The court notes that when conducting a jurisdictional 1

analysis under Federal Rule of Civil Procedure 12(b)(2), the

court looks beyond the pleadings to discern all relevant

jurisdictional facts. See generally Boit v. Gar-Tec Products,

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

“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.” ICP

Solar Techs., Inc. v. Tab Consulting, Inc., 413 F. Supp.2d 12, 14

(2006) (quotations omitted).

The courts notes that the hearing, held on March 16, 2009, 2

was not evidentiary in nature, and thus, as discussed infra Part

I, it applies the prima facie standard of review. See generally,

Boit, 967 F.2d at 674-678 (discussing the various standards); cf.

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE

Amanda Cossaboon

v. Civil No. 1:08-cv-00260-JL

Opinion No. 2009 DNH 038

Maine Medical Center

O R D E R

The plaintiff, Amanda Cossaboon, individually and as Mother

and Next Friend of E.C., filed this medical malpractice action

against Maine Medical Center (“MMC”), subject matter jurisdiction

over which is based on diversity. See 28 U.S.C. §1332 (a)(1)

(2000). The defendant filed a “Motion to Dismiss or for Summary

Judgment” asserting that this court lacks personal jurisdiction

over the defendant. This court, treating the defendant’s motion

as a motion to dismiss, see Fed. R. Civ. Pro. 12(b)(2)(2008),1

and after hearing oral argument, grants the defendant’s motion. 2 3

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 1 of 26
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 617-618 (1st

Cir. 2001) (applying prima facie standard of review after a

motions hearing); cf. Daynard v. Ness, Motley, Loadholt,

Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002). The

court further notes that neither party disputes whether the prima

facie standard of review is applicable in this case.

The defendant also filed a separate “Motion to Dismiss or 3

for Summary Judgment” alleging that the plaintiff failed to

comply with the Maine Health Security Act. See 24 Me. Rev. Stat.

Ann. §2501 et. seq. (2000 & Supp. 2008). Because the court

concludes that it lacks jurisdiction over the defendant, it does

not address this issue, and the motion is dismissed as moot. 

Northeast Erectors Ass’n of BTEA v. Sec’y of Labor, 62 F.3d 37,

39 (1st Cir. 1995) (absent a good reason otherwise, courts should

decide jurisdictional issues first).

Further, in the instant motion, the defendant also asserts

that service in this case was ineffective. The court likewise

does not reach this issue, in light of the disposition of this

case. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585

(1999) (court is authorized “to choose among threshold grounds

for denying audience to a case on the merits.”)

The other standards are the “preponderance of the evidence” 4

standard and the “likelihood” standard. See Daynard, 290 F.3d at 

50-51. The prima facie standard is the most commonly used

standard, id. at 51, and the First Circuit Court of Appeals has

expressed a preference for its use in appropriate circumstances. 

Boit, 967 F.2d at 677. In this case, the prima facie standard is

appropriate because the jurisdictional inquiry does not involve

materially conflicting versions of the relevant facts. Cf. Boit,

967 F.2d at 676. The court notes that the parties’ disputes over

“facts” involves not the underlying truth of those facts, but

2

I. APPLICABLE LEGAL STANDARD

When evaluating a defendant’s motion to dismiss for lack of

personal jurisdiction, the standard of review varies according to

the procedural posture of the case. See generally, Boit, 967

F.2d at 674-678. Where, as here, the court rules on a motion 4

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 2 of 26
rather their legal meaning in the context of a jurisdictional

analysis and the breadth of MMC’s business activities. To the

extent that the plaintiff offers additional facts to dispute

legal conclusions offered by MMC, the court accepts those facts

as true.

This is true regardless of the standard employed by the 5

court making the jurisdictional determination. See Daynard, 290

F.3d at 50-51; Boit, 967 F.2d at 674-75.

3

without holding an evidentiary hearing, it applies a “prima

facie” standard of review. See, e.g. Swiss Am. Bank, Ltd., 274

F.3d at 618. Under the prima facie standard, the plaintiff has

the burden of proving each fact necessary to show that

jurisdiction exists. Id.; see, e.g., Foster-Miller, Inc. v. 5

Babcock & Wilcox, Canada, 46 F.3d 138, 145 (1st Cir. 1995);

Kowalski v. Doherty, Wallace, Pillsbury and Murphy, Attn’ys at

Law, 787 F.2d 7, 8 (1st Cir. 1986). “The prima facie showing

must be based upon evidence of specific facts set forth in the

record. To meet this requirement, the plaintiff must go beyond

the pleadings and make affirmative proof.” Swiss American Bank,

Ltd., 274 F.3d at 619 (quotations and citations omitted). 

In making a jurisdictional determination under the prima

facie standard, courts “take specific facts affirmatively alleged

by the plaintiff as true (whether or not disputed) and construe

them in the light most congenial to the plaintiff’s

jurisdictional claim.” Mass. Sch. of Law at Andover, Inc. v. Am.

Bar Assoc., 142 F.3d 26, 34 (1st Cir. 1998); see Daynard, 290

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 3 of 26
4

F.3d at 51. Courts may then “add to the mix facts put forward by

the defendants, to the extent that they are uncontradicted.” 

Mass. Sch. of Law at Andover, Inc., 142 F.3d at 34. In this

analysis, however, “the district court is not acting as a

factfinder; rather, it accepts properly supported evidence by a

plaintiff as true and makes its ruling as a matter of law.” 

United Elec. Radio and Mach. Workers of Am. v. 163 Pleasant St.

Corp., 987 F.2d 39, 44 (1st Cir. 1993).

II. BACKGROUND

This medical malpractice action arises out of an injury to

the infant daughter of the plaintiff, “EC,” while she was a

patient in the neonatal care unit at Maine Medical Center in

Portland, Maine. The plaintiff, a New Hampshire resident, gave

birth to twin daughters at Portsmouth Hospital in New Hampshire

on April 15, 2007. The infants were born prematurely, and EC,

upon referral by her New Hampshire physician, was transferred

four hours after her birth to the neonatal intensive care unit at

Maine Medical Center. Prior to that date, MMC had no

patient/provider relationship with EC or her mother. On May 1,

2007, an employee of MMC placed a warm, wet diaper on EC’s heel,

resulting in a burn that caused scarring, and requiring

additional medical services that continued after her discharge

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 4 of 26
MMC did enter an agreement with Dartmouth Medical School in 6

New Hampshire whereby medical students at Dartmouth can be placed

with MMC for medical training. The agreement specifies that the

students are not employees of MMC. See P’s Obj. to D’s Mot.,

Ex. H. 

MMC is a member of the Regional Emergency Medical 7

Information System (REMIS), a 24 hour communications service that

facilitates transfers to MMC from other hospitals and care

givers. REMIS assists by facilitating communications about

patient status, bed availability, and transfer requests.

5

and return to New Hampshire in July 2007. MMC did not render any

additional medical services to EC after her discharge.

MMC is a non-profit corporation, organized under the laws of

the State of Maine, with its principle place of business being

the hospital in Portland, Maine. It is licensed in Maine, and

does not hold any licenses, own any property, or have any medical

facilities in New Hampshire. MMC does not employ any physician,

nurse or other healthcare professional in New Hampshire and does

not require its employees to hold medical licenses in New

Hampshire. 

6

MMC also operates a “Neonatology Transport Team” consisting

of a nurse, respiratory therapist, and neonatal nurse

practitioner or neonatologist, that travels to a distressed

infant’s location for transport to MMC. The team stabilizes the 7

infant and provides necessary emergency treatment during

transport. The rest of the neonatal care rendered by MMC,

however, occurs in Maine. There are no written agreements

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 5 of 26
MMC does not initiate contact with the patients’ families 8

and patients are not automatically accepted at MMC for treatment

after referral by an infant’s physician. Upon receipt of a

request for transfer, the neonatologist on staff at MMC checks

the availability of patient beds. If there is no availability,

the referral is declined, and infants then usually are

transferred to a Boston area hospital. See P’s Obj. to D’s Mot.,

Ex. D at 13. 

The registration application filed in New Hampshire in June 9

2004 stated that the purpose of the registration was “including,

but not limited to poison control center services.” See P’s

Obj. to D’s Mot., Ex. B. 

6

between MMC and any New Hampshire hospitals with respect to

patient referrals, and contact regarding transfer to MMC is

initiated by the patients’ physicians. After EC’s New Hampshire

physician referred EC to MMC, and she was accepted for care at

MMC, the MMC neonatal transport team traveled to Portsmouth and 8

transported EC to MMC. 

At the time that EC’s injury occurred, MMC was registered to

do business in New Hampshire, and had registered the trade name

“Northern New England Poison Control Center” (“Poison Control

Center”). The Poison Control Center operates a poison hotline 9

located in Portland, Maine that takes calls placed in New

Hampshire, Maine and Vermont. All calls to the Poison Control

Center are handled by MMC staff in Portland. Between November

2004 and September 2007, MMC had one employee working in New

Hampshire. That employee did not treat patients, but was

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 6 of 26
MMC received approximately $72 million for treating New 10

Hampshire residents during this period, accounting for 3.24% of

total hospital revenue of approximately $2.1 billion.

Since 2004, New Hampshire residents on average have 11

accounted for 2.9% of admissions.

Payment for EC’s treatment, however, was made through 12

private health insurance.

7

employed to provide information about the Poison Control Center

to local residents.

MMC treats patients from New Hampshire at the hospital in

Portland. Between April 2006 and July 2008, approximately 1.23%

of patients treated (whether admitted or not) at MMC were from

New Hampshire (8,107 New Hampshire residents out of a total of

660,524 patients). New Hampshire patients admitted to the 10

hospital during the fiscal year 2007 represented 2.9% of total

admissions (880 New Hampshire patients out of a total of 30,257

patients admitted). The percentage of New Hampshire residents 11

in the neonatal unit in 2007 was higher, approximately 8.8% (63

New Hampshire patients out of a total of 716 patients). MMC

receives reimbursement from the New Hampshire Medicaid fund, and

payments received between July 2006 and June 2008 accounted for

approximately $2.6 million, or .001% of total hospital revenue

for that period.12

MMC does not send direct solicitations to New Hampshire

physicians and does not purchase advertisements in New Hampshire

based newspapers and television stations. It does purchase

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 7 of 26
It also advertises for personnel positions in a regional 13

healthcare publication circulated throughout New England that is

produced in New Hampshire.

8

advertising on a Portland based television station whose signal

reaches some border towns in New Hampshire. Further, it issues 13

press releases to two New Hampshire based newspapers, including

the newspaper servicing the plaintiff’s hometown, and a few

regional news outlets that reach New Hampshire.

Finally, MMC operates a website that allows any user to make

online charitable contributions to the hospital, preregister as a

patient or for an upcoming hospital event, find a doctor, or

apply for a position at the hospital. The website also

highlights certain hospital services or charities, four of which

mention that MMC treats patients from New Hampshire.

III. ANALYSIS

In determining whether a non-resident defendant is subject

to its jurisdiction, a district court must determine whether

contacts between the defendant and the forum are sufficient to

satisfy the state’s long arm statute and comports with the

Fourteenth Amendment’s Due Process clause. See, e.g., Sawtelle

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

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 8 of 26
Under New Hampshire’s long arm statute, a “foreign 14

corporation” is defined as “a corporation for profit incorporated

under a law other than the law of this state.” N.H. Rev. Stat.

Ann. 293-A:1.40(10) (1999 & Supp. 2008).

9

A. Long arm statute

For the purpose of assessing personal jurisdiction over a

non-resident defendant, “a federal court exercising diversity

jurisdiction is the functional equivalent of a state court

sitting in the forum state.” Id. New Hampshire’s long arm

statute applicable to foreign corporations, see N.H. Rev. Stat.

Ann. §293-A:15.10 (1999), is coextensive with federal

constitutional limits on jurisdiction. See Phillips Exeter Acad.

v. Howard Phillips Fund, Inc., 196 F.3d 284, 287 (1st Cir. 1999);

McClary v. Erie Engine & Mfg. Co., 856 F. Supp. 52, 55 (D.N.H.

1994). As a result, “the traditional two-part personal

jurisdiction inquiry collapses into the single question of

whether the constitutional requirements of due process have been

met.” McClary, 856 F. Supp. at 55.

MMC contends, however, that the long arm statute does not

confer jurisdiction on this court because the statute, by its

terms, applies only to for-profit corporations and is therefore 14

inapplicable to non-profit corporations such as the hospital. 

Because plaintiff must demonstrate that the court has

jurisdiction under both state law and the Due Process Clause, 

the proper application of the long arm statute need not be

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 9 of 26
10

determined because this court ultimately concludes that exercise

of its jurisdiction does not comport with due process. See,

e.g., Sawtelle, 70 F.3d at 1388 (declining to decide if New

Hampshire’s long arm statute applied to a partnership because

plaintiff did not satisfy constitutional requirement);

Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir.

1994).

B. Due process

Jurisdiction over a foreign defendant is founded on

traditional notions of “fair play and substantial justice”

inherent in the Due Process Clause. Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 464 (1985) (quotations omitted). As

such, a court is precluded by the Due Process Clause from

asserting jurisdiction unless “the defendant’s conduct and

connection with the forum State are such that [it] should

reasonably anticipate being haled into court there.” World-Wide

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

determination, however, is always “more an art than a science.” 

Ticketmaster-New York, Inc., 26 F.3d at 206 (quotations omitted).

 The “constitutional touchstone” for personal jurisdiction is

“whether the defendant purposefully established minimum contacts

in the forum State.” Burger King Corp., 471 U.S. at 474

(quotations omitted). The inquiry into “minimum contacts” is

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 10 of 26
11

necessarily fact-specific, “involving an individualized

assessment and factual analysis of the precise mix of contacts

that characterize each case.” Pritzker v. Yari, 42 F.3d 53, 60

(1st Cir. 1994). A court does not properly assert jurisdiction

if the defendant’s contacts are merely “random,” “fortuitous,” or

“attenuated.” Burger King Corp., 471 U.S. at 475. Jurisdiction

cannot be created by the unilateral activity of a plaintiff;

rather “it is essential in each case that there be some act by

which the defendant purposefully avails itself of the privilege

of conducting activities within the forum State, thus invoking

the benefits and protections of its laws.” Hanson v. Denckla,

357 U.S. 235, 253 (1958). 

There are two forms of personal jurisdiction. If a

defendant maintains “continuous and systematic” contacts with the

forum state, then the forum court has general jurisdiction with

respect to all causes of action against the defendant. Phillips

Exeter Acad., 196 F.3d at 288. Specific jurisdiction exists if

the plaintiff’s cause of action “relates sufficiently to, or

arises from, a significant subset of contacts between the

defendant and the forum.” Id.; see also Mass. Sch. of Law at

Andover, Inc., 142 F.3d at 34 (to show specific jurisdiction

there must be “a demonstrable nexus between a plaintiff’s claims

and a defendant’s forum-based activities”). 

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 11 of 26
12

1. Specific jurisdiction

The First Circuit Court of Appeals has established a three

part test to determine whether the exercise of specific

jurisdiction is appropriate. See Negron-Torres v. Verizon

Commc’ns, Inc., 478 F.3d 19, 24 (1st Cir. 2007); Mass. Sch. of

Law at Andover, Inc., 142 F.3d at 35. The plaintiff must

demonstrate that: (1) the cause of action directly relates to or

arises from the defendant’s in-state activities (“relatedness”),

(2) the defendant purposefully availed itself of the benefits and

protections of New Hampshire’s laws such that its presence in a

New Hampshire court was voluntary and foreseeable (“purposeful

availment”), and (3) that the exercise of personal jurisdiction

is reasonable (“reasonableness”). See Negron-Torres, 478 F.3d at

24; Phillips Exeter Acad., 196 F.3d at 288. A plaintiff must

demonstrate that each of the three factors is present to support

a finding of specific jurisdiction. See Swiss Am. Bank, Ltd, 274

F.3d at 625; cf. Sawtelle, 70 F.3d at 1394 (courts need not reach

reasonableness inquiry if other factors are not met). In this

case, the plaintiff cannot satisfy the relatedness requirement. 

See Swiss Am. Bank, Ltd., 274 F.3d at 625 (government failed to

demonstrate relatedness, thus claim of specific jurisdiction

failed).

The relatedness requirement “focuses on the nexus between

[the] defendant’s contacts and the plaintiff’s cause of action.” 

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 12 of 26
13

Id. at 621 (quotations omitted). In order to satisfy the

relatedness requirement, “due process demands something like a

‘proximate cause’ nexus.” Cambridge Literary Props., Ltd. v. W.

Goebel Porzellanfabrik G.m.b.H. & Co. Kg., 295 F.3d 59, 65 (1st

Cir. 2002); see Nowak v. Tak How Invs. Ltd., 94 F.3d 708, 715

(1st Cir. 1996) (most often the “proximate cause standard better

comports with the relatedness inquiry because it so easily

correlates to foreseeability”). 

The causal relationship cannot be weak, as the First Circuit

Court of Appeals consistently has refused to find specific

jurisdiction where the causal connection between the claim and

defendant’s forum contacts are “attenuated and indirect.” Harlow

v. Children’s Hosp., 432 F.3d 50 61 (1st Cir. 2005) (quotations

omitted). “The relatedness requirement is not an open door; it

is closely read, and it requires a showing of a material

connection.” Id. In order for jurisdiction to be proper “the

defendant’s in-state conduct must form an important or at least

material element of proof in the plaintiff’s case.” Id.

(quotations and brackets omitted). The court must determine the

“focal point” of the plaintiff’s claim, and “assess the

interactions between the defendant and the forum state through

that prism.” Phillips Exeter Acad., 196 F.3d at 290. 

The plaintiff relies on the transfer by MMC through the

REMIS protocol procedures (and presumably MMC’s neonatal transfer

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 13 of 26
14

unit) as the basis for specific jurisdiction. This argument

fails, however, because all the plaintiff can proffer is a broad

“but for” argument. See Negron-Torres, 478 F.3d at 25; Harlow,

432 F.3d at 61 (rejecting broad “but for” arguments because they

can “embrace every event that hindsight can logically identify in

the causative chain” (quotations omitted)). The “focal point” of

the plaintiff’s claim is the application of the hot diaper on

EC’s foot. Although it is true that participation in the REMIS

protocol and use of the neonatal transfer unit to transport EC to

MMC on April 15, 2007 constituted “a contact” with New Hampshire,

the actual alleged negligence arose from acts committed in Maine

over two weeks later on May 1, 2007. Cf. Sawtelle, 70 F.3d at

1390-91 (contacts cannot be ancillary to negligent non-forum

activity). “[T]he relatedness requirement is not met merely

because a plaintiff’s 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.” Phillips Exeter Acad., 196 F.3d at 290

(quotations omitted and emphasis added). The act from which this

claim derives occurred exclusively in Maine. Accordingly, this

court concludes that it does not have specific jurisdiction over

MMC.

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 14 of 26
The gestalt factors test whether jurisdiction would comport 15

to the idea of “fair play and substantial justice,” and they are

as follows: (1) the plaintiff’s interest in obtaining convenient

relief, (2) the burden on the defendant, (3) the forum’s interest

in the adjudication, (4) the interests of the interstate judicial

system, and (5) the interests of the sovereigns in promoting

substantive social policies. Donatelli v. Nat’l Hockey League,

893 F.2d 459, 465 (1st Cir. 1990).

15

2. General jurisdiction

The constitutional analysis now turns on whether this court

has general jurisdiction over the defendant. In other words, are

the defendant’s contacts with New Hampshire “continuous and

systematic” enough to justify this court’s exercise of

jurisdiction over a claim unrelated to any in-forum presence? 

See generally Glater v. Eli Lilly & Co., 744 F.2d 213, 216 (1st

Cir. 1984). Although the plaintiff has alleged a number of

contacts with New Hampshire, they are too fragmented and

incidental--even when taken together, as of course they must be--

to confer jurisdiction on this court.

A two part test determines whether there is general

jurisdiction. First, the business contacts between the defendant

and the forum must be “continuous and systematic.” Second, the

exercise of jurisdiction must be “reasonable” in light of the

five “gestalt factors” used to determine whether the exercise of 15

jurisdiction is fundamentally fair. Swiss Am. Bank, Ltd., 274

F.3d at 619. If the necessary contacts are lacking, however, the

analysis ends, as it is well established that the “gestalt

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 15 of 26
16

factors” are secondary rather than primary. See Donatelli, 893

F.2d at 465.

This court, therefore, must focus first “on the quality and

quantity of contacts between the potential defendant and the

forum.” Swiss Am. Bank, Ltd., 274 F.3d at 619 (quotations

omitted). Unlike specific jurisdiction, exercise of general

jurisdiction is not concerned with relatedness, but whether there

are “instances in which the continuous corporate operations

within a state [are] thought so substantial and of such a nature

as to justify suit” in the forum. Donatelli, 893 F.2d at 463

(quotations omitted). The analysis of the defendant’s contacts

is necessarily a “fact specific” evaluation. Swiss Am. Bank,

Ltd., 274 F.3d at 620. General jurisdiction requires more

extensive contacts than specific jurisdiction, and therefore,

“the standard for general jurisdiction is considerably more

stringent.” Donatelli, 893 F.2d at 463 (quotations omitted). 

Here, the court must determine the extent of its general

jurisdiction over a foreign hospital defendant providing

specialized care that is attractive to forum residents. This

issue was addressed in Harlow, 432 F.3d at 64-69, where the court

of appeals determined that a Maine court lacked jurisdiction over

a Massachusetts hospital sued for negligence by a former patient

from Maine. In that case, the plaintiff argued that jurisdiction

was proper where Children’s Hospital: (1) accepted payments from

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 16 of 26
The court also did not find the hospital’s direct mailings 16

to Maine doctors and website accessibility in Maine persuasive,

noting that traditionally fairness will not allow the forum to

assert jurisdiction where the defendant’s only activities consist

of advertising and employing salesman to solicit orders. Id. at

66.

17

the Maine Medicaid program, (2) derived “substantial and

consistent revenue” from Maine patients, (3) actively marketed

its services to Maine pediatricians and patients, and (4) held

“itself out as the regional pediatric trauma center.” Id. at 65

(quotations and brackets omitted). The court of appeals

concluded that the contacts were insufficient to support

jurisdiction, noting, inter alia, that “[t]reating patients from 16

Maine in Massachusetts, even on a regular basis, is not the same

as engaging in continuous and systematic activity in Maine.” Id.

at 66. The court held that although “the Hospital derives

revenue from treating Maine patients, sometimes in the form of

payments from Maine Medicaid, [it] does not alter the basic fact

that the Hospital is not engaged in continuous and systematic

activity, unrelated to the suit, in Maine.” Id. (quotations and

brackets omitted). The court stated that a foreign hospital

treating forum residents does not possess the extensive

continuous and systematic contacts comparable to businesses

engaged in long standing commercial activities in the forum (such

as selling products to forum residents in the forum or providing

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 17 of 26
The plaintiff argues that this case closely resembles 17

Kenerson v. Stevenson, 604 F. Supp. 792 (D.Me. 1985) where the

district court concluded that it possessed jurisdiction over a

New Hampshire hospital being sued by a Maine plaintiff. The

court based its exercise of jurisdiction on the hospital’s “tacit

solicitation” of patients in the surrounding region, that Maine

residents amounted to approximately 8% of the total in-patient

caseload and 13% of total out-patients, and that it participated

in both the REMIS emergency transfer system and Maine Medicare

reimbursement program. Id. at 795-96. The Harlow court did not

specifically overrule Kenerson, but did call into question

whether it was “correct or not.” Harlow, 432 F.3d at 65 n.9. 

This court finds Kenerson unhelpful in light of Harlow’s

conclusions that direct (let alone “tacit”) solicitation of forum

patients, receipt of revenue and Medicaid funds from forum

patients, and regular treatment of forum patients did not amount

to sufficient contacts for jurisdictional purposes. Id. at 65-

66. As such, the court will conduct its own fact-specific

analysis in light of other precedent. 

18

in-state services to forum residents) and thus the exercise of

jurisdiction was inappropriate. Id. 

17

In this case, the plaintiff’s primary contention is that

because MMC services a number of New Hampshire patients,

generates revenues from those patients, and accepts New Hampshire

Medicaid payments, it is engaged in continuous and systematic

activities in this state and is subject to the court’s general

jurisdiction. This court disagrees. Although on a percentage

basis, the number of forum patients seen at MMC is larger than at

the hospital in Harlow, (2.9% versus under 1%), the court of

appeals concluded in Harlow, 432 F.3d at 66, that even admitting

forum patients “on a regular basis is not the same as engaging in

continuous and systematic activity . . . .” Further, it found

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 18 of 26
The plaintiff contends that because the registration 18

documents declare that the principle purpose expressly included,

19

that this conclusion is not altered by the fact that a hospital

derives revenue from forum patients, either directly or through

the forum’s Medicaid system. Id.; cf. Boyd v. Green, 496 F.

Supp.2d 691, 705, 707-08 (W.D.Va. 2007) (court exercised

jurisdiction over physician’s practice because one non-defendant

doctor regularly crossed the border to provide medical services

to dialysis patients. There was no jurisdiction over an

individual doctor-defendant even though the practice had many

forum patients and the defendant held a forum medical license

because all services were rendered in the border state). 

The plaintiff contends that the court has jurisdiction over

MMC because at the time of the alleged tort, cf. Harlow, 432 F.3d

at 64-65 (in determining general jurisdiction, court considers

all contacts with the forum up until the lawsuit is filed), MMC

was registered to do business in New Hampshire and had a single

employee providing information in New Hampshire regarding MMC’s

poison control hotline in Portland. Although registration in New

Hampshire, standing alone, is not sufficient to confer general

personal jurisdiction on this court, it “add[s] some modest

weight to the jurisdictional analysis.” Fiske v. Sandvick

Mining, 540 F. Supp.2d 250, 256 (D. Mass. 2008) citing Sandstrom

v. ChemLawn Corp., 904 F.2d 83, 89 (1st Cir. 1990).18

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 19 of 26
but was not limited to “poison control center services,” that

registration somehow demonstrates an intent to do business in New

Hampshire. It is well established, however that “preparations to

do business at an indeterminate future date, without more, cannot

be confused with actually doing business.” Sandstrom, 904 F.2d

at 89.

20

Corporate registration is thus one factor to consider when

evaluating the nature of the forum contacts. Here, MMC does not

hold any medical licenses, own any property, or have any medical

facilities in New Hampshire. It does not employ any health care

providers in New Hampshire and does not require its personnel to

hold New Hampshire licenses. The one poison control employee

simply provided information about a hotline service rendered in

Maine. Courts, however, have declined to assert jurisdiction

over foreign corporations whose presence in the forum was far

more substantial than MMC’s contacts with New Hampshire. See

Noonan v. Winston, Co., 135 F.3d 85, 93 (1st Cir. 1998)

(“Although our decision must be based on a fact-specific

evaluation of [the defendant’s] contacts, we are guided by the

types of contacts deemed sufficiently continuous and systematic

in other cases”). For example, in Glater, 744 F.2d at 217, the

court concluded that the contacts were too attenuated to justify

jurisdiction even though the foreign corporation advertised in

the forum, employed eight full-time salesman in the forum to

generate business there, and sold products to in-state wholesale

distributors. As the court of appeals noted in Harlow, 432 F.3d

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 20 of 26
The court finds likewise that the single contract with 19

Dartmouth allowing medical students to travel into Maine for

training does not, standing alone or with the other

jurisdictional facts in this case, equate to “systematic and

continuous” business contacts. Cf. Noonan, 135 F.3d at 93.

21

at 66, “we have held in other cases [that] where defendant’s only

activities consist of advertising and employing salesman to

solicit orders, we think that fairness will not permit a state to

assume jurisdiction.” Id. (quotations omitted); see generally,

Noonan, 135 F.3d at 93 (listing cases). In this case, neither

party disputes that the poison control employee did not provide

medical services to New Hampshire residents, but “provided

education and consultation services” about the Portland hotline

to New Hampshire residents. Viewed in conjunction with the other

jurisdictional facts alleged by the plaintiff, this is

insufficient to permit this court to assume jurisdiction over

MMC. Cf. Noonan, 135 F.3d at 93-94 (no general jurisdiction over

a foreign corporation that regularly solicited business, sent

employees into the forum and negotiated orders worth over

$585,0000); Boyd, 496 F. Supp.2d at 707-08 (systematic and

continuous contacts found where doctor obtained a medical license

in forum and traveled on a monthly basis to forum to treat

patients). 

19

Similarly, MMC’s advertising activities alleged by the

plaintiff do not support a finding of jurisdiction. As noted

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 21 of 26
The court notes that it appears that the advertisements in 20

the trade journal are for employment at MMC. P’s Obj. to D’s

Mot., Ex. E. This is clearly insufficient. See Sandstrom, 904

F.2d at 89-90. 

P’s Obj. to D’s Mot., Ex. F. 21

P’s Obj. to D’s Mot., Ex. D at 15-16.

22

22

above, the court in Harlow, 432 F.3d at 65-66, rejected the

plaintiff’s claim that advertising activities (including direct

solicitation of Maine physicians) was sufficient to confer

jurisdiction. MMC’s “advertising” in New Hampshire was “neither

pervasive nor even substantial.” Sandstrom, 904 F.2d at 89-90. 

Here, the plaintiff does not allege even direct solicitation of

patient referrals, and instead points only to advertising in a

regional trade journal, and on a Portland, Maine television 20

station whose signal can reach New Hampshire. MMC issues 21

periodic press releases to forty-five media outlets, of which

only two are published in New Hampshire and only a handful that

may partially reach New Hampshire. Further, not all press 22

releases are sent to the entire media list. The frequency and

regularity of releases to outlets that reach into New Hampshire

is unclear at best. 

The plaintiff, in a similar vein, contends that because MMC

has an interactive website assessable in New Hampshire that gives

information about the hospital and its doctors, allows for online

charitable contributions, and lets patients preregister for

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 22 of 26
23

events and hospital services, it is subject to the jurisdiction

of this court. “[M]ere existence of a website that is visible in

a forum and that gives information about a company and its

products is not enough, by itself, to subject a defendant to

personal jurisdiction in that forum. Something more is

necessary, such as interactive features which allow the

successful online ordering of the defendant’s products.” McBee

v. Delicia Co., Ltd., 417 F.3d 107, 124 (1st Cir. 2005)

(citations omitted). Merely providing information is not

sufficient. See Kloth v. Southern Christian University, 494 F.

Supp.2d 273, 280 (D.Del. 2007) (in general jurisdiction analysis,

posting of information on a website is not sufficient); cf. ICP

Solar Techs., Inc., 413 F. Supp.2d at 18-19 (conducting a

specific jurisdiction analysis). In cases where the website is

interactive, and allows users to exchange information, however,

“the exercise of jurisdiction is determined by examining the

level of interactivity and commercial nature of the exchange of

information that occurs on the website” with the residents of the

forum. Kloth, 494 F. Supp.2d at 280 (quotations omitted); cf.

ICP Solar Techs. Inc., 413 F. Supp.2d at 19. Although MMC’s

website allows patients to make contributions or preregister with

the hospital, it is not used to actively sell products and

conduct business in the forum state. Cf. ICP Solar Techs. Inc.,

413 F. Supp.2d at 18-19. MMC’s website presumably eases the

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 23 of 26
Further, MMC’s participation in the REMIS protocol is 23

insufficient to establish jurisdiction. It is not used as a tool

to solicit patients from outside Maine, but rather is an

administrative service ensuring safe and efficient transfer of

patients referred from both in-state and out-of-state health

providers after referral to MMC. See Zavala v. El Paso County

Hosp. Dist., 172 P.3d 173, 182 (N.M. Ct. App. 2007).

Likewise, the neonatal transport unit ventures into the

forum after a request for transfer to MMC. Presumably, it does

not have a regularly scheduled pick-ups, but travels to New

Hampshire at the behest of patients to assist in delivery of

critical care performed in Maine. Any medical services provided

are incident to the neonatal care that is delivered in Maine. 

Cf. Boyd, 496 F. Supp.2d at 707-08 (doctor’s visits to forum were

regular and part of a forum practice established by physicians

group to deliver care to patients in forum).

24

administrative burden on a patient or student once they arrive at

MMC for treatment or work. The hospital, however, is not sending

medical advice or services out through cyberspace into New

Hampshire, and even if it were, that might not be sufficient to

confer jurisdiction. See Kloth, 494 F. Supp.2d at 280 (no

general jurisdiction over foreign university that maintained a

website that gave general information and allowed students to

submit online applications for admission); cf. GTE New Media

Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1350 (D.C. Cir.

2000) (the advent of advanced technology should not “vitiate

long-held and inviolate principles of federal court

jurisdiction”).23

In sum, MMC’s contacts possess a fragmented and inconsistent

quality, and are not “continuous and systematic.” Although MMC

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 24 of 26
The court notes, however, that with respect to 24

reasonableness, it finds the First Circuit Court of Appeal’s

conclusions in Harlow instructive as well. “The question is not

whether hospitals may be held responsible in lawsuits for their

activities, but whether they may be haled into court out of state

because they accept out-of-sate patients. It would be

unreasonable to conclude that they could.” Harlow, 432 F.3d at

69.

25

has a variety of contacts with New Hampshire by virtue of the

nature of its services and proximity to patients from New

Hampshire, it does not have sufficient contacts to justify this

court’s exercise of general jurisdiction. See Zavala, 172 P.3d

at 183 (“We cannot justify the exercise of personal jurisdiction

based solely upon a close proximity between [the foreign

hospital] and [the forum] and the contacts that arise from such

proximity”); cf. Kopff v. Battaglia, 425 F. Supp.2d 76, 89 n.17

(D.D.C. 2006) (district court was “aware of no legal authority

that would support the proposition that mere proximity to the

forum is sufficient to confer personal jurisdiction, irrespective

of political borders”). 

Having determined that MMC does not have sufficient contacts

with New Hampshire to justify this court’s exercise of

jurisdiction, the court need not reach the second prong of the

analysis, namely whether jurisdiction would be reasonable. See

Donatelli, 893 F.2d at 465.24

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 25 of 26
Document no. 12. 25

26

IV. CONCLUSION

The defendant’s Motion to Dismiss or for Summary Judgment25

is GRANTED and all other pending motions are denied as moot. The

plaintiff’s claim is dismissed and the clerk is ordered to close

the case.

SO ORDERED.

_____________________________

Joseph N. Laplante

United States District Judge

Dated: March 31, 2009

cc: Gary B. Richardson, Esq.

Heather M. Burns, Esq.

Gerald F. Petruccelli, Esq.

Michael P. Lehman, Esq.

Sarah S. Murdough, Esq.

Case 1:08-cv-00260-JL Document 22 Filed 03/31/09 Page 26 of 26