P.C. Hoag & Co., Inc. v. Man Lift Mfg., Co. et al

Filing 14

ORDER denying without prejudice 7 Motion to Dismiss. So Ordered by Magistrate Judge Andrea K. Johnstone.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
P.C. Hoag & Co., Inc.
v.

Civil No. 15-cv-498-AJ
Opinion No. 2016 DNH 061

Man Lift Mfg., Co.,
All Terrain Aerial Lifts, and
A-1 Expert Tree Service, Inc.

O R D E R
The plaintiff P.C. Hoag & Company (“P.C. Hoag”) brings this
action against Man Lift Manufacturing (“Man Lift”), All Terrain
Aerial Lifts (“ATAL”), and A-1 Expert Tree Service (“A-1”)
(collectively, the “defendants”) asserting various claims
stemming from the purchase of an aerial lift that P.C. Hoag
contends is defective.

Man Lift moves to dismiss the claims

advanced against it for lack of personal jurisdiction.
7.1

The plaintiff objects.

Doc. no. 8.

Doc. no.

For the reasons stated

below, the motion is denied.

Standard of Review
When personal jurisdiction is contested, the plaintiff

ATAL and A-1 have not been served. On March 7, 2016, P.C. Hoag
filed an assented-to motion to extend the deadline to serve
these defendants. Doc. no. 12. The court granted the motion in
an endorsed order.
1

bears the burden of establishing that the court has jurisdiction
over the defendant.

Rodriguez v. Fullerton Tires Corp., 115

F.3d 81, 83 (1st Cir. 1997).

In cases in which an evidentiary

hearing is not held, “a plaintiff need only to make a prima
facie showing that [the] defendants are subject to personal
jurisdiction.”

Presby Patent Trust v. Infiltrator Sys., Inc.,

No. 14-CV-542-JL, 2015 WL 3506517, at *2 (D.N.H. June 3, 2015)
(quoting Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349
(Fed. Cir. 2003)).
“In making a prima facie showing of jurisdiction, a
plaintiff need not, and indeed may not, rely only on the
allegations in the complaint.”

Sturm, Ruger & Co. v. Armscor

Precision Int'l, Inc., No. 14-CV-194-SM, 2015 WL 4563005, at *1
(D.N.H. July 28, 2015).

“Rather, he or she must adduce evidence

of specific facts that support jurisdiction.”

Dagesse v. Plant

Hotel N.V., 113 F. Supp. 2d 211, 215 (D.N.H. 2000) (quotation
marks omitted).

“In reviewing the facts, [the court] take[s]

the plaintiff's evidentiary proffers as true and construe[s]
them in the light most favorable to the plaintiff's claim, and
[will] also consider] uncontradicted facts proffered by the
defendant.”

C.W. Downer & Co. v. Bioriginal Food & Sci. Corp.,

771 F.3d 59, 65 (1st Cir. 2014).

2

Background
The relevant facts, construed in the light most favorable
to P.C. Hoag, are as follows.
P.C. Hoag is a New Hampshire corporation with its principal
place of business in New Hampshire.
2.

Hoag Aff. ¶ 1, doc. no. 8-

P.C. Hoag provides arborist services throughout New

Hampshire.

Id.

Man Lift is a Nebraska corporation with a

manufacturing facility in Wisconsin that constructs aerial
lifts.

Dunn Aff. ¶ 1, doc. no. 7-2.

corporation.
A-1.

A-1 is a California

Compl. ¶ 3, doc. no. 1-1.

ATAL is a division of

Id. ¶ 4.
In January 2012, Peter Hoag, the president of P.C. Hoag,

contacted ATAL about purchasing an aerial lift.
3, doc. no. 8-3.

Pl.’s Ex. A at

P.C. Hoag contends that the ATAL

representative held himself out to be an authorized agent for
Man Lift.

Hoag Aff. ¶ 2.

After some negotiations and delays,

the ATAL representative sent a subject written purchase and
sales agreement for an A70 TDI Track Drive Aerial Lift (“aerial
lift”) to P.C. Hoag’s place of business in New Hampshire.
Ex. A at 2-3, Hoag Aff. ¶ 3.
purchased the aerial lift.

Pl.’s

In November 2012, P.C. Hoag
Hoag Aff. ¶ 2.

The aerial lift purchased by P.C. Hoag was made in Man
Lift’s Wisconsin facility.

Pl.’s Ex. A at 3; Hoag Aff. ¶ 2;
3

Dunn Aff. ¶ 1.

Around the time P.C. Hoag purchased the aerial

lift, Man Lift contacted Hoag directly to inform him that the
lift would be ready by November 5th.

Pl.’s Ex. A at 3.

Soon

after, Man Lift contacted Hoag again to inform him that the lift
would not be available until November 14th.

Id.

On November

14th, Hoag traveled from New Hampshire to Wisconsin to learn how
to use the aerial lift.

Id.

Hampshire later that month.

The aerial lift was shipped to New
Hoag Aff. ¶ 3.

Man Lift contends that it did not contract to sell the
aerial lift to P.C. Hoag.

Dunn Aff. ¶ 2.

Instead, Man Lift

alleges it provided a quote to ATAL for two aerial lifts with no
knowledge as to the ultimate buyers of the lifts.

Id. ¶ 5.

One

of the two aerial lifts delivered by Man Lift to ATAL was
purchased by P.C. Hoag.

Id.

Man Lift further claims that it

has no formal relationship or common ownership with ATAL or
control over ATAL’s actions.

Id. ¶ 3.

P.C. Hoag experienced a number of substantial problems with
the lift shortly after it was delivered to New Hampshire.
Aff. ¶ 4.

Hoag

P.C. Hoag cites for example that the aerial lift was

difficult to start and the lift’s engine, outrigger, battery,
tool circuit, paint, and hour meter were dysfunctional.

Id.

February 2013, P.C. Hoag reported these issues to Man Lift.
¶ 5.

A Man Lift technician from Wisconsin traveled to New
4

In
Id.

Hampshire to attempt to examine and repair the machine.
Dunn Aff. ¶ 5.
failed again.

Id.;

Soon after, P.C. Hoag contends that the lift
Hoag Aff. ¶5.

P.C. Hoag alleges that additional

cracks were later found in the lift’s track’s axles.

Id.

In

October 2013, P.C. Hoag shipped the lift back to Man Lift’s
Wisconsin manufacturing facility for repairs.
Pl.’s Ex. A at 4.

Dunn Aff ¶ 5;

Man Lift shipped the lift back to New

Hampshire the next month.

Pl’s Ex. A at 4.

P.C. Hoag alleges additional issues were found with the
lift in December 2013 and January 2014.

Hoag Aff. ¶ 5.

In

March 2014, Hoag wrote a letter to Man Lift chronicling P.C.
Hoag’s issues with the lift and providing notice that it
intended to revoke its acceptance of the lift.

Pl.’s Ex. A.

Two weeks later, Joe Banks, a vice president of Man Lift,
responded to Hoag’s letter.

Pl.’s Ex. B at 2, doc. no. 8-4.

Banks’s letter to Hoag stated that “[a]lthough you didn’t
purchase the machine from Man Lift we are the manufacturer and
we’ve been willing to deal with you directly.”

Id.

The letter

further stated that Man Lift had no “intention of accepting the
[lift] back[,]” however, it was willing to “dispatch technicians
or help find local support if necessary.”

Id.

In May 2014, a second Man Lift technician traveled to New
Hampshire to repair the lift.

Hoag Aff. ¶ 6.
5

According to P.C.

Hoag, the repairs were again unsuccessful.

Id.

In the summer

of 2014, the same Man Lift technician returned to New Hampshire
for additional repairs.

Id.

Yet, once again, P.C. Hoag alleges

that the lift remained inoperable.

Id.

In August 2014, P.C.

Hoag contends that Man Lift made arrangements with a mechanic
shop in North Conway, New Hampshire to provide additional work
on the lift.

Id. ¶ 7.

Based on the foregoing allegations, P.C. Hoag filed suit
against Man Lift, A-1, and ATAL in six counts: strict liability
(count I); negligence (count II); breach of express warranty
(count III); breach of implied warranty (count IV); breach of
contract (count V); and revocation of acceptance (count VI).
Compl. ¶¶ 10-39.

In December 2015, Man Lift removed P.C. Hoag’s

action to this court.

Doc. no. 1.

Discussion
Man Lift argues in its motion to dismiss that P.C. Hoag has
failed to plead facts sufficient to establish that this court
has personal jurisdiction over it.

Specifically, Man Lift

contends that P.C. Hoag’s claims do not arise out of any
contacts it had with New Hampshire and any contacts it had with
New Hampshire were initiated by P.C. Hoag.

6

Man Lift

additionally claims that is would be burdensome to appear in the
state.
In its objection, P.C. Hoag alleges its claims arise from
Man Lift’s attempts to satisfy its warranty obligations and
negligent attempts to repair the aerial lift’s defects in New
Hampshire.

P.C. Hoag further argues that Man Lift’s contacts

with it were voluntary, therefore subjecting it to jurisdiction
in New Hampshire.
“Whether a court has personal jurisdiction in a diversity
action over a nonresident defendant depends on whether both the
forum state's long-arm statute and the due process requirements
of the United States Constitution are satisfied.”

GE Mobile

Water, Inc. v. Red Desert Reclamation, LLC, No. 13-CV-357-PB,
2014 WL 900715, at *2 (D.N.H. Mar. 7, 2014) (citing Cossaboon v.
Maine Med. Ctr., 600 F.3d 25, 29 n.1 (1st Cir. 2010)).

“The New

Hampshire Supreme Court has interpreted the New Hampshire longarm statute as affording jurisdiction over foreign defendants to
the full extent that the statutory language and due process will
allow.”

N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st

Cir. 2005) (quotation marks omitted). “Therefore, the court need
only determine whether the application of personal jurisdiction
comports with Fourteenth Amendment due process requirements.”

7

Campbell v. CGM, LLC, No. 15-CV-88-JD, 2015 WL 4424018, at *3
(D.N.H. July 20, 2015).
“The Fourteenth Amendment requires that a defendant have
sufficient ‘minimum contacts’ with the forum such that
‘maintenance of the suit does not offend traditional notions of
fair play and substantial justice.’”

R & R Auction Co., LLC v.

Johnson, No. 15-CV-199-PB, 2016 WL 845313, at *3 (D.N.H. Mar. 2,
2016) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).

“The inquiry into minimum contacts is also highly

idiosyncratic, involving an individualized assessment and
factual analysis of the precise mix of contacts that
characterize each case.”

Pritzker v. Yari, 42 F.3d 53, 60 (1st

Cir. 1994).
There are two categories of personal jurisdiction: general
and specific.

United Elec., Radio & Mach. Workers of Am. v. 163

Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir. 1992).

In

reviewing the pleadings, it does not appear that P.C. Hoag
alleges general jurisdiction.

Thus, the court will only analyze

whether Man Lift is subject to this court’s personal
jurisdiction.
The First Circuit follows a three-prong test to determine
whether specific personal jurisdiction exists:
(1) whether the claim directly arises out of, or
relates to, the defendant's forum state activities;
8

(2) whether the defendant's in-state contacts
represent a purposeful availment of the privilege of
conducting activities in the forum state, thereby
invoking the benefits and protections of that state's
laws and making the defendant's involuntary presence
before the state's courts foreseeable; and (3) whether
the exercise of jurisdiction is reasonable.
C.W. Downer & Co., 771 F.3d at 65 (quotation marks and brackets
omitted).

P.C. Hoag must satisfy each of these three

requirements “to support a finding of specific jurisdiction.”
Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 288
(1st Cir. 1999).
I.

The court considers each prong in turn.

Relatedness
“To satisfy the relatedness prong, the cause of action must

arise from or relate to the defendant's contacts with the forum
state.”

Bluetarp Fin., Inc. v. Matrix Const. Co., 709 F.3d 72,

80 (1st Cir. 2013).

Relatedness “is a flexible, relaxed

standard which focuses on the nexus between the defendant's
contacts and the plaintiff's cause of action.”

Adelson v.

Hananel, 510 F.3d 43, 49 (1st Cir. 2007) (internal citation and
quotation marks omitted).
Because “specific jurisdiction is tied to the particular
claim asserted, a nonresident defendant's contacts are evaluated
separately for contract and tort claims.”

Lucerne Farms v.

Baling Techs., Inc., 226 F. Supp. 2d 255, 258 (D. Me. 2002)
(citing Phillips Exeter, 196 F.3d at 289).
9

Here, P.C. Hoag

alleges both contract and negligence claims.

See Compl.

However, “[g]iven the underlying similarity of the contract and
tort actions, the court analyzes all of [the] [p]laintiff's
claims under the contracts rubric.”
2d at 259.

Lucerne Farms, 226 F. Supp.

Accordingly, the court will “focus on the parties'

prior negotiations and contemplated future consequences, along
with the terms of the contract and the parties' actual course of
dealing.”

C.W. Downer & Co., 771 F.3d at 66 (quotation marks

omitted).

Where, as in this case, “the cause of action is for

an alleged breach of contract, we ask whether the defendant's
activity in the forum state was ‘instrumental either in the
formation of the contract or its breach.’”

Adelson, 510 F.3d at

49 (quoting Philips Exeter, 196 F.3d at 289).
Man Lift argues that P.C. Hoag’s claims do not arise out of
its contacts with New Hampshire because it did not participate
in the negotiation or sale of the lift purchased by P.C. Hoag.
Man Lift also claims that its only contacts with New Hampshire
were repairs made by a Man Lift technician in the state, phone
and email conversations with P.C. Hoag, and P.C. Hoag shipping
the lift from New Hampshire to Wisconsin for additional repairs.
In response, P.C. Hoag contends that its claims arise from Man
Lift’s contacts with New Hampshire because Man Lift took action
in New Hampshire in recognition of its warranty obligations.
10

Here, there is sufficient evidence to establish relatedness
to New Hampshire.

The exhibits submitted concerning P.C. Hoag’s

negotiations with ATAL and subsequent purchase of the lift
suggest some contacts between P.C. Hoag and Man Lift during the
formation of the contract.

In its March 2014 letter to Man

Lift, P.C. Hoag stated that it purchased the lift from Man Lift,
not ATAL.

See Pl.’s Ex. A at 2.

This marginally supports that

P.C. Hoag reasonably believed that it negotiated the purchase of
the lift with Man Lift.

Although Man Lift disputes this claim,

Dunn Aff ¶ 2, at this stage, any contested facts must be viewed
in favor of P.C. Hoag.

Adelson, 510 F.3d at 48.

Ultimately,

the subject written purchase and sale agreement for the lift was
executed in New Hampshire, and, after the agreement was executed
(with ATAL independently or as an agent of Man Lift), but before
it was shipped, Hoag traveled from New Hampshire to Man Lift’s
Wisconsin facility to train with the lift.
Hoag Aff. ¶ 3.

Pl.’s Ex. A at 3;

P.C. Hoag also alleges in an affidavit that the

defendants “collectively” delivered the lift to New Hampshire,
pursuant to the sales contract.

Hoag Aff ¶ 3.

Moreover, a

significant portion of P.C. Hoag’s claims stem from the failure
of Man Lift’s Wisconsin technician to repair the lift while in
New Hampshire, an alleged violation of the lift’s warranty.

11

Based on these facts, P.C. Hoag has minimally met its burden at
this stage to show relatedness.
II.

Purposeful Availment
In addition to relatedness, “specific jurisdiction requires

that the defendant's contacts represent a purposeful availment
of the privilege of conducting activities in the forum state,
thereby invoking the benefits and protections of that state's
laws and making the defendant's presence before the state's
courts foreseeable.”
marks omitted).

Bluetarp Fin, 709 F.3d at 82 (quotation

“The inquiry focuses on the defendant's

intentions; the defendant's contacts with the forum state must
be voluntary and deliberate, and the contacts must be of such a
nature that the defendant can reasonably foresee being haled
into court there.”

Campbell, 2015 WL 4424018, at *6 (citing

Bluearp Fin, 709 F.3d at 82).
Man Lift argues that litigation in New Hampshire was not
foreseeable because its only contacts with the forum were after
the sale of the lift and initiated by P.C. Hoag.

In response,

P.C. Hoag cites its exhibits to contend that Man Lift
voluntarily sent technicians to New Hampshire to repair the lift
pursuant to lift’s warranty and, since P.C. Hoag purchased the
lift, Man Lift has expressed a desire “deal with [P.C. Hoag]
directly” in New Hampshire.

Pl.’s Ex. B at 1.
12

In an affidavit submitted by Donald Dunn, the Chairman of
Man Lift, he contends that Man Lift sold two aerial lifts to
ATAL without knowledge that they would be bought by P.C. Hoag or
shipped to New Hampshire.

Dunn Aff. ¶ 5.

However, in viewing

the facts in the light most favorable to the plaintiff at this
early stage, it is likely Man Lift was aware that its lift would
be shipped to New Hampshire and, consequently, its warranty
obligations would be based in the state.

Around the same time

P.C. Hoag purchased the lift from ATAL, Man Lift independently
contacted P.C. Hoag on at least two occasions to inform it when
the lift would be ready.

Pl.’s Ex. A at 3.

Additionally,

before the lift was shipped to P.C. Hoag’s place of business in
New Hampshire, Hoag traveled to Man Lift’s Wisconsin facility to
train with the lift.

Id.

Hoag’s affidavit also states that the

lift was “collectively” delivered by the defendants to P.C.
Hoag’s place of business in New Hampshire.

Hoag Aff. ¶ 3.

After the lift was delivered, Man Lift sent a technician
from its facility in Wisconsin to New Hampshire three different
times to attempt to repair the lift.

Hoag Aff. ¶ 6.

On a

fourth occasion, Man Lift made arrangements with a New Hampshire
mechanic shop to act on behalf of Man Lift to perform remedial
work on the lift.

Id. ¶ 7.

13

Man Lift contends that, although multiple technicians
traveled to New Hampshire to repair the lift, only one repair
was made during the lift’s one-year warranty.
the distinction is irrelevant.

At this stage,

Even if additional repairs were

unnecessary pursuant to the lift’s warranty, “[c]ompetitive
business practices may make it advantageous for out-of-state
manufacturers to travel to other states to make repairs and to
service the products in issue.”

Mesalic v. Fiberfloat Corp.,

897 F.2d 696, 700-01 (3d Cir. 1990).

Irrespective of “the

rights of the parties under the contract[,]” the court “must
assess the contacts actually made.”

Id.

Therefore, because Man Lift had knowledge that its lift
would be shipped to and used in New Hampshire, sent technicians
on three occasions from Wisconsin to New Hampshire to repair the
lift, and arranged for a New Hampshire mechanic shop to perform
repairs on behalf of Man Lift, P.C. Hoag has sufficiently
demonstrated Man Lift’s purposeful availment to the state.

See

Eagle Air Transp., Inc. v. Nat'l Aerotech Aviation Delaware,
Inc., 75 F. Supp. 3d 883, 890 (N.D. Ill. 2014) (concluding that
the defendant’s personal jurisdiction argument was “belied” in
part “by the fact that it sent two individuals to Illinois to
perform work on the [product] when it broke down . . . .

Not

only does this support that [the defendant] contemplated the
14

warranty could involve work in Illinois, but it provides
additional contacts.”) (internal citation omitted); Premiere
Credit of N. Am., LLC v. AAT Fabrication, Inc., No. 1:04CV1391LJM-WTL, 2005 WL 1123636, at *2 (S.D. Ind. May 5, 2005) (finding
that the defendant’s “knowledge that the [item] would be shipped
to and used in Indiana and sending two . . . employees to
Indiana to perform (or attempt to perform) contractual
obligations under the Contract's warranty provision, provides
sufficient minimum contacts for personal jurisdiction.”).
III. Reasonableness
“Even after concluding that minimum contacts exist,
personal jurisdiction may only be exercised if it would be
reasonable, pursuant to a series of factors known as the
‘Gestalt factors.’”

Adelson, 510 F.3d 43, 51.

These factors

are:
(1) the defendant's burden of appearing [in the forum
state], (2) the forum state's interest in adjudicating
the dispute, (3) the plaintiff's interest in obtaining
convenient and effective relief, (4) the judicial
system's interest in obtaining the most effective
resolution of the controversy, and (5) the common
interests of all sovereigns in promoting substantive
social policies.
Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 209 (1st
Cir. 1994) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476 (1985)).

“The factors, intended to aid the court in

achieving substantial justice, play a larger role in cases where
15

the minimum contacts question is very close.”

Adelson, 510 F.3d

at 51.
As to the first factor, “the concept of burden is
inherently relative, and, insofar as staging a defense in a
foreign jurisdiction is almost always inconvenient and/or costly
. . . this factor is only meaningful where a party can
demonstrate some kind of special or unusual burden.”
42 F.3d at 64.

Pritzker,

Man Lift’s motion does not identify a special or

unusual burden for appearing in New Hampshire.

Although travel

from Nebraska to New Hampshire may be inconvenient, Man Lift’s
“circumstances are not unusual.”
845313, at *9.

R & R Auction Co., 2016 WL

“In the modern era, the need to travel

[domestically] creates no especially ponderous burden for
business travelers.”

Pritzker, 42 F.3d at 64.

Without more,

this factor weighs in favor of personal jurisdiction.
The second factor also weighs in favor of personal
jurisdiction.

A state “has ‘significant’ interests in providing

a convenient forum for disputes involving its citizens and in
ensuring that its companies have easy access to a forum when
their commercial contracts are said to be breached by out-ofstate defendants.”

C.W. Downer & Co., 771 F.3d at 70.

As a

corporate citizen of New Hampshire, P.C. Hoag has an interest in
bringing suit in New Hampshire.

Adelson, 510 F.3d at 51.
16

Addressing the third factor, Man Lift contends that P.C.
Hoag cannot identify any strong interests in having its case
adjudicated in New Hampshire.

P.C. Hoag counters, in part, that

it has an interest in litigating in New Hampshire because its
witnesses are in the state.

Yet, based on the preliminary facts

of this case, other key witnesses may also be in California,
Nebraska, or Wisconsin.

Although this factor does not heavily

support either party, P.C. Hoag’s “choice of forum must be
accorded a degree of deference with respect to the issue of its
own convenience.”

Sawtelle v. Farrell, 70 F.3d 1381, 1395 (1st

Cir. 1995).
The remaining factors do not appear to cut for or against
personal jurisdiction.

“[T]he judicial system's interest in

obtaining effective resolution to a given suit will not favor
either side in a personal jurisdiction dispute.”
Co., 2016 WL 845313, at *9.

R & R Auction

As to the final factor, the parties

point to no substantive social policy favoring or discouraging
personal jurisdiction.
In conclusion, P.C. Hoag has proffered just enough evidence
to satisfy the relatedness and purposeful availment requirements
necessary to show specific personal jurisdiction.

Because the

minimum contacts question is close, the “Gestalt factors” are
important in determining whether personal jurisdiction is
17

appropriate.

Adelson, 510 F.3d at 51.

Here, most of the

factors support jurisdiction in New Hampshire.

Therefore, Man

Lift’s “contacts with [New Hampshire] constitute ‘minimum
contacts’ in such a manner that it does not ‘offend traditional
notions of fair play and substantial justice’ for [P.C. Hoag] to
bring this case in the state.”

Id. at 52.

Conclusion
Because P.C. Hoag has met its modest burden at this stage
of demonstrating that the court may exercise specific personal
jurisdiction over the defendant Man Lift, Man Lift’s motion to
dismiss (doc. no. 7) is denied without prejudice.
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 22, 2016
cc:

Paul M. Monzione, Esq.
Robert J. Meagher, Esq.

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