UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Beckwith Builders, Inc.,

Plaintiff

v. Civil No. 04-cv-282-SM

Opinion No. 2006 DNH 107

William Depietri;

Beth Depietri;

Wood & Clay, Inc.;

Battle Associates, Inc.;

R.C. Searles Associates, Inc.;

Margulies & Associates, Inc.;

and Lakeshore Realty Trust,

Defendants

O R D E R

Beckwith Builders, Inc. (“Beckwith”) has sued a variety of

defendants, including R.C. Searles Associates, Inc. (“Searles”),

under a variety of legal theories. Based upon a contemporaneous

order (document no. 157), the only claim remaining against

Searles is Count I, Beckwith’s claim of copyright infringement. 

Before the court is Searles’ motion to dismiss for lack of

personal jurisdiction. Beckwith objects. For the reasons given,

Searles’ motion is granted.

Searles is an architectural firm located in Marlborough,

Massachusetts. According to Searles, this court lacks personal

jurisdiction over it because it is a non-resident defendant, and

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it does not have sufficient minimum contacts with New Hampshire,

thus making the exercise of personal jurisdiction inconsistent

with the constitutional requirement of due process.

Principles of Personal Jurisdiction

In the face of Searles’ challenge, Beckwith has “the burden

of persuading the court that jurisdiction exists.” Platten v. HG

Berm. Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006) (quoting

Mass. Sch. of Law, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st

Cir. 1998)). Furthermore, as the court of appeals for this

circuit has explained:

“[P]laintiffs may not rely on unsupported allegations

in their pleadings,” Boit [v. Gar-Tec Prods., Inc.],

967 F.2d [671,] 675 [(1st Cir. 1992)], but are “obliged

to adduce evidence of specific facts,” Foster-Miller,

Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145 (1st

Cir. 1995). We, in turn, take those “specific facts

affirmatively alleged by the plaintiff[s] as true . . .

and construe them in the light most congenial to the

plaintiff[s’] jurisdictional claim.” Mass. Sch. of

Law, 142 F.3d at 34. We also “add to the mix facts put

forward by the defendants, to the extent that they are

uncontradicted.” Id.

Platten, 437 F.3d at 134. When, as here, the court resolves the

issue of personal jurisdiction based upon written submissions,

the plaintiff must only make a prima facie showing of

jurisdiction. See Boit, 967 F.2d at 674-75; Kowalski v. Doherty,

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Wallace, Pillsbury & Murphy, Attys. at Law, 787 F.2d 7, 8 (1st

Cir. 1986).

Because subject matter jurisdiction in this case arises from

a federal statute rather than diversity of citizenship, “the

constitutional limits of the court’s personal jurisdiction are

fixed . . . not by the Fourteenth Amendment but by the Due

Process Clause of the Fifth Amendment.” United States v. Swiss

Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001) (quoting United

Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d

1080, 1085 (1st Cir. 1992)). “[U]nder the Fifth Amendment, a

plaintiff need only show that the defendant has adequate contacts

with the United States as a whole, rather than with a particular

state.” Swiss Am. Bank, 274 F.3d at 618 (citation omitted). 

Even so, “the plaintiff must still ground its service of process

in a federal statute or civil rule.” Id. (citation omitted). 

“The Copyright Act, 17 U.S.C. § 101 et seq., does not

provide for nationwide service of process.” Fort Knox Music,

Inc. v. Baptiste, 203 F.3d 193, 196 (2d Cir. 2000) (citing

Janmark, Inc. v. Reidy, 132 F.3d 1200, 1201 (7th Cir. 1997)). 

Thus, Beckwith’s service of process on Searles must comport with

Rule 4 of the Federal Rules of Civil Procedure, under which

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service may be accomplished “pursuant to the law of the state in

which the district court is located, or in which service is

effected, for the service of a summons upon the defendant in an

action brought in the courts of general jurisdiction of the

State.” FED. R. CIV. P. 4(e)(1). In other words, when ruling on

a copyright defendant’s challenge to personal jurisdiction, “a

federal court applies the forum state’s personal jurisdiction

rules . . . .” Fort Knox Music, 203 F.3d at 196 (quoting PDK

Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997))

(other citations omitted).

The “long-arm” provision of New Hampshire’s personal

jurisdiction statute provides:

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.

N.H. REV. STAT. ANN. § 510:4, I. That statute has been construed

by the New Hampshire Supreme Court “to provide jurisdiction over

foreign defendants to the full extent that the statutory language

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and due process will allow.” Phelps v. Kingston, 130 N.H. 166,

171 (1987) (citations omitted).

Due process requires that “a defendant must have sufficient

minimum contacts with the forum state such that maintenance of

the suit does not offend traditional notions of fair play and

substantial justice.” Platten, 437 F.3d at 135 (quoting Int’l

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal

quotation marks and citation omitted). In turn:

The “minimum contacts” standard has three requirements:

For specific jurisdiction, the plaintiff’s claim

must be related to the defendant’s contacts. For

general jurisdiction, in which the cause of action

may be unrelated to the defendant’s contacts, the

defendant must have continuous and systematic

contacts with the state. Second, for either type

of jurisdiction, the defendant’s contacts with the

state must be purposeful. And third, the exercise

of jurisdiction must be reasonable under the

circumstances. 

Harlow [v. Children’s Hosp.], 432 F.3d [50,] 57 [(1st

Cir. 2005)]; see also Cambridge Literary Props. Ltd. v.

W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg., 295 F.3d

59, 63 (1st Cir. 2002); Noonan v. Winston Co., 135 F.3d

85, 89 (1st Cir. 1998).

Platten, 437 F.3d at 135. “For specific jurisdiction, this

circuit divides the constitutional analysis into three

categories: relatedness, purposeful availment, and

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reasonableness.” Id. (quoting Daynard v. Ness, Motley, Loadholt,

Richardson & Poole, P.A., 290 F.3d 42, 60 (1st Cir. 2002)).

Discussion

Beckwith asserts that this court has specific jurisdiction

over Searles because Searles drafted a set of architectural plans

for Depietri knowing that Depietri intended to use those plans to

build a house in New Hampshire, which, in Beckwith’s view, made

Searles’ conduct a tortious act committed in New Hampshire. The

relevant facts, properly established by deposition or otherwise,

are these: (1) William Depietri, who was a regular client of

Searles, approached Searles with “a variety of different designs”

and asked Ron Searles to design a house based upon those designs;

(2) Mr. Searles understood that the drawings he was asked to

produce were for a house to be built in New Hampshire; (3)

Searles produced a set of drawings for which it was paid between

$600 and $1,500; (4) Searles never produced a set of final

construction plans from which a house could have been built; (5)

Depietri took Searles’ work to a second architect, Margulies &

Associates, and had Margulies create a second set of plans; (6)

Depietri took Margulies’ work to a third architect, Battle

Associates, and had Battle create a third set of plans; and (7)

Depietri’s builder, Wood & Clay, used the Battle plans to build

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the Clark Road home. It is undisputed that Ron Searles never

came to New Hampshire in connection with the Clark Road project. 

And Beckwith has produced no evidence that Depietri ever provided

Searles with plans for the Cedar Cove home in a format that

indicated they were the property of a New Hampshire corporation. 

According to Beckwith, the foregoing facts are sufficient to

establish relatedness, purposeful availment, and reasonableness. 

Searles disagrees, categorically.

A. Relatedness

Beckwith relies upon the tortious-act aspect of New

Hampshire’s long-arm reach, under which it “must show a

sufficient ‘causal nexus’ between [Searles’] contacts with New

Hampshire and [its] cause of action.” Jet Wine & Spirits, Inc.

v. Bacardi & Co., 298 F.3d 1, 7 (1st Cir. 2002) (quoting Phillips

Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289 (1st Cir.

1999)).

To satisfy the relatedness prong of the

constitutional inquiry in a tort case,

[t]he evidence produced to support specific

jurisdiction must show that the cause of action

either arises directly out of, or is related to,

the defendant’s forum-based contacts. The

relatedness requirement is not an open door; it is

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closely read, and it requires a showing of a

material connection. This court “steadfastly

reject[s] the exercise of personal jurisdiction

whenever the connection between the cause of

action and the defendant’s forum-state contacts

seems attenuated and indirect.” “Instead, the

defendant’s in-state conduct must form an

‘important, or [at least] material, element of

proof’ in the plaintiff’s case.” A broad “butfor” argument is generally insufficient . . . .

“[D]ue process demands something like a ‘proximate

cause’ nexus.”

Harlow, 432 F.3d at 60-61 (citations omitted) (quoting

Pleasant St.[], 960 F.2d at 1089; Cambridge Literary

Props., 295 F.3d at 65); see also Phillips Exeter

Acad., 196 F.3d at 289. 

Platten, 437 F.3d at 137. In addition, it is well established in

this circuit that “in-forum effects of extra-forum activities [do

not] suffice to constitute minimum contacts.” Mass. Sch. of Law,

142 F.3d at 36 (citing Sawtelle v. Farrell, 70 F.3d 1381, 1390

(1st Cir. 1995); Kowalski, 787 F.2d at 11).

While Beckwith recognizes that the act of infringement it

alleges against Searles – copying the plans for the Cedar Cove

home – occurred in Massachusetts, it argues that in copyright

infringement cases, courts have often asserted personal

jurisdiction over defendants who committed infringing acts out of

state, while knowing that their acts would have consequences in

the forum state. The cases cited by Beckwith all involve a

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factor missing in this case: an act by the defendant directed

toward the forum state. In Walker v. University Books, Inc., 382

F. Supp. 126 (N.D. Cal. 1974), a New York publisher sold copies

of its allegedly infringing book in the forum state, California. 

Id. at 127. In Edy Clover Productions, Inc. v. National

Broadcasting Co., 572 F.2d 119 (3d Cir. 1978), an allegedly

infringing television program, created by a California television

producer for nationwide broadcast, was broadcast into the forum

state, New Jersey. Id. at 120. And in Donner v. Tams-Witmark

Music Library, Inc., 480 F. Supp. 1229 (E.D. Pa. 1979), a New

York music licensor granted the plaintiff the right to perform a

copyrighted musical work in the forum state, Pennsylvania, and

then consented to an allegedly infringing performance by a third

party, also in Pennsylvania. Id. at 1230-31. 

Walker, Edy Clover, and Donner all involved acts by out-ofstate defendants targeted at the forum states: a New York

publisher selling books in California; a California television

producer creating a program for national broadcast, including

broadcast into New Jersey; and a New York licensing concern

granting permission for a performance in Pennsylvania. Here, by

contrast, a Massachusetts firm produced a set of drawings for

another Massachusetts resident whose only relevant connection

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with New Hampshire was his intention, at some point in the

future, to build a house on the shore of the state’s largest

lake. 

Moreover, in Walker, Edy Clover, and Donner, more than just

the right of reproduction was at issue; in those cases, the outof-state defendants were alleged to have been involved in

infringing the plaintiffs’ rights of distribution and/or

performance by selling copies or facilitating performances within

the forum state. Here, by contrast, Beckwith has alleged only

that Searles violated its exclusive right to reproduce its

copyrighted works, and that Searles’ infringing act was its

creation of a set of architectural plans. In short, the evidence

adduced by Beckwith does not demonstrate that Searles had any

contact with New Hampshire. Rather, the evidence shows only that

Searles had contact with Depietri, who was not in New Hampshire

at any relevant time, but only thinking about someday building a

house in the state.

Finally, while Beckwith makes much of Searles’ knowledge

that Depietri planned to build a house in New Hampshire, it does

not explain the legal significance of that knowledge. If Searles

did copy Beckwith’s architectural plans or its architectural

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work, the act of infringement was fully completed in

Massachusetts; the subsequent construction of the Clark Road home

is immaterial to Searles’ liability as a copier. In other words,

Searles’ knowledge of Depietri’s future plans in New Hampshire –

the only New Hampshire-related fact demonstrated or alleged by

Beckwith – is not “an ‘important, or [at least] material, element

of proof’” in Beckwith’s copyright infringement claim against

Searles. Platten, 437 F.3d at 137 (citations omitted).

Because Beckwith has not demonstrated that Searles had any

contact with New Hampshire, and because the New Hampshire

effects, if any, of Searles’ alleged Massachusetts copying do not

establish that Searles had contact with New Hampshire, Beckwith

has failed to make a showing of relatedness. Where a plaintiff

fails to satisfy the relatedness requirement by failing to

demonstrate any contact between the out-of-state defendant and

the forum state, personal jurisdiction is improper, and a

purposeful availment analysis is unnecessary, if not impossible,

given that the point of such an analysis is to evaluate the

quality of a defendant’s contacts with the forum state. See

Platten, 437 F.3d at 138 (ending personal jurisdiction analysis

after determining that plaintiff failed to satisfy relatedness

requirement); Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 207

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(1st Cir. 1994) (recognizing the possibility of situations in

which “a court may . . . dismiss a given case for lack of

relatedness per se). 

B. Purposeful Availment

Assuming, for the purposes of this analysis, that Searles’

dealings with Depietri did qualify as contacts with New Hampshire

related to Beckwith’s cause of action, Beckwith is still unable

to demonstrate purposeful availment. To establish that

prerequisite to jurisdiction, Beckwith must show that Searles’

New Hampshire “contacts . . . represent a purposeful availment of

the privilege of conducting activities in [New Hampshire],

thereby invoking the benefits and protections of [this] state’s

laws and making the defendant’s involuntary presence before the

state’s courts foreseeable.” Daynard, 290 F.3d at 61 (quoting

Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 144

(1st Cir. 1995)). “The function of the purposeful availment

requirement is to assure that personal jurisdiction is not

premised solely upon a defendant’s ‘random, isolated, or

fortuitous’ contacts with the forum state.” Sawtelle, 70 F.3d at

1391 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774

(1980)). “The cornerstones upon which the concept of purposeful

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availment rests are voluntariness and foreseeability.” Daynard,

290 F.3d at 61 (citation omitted). 

1. Voluntariness

The voluntariness aspect of the purposeful availment inquiry

is a protection against resting jurisdiction “on the ‘unilateral

activity of another party or a third person.’” Ticketmaster, 26

F.3d at 208 (quoting Burger King Corp. v. Rudzewicz, 471 U.S.

462, 475 (1985)). 

Here, it is only the activity of a third person – or the

contemplated activity of a third person – that connects Searles

to New Hampshire. There is no evidence that Searles solicited

Depietri’s business, much less any business in New Hampshire

related to Beckwith’s claims in this case. Rather, the

deposition evidence shows that Depietri approached Searles in

Massachusetts, and did so on the basis of a longstanding business

relationship conducted wholly outside New Hampshire. 

Thus, Searles is somewhat analogous to the defendant in

Ticketmaster, a California resident sued for defamation in

Massachusetts for comments he made in an unsolicited interview

with a Massachusetts reporter. In Ticketmaster, the court of

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appeals characterized the plaintiff’s showing on voluntariness as

“dubious.” Id. at 208. The out-of-forum defendant in this case,

however, has not been shown to have spoken with anyone in New

Hampshire, making the argument for voluntariness even more

dubious than in Ticketmaster. Sawtelle is to similar effect. In

that case, the court of appeals held that “voluntariness” was not

present in a legal malpractice suit brought in New Hampshire

against a Florida law firm that had previously brought suit in

Florida for the New Hampshire malpractice plaintiff. Id. at

1391-92. Again, this case lacks even the key element present in

both Ticketmaster or Sawtelle: contact between the out-of-state

defendant and a forum-state resident. 

When Searles performed its work for Depietri, Depietri was

not a New Hampshire resident; he was Massachusetts resident

thinking about building a New Hampshire residence. Beckwith has

produced no evidence to suggest that Searles had any control over

Depietri’s choice of where to build. That Depietri was thinking

about New Hampshire, and even sharing his thoughts with Searles,

is not enough to establish that Searles voluntarily took

advantage of the opportunity of conducting business in New

Hampshire. The evidence brought forth by Beckwith includes

nothing that shows any voluntary action on Searles’ part that

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would serve to establish the jurisdiction of a New Hampshire

court over him.

2. Foreseeability

The foreseeability aspect of the purposeful availment

inquiry requires that “a defendant’s ‘conduct and connection with

the forum State [must be] such that he should reasonably

anticipate being haled into court there.’” Ticketmaster, 26 F.3d

at 207 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297 (1980)). “The enforcement of personal jurisdiction over

a non-resident defendant is foreseeable when that defendant has

established a continuing obligation between itself and the forum

state.” Sawtelle, 70 F.3d at 1393 (citing Burger King, 471 U.S.

at 476; Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648

(1950)).

Searles’ drafting of a set of plans for a Massachusetts

resident, even if that Massachusetts resident intended to use

those plans to construct a house in New Hampshire, did not

establish a continuing obligation between Searles and New

Hampshire. It is undisputed that the Searles plans were far too

preliminary to be used for construction; any construction was at

least one set of plans down the line from the ones Searles

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produced, and construction itself was in Depietri’s hands. Thus,

Searles did nothing to establish an ongoing obligation between

itself and New Hampshire. 

In short, Depietri’s intention to build a house in New

Hampshire, using a set of construction plans based upon the

preliminary plans drafted by Searles, was not enough to give

Searles a reasonable anticipation of being haled into court in

New Hampshire. This is especially so given that no Searles

employee has been shown to have known of the New Hampshire

origins of the plans allegedly copied by Searles, and given the

legal insignificance of the location in which Depietri elected to

build his house, in the context of Beckwith’s copyright

infringement claim.

C. Reasonableness

Because Beckwith has not satisfied either the relatedness

requirement or the purposeful availment requirement, there is no

need to undertake a reasonableness analysis. See Phillips

Exeter, 196 F.3d at 288 (“if the proponent’s case clears the

first two hurdles [relatedness and purposeful availment], the

court then must analyze the overall reasonableness of an exercise

of jurisdiction”) (emphasis added); see also Platten, 437 F.3d at

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138 (ending personal jurisdiction analysis after determining that

plaintiff failed to meet relatedness requirement). Where, as

here, plaintiff has demonstrated neither relatedness nor

purposeful availment, it would necessarily be unreasonable to

exercise personal jurisdiction over an out-of-state defendant

such as Searles.

Conclusion

For the reasons given, Searles’ motion to dismiss for lack

of personal jurisdiction (document no. 72) is granted.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

September 15, 2006

cc: Paul M. Monzione, Esq.

V. Richards Ward, Jr., Esq.

William M. Pezzoni, Esq.

Ann M. Dirsa, Esq.

Michael J. Persson, Esq.

Douglas Marrano, Esq.

Jay S. Gregory, Esq.

Jeffrey L. Alitz, Esq.

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