UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Theresa D’Jamoos, as Executrix of

the Estate of Dawn Weingroff, et al.,

Plaintiffs

v. Civil No. 08-cv-108-SM

Opinion No. 2008 DNH 203

Atlas Aircraft Center, Inc. and

Pilatus Aircraft, Ltd.,

Defendants

O R D E R

This product liability and negligence action arises out of

an accident involving a Pilatus PC-12 aircraft. In March of

2005, after taking off from Naples, Florida, the plane crashed in

State College, Pennsylvania, during an instrument landing

approach. All six people on board were killed. The plane had

been based in Rhode Island and all six passengers were residents

of Rhode Island. The plaintiffs - the estates of the six victims

- have named as defendants Atlas Aircraft Center, Inc. (“Atlas”),

a New Hampshire corporation with its principal place of business

in Manchester, New Hampshire, and Pilatus Aircraft, Ltd.

(“Pilatus), a Swiss corporation. 

The PC-12 is a single-engine turbo-prop aircraft. Pilatus

says, and plaintiffs do not dispute, that it manufactured the PC12 at issue in Switzerland in 1999 and sold it in Europe to a

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French buyer. After several intervening resales, the aircraft

was finally purchased by a Rhode Island limited liability company

and transported to the United States in 2003. Pilatus now moves

to dismiss all of plaintiffs’ claims, asserting that it has

insufficient contacts with the State of New Hampshire for this

court to properly exercise personal jurisdiction over it. In

response, plaintiffs move the court to permit them to engage in

limited discovery, aimed at determining the nature and extent of

Pilatus’s contacts with this forum. 

Discussion

As this court (Muirhead, M.J.) has previously held, under

certain circumstances, plaintiffs are entitled to limited

jurisdictional discovery before responding to a motion to

dismiss. 

Under First Circuit law, if defendants move to dismiss

for lack of personal jurisdiction, plaintiffs may be

entitled to a “modicum of jurisdictional discovery” to

establish facts that demonstrate why jurisdiction may

properly be exercised over defendants. See NegronTorres v. Verizon Commc’ns. Inc., 478 F.3d 19, 27 (1st

Cir. 2007); see also Fed. R. Civ. P. 12(b)(2). 

* * * 

It is within the trial court’s discretion whether or

not to grant plaintiffs’ motion for jurisdictional

discovery. See U.S. v. Swiss Am. Bank, Ltd., 274 F.3d

610, 625 (1st Cir.2001) (explaining the district

court’s broad discretion). The motion must be “timely

and properly supported,” must proffer a “colorable

claim” for jurisdiction, and must “present facts to the

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court which show why jurisdiction would be found if

discovery were permitted.” Id. at 625, 626. 

Plaintiffs must specify the type of evidence they think

they will find and provide detailed descriptions of any

“‘additional pertinent avenues of inquiry’ that [they]

hope[ ] to pursue.” Id. at 626 (quoting Whittaker

Corp. v. United Aircraft Corp., 482 F.2d 1079, 1086

(1st Cir.1973)). “Failure to allege specific contacts,

relevant to establishing personal jurisdiction, in a

jurisdictional discovery request can be fatal to that

request.” Id. (citing Crocker v. Hilton Int’l

Barbados, Ltd., 976 F.2d 797, 801 (1st Cir.1992)). 

Nordica USA Corp. v. Ole Sorensen, 475 F. Supp.2d 128, 133-34

(D.N.H. 2007) (Muirhead, M.J.). See also Clearview Software

Int’l v. Ware, 2008 DNH 182 (D.N.H. Sept. 30, 2008). 

Here, plaintiffs originally requested such discovery before

Pilatus responded to the complaint, but that motion was denied,

without prejudice, as premature. In response to Pilatus’s motion

to dismiss for lack of personal jurisdiction, plaintiffs renewed

their motion. The request for jurisdictional discovery is, then,

timely. See, e.g., Platten v. HG Bermuda Exempted Ltd., 437 F.3d

118, 139-40 (1st Cir. 2006). 

The next question is whether plaintiffs have properly

supported their request with a “colorable claim” that, if

discovery is permitted, it will likely reveal facts sufficient to

permit the court to properly exercise personal jurisdiction over

Pilatus. They have. 

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Among other things, plaintiffs allege that Atlas inspected,

tested, certified, and serviced the Pilatus PC-12 at issue in

this case. And, say plaintiffs, Pilatus negligently provided

Atlas with “Service Bulletins, maintenance instructions, and

other specifications for maintenance and inspection of the

subject aircraft” and failed “to provide adequate warnings

relating thereto.” Amended complaint, para. 50. In short,

plaintiffs allege that Pilatus committed a tort in the State of

New Hampshire and, therefore, assert that this court may properly

exercise personal jurisdiction over it. 

Plaintiffs also say that Atlas and Pilatus are in exclusive

possession of documentation that will demonstrate the scope of

Pilatus’s contacts with, and business in, this forum. Based upon

information currently available to them, plaintiffs assert that:

(1) the largest flying fleet of Pilatus PC-12 aircraft in the

world is located in New Hampshire and operated by Alpha Flying,

Inc.; (2) Alpha Flying, Inc. expects to purchase an additional

twenty-five PC-12 Pilatus aircraft by the year 2010; (3)

presently, there are at least 30 Pilatus aircraft registered in

New Hampshire to New Hampshire owners or operators; (4) until

February of 2008, Atlas operated as the exclusive Pilatus

aircraft maintenance service center and Pilatus aircraft sales

distribution center in New England, New York, New Jersey,

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Delaware, and Michigan for the Pilatus PC-12; (5) Pilatus’s

records reveal the existence of 125 subscriptions to Pilatus

technical publications, including Service Bulletins, with

addresses in New Hampshire; (6) Atlas ordered 107 of those

subscriptions in 2008, which were delivered in New Hampshire; and

(7) while most parts shipped to New Hampshire are routed through

Pilatus’s wholly-owned subsidiary in Colorado, plaintiffs believe

that Pilatus ships some parts directly from Switzerland to New

Hampshire. Plaintiffs’ memorandum in support of jurisdictional

discovery (document no. 37-2) at 6-8. 

In light of the foregoing, plaintiffs say it is not

unreasonable for them to think that Pilatus maintains (and has

maintained) sufficient contacts with the State of New Hampshire

to warrant the exercise of personal jurisdiction over it. And,

they go on to assert that they reasonably expect jurisdictional

discovery will lead to the unearthing of facts that reveal: (1)

Pilatus derives substantial revenue from the sale of its aircraft

in New Hampshire; (2) prior to February of 2008, Atlas was

Pilatus’s exclusive sales and service agent for PC-12 aircraft in

the New England region and, after that date, Pilatus directly

coordinated the sale and marketing of its aircraft in New

Hampshire; (3) Pilatus, either directly or through its whollyowned United States subsidiary, Pilatus USA, ships a high volume

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of aircraft, component parts, service manuals and bulletins,

aircraft literature, and sales information into New Hampshire;

and (4) the technical publications Pilatus sent directly to Atlas

(in New Hampshire) include the bulletins and technical manuals

that plaintiffs allege are defective and incomplete. 

Conclusion

In light of the showing made by plaintiffs, the court, in

the exercise of its discretion, concludes that they should be

afforded a limited opportunity to engage in jurisdictional

discovery. Accordingly, plaintiffs’ motion (document no. 37) is

granted. On or before January 23, 2009, plaintiffs shall

complete discovery limited to whether the court may properly

exercise personal jurisdiction over Pilatus. If, based upon that

discovery, plaintiffs believe there is a good faith basis upon

which to object to Pilatus’s motion to dismiss, they shall do so

on or before February 27, 2009. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

November 25, 2008

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cc: Jeffrey Baltruzak

Julie L. Belanger, Esq.

Bruce J. Berman, Esq.

Mark B. Decof

Patrick T. Jones, Esq.

William J. Katt, Esq.

Howard B. Klein, Esq.

Garry R. Lane, Esq.

Michael P. Lehman, Esq.

Danial A. Nelson, Esq.

Jeffrey A. Rossman, Esq.

Peter J. Schneider, Esq.

Anthony Tarricone, Esq.

Thomas R. Watson, Esq.

Corey J. Wright

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