UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

GT SOLAR INCORPORATED, 

 Plaintiff, 

v. 

FABRIZIO GOI, 

 Defendant. 

 Case No.: 1:08-cv-249-JL 

PLAINTIFF GT SOLAR’S RESPONSE TO

DEFENDANT GOI’S MOTION TO SUPPLEMENT THE RECORD 

Defendant Fabrizio Goi’s (“Goi’s”) Motion to Supplement the Record (“Motion to 

Supplement”) should be denied because it is futile and it is late. The requested supplementation 

does not change the merits of the jurisdictional issue that is under submission with the present 

record. Moreover, Goi’s third attempt to supplement the record with testimony comes late—at 

some point, this briefing must come to an end. Should the Court nevertheless grant the Motion 

to Supplement and conclude that it does materially impact the record, then Plaintiff GT Solar 

Incorporated (“GT Solar”) seeks leave to supplement the record with additional evidence of its 

own.

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I. Goi’s Requested Supplementation Is Futile Because It Does Not Alter The Merits of the 

Jurisdictional Inquiry. 

A. Goi’s new testimony at best raises additional fact issues that this Court should not 

decide against GT Solar under the “likelihood” standard, and in fact does not 

materially change the record as it pertains to the jurisdictional inquiry. 

In Foster Miller, Inc. v. Babcock & Wilcox - Canada, 46 F.3d 138, 148 (1st Cir. 1995), 

the First Circuit cautioned that “to the limited extent that dismissals under the [intermediate 

“likelihood” standard adopted by this Court] are justified at all, they will happen only rarely. 

Even then, the exact bounds of permissible application may not always be evident.” In so doing, 

the First Circuit stated that a district court can under no circumstances dismiss a case by finding 

facts against a plaintiff that are “very closely related to the merits of the plaintiff’s substantive 

case, thus prematurely extinguishing a plaintiff’s ability to present its case in a full and fair 

manner.” Id. 

This “mischief”—to use the First Circuit’s parlance—is precisely what Goi’s 

Supplemental Motion invites. In essence, Goi asks this Court to dismiss the case on the basis of 

at least three factual conclusions: (1) If Goi received trade secrets from New Hampshire, he only 

received them before September 16, 2006, when he “verbally resigned from VRV upon receiving 

an offer” from Tecniplant S.p.A; (2) Goi could not have misappropriated any trade secrets 

received from GT Solar before September 16, 2006 because his only business relationship 

outside of VRV while working on the GT Solar project was with Tecniplant, a company that had 

no use for GT Solar trade secrets; and (3) Goi could not have misappropriated any GT Solar 

trade secrets that he received after September of 2006 (from New Hampshire or elsewhere) as a 

result of a relationship with GT Solar that was forged and nurtured in New Hampshire (e.g.

building a relationship with Jim Bosco, participating in contract negotiations, being contractually 

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designated VRV’s contact with GT Solar, being principal day-to-day VRV contact with GT 

Solar). These are conclusions that this Court should not and, given the record, cannot make. 

Moreover, Goi’s new proffered testimony does not materially change the record as it now 

stands. Goi does not state when his relationship with PPP-E commenced. Assuming it to be 

true, the fact that Goi obtained a job offer from Tecniplant on September 13, 2006 does not mean 

that he was not then also communicating with PPP-E. Nor does Goi state that he did not obtain 

GT Solar trade secrets from New Hampshire after September 16, 2006. Indeed, GT Solar’s Jim 

Bosco attests to a number of contacts between him and Mr. Goi after September 2006 that 

involved the communication of proprietary GT Solar information (See, e.g., 9/19/08 Declaration 

of J. Bosco (“Bosco Dec.”), at ¶ 33 (referencing the furnishing of proprietary information by 

him to Goi at Goi’s request in January of 2007)). And, finally, Goi does not present any 

evidence to rebut GT Solar’s evidence—direct and inferential—that his contacts with New 

Hampshire facilitated the misappropriation of proprietary GT Solar information received from 

New Hampshire or Montana after September 2006. 

In sum, assuming it were the case that to secure jurisdiction over Goi’s person in this 

Court, GT Solar must ultimately establish that the misappropriation of its trade secrets were 

“proximately caused” by Goi’s contacts with New Hampshire, the record now before this 

Court—even if supplemented a third time by Goi—compels the denial of Goi’s jurisdictional 

challenge under the intermediate “likelihood” standard. But, as explained below and 

acknowledged by this Court during last week’s hearing, the jurisdictional standard allows for less 

than a “proximate cause” standard. 

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B. The First Circuit Has Found Specific Jurisdiction When There Is A Substantial 

Relationship Between The Parties And The Torts At Issue Are Extra-Territorial. 

In his effort to supplement to record Goi takes the position that unless his 

misappropriation of GT Solar’s trade secrets took place in New Hampshire, personal jurisdiction 

does not exist. (Motion to Supplement, at ¶ 2). But that is not the law. The relatedness inquiry 

applies a “flexible, relaxed standard[.]” Pritzker v. Yari, 42 F.3d 53, 61 (1st Cir. 1994). The 

First Circuit warns that “strict adherence to a proximate cause standard in all circumstances is 

unnecessarily restrictive.” Nowak v. Tak How Inv., Ltd., 94 F.3d 708, 715 (1st Cir. 1995). 

Indeed, where there is a substantial relationship entailing in-state contacts between the parties 

and an extra-jurisdictional tort occurs “in the wake of” that relationship, there is “no reason why” 

“the absence of proximate cause per se should always render the exercise of specific jurisdiction 

unconstitutional.” Id., at 715-716

In Nowak, the First Circuit held that the absence of in-forum tortious conduct does not 

preclude the constitutional exercise of specific personal jurisdiction. 94 F.3d at 716. There, the 

plaintiff’s wife—a Massachusetts resident—drowned in a Hong Kong swimming pool on the 

premises of a hotel owned by the defendant. Plaintiff sued in Massachusetts for wrongful death. 

The defendant had no physical presence in the United States, and it was undisputed that no 

negligent act by the defendant ever occurred in Massachusetts. Id. at 709. Like here, however, 

there was a substantial history of communications—faxes, phone calls and letters—between 

defendant and the plaintiff in Massachusetts. Id. These communications blossomed into a 

business relationship wherein the plaintiff became one of the defendant’s regular customers. 

Even though no tortious conduct had occurred in Massachusetts, the First Circuit found that 

personal jurisdiction was properly exercised there because the hotel stay—and thus the 

drowning—resulted from an ongoing business relationship between the plaintiff and the hotel. 

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Because of this relationship, which had been fostered by the defendant’s in-forum 

communications, the “nexus between the contacts and the cause of action is sufficiently strong 

to” establish relatedness. Id., at 715-16. 

As in Nowak, given the substantial relationship between Goi and GT Solar in New 

Hampshire, whether Goi’s contacts in this state “proximately caused” the torts and breaches 

complained of in the GT Solar complaint is not determinative. Foreseeability is the lynchpin of 

the Due Process analysis, see id., at 716, and Goi’s systemic activity in New Hampshire as 

VRV’s principal agent in the GT Solar reactor fabrication relationship made it reasonably 

foreseeable for Goi to be held accountable in this Court for his torts and breaches, see id. (there 

is “no reason why” “the absence of proximate cause per se should always render the exercise of 

specific jurisdiction unconstitutional.”). That is so even if one accepts Goi’s argument that a 

misappropriation, if any, occurred with trade secrets lawfully obtained from Montana and 

transferred to PPP-E after his relationship with VRV and GT Solar ended. Indeed, such a 

scenario raises a second—and independent—basis for jurisdiction over Goi: Goi should have 

foreseen being held accountable in this Court because he understood that he was targeting and 

injuring a New Hampshire entity.

C. The Effects Test Satisfies “Relatedness” When A Defendant Deliberately Aims An 

Intentional Tort At An In-State Plaintiff 

In the seminal case of Calder v. Jones, Shirley Jones—an actress residing in California—

sued two Florida-based journalists in a California court over the publication of a defamatory 

story in the National Enquirer. 465 U.S. 783, 785 (1984). Focusing on the defendants’ personal 

conduct,1 the Court found two facts dispositive: 

 

1 The Court confined its inquiry to the actions of the individual defendants; it expressly did not 

take into account their employer’s act of distributing its newspaper in California as a 

“contact” attributable to the defendants. Id at 790 (“Petitioners are correct that their contacts 

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Petitioner South wrote and petitioner Calder edited an article that they knew 

would have a potentially devastating impact upon respondent. And they knew 

that the brunt of that injury would be felt by respondent in the State in which she 

lives and works and in which the National Enquirer has its largest circulation. 

Id., at 789–90. 

Based on these facts, the Court concluded that: “jurisdiction over petitioners in California 

is proper because of their intentional conduct in Florida calculated to cause injury to respondent 

in California.” Id., at 791. As the court noted, “[a]n individual injured in California need not go 

to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the 

injury in California.” Id. 

In Northern Laminate Sales, Inc. v. Davis, the New Hampshire plaintiff and Mr. Davis, 

the New York defendant, were in a business relationship that, like here, entailed substantial 

telephone, email, and mailed communications between the parties’ respective home states. 403 

F.3d 14, 18-20 (1st Cir. 2005). The plaintiff’s claim, however, arose from an allegedly 

fraudulent statement that occurred in a meeting at the Defendant’s New York offices. The 

Defendant argued that the “only relevant contact between himself, a New York resident, and 

New Hampshire, the location of the suit, was the impact of the allegedly fraudulent 

misrepresentations he made during [the] meeting . . . in New York.” Id., at 21. He further 

argued that “any other contacts [were] ‘irrelevant’ because these communications ha[d] no 

‘nexus’ with the fraud.” Id.

Relying on Calder, the First Circuit quickly dispatched these arguments. Id., at 24. As 

the court noted, the act of committing a deliberate fraud on an acknowledged resident of New 

Hampshire, was itself a “contact” with New Hampshire, even though the defendant “had not 

stepped foot in New Hampshire for over ten years.” Id., at 25 (“[A] defendant need not be 

 

with California are not to be judged according to their employer's activities there.”). 

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physically present in the forum state to cause injury (and thus “activity” for jurisdictional 

purposes) in the forum state.”). Moreover, because the plaintiff’s injury was a direct result of 

this deliberate conduct, the relatedness element was satisfied. Id. 

In seeking leave to supplement the record, Goi cites to this Court’s decision in PFIP, 

LLC v. You-Fit, Inc., 2009 DNH 59; 2009 WL 1121359 (D.N.H. April 27, 2009). In that case, 

this Court suggested in dicta2 that Northern Laminate Sales did not require an exercise of 

jurisdiction when the plaintiff claimed to have suffered harm in New Hampshire resulting from 

the defendants’ allegedly infringing activities that occurred in another state. Id., at *14 n.22. For 

this point, the court cited another recent unpublished case from this district: NeoDevices, Inc. v. 

Neomed, Inc ., 2009 DNH 20, 2009 WL 689881, at *4 (D.N.H. Mar. 12, 2009). Both PFIP and 

NeoDevices sought to distinguish Northern Laminate Sales on the grounds that, in the latter case, 

the defendant “had considerable contact with New Hampshire,” by telephone and email, and that 

such contacts were “overwhelming when compared to defendants’ alleged contacts” in the cases 

at bar. NeoDevices, 2009 WL 689881 at *4 & n.3; see also PFIP 2009 WL 1121359 at *14 n.22 

(citing NeoDevices).3 Thus, contrary to Goi’s position, the proposition that relatedness can under 

the facts of this case be established by in-forum effects of an extra-forum tort is not entirely 

inconsistent with prior rulings of this Court and that of others, but supported by Supreme Court 

and First Circuit precedent. 

 

2 The Court ultimately assumed that relatedness was met and dismissed the case because the 

plaintiff did not satisfy the third “unreasonableness” prong of the personal jurisdiction 

analysis. See PFIP; 2009 WL 1121359 at *13 (assuming without deciding that relatedness 

and purposeful availment were established). 

3 Contrary to some First Circuit precedent, GT Solar does not believe that the Supreme Court’s 

holding in Calder requires substantial contacts with the forum state where there is conduct 

designed to target and injure a forum state resident. But addressing this issue is neither 

appropriate before this Court nor necessary given that the facts here do establish systematic 

contact by the defendant with the forum state. 

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Here, GT Solar has submitted strong evidence establishing the “considerable contacts” 

that were present in Northern Laminate Sales and which were determined to be distinguishingly 

absent in NeoDevices, and PFIP. The regular contacts between Goi and GT Solar—by a 

constant stream of mutual exchanges of email, telephone, and other communications, and by a 

personal visit to GT Solar’s New Hampshire Headquarters by Goi—are sufficient to establish 

that Goi’s contacts relate to GT Solar’s claims even if Goi did not physically commit any tortious 

act while in the jurisdiction of the State of New Hampshire. See The Scuderi Group, LLC v. 

LGD Technology, LLC, 575 F. Supp. 2d 312, 321-22 (D. Mass. 2008) (in misappropriation case, 

holding that in-forum contacts that established relationship leading to exchange of trade secrets 

were sufficiently related, even though the alleged misappropriation occurred outside the forum). 

This comports with both NeoDevices’ reading of Northern Laminate Sales, as well as the clear 

holding of Nowak and the plain language of New Hampshire’s long-arm statute. 

II. Goi’s Motion to Supplement The Record Is Late 

In moving to supplement the record, Goi notes that it was not until last week’s hearing 

that GT Solar advanced the argument that Goi had a relationship with PPP-E that likely preexisted his departure from VRV and impacted his relationship with GT Solar. (Motion to 

Supplement, at ¶ 3). That simply is not the case. Goi’s “sudden” departure from VRV was 

trumpeted in GT Solar’s briefing and pleadings to communicate just that. Goi had ample 

opportunity to rebut that charge before now. Indeed, he still does not rebut the charge in his third 

affidavit, much less offer any meaningful insight into his relationship with PPP-E while he was 

working with GT Solar. 

As the First Circuit has held, a denial of Goi’s Motion to Dismiss at this stage merely 

defers “until trial . . . the final ruling on jurisdiction.” Boit v. Gar-Tec Products, Inc., 967 F.2d 

671, 678 (1st Cir. 1992). “Rather than allowing full opportunity for both parties to present all 

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relevant evidence and requiring that plaintiffs, at a pretrial hearing, mount proof which would, in 

effect, establish the validity of their claims and their right to the relief sought,” id., this Court 

“may place reasonable constraints on the scope and length of the evidentiary hearing,” id. Here, 

Goi has litigated his motion to dismiss for lack of personal jurisdiction for over a year. He has 

filed three personal declarations, as well as multiple motions, oppositions and replies. GT Solar 

has submitted twenty-six separate pieces of evidence rebutting Goi’s motion and proving the 

existence of this Court’s personal jurisdiction over Goi. (see Bosco Dec., Exs. 1-26). It is time to 

proceed on the merits. A denial of Goi’s jurisdictional motion would give Goi the “consolation 

of having been afforded a detailed demonstration, beyond a mere prima facie showing, of why 

the court deems it fair to exercise jurisdiction, at least provisionally.” Foster Miller, Inc., 46 

F.3d at 148. 

III. Conclusion 

For the foregoing reasons, Goi’s Motion to Supplement should be denied. Should the 

Court decide to grant the Motion to Supplement and conclude that the supplemental testimony is 

material to the merits of the jurisdictional issue before it, then GT Solar seeks leave to 

supplement the record with additional evidence of its own. 

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Date: September 21, 2009 

 

GT SOLAR INCORPORATED, 

By its attorneys: 

/s/ R. Matthew Cairns 

 R. Matthew Cairns (N.H. Bar No. 411) 

cairns@gcglaw.com 

GALLAGHER, CALLAHAN & GARTRELL 

Box 1415 

Concord, NH 03302-1415 

T: 603-228-1181 

 /s/ Luke L. Dauchot 

Luke L. Dauchot (Cal. Bar No. 229829) 

ldauchot@kirkland.com 

Michael J. Shipley (Cal. Bar No. 233674) 

mshipley@kirkland.com 

R.C. Harlan (Cal. Bar No. 234279) 

rharlan@kirkland.com 

KIRKLAND & ELLIS LLP 

777 S. Figueroa St. 

Los Angeles, CA 90017 

T: 213-680-8400 

F: 213-680-8500 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served this date via the Court’s 

Electronic Case Filing (ECF) system upon all parties. 

September 21, 2009 /s/ Luke L. Dauchot 

 Luke L. Dauchot (Cal. Bar No. 229829) 

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