1 NeoDevices amended its complaint to include a breach of

contract claim after NeoMed filed its motion to dismiss for lack

of personal jurisdiction.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

NeoDevices, Inc.,

Plaintiff

v. Civil No. 08-cv-375-SM

Opinion No. 2009 DNH 020

NeoMed, Inc. and Anthony C. Lair,

Defendants

O R D E R

NeoDevices, Inc. (“NeoDevices”) brought suit against NeoMed,

Inc. (“NeoMed”) and Anthony C. Lair (“Lair”) for alleged

trademark dilution, defamation, unfair and deceptive trade

practices, tortious interference with prospective contractual

relationships, and breach of contract.1 NeoDevices asserts that

by using product numbers identical to the ones it used, NeoMed

tricked NeoDevices’ customers into purchasing NeoMed’s products. 

NeoDevices further asserts that NeoMed made false statements

regarding the quality of its products. Defendants removed this

suit from the New Hampshire Superior Court, and now move to

dismiss for lack of personal jurisdiction. Plaintiff objects. 

For the reasons given, defendants’ motion to dismiss is granted. 

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 1 of 30
2

The Legal Standard

Pursuant to Rule 12(b)(2) of the Federal Rules of Civil

Procedure, when considering a motion to dismiss for lack of

personal jurisdiction, the court takes the facts pled in the

complaint as true, and construes them “in the light most

congenial to the plaintiff’s jurisdictional claim.” 

Negrón-Torres v. Verizon Commc’ns, Inc., 478 F.3d 19, 23 (1st

Cir. 2007). The court also considers uncontradicted facts put

forth by the defendant, but does not “credit conclusory

allegations or draw farfetched inferences.” Id. (citations and

quotation marks omitted).

Background

NeoDevices is a New Hampshire corporation, and its principal

place of business is located in New Hampshire. NeoDevices

manufactures neonatal medical devices. NeoMed is a Georgia

corporation, with a principal place of business in Georgia. 

NeoMed is not registered to do business in New Hampshire, nor

does it maintain offices or own assets here. NeoMed directly

competes with NeoDevices in manufacturing and selling neonatal

medical devices. Defendant Anthony Lair is a former shareholder

of NeoDevices and currently owns and controls NeoMed and another

business known as Specialty Medical. At one time, Specialty

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 2 of 30
2 Plaintiff has not joined Specialty Medical as a party to

this action. 

3

Medical was a distributor of NeoDevices’ products.2 Specialty

Medical now distributes NeoMed’s products, but not NeoDevices’

products.

In or around December of 2006, Lair entered into a Stock

Redemption Agreement with NeoDevices. As part of that Agreement,

Lair and NeoDevices agreed that they would not disparage each

other in the industry or marketplace. The Stock Redemption

Agreement is governed by the laws of New Hampshire. The

complaint contains no factual allegations concerning the

formation of the Stock Redemption Agreement. 

Between October and November of 2007, Specialty Medical

ordered a variety of medical devices from NeoDevices. Plaintiff

alleges that soon after that purchase, NeoMed began to sell

competing products, using product codes identical or

substantially similar to those used by NeoDevices. According to

NeoDevices, product codes are unique to manufacturers in the

neonatal medical devices industry. NeoDevices has been using its

product codes since the company’s inception in 2004. Typically,

customers who purchase medical devices enter a product code into

a hospital’s computerized inventory and ordering system. When

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 3 of 30
4

supplies run low, the hospital’s purchasing agent contacts the

product’s distributor and orders the device by product code and

quantity. 

NeoDevices alleges that since NeoMed began selling products

using the same product codes, Specialty Medical and NeoMed have

been filling orders with NeoMed’s products rather than

NeoDevices’ products, while customers thought they were

purchasing products manufactured by NeoDevices. 

NeoDevices also alleges that Lair, acting individually or as

an agent of NeoMed, has falsely informed distributors,

NeoDevices’ competitors, and its customers, that NeoDevices’

products are not FDA approved, or lack the requisite 510(k)

premarket approval from the FDA. NeoDevices further alleges that

Lair recently called NeoDevices’ current distributor, CoMedical,

and falsely reported to CoMedical that NeoDevices’ feeding tube

lacked the requisite 510(k) approval. The complaint does not

identify CoMedical’s place of business.

Based on the foregoing allegations, NeoDevices asserts

claims of trademark dilution under New Hampshire Revised Statutes

Annotated (“RSA”) 350-A:12 (Count I), defamation (Count II),

breach of contract (Count III), unfair and deceptive trade

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 4 of 30
5

practices under RSA 358-A:2 (Count IV), and tortious interference

with prospective contractual relationships (Count V).

Discussion

NeoMed moves to dismiss the complaint for lack of personal

jurisdiction. NeoDevices counters that NeoMed’s adoption of

NeoDevices’ product codes, and making of false statements

regarding NeoDevices’ FDA approval, caused NeoDevices to suffer

foreseeable injury in New Hampshire. Thus, NeoDevices concludes

that this court should exercise personal jurisdiction over NeoMed

because, as explained in Northern Laminate Sales, Inc. v. Davis,

a party commits a tortious act within the state when injury

occurs in New Hampshire even if the injury is the result of acts

performed outside the state. See 403 F.3d 14, 24 (1st Cir.

2005). 

A. Statutory and Constitutional Prerequisites

When a defendant challenges personal jurisdiction, the

plaintiff bears the burden of demonstrating “the existence of

every fact required to satisfy both the forum’s long-arm statute

and the Due Process Clause of the Constitution.” See

Negrón-Torres, 478 F.3d at 24 (quoting U.S. v. Swiss Am. Bank,

Ltd., 274 F.3d 610, 618 (1st Cir. 2001)). Where, as here, the

state’s long-arm statute is coextensive with the constitutional

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 5 of 30
6

limits of due process, the two inquiries become one, focusing

solely on whether jurisdiction comports with due process. See

id.; Computac, Inc. v. Dixie News Co., 124 N.H. 350, 355 (1983)

(explaining that New Hampshire’s long-arm statute is “coextensive

with constitutional limitations”).

B. General v. Specific Jurisdiction 

Personal jurisdiction comes in two varieties: specific and

general. See Negrón-Torres, 478 F.3d at 24. Key to both is the

existence of “minimum contacts” between the nonresident defendant

and the forum. Id. “General jurisdiction 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.” United Elec. Workers v. 163 Pleasant St. Corp.,

960 F.2d 1080, 1088 (1st Cir. 1992) (citing Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-416 & n.9

(1984)). Plaintiff does not contend that defendants engaged in

“continuous and systematic activity” in New Hampshire, nor does

it ask the court to exercise general jurisdiction over them. 

Accordingly, if the court may properly exercise personal

jurisdiction over the defendants, it must be specific

jurisdiction. 

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 6 of 30
7

A court may exercise specific jurisdiction “where the cause

of action arises directly out of, or relates to, the defendant’s

forum-based contacts.” United Elec. Workers, 960 F.2d at 1088-89

(citation omitted). In an effort to assist trial courts in

determining whether they may properly exercise specific

jurisdiction, the court of appeals for this circuit has

formulated a three-part test:

First, the claim underlying the litigation must

directly arise out of, or relate to, the defendant’s

forum-state activities. Second, the defendant’s instate contacts must represent a purposeful availment of

the privilege of conducting activities in the forum

state, thereby invoking the benefits and protections of

that state’s laws and making the defendant’s

involuntary presence before the state’s courts

foreseeable. Third, the exercise of jurisdiction must,

in light of the Gestalt factors, be reasonable.

Id. at 1089. An affirmative finding as to each of those three

elements - relatedness, purposeful availment, and reasonableness

- is necessary to support the court’s exercise of personal

jurisdiction over a defendant. See Phillips Exeter Acad. v.

Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999). 

1. Relatedness

The relatedness inquiry is not an “open door” and requires a

“material connection” between the defendant and the forum state. 

Negrón-Torres, 478 F.3d at 25. More specifically: 

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 7 of 30
8

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 . . . . A broad

‘but-for’ argument is generally insufficient. Because

‘but for’ events can be very remote, . . . due process

demands something like a ‘proximate cause’ nexus.

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

Cir. 2005)). A finding of relatedness requires that plaintiff’s

action arises directly “out of the specific contacts between the

defendant and the forum state.” Sawtelle v. Farrell, 70 F.3d

1381, 1389 (1st Cir. 1995). Put differently, for a finding of

relatedness to be warranted, the plaintiff’s claim must arise out

of, or relate to the defendant’s in-forum activities. Id.

(citing Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 206 (1st

Cir. 1994)).

The relatedness requirement is tied to the particular claims

asserted. Phillips Exeter Acad., 196 F.3d at 289 (citing United

Elec. Workers, 960 F.2d at 1089).

a. Counts II & V

Count II is plaintiff’s defamation claim, against both

NeoMed and Lair, and it is based upon allegations that defendants

falsely stated that NeoDevices lacked FDA approvals for some of

its products. Count V is plaintiff’s claim of tortious

interference with prospective contractual relationships, against

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 8 of 30
9

both NeoMed and Lair, and it is based, as well, upon allegations

that defendants falsely stated that FDA approvals were not

obtained, and that NeoMed deceptively used product codes

identical to those used by NeoDevices. 

Generally, to establish personal jurisdiction over a

defendant in a tort claim, a plaintiff must show a “causal nexus

between the defendant’s contacts and the plaintiff’s cause of

action.” Phillips Exeter Acad., 196 F.3d at 289 (citations

omitted). Determination of relatedness begins with an

identification of all the alleged contacts. Swiss Am. Bank, 274

F.3d at 621 (reasoning that there can be “no requisite nexus

between the contacts and the cause of action if no contacts

exist”). 

As noted above, plaintiff relies on Northern Laminate for

the proposition that “a defendant need not be physically present

in the forum state to cause injury (and thus ‘activity’ for

jurisdictional purposes) in the forum state.” 403 F.3d at 25

(citing Calder v. Jones, 465 U.S. 783, 789 (1984)). In

plaintiff’s view, that statement in Northern Laminate supports a

determination that defendants’ extra-forum activities are

sufficient to establish relatedness where harm results in the

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 9 of 30
10

forum. There are two problems with plaintiff’s reliance on

Northern Laminate. 

The court of appeals for this circuit has repeatedly held,

when conducting relatedness inquiries, that “the in-forum effects

of extra-forum activities [do not] suffice to constitute minimum

contacts.” Swiss Am. Bank, 274 F.3d at 625 (quoting Mass. Sch.

of Law v. Am. Bar Ass’n, 142 F.3d 26, 36 (1st Cir. 1998); citing

Sawtelle, 70 F.3d at 1390-91; Kowalski v. Doherty, Wallace,

Pillsbury & Murphy, 787 F.2d 7, 11 (1st Cir. 1986)). Swiss

American Bank also explains that the Calder effects test applies

to the purposeful availment inquiry, not the assessment of

relatedness. 274 F.3d at 623. While Northern Laminate briefly

applies the Calder effects test to the relatedness inquiry, that

passing reference does not signal abandonment of the standard

described in Swiss American Bank.

Moreover, even if Northern Laminate did signal a shift away

from Swiss American Bank, this case is factually distinguishable. 

Northern Laminate reviewed in great detail the contact that the

defendant, Davis, had with his New Hampshire supplier. The case

involved an actual business relationship between an out of state

company and a New Hampshire company. Id. Although Davis was

never physically present in New Hampshire, he had considerable

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 10 of 30
3 “On or about January 13, 2000, NLS and Matco entered into

an agreement pursuant to which NLS furnished laminate components

to ABC.” 403 F.3d at 18. “The components were shipped F.O.B.

NLS’ New Hampshire facility. . . .” Id. “The payment terms of

the agreement required that ABC too issue weekly checks to NLS in

New Hampshire. . . .” Id. On September 14, 2000, Davis

initiated a meeting in his New York office with Russell, a New

Hampshire resident. Id. at 18-19. “Russell drove from New

Hampshire to New York to meet with Davis as arranged.” Id. at

19. “On September 22, 2000, . . . Davis sent a letter from New

York to NLS in New Hampshire. . . .” Id. Following Davis’

letter, Russell sent an e-mail on October 31, 2000 responding to

Davis’ September 22 letter. Id. at 20. Davis responded to

Russell’s e-mail on November 1, 2000. Id. NLS then made several

phone calls to Davis regarding failed payments and past due

amounts “with no success.” Id. “On November 10, 2000, NLS sent

an e-mail from New Hampshire to Davis in New York, stating

‘[y]ou’ve ignored numerous telephone calls. . . .’” Id.

Subsequently, Davis returned Russell’s e-mail claiming that he

was not ignoring phone calls but rather, “‘working diligently on

solutions.’” Id.

11

contact with New Hampshire, contact that was overwhelming when

compared to defendants’ alleged contacts in this case.3

Plaintiff cannot rest on the pleadings to make a prima facie

showing of jurisdiction, but is required to “adduce evidence of

specific facts” that support its claim. See Foster-Miller, Inc.

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

With respect to Count II, plaintiff does no more than provide a

conclusory allegation that NeoMed made false statements to

customers and distributors regarding NeoDevices’ FDA approval. 

And, with respect to Count V, plaintiff does no more than make

cursory allegations that defendants’ conduct interfered with

prospective contractual relationships with customers and

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 11 of 30
12

distributors by using NeoDevices’ product codes and spreading

false information about its products. It does not allege where,

when, what, or to whom.

Plaintiff says that since it suffered harm in New Hampshire

due to the false statements defendants made to distributors,

competitors and customers of NeoDevices, including CoMedical,

plaintiff has provided sufficient evidence for a finding of

relatedness. However, plaintiff does not identify where these

distributors, competitors and customers are located. Plaintiff

fails to indicate where defendants made such statements. There

are no allegations, and is no evidence, that defendants contacted

New Hampshire residents to communicate false statements, or

confused New Hampshire purchasers with allegedly deceptive

product codes. Mere allegations, without a showing of causal

nexus, is insufficient to support a finding of relatedness. See

Negrón-Torres, 478 F.3d at 25 (finding conclusory allegations

insufficient to meet the requirements of the relatedness test). 

Consequently, plaintiff has failed to satisfy the relatedness

prong with respect to Counts II and V.

b. Counts I & IV

In Count I, NeoDevices alleges that NeoMed’s adoption of

NeoDevices’ product codes constitutes trademark dilution under

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 12 of 30
13

RSA 350-A:12. In Count IV NeoDevices claims that NeoMed’s use of

deceptively similar product codes and its false statements about

NeoDevices’ products constitute unfair and deceptive trade

practices under RSA ch. 358-A. Again, plaintiff asserts that the

injury it suffered in New Hampshire satisfies the relatedness

prong. 

Trademark infringement claims and unfair competition claims

are analyzed as tort claims. PFIP v. Planet Fitness Enters.,

Inc., No. Civ. 04-250-JD, 2004 WL 2538489, at *5 (D.N.H. Nov. 10,

2004) (citing Hard Rock Café Licensing Corp. v. Concession

Servs., Inc., 955 F.2d 1143, 1150 (7th Cir. 1992)). 

NeoDevices’ allegations, that NeoMed’s infringement outside

the state caused injury felt in New Hampshire are conclusory. 

There is no allegation, or evidence, of NeoMed’s allegedly using

product codes deceptively similar to NeoDevices’ in New

Hampshire. NeoDevices fails to identify any potentially

misinformed hospitals or misinformed customers in New Hampshire.

So, to the extent Counts I and IV rest on NeoMed’s alleged

use of deceptively similar product codes, plaintiff has failed to

establish relatedness, i.e., a causal nexus between defendants’

contacts with New Hampshire and plaintiff’s causes of action. 

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 13 of 30
14

And, for reasons already given, the same holds true to the extent

that plaintiff’s claim is based on defendants’ alleged false

statements about FDA approvals. Accordingly, NeoDevices has

failed to satisfy the relatedness inquiry for Counts I and IV. 

c. Count III

NeoDevices argues that the Stock Redemption Agreement

between it and Lair is a contract between an out-of-state

defendant and a New Hampshire plaintiff sufficient to establish

personal jurisdiction over Lair. That agreement includes the

parties’ mutual promise not to “disparage in the industry or

marketplace each other, their respective companies or affiliates,

or any of his, its or their respective shareholders, directors,

officers, employees, or products.” (See Compl. ¶ 7). Lair

undertook a duty not to disparage. The location of performance

of that contractual obligation matters, because “a contract

arguably is breached where a promisor fails to perform.” 

Phillips Exeter Acad., 196 F.3d at 291 (citing Papachristou v.

Turbines, Inc., 902 F.2d 685, 686 (8th Cir. 1990)). 

In all types of cases, “the defendant’s in-state conduct

must form an important or at least material, element of proof in

the plaintiff’s case.” Id. at 289 (quoting United Elec. Workers,

960 F.2d at 1089) (brackets and internal quotations omitted). In

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 14 of 30
15

contract cases, a court “must look to the elements of the cause

of action and ask whether the defendant’s contacts with the forum

were instrumental either in the formation of the contract or in

its breach.” Id. “[T]he mere existence of a contractual

relationship between an out-of-state-defendant and an in-state

plaintiff does not suffice, in and of itself, to establish

jurisdiction in the plaintiff’s home state.” Id. at 290 (citing

Burger King v. Rudzewicz, 471 U.S. 462, 478-79 (1985)). “The

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 specific

contacts between the defendant and the forum state.” Id.

(quoting Sawtelle, 70 F.3d at 1389).

In Phillips Exeter Academy, a private secondary school in

New Hampshire sued the Florida-based Howard Phillips Fund in

federal district court in New Hampshire. Phillips Exeter Acad.,

196 F.3d at 286. The plaintiff claimed, among other things,

breach of contract. Id. The Academy alleged that the Fund

failed to make certain payments it was due under the terms of

Howard Phillips’ will. Id. Howard Phillips established the Fund

with a bequest of stock, and required that income from the stock

be shared with the Academy. Id. Notwithstanding the fact that

the Fund made annual payments to the Academy in New Hampshire,

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 15 of 30
16

id., and once sent a representative to New Hampshire to negotiate

with the Academy about terminating the Fund’s obligations by

means of a lump-sum payment, id. at 287, the court of appeals

affirmed the trial court’s decision to grant the defendants’

motion to dismiss for lack of personal jurisdiction. After

explaining that “the relevant interactions between the parties

and the proposed forum must be assayed in light of the nature of

the plaintiff’s claim,” id. at 290, the court described the

“relevant interactions” as involving “the meaning of [Howard

Phillips’] will and the Fund’s fulfillment of the obligations it

undertook coincident to its acceptance of the bequest.” Id.

Then the court continued:

Most of the relevant interactions (e.g., the execution

of the will, the acceptance of the bequest, and the

payment decisions) occurred in Florida. The rest

(e.g., the restructuring of the Company and the

conversion of the Fund’s ownership interest to a

membership interest) occurred in Delaware. From this

vantage point, Exeter’s claim to jurisdiction in New

Hampshire appears untenable.

Id. at 290-91 (citing Bond Leather Co. v. Q.T. Shoe Mfg. Co., 764

F.2d 928, 934 (1st Cir. 1985)). The court concluded its analysis

of the Academy’s contract claim by holding that the Academy’s

receipt of checks from the fund in New Hampshire was insufficient

to satisfy the relatedness test even though the effect of

insufficient payments would be felt in New Hampshire. Id. at

291.

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 16 of 30
4Sawtelle is relevant to this discussion of personal

jurisdiction in breach of contract actions because in New

Hampshire, legal malpractice may be treated as a tort or a breach

of contract. See Wong v. Ekberg, 148 N.H. 369, 375-76 (2002).

17

In Sawtelle, two New Hampshire residents sued two out-ofstate attorneys and their law firms in the federal district court

for legal malpractice resulting from negligent representation in

Florida.4 70 F.3d at 1385. The plaintiffs’ son and his flight

instructor were killed when their plane was struck by another

aircraft. Id. During the course of the parents’ wrongful-death

action in Florida, the defendant-attorneys recommended that they

settle their claim for $155,000, which the plaintiffs did. Id.

at 1386. However, the plaintiffs later found out that the flight

instructor who also died in the crash had received a $500,000

settlement. Subsequently, the plaintiffs sued their attorneys

for legal malpractice. Id. at 1387. Neither of the defendantattorneys ever “personally met the plaintiffs,” id. at 1386, but

one of them “sent at least fifteen letters to [the plaintiffs] in

New Hampshire and spoke to them by telephone on numerous

occasions,” id., and the other one sent “numerous letters to [the

plaintiffs] in New Hampshire and participated in several

telephone conversations with them.” Id. at 1386. 

The court of appeals explained that to support personal

jurisdiction over an out-of-state defendant, plaintiffs’ cause of

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 17 of 30
18

action “must directly arise out of specific contacts between the

defendant and the forum state.” Id. at 1389. Notwithstanding

the many letters and phone calls the defendants directed to the

plaintiffs in New Hampshire, that the court described as

“unquestionably a contact,” id., the court determined that it

would be “illogical” to characterize these events as “the

negligent conduct that caused the Florida injury.” Id. at 1390. 

The court also stated: 

Ultimately . . . the gravaman of the [plaintiffs’]

claim is that they suffered in New Hampshire the

“effects” of the defendants’ negligence committed

elsewhere. The communications sent into New Hampshire

were ancillary to the allegedly negligent non-forum

activities, and because those communications were the

only relevant contacts with the forum for purposes of

the [plaintiffs’] malpractice claim, we conclude that

the plaintiffs’ showing of relatedness should be

characterized as tenuous at best. It hangs, as it

were, by a thread. 

Id. (internal citations omitted). The court concluded that the

plaintiffs’ showing of relatedness was weak because their claim

for legal malpractice did not directly arise out of, nor was it

related (in any meaningful way) to the law firms’ contacts with

New Hampshire.

In United Electrical Workers, a Massachusetts labor union

brought an ERISA action against a number of defendants, including

International Twist Drill, Ltd. (“ITD”), a Scottish corporation. 

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 18 of 30
19

United Elec. Workers, 960 F.2d at 1083. One of ITD’s principals,

John Lindsay was involved in negotiating the contract underlying

the plaintiffs’ claim. Id. As the court of appeals explained,

“[o]f the forum-related contacts mentioned by the district court,

only Lindsay’s involvement in negotiation of the collective

bargaining agreement can be thought to give rise, or relate, to

this cause of action.” Id. at 1089 (citing Hahn v. Vt. Law Sch.,

698 F.2d 48, 51 (1st Cir. 1983)). The court continued:

The location of the negotiations is vitally important

to the jurisdictional inquiry in a case like this one. 

If the negotiations occurred outside the forum state,

their existence cannot serve to bolster the argument

for the assertion of jurisdiction in the forum. 

Id. (citing Pathe Computer Control Sys. Corp. v. Kinmont Indus.,

Inc., 955 F.2d 94, 96 (1st Cir. 1992)). But, in United

Electrical Workers, there was “no indication in the record that

[the defendant’s] involvement in the negotiations took place in

the forum state or by means of communications to and from the

forum.” Id. The court concluded:

For aught that appears, Lindsay might have played his

part by telephone calls from Scotland to the Union’s

national offices in Pennsylvania, or by attending

meetings held in a law firm’s conference room in

Delaware, New York City, or some other venue. The

record leaves these important facts entirely open to

conjecture, speculation, and surmise. 

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 19 of 30
20

Id. Thus, the negotiations were considered “too thin a reed to

support the district court’s exercise of personal jurisdiction

over [the defendant].” Id.

Turning to the case at hand, with respect to the contract

claim, plaintiff has failed to establish the minimum contacts

necessary to support exercise of personal jurisdiction over Lair. 

Plaintiff’s complaint alleges no conduct by Lair in New

Hampshire, alleges no communication directed by Lair to New

Hampshire entities, and does not identify the locations of the

customers and distributors to which Lair allegedly made

disparaging statements about plaintiff’s products.

In response to defendants’ motion to dismiss, plaintiff has

added little useful information, producing no evidence of any

relevant contract-related contacts. Rather, plaintiff relies on

the agreement’s choice-of-law provision, which provides that the

agreement is to be construed in accordance with and governed by

New Hampshire law. On the other hand, Lair testified, by

affidavit, that he has been in New Hampshire once in his life, in

1988 to visit a college friend, at that he said nothing about

NeoDevices’ products to anyone in New Hampshire.

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 20 of 30
21

For Lair to be subject to personal jurisdiction on

plaintiff’s contract claim, his contacts with New Hampshire must

have been “instrumental either in the formation of the contract

or in its breach.” Phillips Exeter Acad., 196 F.3d at 289. With

regard to where the Stock Redemption Agreement was formed,

plaintiff says nothing in its complaint or in response to

defendants’ motion to dismiss. Thus, this case is controlled by

United Electrical Workers, in which the absence of in-forum

contract negotiations was fatal to the plaintiffs’ claims. 

With regard to the alleged breach of the non-disparagement

provision of the Stock Redemption Agreement, there are two

obstacles to the exercise of personal jurisdiction. First, as

explained above, the contract establishes a duty not to

disparage. However, even assuming that the agreement could be

breached in New Hampshire by disparaging comments directed to

entities in New Hampshire, plaintiff has alleged no such

communications, and defendant has affirmatively denied that he

made any statements - disparaging or otherwise - to entities in

New Hampshire. Thus, there is no support for the proposition

that Lair breached his contract with plaintiff in New Hampshire. 

Second, there is also no support for the proposition that any

activities conducted in New Hampshire, or any communications

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 21 of 30
22

directed into New Hampshire, were instrumental in the formation

of the Stock Redemption Agreement.

Finally, as noted, plaintiff relies heavily on the choiceof-law clause in the Stock Redemption Agreement. In Burger King,

in the context of its purposeful availment analysis, the Supreme

Court explained that a choice-of-law provision “should [not] be

ignored in considering whether a defendant has ‘purposefully

invoked the benefits and protections of a State’s laws’ for

jurisdictional purposes.” 471 U.S. at 482. The Court then went

on to clarify that “such a provision standing alone would be

insufficient to confer jurisdiction.” Id. (emphasis added). In

the absence of any demonstration that Lair had contacts with

anyone in New Hampshire that were instrumental in either the

formation or breach of the Stock Redemption Agreement, the

choice-of-law provision in this case is indeed “standing alone”

and, thus, provides insufficient grounds upon which to exercise

personal jurisdiction over Lair. 

Accordingly, plaintiff has not satisfied the relatedness

inquiry with respect to Count III. 

Where a plaintiff fails to satisfy the relatedness

requirement, by failing to demonstrate sufficient contacts

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 22 of 30
23

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 v. HG Bermuda Exempted Ltd.,

437 F.3d 118, 138 (1st Cir. 2006) (ending personal jurisdiction

analysis after determining that plaintiff failed to satisfy

relatedness requirement); Ticketmaster, 26 F.3d at 207

(recognizing the possibility of situations in which “a court may

. . . dismiss a given case for lack of relatedness per se”). 

Nevertheless, the court will turn briefly to the issue of

purposeful availment.

2. Purposeful Availment

Assuming, for this analysis, that NeoMed did have sufficient

contacts with New Hampshire to establish relatedness, NeoDevices

is still unable to demonstrate purposeful availment. 

The second prong of the specific personal jurisdiction test

requires the court to consider whether the defendant’s contacts

with the forum state “‘represent a purposeful availment of the

privilege of conducting activities in the forum state.’” 

Sawtelle, 70 F.3d at 1389 (quoting United Elec. Workers, 960 F.2d

at 1089). Specifically, the court looks to whether the defendant

Case 1:08-cv-00375-SM Document 18 Filed 03/12/09 Page 23 of 30
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“engaged in any purposeful activity related to the forum that

would make the exercise of jurisdiction fair, just, or

reasonable.” Id. at 1391. “[T]he cornerstones upon which the

concept of purposeful availment rest are voluntariness and

foreseeability.” Id. With these basic principles in mind, the

court turns to the parties’ arguments on the issue of purposeful

availment.

Under established First Circuit precedent, this is the point

in the analysis when it is appropriate to apply the Calder

effects test. See Swiss Am. Bank, 274 F.3d at 624 (explaining

that the Calder effects test is only relevant to the purposeful

availment prong). 

The “effects” test focuses on the effects of the defendant’s

conduct. Calder, 465 U.S. at 788-89. The plaintiff in Calder

brought a libel action in California state court against the

National Enquirer, a Florida corporation with its principal place

of business in Florida. Two other defendants, Calder and South,

were Florida residents responsible for researching and writing

the allegedly libelous article. South researched the article in

Florida through phone calls he made to California. The Calder

court held that jurisdiction existed over the defendants in the

forum state where:

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(I) [the defendants’] intentional actions were aimed at

the forum State, (ii) they knew that the article was

likely to have a devastating impact on the plaintiff,

and (iii) they knew that the brunt of the injury would

be felt by the plaintiff in the forum State where she

lived, worked and the article would have the largest

circulation.

Hugel v. McNell, 886 F.2d 1, 4 (1st Cir. 1989) (emphasis added)

(citing Calder, 465 U.S. at 789-90). The defendants’ knowledge

that the major impact of their article would be felt in the forum

state was held to constitute a purposeful contact from which the

authors could reasonably expect to be haled into the forum

state’s courts to defend their actions. Calder, 465 U.S. at

789-90.

In this case, there is no indication that any of defendants’

allegedly false statements or use of product codes were

intentionally aimed at New Hampshire. That NeoDevices is located

in New Hampshire is entirely fortuitous in the context of the

conduct on which plaintiff bases its claims. Unlike Calder,

where the Florida defendant made false statements in California

through his article’s publication in California about the

California plaintiff to California third parties who were in a

position to hire or not hire the plaintiff in California, NeoMed

and Lair are not alleged to have made any statements in New

Hampshire and are not alleged to have made any statements to New

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26

Hampshire third parties. There is no evidence of purposeful

contact with New Hampshire because plaintiff makes no allegations

about the locations of those to whom defendant communicated

directly or contacted through its use of product codes.

Plaintiff relies on Lex Computer and Management Corp. v.

Eslinger to argue that since NeoMed’s statements harmed the

plaintiff’s business, and that damage occurred in New Hampshire,

NeoMed should have reasonably anticipated being haled into court

in New Hampshire. Lex Computer & Management Corp v. Eslinger,

676 F. Supp. 399, 402 (D.N.H. 1987). But, the defendant in Lex

Computer purposefully availed himself of the privilege of

operating in the forum state when he sought out the plaintiff’s

clients and potential clients in New Hampshire and sent them

defamatory letters about the plaintiff. Id. at 404. Further,

the plaintiffs in Lex Computer were able to show that the

defendants knew, or should have known, that their conduct would

injure a person in New Hampshire, by pointing to letters and

phone calls from the plaintiffs and their attorney to inform

defendants that their defamatory letters were adversely affecting

the plaintiffs’ business. Id. at 403-04. Unlike the plaintiff

in Lex Computer, NeoDevices has not pointed to any evidence that

defendants contacted customers in New Hampshire. Further, there

is no evidence that NeoMed specifically sought out NeoDevices’

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27

customers or sent any letters to them. In fact, it is unclear

how frequently or infrequently NeoMed was even in contact with

NeoDevices’ customers. 

Plaintiff also attempts to liken this case to VELCRO Group

Corp. v. Billarant, 692 F. Supp. 1443 (D.N.H. 1988). Again,

VELCRO is distinguishable from the case at hand. VELCRO dealt

with two sets of defendants: (1) Aplix, Inc. and Aplix, S.A.; and

(2) Billarant and Queval. Id. at 1444-45. Aplix fraudulently

procured a patent with the specific intention of directing the

patent against VELCRO, a New Hampshire citizen. Id. at 1447. 

Aplix, Inc.’s fasteners, covered by its patent, are also

incorporated in cars and trucks sold and used in New Hampshire. 

Id. at 1446. Additionally, Billarant sent two notices of

infringement letters to VELCRO at its New Hampshire headquarters. 

Id. at 1447. The court found that the plaintiffs in VELCRO met

their burden of showing that defendants knew, or should have

known, that their conduct could injure a person in New Hampshire. 

Id. at 1448. Unlike VELCRO, NeoDevices fails to put forth any

assertion or evidence that would indicate that defendants had any

communication with NeoDevices or any other New Hampshire

citizens. Nor has NeoDevices presented evidence that defendants

sold products in New Hampshire. Thus, plaintiff falls short of

meeting its burden of showing that defendants knew, or should

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have known, that their conduct could injure someone in New

Hampshire, and, so, could reasonably expect to be haled into

court here to defend their actions.

Plaintiff says it is sufficient that defendants used

deceptively similar product codes to cause injury in New

Hampshire. However, plaintiff has failed to show that defendants

have done anything more than place products into the stream of

commerce. Selling a product is insufficient to show purposeful

availment: 

The placement of a product into the stream of commerce

without more, is not an act of the defendant

purposefully directed toward the forum State. 

Additional conduct of the defendant may indicate an

intent or purpose to serve the market in the forum

State . . . . But a defendant’s awareness that the

stream of commerce may or will sweep the product into

the forum State does not convert the mere act of

placing the product into the stream into an act

purposefully directed toward the forum State.

Hugel, 886 F.2d at 4 (quoting Asahi Metal Indus. Co. v. Super.

Ct., 480 U.S. 102, 112 (1987)). Without any showing that

defendants purposefully directed activities specifically to New

Hampshire, plaintiff falls short of demonstrating purposeful

availment. 

With respect to the Stock Redemption Agreement, plaintiff

argues that Lair purposefully availed himself of New Hampshire’s

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laws and protections due to the contract’s choice of law

provision specifically designating New Hampshire law as governing

the contract. A contract provision is not conclusive, but can

tip the scales to reinforce a nonresident defendant’s deliberate

affiliation with the forum state. Ganis Corp. of Cal. v.

Jackson, 822 F.2d 194, 198 (1st Cir. 1987). Based on the

discussion above, however, Lair’s executing the Stock Redemption

Agreement does not tip the scales enough to establish that Lair

deliberately affiliated with New Hampshire. Unlike Northern

Laminate, this is not a case in which an out-of-state defendant

is alleged to have injured a New Hampshire plaintiff during the

course of an ongoing business relationship between the two. The

terms of the agreement, as far as NeoDevices has described them,

were that Lair and NeoDevices would not disparage each other in

the course of their separate businesses. However, plaintiff has

not pointed to any facts that would support a conclusion that

Lair was involved in an ongoing business relationship with

NeoDevices (and, again, the record is silent about whether any of

defendants’ contacts with the forum were instrumental either in

the formation or breach of the contract).

In sum, plaintiff has failed to meet the purposeful

availment prong with respect to all counts. Because plaintiff

has met neither the relatedness inquiry nor the purposeful

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availment inquiry, it is unnecessary to consider the Gestalt

factors that make up the reasonableness inquiry.

Conclusion

Because plaintiff fails to satisfy the relatedness and

purposeful availment tests, the court lacks specific personal

jurisdiction over NeoMed and Lair. Accordingly, defendants’

motion to dismiss (document no. 6) is granted.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

March 12, 2009

cc: Michael J. Lambert, Esq.

Rachel A. Hampe, Esq.

Thomas J. Donovan, Esq. 

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