than a company in any other state – was fortuitous. See Telford, 122 F. Supp. 2d at 47 (citing
Burger King, 471 U.S. at 475).
The current record further reflects that Matrix and BlueTarp engaged in approximately a
dozen communications during an eleven-month period. The majority of those communications,
however, were initiated by BlueTarp and concerned collections; less than a handful of the
communications were initiated by Matrix. This record of communications does not amount to

14

the kind of unilateral action that makes Matrix‟s forum-state contacts voluntary. See Reed &
Reed, 519 F. Supp. 2d at 155 (finding communications sufficient to constitute purposeful
availment because communications were designed to generate a contractual relationship); see
also Autoscribe Corp. v. Goldman and & Steinberg, 47 F.3d 1164, 1995 WL 56662, at *6 (4th
Cir. 1995) (“Plaintiff, by its agents‟ telephone calls, cannot lure the defendants into contact with
the forum state for the purpose of establishing personal jurisdiction over them.”) (citing Burger
King, 471 U.S. 475). Indeed, Matrix made no voluntary decision to inject itself into the local
economy as a market participant. See Microfibres, Inc. v. McDevitt-Askew, 20 F. Supp. 2d 316,
321 (D.R.I. 1998) (citing Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928, 933
(1st Cir. 1985)).
Finally, Plaintiff contends that Matrix purposefully availed itself of the benefits and
protections of Maine law by entering into a contract that is expressly governed by Maine law.
Matrix does not dispute that Maine law applies to this case and concedes that a Maine state court
could hear this dispute. As Matrix correctly states, however, a choice of law provision “standing
alone, would be insufficient to confer [personal] jurisdiction.” See Burger King, 471 U.S. at 482
(stating that a choice of law provision “standing alone would be insufficient to confer
jurisdiction,” but “when combined with the 20-year interdependent relationship” between
defendant and plaintiff the forum selection clause “reinforced … the reasonable possibility of
litigation in the forum state”); Calphalon Corp. v. Rowlette, 228 F.3d 718, 723 (6th Cir. 2000)
(“The district court also did not err in determining that the choice-of-law provision in the 1997
agreement is not decisive.”); NeoDevices, Inc. v. NeoMed, Inc., 2009 WL 689881, at *9 (D.N.H.
2009) (stating that standing alone, a choice-of-law clause is insufficient to confer jurisdiction);
Rogers v. 5-Star Management, Inc., 946 F. Supp. 907, 912 (D.N.M. 1996) (“while choice of law

15

clauses are a factor in deciding whether personal jurisdiction exists, they are generally not
determinative”). Accordingly, the Court concludes that in this case the choice of law provision
combined with Defendant‟s tenuous contacts with Maine is insufficient to establish
jurisdiction.13 Indeed, the record now before the Court, construed in the light most favorable to
the Plaintiff, does not reflect that Matrix‟s communications with BlueTarp were such that Mainebased litigation was “certainly foreseeable.” See Nowak, 94 F.3d at 717; Phillips Exeter, 196
F.3d at 292.
3. Reasonableness
If the contacts question is close, the reasonableness factors “may tip the constitutional
balance.”14 Nowak, 94 F.3d at 717. Certainly, the forum state has an interest in adjudicating this
dispute, as the Agreement calls for BlueTarp‟s claims to be litigated according to Maine law.
However, the parties‟ Agreement does not expressly contemplate this Court as a forum, and
Matrix does not have the necessary minimum contacts with Maine to demonstrate the required
nexus for specific personal jurisdiction. Considering all the facts surrounding the formation and
performance of this contract and the limited nature of Defendant‟s contacts with Maine, the
Court concludes that the assertion of specific personal jurisdiction over Defendant would not

13

Although the parties do not raise the issue, the Court considers whether the forum selection clause is a factor in
the purposeful availment analysis. On one hand, the fact that Defendant agreed to subject itself to litigation in
Maine state courts is at least some indication that Defendant purposefully availed itself of benefits from the forum
state. Moreover, it is somewhat incongruous that the state court can exercise personal jurisdiction over this case but
the federal court – located just across the street – cannot. On the other hand, the parties expressly agreed to subject
themselves to jurisdiction in Maine state courts but not in Maine federal courts. They could have contractually
agreed to jurisdiction in both state and federal courts in Maine, but they chose otherwise. For the purposes of
personal jurisdiction analysis, it is important to note that although the forum selection clause is at least some
indication that Defendant purposefully availed itself of the benefits of the forum state, “a contract alone is not
enough; prior dealings, the terms of the contract itself, and the actual and contemplated course of dealings of the
parties are necessary elements….” See Microfibres, 20 F. Supp. 2d at 321.
14

The reasonableness factors are: (a) the defendant‟s burden of appearing; (b) the forum state‟s interest in
adjudicating the dispute; (c) the plaintiff‟s interest in obtaining convenient and effective relief; (d) the judicial
system‟s interest in obtaining the most effective resolution of the controversy; and (e) the common interests of all
sovereigns in promoting substantive social policies. Nowak, 94 F.3d at 717.

16

comport with “fair play and substantial justice.” See Burger King, 471 U.S. at 486 (internal
citation omitted). Therefore, it is unreasonable to require Defendant to defend Plaintiff‟s claims
of breach of contract and unjust enrichment/equitable indemnity here, in Maine.15 Nonetheless,
it is clear there are multiple forums in which Plaintiff may press its claims against Defendant.
These forums would appear to include Maine‟s own state courts.

IV.

CONCLUSION
For the foregoing reasons, the Court ORDERS that Defendant‟s Motion to Dismiss
(Docket # 7) is hereby GRANTED and this case is hereby DISMISSED for lack of personal
jurisdiction.16

SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 22nd day of February, 2012.

15

Because the Court lacks personal jurisdiction over this case, it does not reach Defendant‟s alternative argument
regarding the doctrine of forum non conveniens.
16

Pursuant to D. Me. Local Rule 7(f), the Court also exercises its discretion to DENY Defendant‟s request for oral
argument to address the factual disputes alleged by Plaintiff.

17