UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Eastern Bridge, LLC,

Plaintiff,

v. Civil No. 05-cv-411-SM

Opinion No. 2006 DNH 061

Bette & Cring, LLC,

Defendant

O R D E R

Eastern Bridge, LLC brings this diversity action against

Bette & Cring, LLC (“B&C”), seeking damages under breach of

contract, unjust enrichment, and quantum meruit theories. It

originally filed suit in New Hampshire Superior Court (Sullivan

County), but B&C removed the action to this court pursuant to 28

U.S.C. §§ 1441 and 1446. B&C now moves to dismiss Eastern

Bridge’s claims, asserting that the court lacks personal

jurisdiction over it. In the alternative, B&C asks the court to

transfer venue to the United States District Court for the

Northern District of New York. For the reasons set forth below,

B&C’s motion is denied. 

Background

In December of 2003, the parties entered into a contract

under which Eastern Bridge agreed to manufacture, and B&C agreed

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to purchase, certain steel girders, bracing, and splices for use

in a project known as the “Replacement of the Rt. 30 Bridge over

Schoharie Creek and Rt. 30 Bridge over Devil’s Run,” in the Town

of Blenheim, New York. The contract called for B&C to pay

Eastern Bridge approximately $800,000 for its goods and services. 

But, says B&C, the steel products manufactured by Eastern Bridge

failed to meet specifications and, therefore, did not fit

properly when workers attempted to install them. Accordingly,

the components were shipped back to New Hampshire and Eastern

Bridge attempted to repair/alter those pieces that did not fit. 

Even then, says B&C, substantial field modifications were still

required. 

Needless to say, the parties disagree as to whether Eastern

Bridge performed its obligations under the contract. Eastern

Bridge says it did perform its contractual obligations and is

owed, but B&C has failed to pay it, approximately $300,000. B&C,

on the other hand, says Eastern Bridge breached the contract by

supplying defective steel products that failed to meet project

specifications. And, says B&C, because Eastern Bridge supplied

the project with defective steel products, it was forced to incur

costs, charges, and penalties totaling approximately $233,000. 

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Standard of Review

A. Personal Jurisdiction: Statutory and

Constitutional Prerequisites. 

It is well established that in a diversity case such as

this, personal jurisdiction over a nonresident defendant is

governed, at least in part, by the forum state’s long-arm

statute. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell

v. Medfit Int’l, Inc., 982 F.2d 686, 690 (1st Cir. 1993). And,

when personal jurisdiction is contested, the plaintiff bears the

burden of establishing that the court has such jurisdiction. See

Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995); Kowalski

v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7, 8 (1st Cir.

1986). 

Allegations of jurisdictional facts are construed in the

plaintiff’s favor, see Buckley v. Bourdon, 682 F. Supp. 95, 98

(D.N.H. 1988), and, if the court proceeds based upon the written

submissions of the parties without an evidentiary hearing, the

plaintiff need only make a prima facie showing that jurisdiction

exists. See Kowalski, 787 F.2d at 8; Boit v. Gar-Tec Products,

Inc., 967 F.2d 671, 674-75 (1st Cir. 1992). Nevertheless, the

plaintiff’s demonstration of personal jurisdiction must be based

on specific facts set forth in the record in order to defeat a

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defendant’s motion to dismiss. See TicketMaster-New York, Inc.

v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994). And, “in reviewing

the record before it, a court ‘may consider pleadings,

affidavits, and other evidentiary materials without converting

the motion to dismiss to a motion for summary judgment.’” VDI

Technologies v. Price, 781 F. Supp. 85, 87 (D.N.H. 1991) (quoting

Lex Computer & Management Corp. v. Eslinger & Pelton, P.C., 676

F. Supp. 399, 402 (D.N.H. 1987)). 

Before a court may exercise personal jurisdiction over a

non-resident defendant, the plaintiff must show, first, that the

forum state’s long-arm statute confers jurisdiction over the

defendant, and second, that the exercise of jurisdiction comports

with constitutional due process standards (by establishing that

the defendant has sufficient “minimum contacts” with the forum

state). See Kowalski, 787 F.2d at 9-10. The New Hampshire

individual long-arm statute, N.H. Rev. Stat. Ann. (“RSA”) 510:4,

provides jurisdiction over foreign defendants “to the full extent

that the statutory language and due process will allow.” Phelps

v. Kingston, 130 N.H. 166, 171 (1987). Likewise, New Hampshire’s

corporate long-arm statute, RSA 293-A:15.10, authorizes

jurisdiction over foreign corporations and unregistered

professional associations to the full extent permitted by federal

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law. See Sawtelle, 70 F.3d at 1388. Stated another way, New

Hampshire’s individual and corporate long-arm statutes are

coextensive with the outer limits of due process protection under

the federal constitution. Accordingly, the court need only

determine whether the exercise of personal jurisdiction over a

foreign defendant would comport with federal constitutional

guarantees. 

To demonstrate that the court may exercise personal

jurisdiction over a foreign defendant in a manner consistent with

the Constitution, the plaintiff must show that the defendant has

“certain minimum contacts with the forum such that the

maintenance of the suit does not offend traditional notions of

fair play and substantial justice.” Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984) (citation and

internal punctuation omitted). The court must also be satisfied

that the defendant’s conduct bears such a “substantial connection

with the forum State” that the defendant “should reasonably

anticipate being haled into court there.” Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 473-75 (1985) (citing World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). 

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B. Waiver of the Requirement for Personal Jurisdiction. 

Unlike subject matter jurisdiction, which is both a

statutory and constitutional requirement, see Insurance Corp. of

Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

702 (1982), a party may voluntarily submit itself to the personal

jurisdiction of a court. In other words, it can waive the

requirement that a court have personal jurisdiction over it. 

The requirement that a court have personal jurisdiction

flows not from Article III, but from the Due Process

Clause. The personal jurisdiction requirement

recognizes and protects an individual liberty interest. 

. . . Because the requirement of personal jurisdiction

represents first of all an individual right, it can,

like other such rights, be waived. 

Id. at 702-03. So, for example, parties are deemed to have

waived any objections to a court’s exercise of personal

jurisdiction over them if they fail to raise such objections in a

timely manner. See Fed. R. Civ. P. 12(h)(1). Moreover, parties

are free to voluntarily relinquish any objections they might have

to the exercise of personal jurisdiction over them. See, e.g.,

Burger King, 471 U.S. at 473 n.14 (“[B]ecause the personal

jurisdiction requirement is a waivable right, there are a variety

of legal arrangements by which a litigant may give express or

implied consent to the personal jurisdiction of the court. For

example, in the commercial context, parties frequently stipulate

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in advance to submit their controversies for resolution within a

particular jurisdiction.”) (citations omitted). See also

Unionmutual Stock Life Ins. Co. v. Beneficial Life Ins. Co., 774

F.2d 524, 527 (1st Cir. 1985) (defendant’s agreement to arbitrate

any disputes in Maine constituted implicit consent to the

personal jurisdiction of Maine courts). 

With those principles in mind, the court turns to

defendant’s motion to dismiss. 

Discussion

A. B&C Waived its Objections to Personal Jurisdiction. 

The contract executed by Eastern Bridge and B&C includes a

choice of law provision that states: 

This proposal with Exhibits “A” and “B” constitute the

entire agreement between the [B]uyer [B&C] and the

Seller [Eastern Bridge] with respect to any goods

referred to herein. No change, modification,

termination or waiver of any of its provisions shall be

valid unless in writing and signed by the party against

whom it is sought to be enforced. These terms and

conditions shall in all respects be governed by and

interpreted under the law of the State of New

Hampshire. 

Exhibit A to the parties’ contract (document no. 6-5) at 2. 

(emphasis supplied). In a separate section, the contract

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includes what the court has already construed to be a forum

selection clause. See Order dated April 7, 2006 (document no.

15) on plaintiff’s motion to remand. That forum selection clause

provides that:

Any disputes between the Seller [Eastern Bridge] and

the Buyer [B&C] in any way related to the work to be

performed by the Seller under this agreement shall be

decided by arbitration, or by a Court of competent

jurisdiction under the laws of the State of New

Hampshire, whichever shall be chosen first by either

part[y]. 

Exhibit B to the parties’ contract (document no. 6-5), at 3. 

That paragraph, while certainly not a model of clarity, documents

the parties’ intention to select, in advance of any potential

disputes, the fora in which they would be willing to resolve such

disputes. The punctuation employed - using commas to separate

those two potential fora for dispute resolution - makes clear the

parties’ desire to provide that any disputes arising out of

Eastern Bridge’s performance under the contract would be resolved

in one of two (and only two) ways, to the exclusion of all

others: (1) through arbitration; or (2) in a “Court of competent

jurisdiction under the laws of the State of New Hampshire.” 

While the parties’ intent certainly could have been

expressed more clearly, the latter option plainly contemplates

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that any litigation arising out of the contract would be filed

exclusively in a New Hampshire court. See generally Arguss

Communications Group v. Teletron, Inc., No. 99-257-JD (N.H.D.

Nov. 19, 1999) (discussing in detail the distinction between

mandatory and permissive forum selection clauses). Moreover, the

existence of the earlier (and unambiguous) choice of law clause

eliminates any possibility that the language quoted immediately

above was intended, in some obscure way, to operate as a choice

of law provision, rather than a forum selection clause. 

It necessarily follows, then, that by agreeing that

litigation arising out of the contract would be conducted

exclusively in a court of competent jurisdiction under New

Hampshire law, B&C voluntarily relinquished any objection that it

might have had to such a court’s exercise of personal

jurisdiction over it. Consequently, it’s motion to dismiss

Eastern Bridge’s claims for lack of personal jurisdiction must be

denied. 

B. Even if B&C Hadn’t Waived its Objections, the Court

Would Still have Personal Jurisdiction over It. 

Even if B&C had not voluntarily agreed to submit itself to

the personal jurisdiction of New Hampshire’s courts, this court

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would still have personal jurisdiction over it. Among other

things, B&C knew that it had contracted with a New Hampshire

company for the production of certain steel products; it knew

those products would be manufactured in New Hampshire; when it

was discovered that those products were (allegedly) defective,

they were shipped from New York back to New Hampshire for cure;

and three of B&C’s employees traveled to New Hampshire on at

least two occasions - first to inspect Eastern Bridge’s

facilities and negotiate the terms of the contract and later to

verify that Eastern Bridge had cured the alleged defects. See

Affidavit of Steven Crowell (document no. 9-2); Supplemental

Affidavit of Steven Crowell (document no. 11). 

In light of those contacts with the State of New Hampshire,

B&C cannot reasonably claim that it did not subject itself to the

personal jurisdiction of the courts in this forum with respect to

the contract at issue. First, this litigation arises directly

out of its forum-based relationship with a New Hampshire entity. 

Second, in light of B&C’s fairly substantial contacts with this

state, it is not unreasonable to conclude that it purposefully

availed itself of the privilege of conducting activities in this

forum and, in so doing, invoked both the benefits and protections

of New Hampshire law. And, finally, the so-called Gestalt

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factors also counsel in favor of litigating the parties’

dispute(s) in this forum. See generally United Elec. Workers v.

163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992);

Phillips Exeter Academy v. Howard Phillips Fund, Inc., 196 F.3d

284, 288 (1st Cir. 1999). 

C. A Change of Venue is not Warranted. 

Pursuant to 28 U.S.C. § 1404, B&C moves the court to

transfer this case to the Northern District of New York. Section

1404(a) of Title 28 provides that, “[f]or the convenience of

parties and witnesses, in the interest of justice, a district

court may transfer any civil action to any other district or

division where it might have been brought.” Authority to

transfer a case pursuant to that statute is committed to the

court’s broad discretion. See United States ex rel. La Valley v.

First Nat’l Bank, 625 F. Supp. 591, 594 (D.N.H. 1985). See also

28 U.S.C. § 1406 (authorizing transfer to cure venue defect); 28

U.S.C. § 1631 (authorizing transfer to cure lack of

jurisdiction). 

As the party seeking a change in venue, B&C bears the burden

of demonstrating that transfer is warranted. See, e.g., Coady v.

Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir. 2000). “But unless

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the balance is strongly in favor of the defendant, the

plaintiff’s choice of forum should rarely be disturbed.” Gulf

Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (decided prior to

the enactment of section 1404(a), but discussing and applying the

related common law doctrine of forum non conveniens). Here, B&C

has failed to demonstrate that, on balance, the equities strongly

counsel in favor of transfer. Among other things, the contract’s

mandatory forum selection clause weighs heavily against transfer. 

Accordingly, in the exercise of its discretion, the court will

not disturb Eastern Bridge’s choice of forum.

Conclusion

In light of the foregoing, the court concludes that B&C

knowingly and intentionally waived any objections it might have

had to a New Hampshire court’s exercise of personal jurisdiction

over it with respect to the contract at issue. But, even absent

such a waiver, B&C’s contacts with this forum are sufficient to

warrant the exercise of personal jurisdiction over it. Finally,

B&C has failed to demonstrate that a change in venue is

warranted. Accordingly, defendant’s motion to dismiss for lack

of personal jurisdiction or in the alternative to transfer venue

(document no. 6) is denied. 

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SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

May 24, 2006

cc: Carl D. Hanson, Esq.

Lisa A. Wellman-Ally, Esq.

Nicholas K. Holmes, Esq.

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