UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Joseph Byrne

v. Civil No. 07-cv-43-JD

Opinion No. 2007 DNH 082

Brunswick Corporation, et al.

O R D E R

After his high performance power boat was destroyed by fire

on Lake Winnipesaukee in July of 2005, Joseph Byrne brought suit

against the manufacturer of the boat's engines, the manufacturer

of accessories installed on the boat, and individuals who were

involved in the sale and service of the boat. Frank Brancaccio,

d/b/a Frank's Marine, moves to dismiss the claims against him on

the ground that the court lacks personal jurisdiction over him. 

Byrne objects.

Standard of Review

When a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(2) is presented for prima facie review, the court

takes the facts alleged in the complaint as true and construes

them in the light most supportive of jurisdiction. Negron-Torres

v. Verizon Commc'ns, Inc., 478 F.3d 19, 23 (1st Cir. 2007). The

court also considers facts properly submitted by the defendant

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but only to the extent that those facts are undisputed. Id. In

response to a defendant's motion to dismiss under the prima facie

standard, the plaintiff bears the "burden to demonstrate the

existence of every fact required to satisfy both the forum's

long-arm statute and the Due Process Clause of the Constitution." 

Id. at 24 (internal quotation marks omitted).

Background

Byrne alleges that he bought a 2005 Donzi Scorpion high

performance boat in July of 2004 from Gillan Marine in Alton Bay,

New Hampshire. The boat was equipped with engines and outdrives

manufactured by the Brunswick Corporation. In August of 2004,

Gillan Marine replaced parts of the starboard engine under the

manufacturer's warranty. At the end of the boating season in New

Hampshire, Byrne took the boat to Florida to have the hull "blue

printed" and for personal use there. 

In December of 2004, Byrne contacted Frank's Marine,

operated by Frank Brancaccio, in Berlin Center, Ohio, to install

Whipple Superchargers to the engines. Byrne chose Frank's Marine

as an authorized dealer for the Whipple Superchargers. He talked

to Brancaccio on the telephone several times to arrange for

service. On December 21, 2004, Brancaccio sent Byrne a contract

to sign for installation of the Whipple superchargers that was

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addressed to Byrne in Alton Bay, New Hampshire. The boat,

however, was in Florida. Brancaccio transported the boat from

Florida to Ohio in March of 2005 where it was serviced at Frank's

Marine until mid-July of 2005. 

Byrne transported the boat back to Lake Winnipesaukee, New

Hampshire, on July 24, 2005. He tested the boat and found that

the new port engine was having problems, which continued the next

day when he went for a test run with Ernest Gillan who operates

Gillan's Marine in Alton Bay. Gillan said that an ignition

module would fix the problem. The next day, July 26, Byrne

smelled smoke while operating the boat just outside of Alton Bay. 

When he opened the engine hatch, he saw flames along the left

side of the port engine. The boat burned to the water line and

was declared a total loss.

Discussion

Bryne brings claims of negligence, breach of warranty,

violation of the Magnuson-Moss Act, and violation of New

Hampshire's Consumer Protection Act against the defendants,

including Frank Brancaccio. Brancaccio moves to dismiss the

claims against him for lack of personal jurisdiction. Byrne

objects.

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Brancaccio filed a reply to Byrne's objection. Byrne moves

to strike the reply on the ground that Brancaccio failed to file

a notice of his intent to file a reply as provided in Local Rule

7.1(e). Contrary to Byrne's motion, the purpose of Local Rule

7.1(e) is to establish a time when a motion is ripe for

consideration by the court. Failure to file a notice of intent

to file a reply simply results in the motion being ripe without

waiting for a reply. As Byrne provides no basis to strike

Brancaccio's reply, the motion is denied.

When, as here, a case is brought in this court pursuant to

diversity jurisdiction, the plaintiff "must show that the New

Hampshire long-arm statute grants jurisdiction, and if it does,

that the exercise of jurisdiction under the statute is consistent

with the requirements of the Federal Constitution." N. Laminate

Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005); Sawtelle

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

long-arm statute, New Hampshire Revised Statutes Annotated §

510:4(I), provides jurisdiction over a nonresident who "transacts

any business within this state, commits a tortious act within

this state, or has the ownership, use, or possession of any real

or personal property situated in this state." The statute has

been interpreted to confer personal jurisdiction "to the full

extent the statutory language and due process will allow." N.

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Laminate, 403 F.3d at 24 (internal quotation marks omitted). Due

process requires sufficient contacts with the forum state to

support jurisdiction, which may be satisfied under general

jurisdiction or specific jurisdiction analyses. Id.

Brancaccio contends that jurisdiction is lacking because he

conducts his business, as Frank's Marine, only in Ohio and that

neither he nor his business has had any substantial contacts with

New Hampshire. Byrne responds that specific personal

jurisdiction exists over Brancaccio based on his communications

with Byrne in New Hampshire and the service provided to the boat,

which was registered in New Hampshire and returned to New

Hampshire after servicing in Ohio. 

Specific personal jurisdiction exists if the nonresident

defendant has had contacts with the forum state, New Hampshire in

this case, that are related to the claim, if the defendant

purposely availed himself of the privilege of doing business

here, and if exercising personal jurisdiction would be reasonable

under the circumstances. Negron-Torres, 478 F.3d at 24. When

the plaintiff's assertion of specific jurisdiction is based on

contract claims, such as breach of warranty, the plaintiff may

rely on "inferences from the parties' prior negotiations and

contemplated future consequences, along with the terms of the

contract and the parties' actual course of dealing" to satisfy

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the jurisdictional requirements. Platten v. HG Bermuda Exempted

Ltd., 437 F.3d 118, 135 (1st Cir. 2006) (internal quotation marks

omitted). When jurisdiction is based on tort claims, such as

negligence, the plaintiff "must show a sufficient 'causal nexus'

between [the defendant's] contacts with [the forum] and [the

plaintiff's] causes of action." Id. (internal quotation marks

omitted). Although Byrne does not expressly differentiate

between his causes of action for purposes of showing

jurisdiction, he focuses on the contractual nature of his

relationship with Brancaccio.

Even if Byrne could satisfy the relatedness requirement, the

jurisdictional analysis fails at the second step because he has

not made even a prima facie case that Brancaccio purposefully

availed himself of doing business in New Hampshire. Defendants

who "'reach out beyond one state and create continuing

relationships and obligations with citizens of another state are

subject to regulation and sanctions in the other state for the

consequences of their actions.'" Id. at 136 (quoting Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985)). Merely

contracting with a citizen of another state, however, is not

enough to invoke personal jurisdiction. Id. Instead, a

plaintiff relying on specific personal jurisdiction based on a

contract theory must present evidence of action by the defendant

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that shows he directed activity into the forum state. Id. at

137. 

In this case, it is undisputed that Byrne reached out to

Brancaccio in Ohio to service his boat, not the other way around. 

Although Brancaccio sent the simple invoice contract to Byrne in

New Hampshire for his signature, he did so in response to Byrne's

contacting him about installation of the superchargers. Byrne

alleges that he had "a number of telephone conversations" with

Brancaccio about installing the superchargers and transporting

the boat from Florida to Ohio. Byrne does not say who made the

calls, where he was when the calls occurred, or dispute the

context that the calls were the result of his initial overture to

Frank's Marine. 

Further, the boat was serviced in Ohio, and any future

service by Frank's Marine would have been done in Ohio. It is

unlikely that either party intended or expected a continuing

relationship, given the distance and the transportation required

for servicing the boat in Ohio. Brancaccio transported the boat

from Florida, not New Hampshire, to Ohio for service. Assuming

that Brancaccio was aware that the boat was registered in New

Hampshire and that Byrne used the boat in New Hampshire, that

information in these circumstances is insufficient to support

specific personal jurisdiction based on a contract theory. 

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Byrne does not address Brancaccio's contacts with New

Hampshire for purposes of specific jurisdiction based on his

negligence claim. The facts presented here, however, would not

support jurisdiction. A prima facie case of personal

jurisdiction under a tort theory requires showing that

Brancaccio's activities in New Hampshire were important or

material to Byrne's negligence claim. Platten, 478 F.3d at 137. 

Brancaccio's activities in New Hampshire are limited to sending a

contract to Byrne at his address in Alton Bay and telephone

conversations with Byrne, who may have been in New Hampshire. 

Importantly, Brancaccio provides services, not tangible

goods, and conducts his business entirely in Ohio, which does not

support the jurisdictional analysis. See Harlow v. Children's

Hosp., 432 F.3d 50, 63 (1st Cir. 2005). To the extent Byrne

would argue that "but for" Brancaccio's contract with Byrne for

the superchargers the boat would not have burned in New

Hampshire, that is not enough to support personal jurisdiction

based on his negligence claim. Id. at 62. No other connection

is apparent.

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Conclusion

For the foregoing reasons, the plaintiff's motion to strike

(document no. 19) is denied. The defendant's motion to dismiss

for lack of personal jurisdiction (document no. 14) is granted. 

All claims against defendant Frank Brancaccio, d/b/a Frank's

Marine, are dismissed for lack of personal jurisdiction.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 26, 2007

cc: Clyde C. Greco, Jr., Esquire

Timothy G. Kerrigan, Esquire

John A. Lassey, Esquire

James M. McNamee, Jr., Esquire

George R. Moore, Esquire

Peter J. Schulz, Esquire

Mary E. Tenn, Esquire

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