115 F. Supp.2d 17 (2000) | Cited 0 times | D. Maine | September 22, 2000


Presently before the Court is a Motion to Dismiss or forSummary Judgment ("Motion for Summary Judgment") (Docket No. 51)by Defendant Bob Fisher d/b/a Bob Fisher Enterprises. TheCourt's July 3, 2000, Memorandum of Decision and Order ("July 3Order") (Docket No. 54) details the initial procedural historyof this products liability action, which arises out of injuriesPlaintiff suffered while operating a street-sweeping device.Subsequent to the Court's July 3 Order granting Defendant BFE,Inc.'s Motion to Dismiss, or in the Alternative for SummaryJudgment, the case against BFE, Inc. for lack of personaljurisdiction, two Defendants remain parties to this suit: BobFisher Enterprises, Inc. and Bob Fisher d/b/a Bob FisherEnterprises, Inc. ("Bob Fisher").

In his Motion for Summary Judgment, Defendant Bob Fishercontends that he lacks sufficient contacts with the State ofMaine to allow the Court to exercise personal jurisdiction overhim. For the reasons discussed below, the Court agrees, andtherefore grants Defendant Bob Fisher's Motion for SummaryJudgment for lack of personal jurisdiction.


The Amended Complaint (Docket No. 43) alleges the followingfacts. Plaintiff, a resident of Maine, leased a street sweeperon or about May 11, 1997. See Amended Complaint ¶¶ 1, 7. Whileusing the street sweeper that day, Plaintiff was injured. SeeAmended Complaint ¶ 13.

The record also sets forth the following undisputed facts.Defendant Bob Fisher, a resident of North Carolina, was involvedin the design, manufacturing, and marketing of this streetsweeper. See Defendant's Statement of Material Facts ("DSMF")(Docket No. 52) ¶ 2; Plaintiffs Statement of Material Facts("PSMF") (Docket No. 56) ¶ 1; Defendant's Reply Statement ofMaterial Facts ("RSMF") (Docket No. 58) ¶ 1. Plaintiff leasedthe street sweeper at issue in this case from Rent-It, Inc., aMaine corporation that purchased the sweeper in 1989. See DSMF¶ 4.1 The dealings between Rent-It, Inc. and Bob Fisherpertaining to the sale of the sweeper to Rent-It, Inc. tookplace in North Carolina and in either Texas or Georgia. SeeDSMF ¶¶ 8-12. These dealings began in 1989, when Rent-It, Inc.placed an order to purchase the sweeper at an equipment tradeshow held in either Texas or Georgia. See DSMF ¶ 8-9. Thesubsequent dealings between the parties took place in BobFisher's facility in NorthCarolina, where an employee of Rent-It, Inc. took possession ofand title to the sweeper. See DSMF ¶ 10. The payment for thissweeper was made either at the facility or at the trade show.See DSMF ¶ 11. Defendant had no involvement in transportingthe sweeper to Maine. See DSMF ¶ 12. Nor has Defendant everadvertised his products in, delivered products to, or had anyoffices or manufacturing facilities in Maine. See DSMF ¶ 6.


Deciding a motion to dismiss for lack of jurisdiction involvesa "fact-sensitive inquiry." Sawtelle v. Farrell, 70 F.3d 1381,1388 (1st Cir. 1995). In a motion to dismiss for lack ofpersonal jurisdiction, the plaintiff bears the burden ofdemonstrating that jurisdiction is proper. See Rodriguez v.Fullerton Tires Corp., 115 F.3d 81, 83 (1st Cir. 1997) (citingSawtelle, 70 F.3d at 1387; Foster-Miller, Inc. v. Babcock &Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995)). When theCourt decides the motion on the basis of written submissions,including pleadings, affidavits, and exhibits, the plaintiffmust make a prima facie showing of personal jurisdiction byciting to specific evidence in the record that, "if credited, isenough to support findings of all facts essential to personaljurisdiction." Boit v. Gar-Tec Products, 967 F.2d 671, 675(1st Cir. 1992). However, when the hearing is nontestimonial andthe Court bases its determination of a plaintiffs prima facieshowing only upon the pleadings, affidavits, and exhibits of theparties, the Court will construe the allegations in the recordin the plaintiffs favor. See Coolidge v. Judith Gap LumberCo., 808 F. Supp. 889, 891 (Me. 1992) (citing Electronic MediaInt'l v. Pioneer Communications of America, Inc.,586 A.2d 1256, 1259 (Me. 1991)). Once the Court determines that theplaintiff has made a prima facie showing of Maine's legitimateinterest in the controversy and the requisite minimum contacts,the burden shifts to the defendant, who, in order to defeat theplaintiffs claim of jurisdiction, must show that the Court'sexercise of jurisdiction would not comport with "traditionalnotions of fair play and substantial justice." See Coolidge,808 F. Supp. at 891 (citing Frazier v. BankAmerica Int'l.,593 A.2d 661, 662 (Me. 1991)).

A two-part analysis guides the Court's determination as towhether to exercise personal jurisdiction over a nonresidentdefendant. See Scott v. Jones, 984 F. Supp. 37, 42 (Me. 1997).The Court first considers whether the forum state's long-armstatute authorizes the exercise of personal jurisdiction. Seeid. Second, the Court determines whether the exercise ofpersonal jurisdiction complies with the Due Process Clause ofthe United States Constitution. See id. (citing Archibald v.Archibald, 826 F. Supp. 26, 28 (Me. 1993)). Because Maine'slong-arm statute, 14 M.R.S.A. § 704-A, is "coextensive" with theDue Process Clause of the Fourteenth Amendment, Murphy v.Keenan, 667 A.2d 591, 593 (Me. 1995), the framework of federaldue process drives the Court's jurisdictional analysis. SeeSawtelle, 70 F.3d at 1388 (1st Cir. 1995).

Constitutional due process requires that a forum state'sexercise of personal jurisdiction over a nonresident defendantis predicated upon "certain minimum contacts with [the forumstate] such that the maintenance of the suit does not offend`traditional notions of fair play and substantial justice.'"International Shoe Co. v. Washington, 326 U.S. 310, 316, 66S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer,311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).Whether the forum is exercising general or specific jurisdictiondetermines the standard that the Court must apply in itsevaluation of the contacts between the defendant and a forumstate. See Archibald, 826 F. Supp. at 28-29.

A court exercising general jurisdiction over a nonresidentdefendant may hear any cause of action against that defendant,regardless of its relationship to the defendant's contacts withthe state. See id. at 29. In order for a court's exercise ofgeneral jurisdiction to satisfy constitutional due process, thedefendant musthave "`substantial' or `continuous and systematic' contacts."See id. (citing International Shoe, 326 U.S. at 317, 66S.Ct. at 159). The alleged contacts in this case do not satisfythis standard. Defendant Bob Fisher's contacts with the State ofMaine consist of his out-of-state dealings with a single Mainerental company. This contact does not amount to the continuousand systematic contacts required for general jurisdiction. SeeHelicopteros Nacionales de Colombia v. Hall, 466 U.S. 408,416-17, 104 S.Ct. 1868, 1873-74, 80 L.Ed.2d 404 (1984) (holdingthat defendant's sending of its chief officer to forum state forcontract negotiation session, acceptance of checks draw on banklocated in forum state, purchase of equipment from companylocated in forum state, and sending of its employees to forumstate for training session related to equipment purchase did notconstitute constitutionally sufficient contacts for the exerciseof general jurisdiction).

In his Objection to Defendant's Motion to Dismiss or forSummary Judgment, Plaintiff raises the possibility thatDefendant might have employed sales people in Maine at somepoint in time. Specifically, Plaintiff cites to Defendant'sdeposition testimony that Bob Fisher Enterprises, Inc. employeda national marketing system of forty-two people and thatDefendant does not recall "who or if there was [an employee] inMaine" to support his assertion that Bob Fisher may haveemployed one or more sales representatives in Maine. See PSMF¶ 4; Fisher Deposition at 28. Defendant points out that thistestimony relates to Bob Fisher Enterprises, Inc. rather thanunincorporated Bob Fisher Enterprises, and he contends that thisstatement fails to provide affirmative evidence that Defendantemployed sales representatives in Maine. See DSMF ¶ 4.2Defendant has also filed an affidavit stating that Bob FisherEnterprises "had no agents or employees who were engaged to callupon any accounts in the State of Maine" prior to or on March17, 1989. See Affidavit of Bob Fisher (Docket No. 53) at 3.While the record does leave open the possibility that Bob FisherEnterprises employed sales agents in Maine between March 17,1989, and the date of its incorporation, June 30, 1989, thisdisputed fact is not material to the issue of generaljurisdiction. The First Circuit has made clear that the exerciseof general jurisdiction requires contacts more continuous andsystematic than the three-month presence of a small number ofsales representatives. See Glater v. Eli Lilly & Co.,744 F.2d 213, 217 (1st Cir. 1984) (holding that limited advertising ofproducts in trade journals and employing eight salesrepresentatives in the forum state did not provide minimumcontacts sufficient for the exercise of general jurisdiction).See also Noonan v. Winston Company, 135 F.3d 85, (1st Cir.1998) (holding that "sufficient minimum contacts to authorizegeneral jurisdiction . . . did not exist" when defendantobtained $585,000 of orders from company in forum state as aresult of employees' regularly solicitation of business fromcompany via fax, phone, letters, and at least two visits toforum state over the course of a two-year period), reh'gdenied (Mar. 9, 1998).

Plaintiffs jurisdictional argument appears to rest on a theoryof specific jurisdiction. A court exercises specificjurisdiction over a nonresident defendant when "the cause ofaction arises directly out of, or relates to, the defendant'sforum-based contacts." United Electrical Radio and MachineWorkers of America v. 163 Pleasant Street Corporation,960 F.2d 1080, 1089 (1st Cir. 1992). In order for the Court's exercise ofspecific jurisdiction over a nonresident defendant to comportwith constitutional due process principles, two conditions mustbe met. See Boit, 967 F.2d at 679.3 "First, `thedefendant musthave purposefully established minimum contacts with the forumsuch that he can reasonably anticipate being haled into thatforum's court.'" Id. (citing U.S.S. Yachts, Inc. v. OceanYachts, Inc., 894 F.2d 9, 11 (1st Cir. 1990)). Second, theexercise of jurisdiction must not offend the principles of"`fair play and substantial justice,'" id. (citing BurgerKing Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174,2183, 85 L.Ed.2d 528 (1985)), in light of the "Gestalt factors."United Electrical Radio and Machine Workers of America, 960F.2d at 1089.

At issue in this case is whether Defendant Bob Fisher'sconduct in connection with the sale of the street sweepingdevice constitutes a purposeful establishment of minimumcontacts with the state of Maine. Plaintiff does not allege thatDefendant traveled to Maine in connection with this sale, and heconcedes that an employee of Rent-It, Inc. accepted delivery ofthe street-sweeping device in North Carolina and arranged forits transport to Maine. Instead, Plaintiff contends that by"generally offering his sweepers for sale at a major trade showand . . . knowingly [selling] one to a Maine company," Defendantpurposefully directed his product to Maine.

The First Circuit has adopted Justice O'Connor's pluralityopinion in Asahi Metal Industry Co., Ltd. v. Superior Court ofCalifornia, Solano County, 480 U.S. 102, 107 S.Ct. 1026, 94L.Ed.2d 92 (1987), for determining whether a defendant haspurposefully established minimum contacts. See Boit, 967 F.2dat 683; Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 85(1st Cir. 1997). Under this test, the "`mere awareness' that aproduct may end up in the forum state does not constitute`purposeful availment,'" and is therefore insufficient as amatter of constitutional due process. Boit, 967 F.2d at 683(quoting Asahi, 480 U.S. at 112, 107 S.Ct. at 1032). Plaintiffmust put forth some evidence of "[a]dditional conduct of thedefendant . . . indicat[ing] an intent or purpose to serve themarket in the forum State." Asahi, 480 U.S. at 112, 107 1032. Under this test, Defendant Bob Fisher's conduct inconnection with the sale of the street-sweeping device does notamount to purposeful directment of the product towards the stateof Maine. Although Plaintiff maintains that the recordestablishes Defendant's knowledge that the sweeper was destinedfor Maine and encourages the Court to draw a distinction between"mere awareness" that a product may end up in a state and"certainty" that a product will end up in a state, precedentdoes not support this distinction. The First Circuit hasexplained that "specific knowledge that the stream of commerce"will move a product into a state does not "constitute thepurposeful availment which is necessary for a showing of minimumcontacts." Rodriguez, 115 F.3d at 85. See also DalmauRodriguez v. Hughes Aircraft Co., 781 F.2d 9, 15 ("Assumingthat [Defendant] knew that the destination of the helicopterswas Puerto Rico, we do not think that the sale . . . can be thesource of a stream of commerce. . . . The test is not knowledgeof the ultimate destination of the product, but whether themanufacturer has purposefully engaged in forum activities so itcan reasonably expect to be haled into court there.").

Although Plaintiff correctly points out that this Court foundjurisdiction in the cases of Unicomp v. Harcros Pigments,Inc., 994 F. Supp. 24 (Me. 1998) and Coolidge v. Judith GapLumber Co., 808 F. Supp. 889 (Me. 1992), the Court's decisionsin each of those cases rested on specific allegations of conductin addition to the mere knowledge or awareness that a productwould end up in Maine. In Unicomp, the Court based its holdingon the Magistrate Judge's finding that the defendant had enteredinto an agreement with a distribution company whose target areaincluded Maine. See Unicomp, 994 F. Supp. at 26-27. InCoolidge, the Court explained that because the defendant"knowingly ship[ed]" its product to Maine, the defendant "couldhave anticipated invoking the benefits of Maine's law," andoffered the example of a lawsuit related to the shipment of theproducts. See Coolidge, 808 F. Supp. at 893. Defendant in thiscase has had no such connection with the State of Maine, andcould not have anticipated invoking such benefits.


Because Plaintiff has neither alleged an act in addition toDefendant's mere awareness that his product would likely end upin Maine nor continuous and systematic contacts between theDefendant and the State of Maine, Plaintiff has failed to meethis burden of establishing jurisdiction over Defendant BobFisher. Therefore, the Motion for Summary Judgment of DefendantBob Fisher will be granted by the Court.

Accordingly, the Court ORDERS that the Motion to Dismiss orfor Summary Judgment of Defendant Bob Fisher be, and it ishereby, GRANTED. It is further ORDERED that Defendant BobFisher be, and he is DISMISSED from this action.


1. Although Plaintiff has not specifically alleged that heleased the street-sweeping device from Rent-It, Inc. and therecord does not set forth evidence of this transaction, theparties have argued this motion under the mutual assumption thatPlaintiff leased the street-sweeping device from Rent-It, Inc.The Court infers that there is no dispute over this fact andthat Plaintiff had lawful possession of the device at the timeof his injury.

2. The parties do not dispute that Bob Fisher Enterprises wasincorporated under North Carolina Law on June 30, 1989, andsubsequently became Bob Fisher Enterprises, Inc. See FisherDeposition at 13.

3. Compare United Electrical Radio and Machine Workers ofAmerica, 960 F.2d at 1089, (articulating a three-part test inwhich the first prong consists of an evaluation of theconnection between the claim and the defendant's activitieswithin the forum state).

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