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THE STATE OF NEW HAMPSHIRE SUPREME COURT
No. 2012-0492
KIMBALL UNION ACADEMY
V.
iDE, INC., JAMES DEPAUL, AND JOHN GENOVESI
APPEAL FROM RULING OF THE SULLIVAN COUNTY SUPERIOR COURT PURSUANT TO SUPREME COURT RULE 7
BRIEF FOR APPELLANT JOHN GENO YES!
Andrew D. Dunn, Esquire (Bar No. 696) Jonathan M. Eck, Esquire (Bar No. 17684) Anna B. Peterson, Esquire (Bar No. 20667) Devine, Millimet & Branch, P.A. 111 Amherst Street Manchester, NH 03101
Counsel for Defendant-Appellant John Genovesi
Oral Argument by: Andrew D. Dunn, Esq.
TABLE OF CONTENTS.
TABLE OF AUTHORITIES......................................................................................................iii
QUESTIONPRESENTED ..........................................................................................................1
TEXT OF RELEVANT CONSTITUTIONAL PROVISIONS AND STATUTES.................2
STATEMENTOF THE CASE....................................................................................................3
STATEMENTOF THE FACTS ................................................................................................. 5
SUMMARYOF ARGUMENT.................................................................................................... 7
STANDARDOF REVIEW..........................................................................................................9
ARGUMENT.................................................................................................................................9
I. THE TRIAL COURT FAILED TO PERFORM AN ANALYSIS UNDER THE NEW HAMPSHIRE LONG-ARM STATUTE......................................................................9
II. THE TRIAL COURT’S EXERCISE OF PERSONAL JURISDICTION OVER THE DEFENDANT NEW JERSEY ENGINEER VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION BECAUSE HIS SPECIFIC CONTACTS WITH NEW HAMPSHIRE ARE NOT DIRECTLY RELATED TO THE CAUSE OF ACTION ALLEGED AGAINST HIM AND BECAUSE HE DID NOT PURPOSEFULLY AVAIL HIMSELF OF THE PROTECTION OF NEW HAMPSHIRE LAW . ................................................. 12
A. A New Jersey Engineer Who Performed All of His Work for a Pennsylvania Client in New Jersey Does Not Have the Necessary Minimum Contacts with New Hampshire to Satisfy the Requirements of Due Process and Prior New Hampshire Precedent Based on Three Telephone Contacts and One E-Mail Contact with New HampshireThird Parties . .................................................................................................. 13
1. The Trial Court’s Exercise of Jurisdiction Violates Due Process Because Plaintiff’s Cause of Action Asserted Against Mr. Genovesi Does Not Arise Out of Mr. Genovesi’s Contacts with New Hampshire.........13
2. Solely Virtual Contacts with the Forum State (in the Form of Three Telephone Conferences and One E-Mail) Are Only Sufficient to Establish Jurisdiction Where Plaintiff’s Cause of Action Asserted Against the Nonresident Defendant Arises Directly Out of those Telephone Conferences and/or that E-Mail .....................................................16
1
B. Mr. Genovesi Did Not Purposefully Avail Himself of New Hampshire’s Laws and Protections Because He Did Not Direct His Activities Towards the State Nor Did He Take Any Voluntary Action to Participate in the State’s Market............................20
1. Where a New Jersey Engineer Has Contracted to Perform Services for a Non-New Hampshire Client, the Trial Court Erred By Refusing to Require an Increased Quantum of Proof to Show Satisfaction of the Purposeful Availment Prong of the Tripartite Personal Jurisdiction Analysis................................................................................................................20
2. Defendant Mr. Genovesi Did Not Purposefully Direct His Activities at the New Hampshire Market or New Hampshire Residents When He Contracted to Perform Services for a Pennsylvania Client............................22
CONCLUSION...........................................................................................................................23
REQUEST FOR ORAL ARGUMENT.....................................................................................23
TRIAL COURT ORDER ON MOTION TO DISMISS, JUNE 13,2012 .............................. 25
11
TABLE OF AUTHORITIES
Cases Alacorn v. Swanson, 145 N.H. 625 (2000)...................................................................................23
Asahi Metal Indus. Co. v. Superior Court, 408 U.S. 102 (1987)..................................................21
Bruns v. Town of Fryeburg, No. 11-cv-183-SM, 2011 WL 5007075 (D.N.H. Oct. 20, 2011).... 16
Burnham v. Super. Ct. of Cal., 495 U.S. 604 (1990)....................................................................12
Circuit Connect, Inc. v. Preferred Transp. & Distrib., Inc., No. 1O-cv514-SM, 2011 WL
3678170 (D.N.H. Aug. 22, 2011) .............................................................................................16
Computac, Inc. v. Dixie News Co., 124 N.H. 350 (1983)............................................................16
Fellows v. Colburn, 162 N.H. 685 (2011) ......................................................................................9
Hallv. Koch, 119 N.H. 639 (1979)...............................................................................................12
Hanson v. Denckla, 357 U.S. 235 (1958) .....................................................................................22
Int’l Shoe Co. v. Wash., 326 U.S. 310 (1945)..............................................................................12
J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S , 131 S. Ct. 2780 (2011).................................21
Lyme Timber Co. v. DSF Investors LLC, 150 N.H. 557 (2004)..................................................10
McNair v. McNair, 151 N.H. 343 (2004) .........................................................................16, 17, 19
Pritzker v. Yari, 42 F.3d 53 (1st Cir. 1994), cert denied, 514U.S. 1109 (1995).......................... 12
Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995) ................................................................... 13, 15
Skilisoft Corp. v. Harcourt General, Inc., 146 N.H. 305 (2001).............................................14, 22
Staffing Network, Inc. v. Pietropaolo, 145 N.H. 456 (2000)............................................12, 16, 17
State v. N. Atl. Ref. Ltd., 160 N.H. 275 (2010).....................................................................passim
Tavoularis v. Womer, 123 N.H. 423 (1983).................................................................................11
Vt. Wholesale Bldg. Prods. v. J.W. Jones Lumber Co., 154 N.H. 625 (2006)......................passim
111
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) . 12,21
Statutes RSA 510:4,I ...................................................................................................................2,9,10,12
iv
QUESTION PRESENTED
WHETHER THE TRIAL COURT ERRED IN DENYING A MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OVER AN OUT-OF-STATE DEFENDANT ENGINEER WHO HAD NO SPECIFIC CONTACTS WITH THIS STATE OTHER THAN THE PREPARATION OF A FOUNDATION PLAN IN NEW JERSEY, WHICH HE SENT TO THE GENERAL CONTRACTOR IN PENNSYLVANIA, WHERE THE PLAN WAS TO BE USED (BUT WAS NOT ACTUALLY USED) IN CONSTRUCTING A BUILDING IN NEW HAMPSHIRE.
(Appendix to Brief for Appellant John Genovesi ("Genovesi App.") at 19-33, 37-55, 221-234; Rule 7 Notice of Discretionary Appeal, July 12, 2012.)
TEXT OF RELEVANT CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. CONST. amend. XIV, § 1 All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
RSA 510:4, I Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.
STATEMENT OF THE CASE
This appeal arises out of the trial court’s erroneous denial of John Genovesi’s motion to
dismiss and the court’s ruling (Tucker, J.) that it has personal jurisdiction over him even though
the cause of action for professional negligence that the plaintiff alleges against him did not arise
out of any specific contacts with New Hampshire. Specifically, the trial court’s finding was
based on three telephone calls and one e-mail directed by Mr. Genovesi into the State related to
his preparation of a foundation plan from his office in New Jersey for a client located in
Pennsylvania that was to be used - but was not ultimately used - in the construction of a building
in New Hampshire. The plaintiff’s claim for professional negligence is not based on any
allegedly negligent conduct on Mr. Genovesi ’ s part during any of the three telephone calls or the
one e-mail into the State, nor is the harm alleged related to the foundation plan created by Mr.
Genovesi, as it was not actually utilized in the construction of the building. The superior court’s
ruling deprives Mr. Genovesi of his constitutional due process rights.
On January 23, 2012, Kimball Union Academy ("KUA") filed Kimball Union Academy
v. JDE, Inc., James DePaul, and John Genovesi, Sullivan County Superior Court Case No. 220-
201 2-CV-00006. See Appendix to Brief for Appellant John Genovesi ("Genovesi App.") at 1.
KUA asserts a claim for professional negligence against Mr. Genovesi. Id. at 16-17. KUA
alleges that Mr. Genovesi was professionally negligent "by failing to perform his work on the
Project in conformance with both the applicable laws and code and with the applicable
professional practice standards governing his work by, among other things, failing to prepare
complete construction documents and failing to supply special inspection instructions for the
footing and foundation work and/or to determine that such special inspection instructions were
provided." Id. at 18; see also id. at 6, 17. However, Mr. Genovesi did not contract with JDE,
Inc. ("JDE"), the designer-builder for the project, or KUA to provide these bundled services and
was not paid to perform them. See id. at 35, 239-40; see also id. at 223-24, 226-27, 230-31.
Furthermore, KUA does not allege that Mr. Genovesi’s designs were even used by JDE to
construct the foundation of the KUA field house. Id. at 8 ("The footing and foundation work
performed by JDE did not conform to the design prepared by Genovesi."); see also id. at 9.
Therefore, KUA’s cause of action against Mr. Genovesi ’ s arises from his allegedly negligent
failure to ensure that the project was completed in accordance with the applicable laws and
codes. Id. at 16-17.
Mr. Genovesi filed a motion to dismiss, arguing that the exercise of personal jurisdiction
by the court would be improper and unconstitutional. Id. at 19-36. Mr. Genovesi argued that the
plain language of New Hampshire’s long arm statute does not give the court authority to exercise
personal jurisdiction over him in this matter. Id. at 25. Furthermore, he argued that the exercise
of jurisdiction over him by the New Hampshire courts would be contrary to the Due Process
Clause of the United States Constitution because: (1) he does not have the requisite minimum
contacts with New Hampshire, as the few contacts he has with this State did not give rise to
KUA’s cause of action against him, id. at 26-28, 225-31; (2) he did not purposefully avail
himself of the laws and protections of this State, id. at 28-31, 231-33; and (3) the court’s exercise
of jurisdiction over him in this matter would not be fair and reasonable. Id. at 31-32, 233.
On June 13, 2012, the trial court issued an order denying Mr. Genovesi’s motion to
dismiss. Trial Ct. Order on Motion to Dismiss, June 13, 2012, at 1-17, attached hereto at 25
("Order"). The trial court determined that it has specific personal jurisdiction over Mr. Genovesi
because, although he performed and completed his design work from his office in New Jersey,
"[t]he design he prepared had to be compliant with and eligible for state, county, and local
approval[, a] key element of the work was coordination with locally licensed and situated
professionals," and, as characterized by the trial court, Mr. Genovesi maintained a "virtual
presence" in New Hampshire through e-mail correspondence and telephone conferences. Jci. at
11-14. The trial court determined that Mr. Genovesi had sufficient minimum contacts with New
Hampshire such that maintenance of the suit does not offend traditional notions of fair play and
substantial justice. Id. at 14-17.
The trial court committed reversible error when it found that three telephone calls and
one e-mail directed into the State were sufficient contacts to justify personal jurisdiction. More
fundamentally, however, where the cause of action alleged against the non-resident defendant
does not arise directly from those limited contacts, the trial court’s finding of personal
jurisdiction over Mr. Genovesi violates the Due Process Clause of the Fourteenth Amendment of
the United States Constitution and impermissibly broadens the prior holdings of this Court.
STATEMENT OF THE FACTS
The facts relevant to the personal jurisdiction inquiry are set forth below and were
presented to the trial court through affidavits submitted by the parties, as reflected in Mr.
Genovesi’s Appendix. See Genovesi App. at 35-36, 54-65, 66-220, 239-40.
John Genovesi, a resident of Princeton, New Jersey, is a self-employed professional
engineer who has over twenty-two years of experience in mechanical and structural engineering
and construction. Id. at 35. Mr. Genovesi has never resided in New Hampshire, owned any real
property in New Hampshire, advertised in New Hampshire, had any business interests in New
Hampshire, or even been in New Hampshire since a ski vacation more than thirty years ago,
before the circumstances of this case arose. Id.
5
KUA, a college preparatory school in Meriden, New Hampshire, hired JDE, a general
contracting firm incorporated in Florida with a place of business in Pennsylvania, as the design-
builder for the construction of a field house facility on the KUA campus. 1ç1. at 2-4. James
DePaul, as President of JDE, thereafter contracted with Mr. Genovesi to design footings and the
foundation for the KUA field house structure. Id. at 35. Mr. Genovesi agreed to accept JDE as a
client and to prepare the design drawings. Id. at 70-72, 74-75.
Mr. Genovesi did all of his work in connection with preparing the foundation drawings
relative to the KUA project outside of New Hampshire, from his office in New Jersey. j4. at 35.
The only contacts that Mr. Genovesi directed into New Hampshire related to the project were as
follows: (1) one telephone conference call with representatives from KUA; (2) two telephone
conference calls with New Hampshire engineers; and (3) one e-mail to Mr. DePaul in
Pennsylvania describing one of the aforementioned telephone conferences with one of the New
Hampshire engineers, a courtesy copy of which Mr. Genovesi sent to the New Hampshire
engineer. Id. at 88, 239.
Upon completing his foundation design work in August 2011, Mr. Genovesi produced his
drawings to Mr. DePaul in Pennsylvania by e-mail. Id. at 35, 239. Mr. Genovesi did not send his
designs to New Hampshire. j. at 35, 71-72, 239-40. Pursuant to the agreement between JDE
and Mr. Genovesi, Mr. DePaul was supposed to present Mr. Genovesi’s foundation design to a
New Hampshire-licensed professional engineer for review, signature, and seal by that
engineering professional prior to submission to the Town of Plainfield, New Hampshire for a
building permit. Id. at 35, 239. Mr. Genovesi was not responsible for engaging the New
Hampshire-licensed structural engineer, nor was he responsible for submitting his designs to the
Town of Plainfield for approval. Id. at 35, 71-72, 239. In fact, Mr. Genovesi never expected that
rel
he would have to go to - and did not go to - New Hampshire for any purpose relative to
conducting his engineering design work under his contract with JDE. JcI. at 35. Mr. Genovesi’s
work relative to the project ended with the submission of his designs to Mr. DePaul in August
2011. Id. at 239-40.
In November 2011, Ken Walsh, an official from the New Hampshire State Fire Marshal’s
Office, contacted Mr. Genovesi by telephone and told him that an accident had occurred at the
KUA field house jobsite, that a worker had been injured, and that representatives from the New
Hampshire Fire Marshal’s Office, OSHA, and the Town of Plainfield, New Hampshire were
investigating the j obsite. Id. at 35. Mr. Walsh advised that he was investigating the foundation
system at the KUA field house jobsite, and that he wanted to obtain information from Mr.
Genovesi. Id. at 35-36. At the request of Mr. Walsh, only after a construction worker was
injured at the jobsite and the KUA project was subsequently halted, Mr. Genovesi came to New
Hampshire with Mr. DePaul on November 29, 2011 for a meeting at KUA in response to being
summoned by public officials as part of their investigation shutting down the project. j. at 36,
240. Aside from attending the November 29, 2011 meeting at KUA, all of Mr. Genovesi’s
interactions with Mr. DePaul and JDE relative to the KUA project took place while Mr.
Genovesi was in New Jersey. Id. at 36.
SUMMARY OF ARGUMENT
The trial court committed reversible error in finding that New Hampshire courts have
personal jurisdiction over Mr. Genovesi. The plain language of the New Hampshire long-arm
statute does not authorize the New Hampshire courts to exercise jurisdiction over Mr. Genovesi.
Assuming, however, that the long-arm statute does encompass the circumstances presented by
the current matter, Mr. Genovesi does not have minimum contacts with New Hampshire as
7
required by the Due Process Clause of the Fourteenth Amendment of the United States
Constitution.
First, where the only direct contacts that Mr. Genovesi had with New Hampshire were
three telephone calls and one e-mail, and where those contacts do not constitute a material
element of proof for KUA’s claim of professional negligence against Mr. Genovesi, such
contacts are insufficiently related to justify jurisdiction pursuant to the well-established first
prong of the tripartite personal jurisdiction analysis under the Due Process Clause of the
Fourteenth Amendment of the United States Constitution. Second, where KUA’s sole cause of
action against Mr. Genovesi does not arise from those limited, virtual contacts, the trial court
impermissibly broadened the prior holdings of this Court by finding that the New Hampshire
courts have personal jurisdiction over Mr. Genovesi.
Additionally, the trial court committed reversible error in finding that the second prong of
the tripartite analysis - purposeful availment - was met. First, the trial court erred by refusing to
require some increased quantum of proof, such as the "stream of commerce plus" analysis, to
show that a professional who performs services wholly outside of New Hampshire for a non-
New Hampshire client has purposefully availed himself of the protections of New Hampshire
law. Second, even assuming that the trial court properly refused to require an increased quantum
of proof, the evidence proffered in this matter is inadequate to establish that Mr. Genovesi
purposefully directed his actions toward New Hampshire when he entered into a contract to
provide foundation designs for a non-New Hampshire client and completed all work for the
project from his office in New Jersey.
1’]
The trial court’s order denying Mr. Genovesi’s motion to dismiss should be reversed and
he should be dismissed from this lawsuit because New Hampshire courts do not have personal
jurisdiction over him.
STANDARD OF REVIEW
The standard of review that this Court applies when reviewing a trial court’s ruling upon
a motion to dismiss for lack of personal jurisdiction, where the trial court reached its decision
without holding an evidentiary hearing (and thus applied a prima facie standard), is a de novo
review of the trial court’s decision. Fellows v. Colburn, 162 N.H. 685, 690 (2011); State v. N.
Atl. Ref. Ltd., 160 N.H. 275, 281 (2010). Here, the trial court ruled on Mr. Genovesi’s motion to
dismiss without holding an evidentiary hearing, thus this Court’s review is de novo.
ARGUMENT
In order to determine whether KUA met its burden of "demonstrating facts sufficient to
establish personal jurisdiction over [Mr. Genovesi],. . . [the trial court should have] engage[d] in
a two-part inquiry." Vt. Wholesale Bldg. Prods. v. J.W. Jones Lumber Co., 154 N.H. 625, 628
(2006). "First, the State’s [relevant] long-arm statute must authorize such jurisdiction. Second,
the requirements of the federal Due Process Clause [of the Fourteenth Amendment to the United
States Constitution] must be satisfied." Id. (quotation omitted). The trial court committed
reversible error in its application of both prongs of this inquiry.
I. THE TRIAL COURT FAILED TO PERFORM AN ANALYSIS UNDER THE NEW HAMPSHIRE LONG-ARM STATUTE
The trial court did not perform an analysis under New Hampshire’s long-arm statute,
RSA 5 10:4, I. See Order at 1-17. Instead, the trial court skipped directly to an analysis solely
under the Federal Due Process Clause, found that due process was satisfied, and on that basis
determined that the long-arm statute authorized the court’s exercise of personal jurisdiction. Id.
to
at 16-17. Although this Court has interpreted New Hampshire’s long-arm statute as "permitting
the exercise of jurisdiction to the extent permissible under the Federal Due Process clause,"
Lyme Timber Co. v. DSF Investors LLC, 150 N.H. 557, 559 (2004), that does not permit a trial
court to conflate the analyses in circumstances where the plain language of the statutory
requirements have not been met. The trial court’s failure to perform this analysis constitutes
reversible error.
New Hampshire’s long-arm statute does not authorize jurisdiction over Mr. Genovesi.
The long-arm statute provides, in relevant part, that any person who "in person or through an
agent, transacts any business within this state [or] commits a tortious act within this state...
submits himself. . . to the jurisdiction of the courts of this state as to any cause of action arising
from or growing out of the acts enumerated above." RSA 5 10:4, I. Mr. Genovesi did not "in
person or through an agent, transact[] any business within this state, [nor did he] commit[] a
tortious act within this state," out of which KUA’s cause of action arose. See. It is undisputed
that Mr. Genovesi did not enter into any contracts with any New Hampshire entity to be
performed in New Hampshire. Instead, the undisputed evidence in this matter establishes that
Mr. Genovesi transacted business with JDE, a Florida corporation with an office in
Pennsylvania, and with its President, Mr. DePaul, a Pennsylvania resident. Genovesi App. at 2-
4, 35, 70-72, 74-75. Furthermore, the evidence establishes that Mr. Genovesi did not commit the
alleged professional negligence within New Hampshire, as he completed all of his work from his
office in New Jersey.
KUA fails to allege, and the facts do not show, that Mr. Genovesi committed any
professionally negligent act that would subject him to New Hampshire’s jurisdiction under the
long-arm statute. KUA alleges that Mr. Genovesi was professionally negligent "by failing to
10
perform his work on the Project in conformance with both the applicable laws and code and with
the applicable professional practice standards governing his work by, among other things, failing
to prepare complete construction documents and failing to supply special inspection instructions
for the footing and foundation work and/or to determine that such special inspection instructions
were provided." Id. at 18; see also id. at 6, 17. However, Mr. Genovesi did not contract with
JDE to provide these bundled services and was not paid to perform them. See id. at 35, 239-40;
see also id. at 223-24, 226-27, 230-31.
Furthermore, KUA does not allege that Mr. Genovesi’ s designs were actually used by
JDE to complete the KUA field house, therefore even assuming that they were negligently
prepared, the designs could not have caused a harm in New Hampshire. Id. at 8 ("The footing
and foundation work performed by JDE did not conform to the design prepared by Genovesi.")
While this Court has held that New Hampshire’s long-arm statute authorizes jurisdiction over a
nonresident defendant where only the injury occurs in New Hampshire, Tavoularis v. Womer,
123 N.H. 423, 426 (1983), where KUA has not alleged that Mr. Genovesi’s allegedly negligent
designs were used in the construction of the field house project, the circumstances at issue
prevent that principle from conferring jurisdiction in this case. KUA failed to allege an injury
which can be causally related to the alleged negligent actions taken by Mr. Genovesi, nor has
KUA alleged that Mr. Genovesi committed any tort during his direct contacts with New
Hampshire. See Genovesi App. at 1-18. Thus, KUA has identified no tortious act committed
within this state as required by New Hampshire’s long-arm statute.
The circumstances of this matter clearly establish that KUA’s cause of action against Mr.
Genovesi does not meet the plain language requirements of New Hampshire’s long-arm statute.
Therefore, the trial court committed reversible error by failing to perform an independent
11
analysis under the long-arm statute and failing to recognize that RSA 510:4 does not authorize
jurisdiction over Mr. Genovesi.
II. THE TRIAL COURT’S EXERCISE OF PERSONAL JURISDICTION OVER THE DEFENDANT NEW JERSEY ENGINEER VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION BECAUSE HIS SPECIFIC CONTACTS WITH NEW HAMPSHIRE ARE NOT DIRECTLY RELATED TO THE CAUSE OF ACTION ALLEGED AGAINST HIM AND BECAUSE HE DID NOT PURPOSEFULLY AVAIL HIMSELF OF THE PROTECTION OF NEW HAMPSHIRE LAW
"The Due Process Clause of the Fourteenth Amendment limits the power of a state court
to render a valid personal judgment against a nonresident defendant." World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 291 (1980). "A state court’s assertion of personal jurisdiction
satisfies the [Federal] Due Process Clause if it does not violate ’traditional notions of fair play
and substantial justice." Burnham v. Super. Ct. of Cal., 495 U.S. 604, 609 (1990) (quoting Ipfj,
Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). In accordance with this requirement, the United
States Supreme Court has long held that "a state court may exercise personal jurisdiction over a
nonresident defendant only so long as there exist ’minimum contacts’ between the defendant and
the forum State." World-Wide Volkswagen, 444 U.S. at 291 (citing Int’l Shoe, 326 U.S. at
316).’
"Whether constitutionally adequate contacts exist depends on the relationship among the
defendant, the forum, and the litigation." Staffing Network, Inc. v. Pietropaolo, 145 N.H. 456,
458 (2000) (quotation omitted); see also Hall v. Koch, 119 N.H. 639, 645 (1979). "In
determining whether the exercise of specific personal jurisdiction comports with due process,
’"Personal jurisdiction can either be general or specific." Vt. Wholesale, 154 N.H. at 628. "[G]eneraljurisdiction exists when the litigation is not directly founded on the defendant’s forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state." Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994), cert. denied, 514 U.S. 1109 (1995) (quotation omitted). However, as Mr. Genovesi set forth in his motion to dismiss pleadings, "Mr. Genovesi ... lacks altogether the continuum of contacts
systematic and continuous - necessary to support general personal jurisdiction." Genovesi App. at 24. New Hampshire courts do not have general personal jurisdiction over Mr. Genovesi, and that matter is not raised on appeal.
12
[this Court] examine[s] whether: (1) the contacts relate to the cause of action; (2) the defendant
has purposefully availed [himself] of the protection of New Hampshire’s laws; and (3) it would
be fair and reasonable to require the defendant to defend the suit in New Hampshire." YI
Wholesale, 154 N.H. at 628. "All three factors must be satisfied in order for the exercise of
jurisdiction to be constitutional, and each factor must be evaluated on a case-by-case basis." Id.
at 629 (citations omitted). The evidence in this matter plainly reveals that Mr. Genovesi does not
have minimum contacts with New Hampshire sufficient to satisfy the requirements of the Due
Process Clause of the United States Constitution, and, therefore, he cannot be haled into a New
Hampshire court.
A. A New Jersey Engineer Who Performed All of His Work for a Pennsylvania Client in New Jersey Does Not Have the Necessary Minimum Contacts with New Hampshire to Satisfy the Requirements of Due Process and Prior New Hampshire Precedent Based on Three Telephone Contacts and One E-Mail Contact with New Hampshire Third Parties
The trial court’s finding that three telephone conferences and one e-mail directed into the
State of New Hampshire by Mr. Genovesi constitute sufficient minimum contacts with the State
to confer personal jurisdiction over Mr. Genovesi, where the cause of action asserted against Mr.
Genovesi by KUA does not arise directly from those limited and discrete contacts, violates the
Due Process Clause of the Fourteenth Amendment of the United States Constitution and is
inconsistent with the prior decisions of this Court. The trial court’s finding of personal
jurisdiction over Mr. Genovesi based on these unrelated virtual contacts should be reversed.
1. The Trial Court’s Exercise of Jurisdiction Violates Due Process Because Plaintiff’s Cause of Action Asserted Against Mr. Genovesi Does Not Arise Out of Mr. Genovesi’s Contacts with New Hampshire
Due process requires that the cause of action asserted against an out-of-state defendant
must "arise[] out of or relate[] to the defendant’s forum-based contacts." Vt. Wholesale, 154
N.H. at 628 (quotation omitted); see also Sawtelle v. Farrell, 70 F.3d 1381, 1389 (1st Cir. 1995)
13
(explaining that, in this context, "relate" means that the "action must directly arise out of the
specific contacts between the defendant and the forum state"). Specifically, "[t]o satisfy the
relatedness factor, there must be more than just an attenuated connection between the contacts
and the claim; the defendant’s in-state conduct must form an important, or at least material,
element of proof in the plaintiff’s case." N. Ad. Ref., 160 N.H. at 282 (internal quotation marks
omitted); see also Skillsoft Corp. v. Harcourt General, Inc., 146 N.H. 305, 309 (2001) (stating
that the court conducting this analysis "must look only to the defendant[’ s] contacts that relate to
th[at] litigation"). To withstand constitutional muster and permit the exercise of personal
jurisdiction over Mr. Genovesi by the New Hampshire courts, Mr. Genovesi’s e-mail and three
telephone conferences must form an important or material element of proof underpinning KUA’s
claim against Mr. Genovesi for professional negligence. See Genovesi App. at 88, 239-40.
However, Mr. Genovesi’s e-mail and telephone contacts with New Hampshire do not form an
element of proof, material or otherwise, necessary to establish KUA’s cause of action against
Mr. Genovesi for professional negligence.
KUA has not alleged that Mr. Genovesi comported himself in a professionally negligent
manner during any of his virtual communications into New Hampshire. See Genovesi App. at 2-
18. KUA does not claim that Mr. Genovesi gathered information about the proposed building
site in a negligent manner. See id. Instead, KUA asserts that Mr. Genovesi "breached his duty
to KUA by failing to perform his work on the Project in conformance with both applicable laws
and codes and with the. applicable professional practice standards governing his work." Id. at 18.
Specifically, KUA only identifies two failings: Mr. Genovesi failed to "prepare[] complete
construction documents" and "fail[ed] to supply special instructions for the footing and
foundation work and/or to determine that such special instructions were provided." j. Mr.
14
Genovesi did not agree to act as the structural engineer of record for KUA’ s field house project.
Id. at 240. Mr. Genovesi contracted exclusively with JDE, a non-New Hampshire entity, to
prepare foundation designs. Id. at 35. He did the work from his office in New Jersey. Id. at
35,239-40. That work on the project ended with the submission of his designs to Mr. DePaul in
Pennsylvania via e-mail. Id. at 35, 223-24, 226-27, 230-31, 239-40.
The trial court erred by failing to require KUA to show a causal nexus between Mr.
Genovesi’ s virtual communications with New Hampshire and its sole cause of action against
him. When it erroneously found that Mr. Genovesi’ s contacts were sufficiently related, the trial
court disregarded the fact that Mr. Genovesi never even set foot in New Hampshire in the course
of the engineering design work that he performed (or otherwise), 2 that Defendant JDE was
supposed to present Mr. Genovesi’s foundation design to a New Hampshire-licensed
professional engineer for review, signature, and seal by that engineering professional prior to
submission to the Town of Plainfield, New Hampshire for a building permit, and that KUA did
not allege that Mr. Genovesi committed any negligent acts in New Hampshire or that he
negligently performed his foundation design work for any reason related to his e-mail or
telephonic contacts with New Hampshire. See Order at 9-11.
The acts underpinning the sole cause of action asserted against Mr. Genovesi have only
an attenuated connection to Mr. Genovesi’ s limited in-state contacts. Id. at 17-18, 239-40; see
Sawtelle, 70 F.3d at 1389 ("[The relatedness] requirement is not met merely because a plaintiffs
cause of action arose out of the general relationship between the parties; rather, the action must
directly arise out of the specific contacts between the defendant and the forum state."). These
contacts are constitutionally insufficient to justify the exercise of personal jurisdiction over Mr.
2 After Mr. Genovesi’s design project was completed and three months after he submitted his foundation plan to
JDE, Mr. Genovesi was summoned to New Hampshire by public officials as part of the investigation resulting from the halting of the KUA project after an injury to a construction worker. j. at 240.
15
Genovesi. See, Bruns v. Town of Fryeburg, No. 11-cv-183-SM, 2011 WL 5007075, at * 1..
3 (D.N.H. Oct. 20, 2011) (finding no personal jurisdiction where the nonresident’s contacts with
the forum state did not constitute a material element of proof with respect to plaintiffs
negligence claim and where the claim did not arise from the non-resident’s contacts); Circuit
Connect, Inc. v. Preferred Transp. & Distrib., Inc., No. 10-cv-5 14-SM, 2011 WL 3678170, at *2.
3 (D.N.H. Aug. 22, 2011) (finding no personal jurisdiction where nonresident defendants only
contact with New Hampshire was a telephone call and where that telephone call formed no
element of proof necessary to prove the plaintiffs negligence claim). Thus, the trial court’s
finding of personal jurisdiction in this matter is legally erroneous and should be reversed.
2. Solely Virtual Contacts with the Forum State (in the Form of Three Telephone Conferences and One E-Mail) Are Only Sufficient to Establish Jurisdiction Where Plaintiff’s Cause of Action Asserted Against the Nonresident Defendant Arises Directly Out of those Telephone Conferences and/or that E-Mail
The trial court found that the "relatedness" factor of the tripartite personal jurisdiction
inquiry was satisfied by Mr. Genovesi’s e-mail and telephonic contacts with individuals who
were in New Hampshire, despite the fact that KUA’s professional negligence claim against Mr.
Genovesi does not arise directly from those e-mail and telephonic contacts. Id. This finding is
inconsistent with the prior decisions of this Court considering the impact of telephone, e-mail,
and wire communications on the personal jurisdiction inquiry. This Court has never found that
personal jurisdiction can be properly exercised where an out-of-state defendant’s sole contact
with New Hampshire has been such communications and where the sole cause of action alleged
against that out-of-state defendant does not arise directly from those communications. çf .
Computac, Inc. v. Dixie News Co., 124 N.H. 350, 354 (1983); Staffing Network, 145 N.H. at
459; McNair v. McNair, 151 N.H. 343 (2004). The trial court’s finding of personal jurisdiction
16
under such circumstances presents an impermissible, and unconstitutional, broadening of this
Court’s prior personal jurisdiction jurisprudence.
In Computac, a New Hampshire corporation, Computac, brought a breach of contract suit
against Dixie News, an out-of-state corporation. 124 N.H. at 352. This Court found that the
superior court’s exercise of personal jurisdiction over Dixie News was appropriate because of
Dixie News’ decision to enter into a contract with a New Hampshire corporation, which had
created a "substantial connection with New Hampshire." Id. at 353. It was in that context that
this Court noted that it was appropriate to consider, for the purposes of personal jurisdiction, the
"continuous weekly telephone and mail communications [by Dixie News] to New Hampshire for
approximately four-and-one half years," where "an essential portion of Dixie News’ performance
[of the contract] was the delivery of information to New Hampshire." Id.; see also Staffing
Network, 145 N.H at 459-60 (finding personal jurisdiction over the nonresident defendant in a
breach of contract action because the defendant had entered into a contract with a New
Hampshire corporation and sent communications into New Hampshire in accordance with that
contract). In Computac, as well as Staffing Network, this Court permitted virtual contacts to be
given constitutional significance when combined with the other contacts voluntarily assumed by
the out-of-state defendants, such as the decision to enter into a contractual relationship with a
New Hampshire resident.
This Court has found virtual contacts - without any physical contacts - to be
constitutionally sufficient in only one case - McNair - the facts and circumstances of which are
fundamentally different than those presented by the current matter. In McNair, a New
Hampshire resident, Heidi McNair, filed a domestic violence petition against her husband, Ryan
McNair, an out-of-state defendant. 151 N.H. at 345. Ms. McNair’s domestic violence petition
17
was based on the fact that Mr. McNair had made approximately forty harassing telephone calls
per day to Ms. McNair in New Hampshire from Texas. Id. at 349-351. This Court determined
that forty harassing phone calls a day from Texas to New Hampshire established minimum
contacts with New Hampshire to support personal jurisdiction over Mr. McNair because those
same acts formed the basis for the domestic violence petition. Id. Therefore, this Court has
decided that virtual contacts with New Hampshire - without more - can satisfy the due process
minimum contacts requirement, but only if the cause of action asserted arises precisely from
those virtual contacts.
The circumstances of the current matter are strikingly different than those presented to
the Court in Computac, Staffing Network, and McNair. Mr. Genovesi’s only contacts with New
Hampshire have been a limited number of virtual contacts with persons - different from the co-
defendant with whom he contracted - regarding matters collateral to the work he performed in
New Jersey pursuant to his contract with JDE, a Florida corporation with a place of business in
Pennsylvania. 3 Genovesi App. at 88, 239. Unlike Computac and Staffing Network, where the
nonresident defendant had a contractual relationship with the New Hampshire plaintiff, Mr.
Genovesi has no direct relationship with KUA, the in-state plaintiff, contractual or otherwise.
See id. at 2-11, 35-36, 239-40.
The virtual contacts that Mr. Genovesi directed into New Hampshire, which were held by the superior court to justify a finding of personal jurisdiction, are as follows: Mr. Genovesi called in to a telephone conference hotline, from his office in New Jersey, for a June 20, 2011 project teleconference that representatives of KUA organized. Genovesi App. at 239. On June 28, 2011, again from his Office in New Jersey, Mr. Genovesi participated in a telephone conference with Richard Porter, an employee of Engineered Foundation Technologies, LLC, which is a Nashua, New Hampshire-based company. j. After speaking with Mr. Porter, from his office in New Jersey, Mr. Genovesi sent a follow-up e-mail to Mr. DePaul, a courtesy copy of which he also sent to Mr. Porter. Id. Additionally, on or about July 7, 2011, Mr. Genovesi participated in a conference call with representatives of Haley & Aldrich, Inc., which conducted a geotechnical design investigation relative to the proposed KUA project. j4 at 88. In the course of performing his work from New Jersey, Genovesi sent a limited number of e-mails to Mr. DePaul, largely to acknowledge receipt of and, in isolated cases, to briefly respond, to numerous e-mails that Mr. DePaul bombarded Mr. Genovesi with. J. at 240. KUA’s cause of action for professional negligence does not arise directly out of these contacts. I. at 17-18.
18
Importantly, and as addressed supra, the cause of action asserted against Mr. Genovesi by
KUA does not arise out of Mr. Genovesi’s virtual contacts with New Hampshire. See 14. at 17-
18, 239-40. This is a paramount distinction between the current matter and McNair, where the
nonresident defendant’s virtual communications into New Hampshire formed the basis for the
action and the court’s exercise of personal jurisdiction. McNair, 151 N.H. at 345. Mr.
Genovesi ’5 virtual contacts with New Hampshire are far from forming the basis for KUA’ s cause
of action against him. See Genovesi App. 2-18. KUA does not allege that Mr. Genovesi
committed any tort through his e-mail or during his telephone communications into New
Hampshire, instead it alleges that he was professionally negligent by generally failing "to supply
special instructions for the footing and foundation work" with the plans. Id. at App. 2-11, 17-18.
If the trial court’s decision in this matter is allowed to stand, any nonresident defendant
who has a mere "virtual presence" in New Hampshire, even through very limited e-mail
correspondence or telephone calls, whether or not initiated by the nonresident defendant, could
be subject to suit in New Hampshire regardless of whether the plaintiff’s cause of action against
that nonresident arises out of those "virtual" contacts with New Hampshire. Mr. Genovesi
respectfully submits that a finding of personal jurisdiction over him under these circumstances
impermissibly steps beyond the bounds of the prior decisions of this Court, as well as the
constitutional requirements of due process, and therefore should be reversed.
19
B. Mr. Genovesi Did Not Purposefully Avail Himself of New Hampshire’s Laws and Protections Because He Did Not Direct His Activities Towards the State Nor Did He Take Any Voluntary Action to Participate in the State’s Market
1. Where a New Jersey Engineer Has Contracted to Perform Services for a Non-New Hampshire Client, the Trial Court Erred By Refusing to Require an Increased Quantum of Proof to Show Satisfaction of the Purposeful Availment Prong of the Tripartite Personal Jurisdiction Analysis
This Court has required an increased quantum of proof, also referred to as the "stream of
commerce plus" analysis, to establish the purposeful availment prong of the tripartite personal
jurisdiction inquiry in circumstances where an out-of-state defendant’s products end up in New
Hampshire despite the fact that there was no direct sale by the defendant to a New Hampshire
resident. N. Ad. Ref., 160 N.H. at 284; Vt. Wholesale, 154 N.H. at 635. When such
circumstances are presented, this Court asks whether the defendant’s mere awareness that his
product would enter the New Hampshire market is sufficient to show that the defendant has
purposefully availed himself of the protection of New Hampshire’s laws. N. Ad. Ref, 160 N.H.
at 284-85; Vt. Wholesale, 154 N.H. at 632. This same question is presented in the instant matter.
Mr. Genovesi contracted to perform design work relative to the footings and the foundation for
the field house structure that JDE, a Florida corporation with a place of business in Pennsylvania,
was going to build for KUA. Genovesi App. at 35, 70-72. Mr. Genovesi understood that JDE
intended4 to use those designs on a site in New Hampshire, and therefore in order to meet the
needs of JDE, his client, Mr. Genovesi designed the foundation to fit that location. Id.
Therefore, as in products liability cases, the relevant question is whether Mr. Genovesi’ s mere
awareness that his client represented that he intended to use his designs in New Hampshire is
sufficient to satisfy the purposeful availment prong of the personal jurisdiction analysis.
’ It turned out, however, that JDE did not use these designs - which ironically is the cause of the loss about which KUA complains in this case. Genovesi App. at 8.
AI
The "stream of commerce plus" line of cases answers this inquiry. This Court, as well as
the United States Supreme Court, has held that foreseeability alone is insufficient to establish
personal jurisdiction. Vt. Wholesale, 154 N.H. at 636; World-Wide Volkswagen, 444 U.S. at
295. Instead, due process demands that the defendant must be able to reasonably expect to be
haled into court in the forum state. Vt. Wholesale, 154 N.H. at 631 (quoting World-Wide
Volkswagen, 444 U.S. at 297). A defendant will be held to have had such an expectation if there
is evidence that he had "an intent or purpose to serve the market in the forum State." Id. at 633
(quoting Asahi Metal Indus. Co. v. Superior Court, 408 U.S. 102, 112 (1987)); see also J.
McIntyre Mach., Ltd. v. Nicastro, 564 U.S. , 131 S. Ct. 2780, 2789 (2011) ("The question is
whether a defendant has followed a course of conduct directed at the society or economy existing
within the jurisdiction of a sovereign, so that the sovereign has the power to subject the
defendant to judgment concerning that conduct.") (plurality opinion). In the instant matter, there
is no evidence that Mr. Genovesi took any action with the purpose of entering the New
Hampshire market or developing a continuing relationship with New Hampshire. The facts
indicate that Mr. Genovesi’s purpose was to serve the needs of JDE, a non-New Hampshire
company. Genovesi App. at 35-36, 70-72, 239-40. He performed all of his work from New
Jersey and transmitted his designs, via e-mail, to JDE in Pennsylvania. Id. at 35-36, 239-40.
Similar to a manufacturer in a products liability case, Mr. Genovesi’ s awareness that his services
would eventually reach New Hampshire should be insufficient to establish that he purposefully
availed himself of the protection of New Hampshire’s laws. Cf. World-Wide Volkswagen, 444
U.S. at 291, 298 (holding that World-Wide Volkswagen’s understanding that its products would
likely reach the state where the tort occurred was not enough to create jurisdiction).
21
2. Defendant Mr. Genovesi Did Not Purposefully Direct His Activities at the New Hampshire Market or New Hampshire Residents When He Contracted to Perform Services for a Pennsylvania Client
Assuming, arguendo, that the trial court properly refused to require an increased quantum
of proof, the facts alleged in the Writ do not establish that Mr. Genovesi purposefully directed
his actions toward New Hampshire in a manner that would satisfy the purposeful availment
prong of the tripartite personal jurisdiction analysis. See N. Ati. Ref., 160 N.H. at 284
("Purposeful availment requires both foreseeability and voluntariness."); Skilisoft, 146 N.H. at
309. The circumstances of this case show that Mr. Genovesi, by his own acts, sought to contract
with JDE and agreed to design a foundation from New Jersey pursuant to specifications
submitted by JDE. Genovesi App. at 35, 70-72. These acts were directed at JDE, a non-New
Hampshire company. Id. at 2. The facts show that Mr. Genovesi did not even contract to create
a final design capable of being presented to local New Hampshire officials. See id. at 35-36, 70-
72, 239-40. Instead, Mr. Genovesi agreed to take local conditions into account, and then provide
a design which was, in turn, intended to be reviewed by a New Hampshire-licensed engineer
who would take responsibility by applying his or her engineer’s stamp. Id. at 70-72, 239-40.
Mr. Genovesi did not agree to act as the structural engineer of record for the KUA field house
project. Id. at 240. While Mr. Genovesi understood that the foundation that he was designing
was for a structure that his client represented would be built in New Hampshire, and while he
anticipated that it would be necessary for him to consider local conditions in the course of
preparing his foundation design, see id. at 2-18, 35-36, 70-72, 239-40, he did not set out to
contract with, or benefit from the business of, KUA or otherwise "conduct[] activities within the
forum State." Hanson v. Denckla, 357 U.S. 235, 251 (1958). At no point did Mr. Genovesi take
action seeking to benefit from New Hampshire’s marketplace or its laws. See id.
22
Where the facts clearly show that Mr. Genovesi purposefully directed the allegedly
negligent activities towards JDE, an out-of-state company, not any entity in New Hampshire, he,
as a matter of law, cannot have sufficient minimum contacts with New Hampshire "such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice."
N. Ad. Ref., 160 N.H. at 281 (citing Vt. Wholesale, 154 N.H. at 628). Therefore, the trial court’s
finding that the New Hampshire courts have the authority to exercise personal jurisdiction over
Mr. Genovesi constitutes legal error and should be reversed.
CONCLUSION
For the reasons set forth in the argument section above, Mr. Genovesi does not have
sufficient minimum contacts with New Hampshire "such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice." Alacorn v. Swanson, 145 N.H.
625, 628 (2000). Mr. Genovesi respectfully requests that this Court reverse the trial court’s order
denying his motion to dismiss and hold that, as a matter of law, New Hampshire courts do not
have personal jurisdiction over him.
REQUEST FOR ORAL ARGUMENT
Mr. Genovesi requests fifteen minutes of oral argument. Andrew D. Dunn, Esq. will
argue for Mr. Genovesi.
23
Respectfully submitted,
JOHN GENOVESI
By and through his attorneys,
DEVINE, MILLIMET & BRANCH, P.A.
Date: October 26, 2012 By: ________________________________ r w D. Dunn, Esquire (Bar No. 696)
Jonathan M. Eck, Esquire (Bar No. 17684) Anna B. Peterson, Esquire (Bar No. 20667) 111 Amherst Street Manchester, NH 03101 (603) 669-1000
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing was forwarded on this date, via first-class U.S. mail, postage prepaid, to Peter S. Cowan, Esquire.
Date: October 26,2012 By: Ann B. Peterson, Esquire
Eli
THE STATE OF NEW HAMPSHIRE JUDICIAL BRANCH
SUPERIOR COURT Sullivan Superior Court Telephone: (603) 863-3450 22 Main St. TTYITDD Relay: (800) 735-2964 Newport NH 03773 hftp://www.courts.state.nh.us
NOTICE OF DECISION
Andrew D. Dunn, ESQ P0 Box 719 Manchester NH 03105-0719
Case Name: Kimball Union Academy v JDE, Inc, et al Case Number: 220-2012-CV-00006
Enclosed please find a copy of the court’s order of June 13, 2012 relative to:
Motion to Dismiss
June 14, 2012 James I. Peale Clerk of Court
(548)
C: Peter S. Cowan, ESQ
JUN 1ZQZ
NHJB-2503-S (07/01/2011)
SII’. ILJ. L.j4fl. Lfl.SL ’b’..L IL liii. I %#I Ills £S.?SSIfl I V ISl(, � ..Ll...JJ.L.Jf LAIS. LSI5’LLI.’.LL I. tIS I 13.1.1.1.
T;,,-4,4 ,:i--. IInrL-rrrn,. nd
3
a*ings. 14, ¶ 6.
5
The representations in KUA’s petition undercut its argument KUA represents
that on November 17, 2011, it issued a cease-and-desist order to JDE, "suspending the
work, due.to concerns over the strnctttral integrity of the foptings: rid foudàt1dn
system and other issues" Pet .’j- 48 The November 29, 2011 meeting, therefore, could
not have been the first time KUAbecame aware of its duty Even if the court
"construe[s] the plaintiffs evidentiary proffers in the light most congemal to the
160-. Ftatz81);ktJA has
failed to demonstrate that Genovesfs November 2011 visit is related to its cause of
action against him Nevertheless, physical presence in the forum state is not necessary
z-, to establish personal jurisdiction "[T]he fact that only the alleged iniury occurred
within the State does not preclude New Hampshire courts from subjecting a
nonresident to their jurisdiction under the long-arm Statute" Tavoularis v Womer, 123
N H423,426 (1 -983) Accordingly, the court must address whether enovesi’s contacts
.with New Hampshire relate to the litigation Skillsoft, 146 N H at 308
KUA submits a copy of the agreement between JDE and Genovesi a "proposal
for engineering services to provide a foundation design for the KUA Field House,’
prepared and signed by Genovesi on April 8, 2011 and accepted by DePaul, on behalf of
JDE, on June 7, 2010 ("Agreement") Cowan Aff Exh 1 The Agreement contains
several key provisions The scope of work, which consists of four points, includes
There appears to be a typographical error in the letter, which provi4es the date of acceptance as June 7, 2010. Cowan Aff. Exh. 1.
9
S.’L4LLtI.4LL U I fl’LtL_ lSL%.’.’L t .I LtIt.LhL_Y (IlL IL4I,..S flLLL(IL S S.’….’L!L.!t. 1_SIl. 5’. I ’fl IAS
to n- coun: probkms causcd by local soils. proportions of rocks/cobbles, and the limited
contact SL with New Hampshire in order to make his design fit the specifications of that
location See, e g 4 Exh 12 DePaul acknowledged to Genovesi that "[s}o far
everything has been done 100% to your sketches[]" and asked Genovesi for "assistance
10
N.Fi.557,561.(2004).
Voluntariness requires that each of the defendant’s contacts with the forum state proximately result from actions by the defendant himself. These contacts must be deliberate, and not based on the unilateral actions
11
of another party.. Foreseeability requires that .thecontacts also must be of a
� Unlike the automobile sellers in FWorld-Wide Volkswagen Cor.p. v. � Woodson, 444 U.S. 286 (1980)1, automobile.liability insurers contract to
indemnify and defend the insured for claims that will foreseeably result in litigation in foreign states. Thus litigation requiring the presence of the insurer is not only foreseeable, but it was purposefully contracted for by
12
teleconferencing, and photographs, Genovesi simulated a. physical presence at the
jobsite He communicated with JDE and local specialists, opined on the peculiarities of
local soil, advised on the depth and composition of piles, and fulfilled the scope of work
13
14
this case concerns the design and construction of a school facility and in view of the
state’s interest an protecting its citizens from defective engineering services See
Estabrook v Wetmore 129 N H 520, 525 (1987) ("New Hampshire has a strong interest
15
been construed co-extensively with the Federal Due Process Clause (Vt. Wholesale
5 DePaul is a resident of Pennsylvania, JDE is a corporation with a principal place of business in Pennsylvania Pet ¶ ¶ 2-3 This does not alter the analysis of the gestalt factors because the injury took place in New Hampshire witnesses are located in New Hampshire and neither party argues that Pennsylvania is a more appropriate forum
16
17
