Circuit Connect, Inc. v. Preferred Transport & Distribution, Inc. et al

Filing 33

/// ORDER granting 22 Motion to Dismiss Mecca's Third-Party Complaint. So Ordered by Chief Judge Steven J. McAuliffe. (jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Circuit Connect, Inc.,
Plaintiff
v.

Case N o . 10-cv-514-SM
Opinion N o . 2011 DNH 130

Preferred Transport
& Distribution, Inc. and
Mecca, LLC,
Defendant
Mecca, LLC
Third Party Plaintiff
v.
Advanced Circuitry International
and Two Brothers Trucking, Inc.
Third Party Defendants
O R D E R
Plaintiff, Circuit Connect, Inc., a New Hampshire
corporation, brought this suit against Mecca, LLC, and Preferred
Transport and Distribution, Inc., claiming that the x-ray system
it purchased from Mecca arrived at Circuit Connect’s offices in
damaged condition.

Mecca has named Advanced Circuitry,

International (“ACI”) and Two Brothers Trucking, Inc. as thirdparty defendants. Mecca alleges that Two Brothers was negligent
in hiring Preferred Transport to ship the machine and that
Advanced Circuitry- from whom Mecca bought the machine
immediately prior to re-selling it to Circuit Connect-

negligently loaded the machine onto Preferred Transport’s truck.
ACI’s motion to dismiss Mecca’s claim against it for lack of
personal jurisdiction (doc. n o . 22) is now before the court.

Background
The relevant jurisdictional facts are straightforward.

ACI

is a Georgia corporation having its principal place of business
in Georgia.

It does not sell any products in New Hampshire, has

no customers in New Hampshire, and does not do any direct
advertising in New Hampshire.

Mecca, an Illinois corporation

having its principal place of business in Illinois, brokers the
sale of electronic equipment, or sometimes, purchases equipment
for resale. It operates a website which lists equipment for
sale.

In 2009, an ACI representative requested that Mecca assist

ACI in selling an x-ray system owned by ACI. Mecca thereafter
advertised ACI’s x-ray machine on its website. There is no
evidence that ACI contracted for, paid for, or otherwise
controlled the advertising, or that Mecca was acting as a broker
for ACI.

At some point after Mecca listed the machine on its website,
a Circuit Connect representative contacted Mecca and expressed
interest in buying i t .

Mecca, in turn, contacted ACI to obtain

additional information about the machine. The three parties,
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ACI, Mecca, and Circuit Connect, eventually held a telephone
conference call to discuss the machine. A Circuit Connect
representative later viewed the machine at ACI’s warehouse in
Georgia.

Circuit Connect agreed to purchase the machine from Mecca
and Mecca agreed to buy the machine from ACI. Mecca took
ownership of the machine from ACI on November 5 , 2009, and resold
the machine to Circuit Connect on November 6.

Under an agreement

with Mecca, Two Brothers (through subcontractor Preferred
Transport) shipped the machine on November 6 from ACI’s warehouse
in Georgia to Circuit Connect in New Hampshire.

Under its

separate agreement with Mecca, ACI loaded the machine, which then
belonged to Mecca, onto Preferred’s truck.
Circuit Connect, for its loading services.1

ACI billed Mecca, not
Given the bill of

lading presented to ACI on November 6, ACI knew that the machine
was headed for New Hampshire.

When the machine arrived in New

1

Mecca has not made a prima facie showing that ACI’s loading
agreement was with Circuit Connect. Although Mecca’s Martin
Lieberman states that ACI charged Circuit Connect $250 for
loading the system onto the truck (doc. n o . 23-3, ¶ 1 1 ) , the
invoice attached to Mr. Lieberman’s own affidavit contradicts his
averment; it shows that ACI charged Mecca $250 for that service
(doc. n o . 2 3 - 4 ) . See United States v . Swiss Am. Bank, Ltd., 274
F.3d 610, 619 (1st Cir. 2001)(only “properly supported proffers
of evidence” are accepted as true in a prima facie inquiry into
personal jurisdiction)(emphasis added).
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Hampshire it was allegedly in damaged condition.

Discussion
Mecca bears the burden of establishing that the court has
personal jurisdiction over Advanced Circuitry.
Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995).

See Sawtelle v .

Because the court

is proceeding based upon the written submissions of the parties,
and without an evidentiary hearing, Mecca need only make a prima
facie showing that jurisdiction exists. See id. at 1386 & n.1.

To establish specific personal jurisdiction over a nonresident defendant, Mecca must show: (1) its claim against
Advanced Circuitry directly arises out o f , or relates t o ,
Advanced Circuitry’s New Hampshire activities; (2) Advanced
Circuitry’s forum contacts represent a purposeful availment of
the privilege of conducting activities here, and (3) the exercise
of jurisdiction here is reasonable, in light of the “gestalt
factors.”

United Elec. Radio and Mach. Workers of Am. v . 163

Pleasant S t . Corp., 960 F.2d 1080, 1089 (1st Cir. 1992).

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1 . ACI’s New Hampshire Contacts
The jurisdictional inquiry begins by identifying the alleged
contacts.

Swiss Am. Bank, 274 F.3d at 621. Here, ACI’s

telephone conversation with a Circuit Connect representative
located in New Hampshire is a contact with this state. See Int’l
Paper Box Mach. Co., Inc. v . Paperboard U.S. Indus. Inc., Case
No. Civ. 99-184-JD, 2000 WL 1480462, at *3 (D.N.H. Feb. 8 ,
2000)(“[C]ommunications to the forum state by telephone calls,
letters, and other means may constitute sufficient contacts to
confer jurisdiction”). No other activities Mecca has identified,
however, constitute forum contacts by ACI.
For example, ACI’s “soliciting [of] Mecca’s services in
selling the x-ray system through [Mecca’s] website (accessible
anywhere, including New Hampshire)” is not a contact by ACI with
New Hampshire.

That “commercial activity conducted over the

Internet,” ICP Solar Tech., Inc. v . TAB Consulting, Inc., 413 F.
Supp. 2d 1 2 , 18 (D.N.H. 2006)(McAuliffe, J . ) , was Mecca’s, not
ACI’s.

Mecca owned and operated the website, and there is no

evidence that ACI and Mecca were anything but “separate
entit[ies].”

Cf. Knights Armament C o . v . Optical Sys. Tech.,

Inc., Case N o . 6:07-cv-1323-Orl-22KRS, 2008 WL 2157108, at *6
(M.D. Fla. May 2 1 , 2008)(for purposes of personal jurisdiction,

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parent company and subsidiary were separate entities, even though
subsidiary’s products appeared on parent company’s website).
Also failing to qualify as New Hampshire contacts are the
following activities identified by Mecca: ACI’s “transferring of
the x-ray system to Mecca” in Georgia “in order to find a buyer”;
ACI’s “agreeing to load the sophisticated machinery for transport
[by others] to New Hampshire”; and Circuit Connect’s “inspection
[of] the x-ray system at ACI’s Georgia facility.”
23-1, pg. 9-10.

Document N o .

None of these activities amount to ACI contacts

with New Hampshire, because all occurred in Georgia and/or
involved ACI’s agreements with Mecca, not Circuit Connect.
Finally, ACI’s “benefitting from the ultimate sale of the x-ray
system to a New Hampshire company,” (doc. n o . 23-1, pg. 9 ) , does
not rise to the level of a forum contact.2
2

Mecca invites the court to view ACI’s contacts through the lens
of the stream-of-commerce theory of personal jurisdiction. See
Document 23-1, pg.13. Accordingly, it stresses the fact that ACI
benefitted from the “ultimate” sale of the machine to a New
Hampshire company and that ACI at some point prior to shipment
knew the machine was headed for New Hampshire. See generally
Asahi Metal Indus. Co., Ltd. v . Superior Court of California, 480
U.S. 102 (1987). This is not, however, a stream-of-commerce
case, but rather, a negligent loading case. Accordingly, the
public policies implicated in product liability cases are not
implicated here. Moreover, even if the court were to apply the
stream-of-commerce analysis, Mecca has only shown that ACI, at
sometime prior to loading the machine onto the truck for shipment
by others, knew that the machine was headed for New Hampshire.
Mecca has not shown that ACI otherwise “targeted the forum.” J.
McIntyre Mach., Ltd. v . Nicastro, 131 S.Ct. 2780, 2788
(2011)(plurality decision)(finding no personal jurisdiction in
New Jersey over foreign defendant that did not target the state).
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2 . Relatedness
To meet the first prong, relatedness, Mecca must establish a
causal connection between Advanced Circuitry’s New Hampshire
contact (i.e., its telephone conversation with a Circuit Connect
representative) and its alleged negligent loading of the machine.
The level of causation required lies “between a ‘but for’ and a
strict proximate cause test,” GT Solar Inc. v . Goi, Case N o . 08cv-249-JL, 2009 WL 3417587, at * 1 2 , n.29 (D.N.H. Oct. 1 6 , 2009),
although the “proximate cause” standard will apply in most cases.
See Harlow v . Children’s Hosp., 432 F.3d 5 0 , 61 (1st Cir. 2005).
Regardless, however, of the precise degree of legal causation
required in any particular case, the touchstone of the inquiry is
whether the contact “form[s] an important, or [at least]
material, element of proof in the plaintiff's case.”

Id. at 61

(quotation omitted) (alteration in original).
ACI’s telephone conversation with a Circuit Connect
representative in New Hampshire was not related in any way to
Mecca’s negligent loading claim against Advanced Circuitry.

That

contact forms n o , let alone an “important,” element of proof that
Advanced Circuitry negligently loaded the machine onto the truck
after title passed to Mecca.

To the extent that the telephone

call might be viewed as one part of a larger causal chain that

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ultimately led to ACI’s loading of the machine for Mecca, that
connection is too “attenuated and indirect” for purposes of the
relatedness requirement.

Harlow, 432 F.3d at 61 (quotation

omitted).
Because Mecca has failed to make a prima facie showing on
the relatedness prong, the remaining prongs of the three-part
test need not be addressed.

However, is it worth noting that in

the absence of additional, and more substantial, contacts by ACI
with New Hampshire, it would be difficult to find that ACI
purposefully availed itself of the protections and benefits of
this state. See PMH Research Assoc., LLC v . Life Extension
Found. Buyer’s Club, Inc., Case N o . 04-251-PB, 2004 WL 2958671,
at *7 (D.N.H. Dec. 2 2 , 2004)(finding no purposeful availment
because defendant had “few contacts with the state, and next-tonone that can be appropriately attributed to the cause of action
at issue.”).

And, even if it is assumed that ACI’s loading of

the truck, with knowledge that it was headed for New Hampshire,
constituted a contact with New Hampshire, that contact would not
be enough to establish purposeful availment.

While ACI’s

knowledge might be relevant had Mecca alleged intentionally
tortious conduct by ACI, the claim against ACI is for “mere
untargeted negligence.”

Calder v . Jones, 465 U.S. 783, 789

(1984)(defendant, whose knowing and intentional conduct in one

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forum causes injurious effects in another, may be subject to
personal jurisdiction).

Moreover, ACI’s loading agreement was

with Mecca-- an Illinois corporation-- not Circuit Connect. And
Mecca, not ACI, directed where the machine was to be shipped.
ACI could not, therefore, reasonably anticipate being haled into
court in New Hampshire.

Conclusion
For these reasons, Advanced Circuitry’s motion to dismiss
Mecca’s third-party complaint (document n o . 22) is granted.

SO ORDERED.

cc:

Elizabeth Maher Leonard, Esq.
Wesley S . Shused, Esq.
Mary K. Ganz, Esq.
Donald L. Smith, Esq.
Derek D. Lick, Esq.

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