1

 The plaintiffs have since abandoned the fraud claim. 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Clearview Software

International, Inc. & 

Blue Ivy Solutions, Inc.

v. Civil No. 07-cv-0405-JL 

Opinion No. 2008 DNH 181

Christopher E. Ware

O R D E R

The plaintiffs commenced this action with a five-count writ

of summons in Hillsborough County Superior Court, alleging that

the defendant (1) tortiously interfered with the plaintiff’s

contractual relations, (2) engaged in fraud,1 and (3) conspired

with others in doing so. The plaintiffs also alleged violations

of (4) the New Hampshire Consumer Protection Act, see N.H. Rev.

Stat. Ann. 358-A, and (5) the New Hampshire Uniform Trade Secrets

Act, see N.H. Rev. Stat. Ann. 350-B. The defendant, Christopher

Ware, timely removed the action and moved to dismiss the

complaint, asserting that he lacks sufficient minimum contacts

with New Hampshire to be subject to personal jurisdiction in this

court. See Fed. R. Civ. P. 12(b)(2). The plaintiffs objected,

arguing that the court possesses both general and specific

jurisdiction over Ware, and requested, in the alternative, an

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“opportunity to engage in jurisdictional discovery in an effort

to uncover additional facts to support their jurisdictional

claim.” 

I. Applicable Legal Standard

“It is basic law that a court must have personal

jurisdiction over the parties to hear a case, that is, the power

to require the parties to obey its decrees.” U.S. Swiss American

Bank, Ltd., 274 F.3d 610, 617 (1st Cir. 2001). Where the court’s

personal jurisdiction over a defendant is contested, the

plaintiff bears the burden of establishing that jurisdiction

exists. See Negron-Torres v. Verizon Communications, Inc., 478

F.3d 19, 23 (1st Cir. 2007). Under the applicable “prima facie

standard, . . . the district court considers ‘only whether the

plaintiff has proffered evidence that, if credited, is enough to

support findings of all facts essential to personal

jurisdiction.’” Negron-Torres, 478 F.3d at 23 (quoting Boit v.

Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)). In

order to make its prima facie showing, the plaintiff “ordinarily

may not rest upon the pleadings but is obliged to adduce evidence

of specific facts.” Foster-Miller, Inc. v. Babcock & Wilcox

Can., 46 F.3d 138, 145 (1st Cir. 1995). The court, in turn, must

take those facts “affirmatively alleged by the plaintiff as true

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(whether or not disputed) and construe them in the light most

congenial to the plaintiff’s jurisdictional claim.” Mass. Sch.

of Law, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998). 

II. Background

Symbol Technologies, Inc. (“Symbol”) designs, manufactures,

and sells various computer related products. The plaintiffs,

Clearview Software International, Inc. (“Clearview”), and Blue

Ivy Solutions, Inc. (“Solutions”)--both companies with a

principal place of business in New Hampshire--are authorized

resellers of Symbol’s products. At all times relevant to this

complaint, the defendant worked for Symbol as its Northeast

Channel Account Manager, covering the plaintiffs’ New Hampshire

offices, which entailed:

• coordinating all business activities that involve

Symbol products, services, personnel, business

partners, and distributors or resellers; 

• coordinating all financing and ordering;

• facilitating introductions between Symbol

partners;

• facilitating trade show activities;

• managing equipment training and certification;

• managing conflict in the Symbol business

environment, including conflict among Symbol

partners or their employees; and

• providing sales prospects to the Symbol resellers

in its region.

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Ware also managed the accounts of resellers, distributors, and

customers of Symbol’s products, and served as their primary point

of contact. With respect to Symbol’s clients located in New

Hampshire, which included Solutions, Ware regularly communicated

with their representatives and visited them at their offices to

conduct business. Solutions’ current Chief Executive Officer has

alleged that Ware had “weekly, and at times daily” contact with

Solutions’ employees via telephone calls, e-mails, and face-toface meetings. In support of these claims, the plaintiffs have

identified seven e-mails that Ware sent to Solutions’ executives

between December 5, 2005, and November 10, 2006. 

According to the plaintiffs’ Amended Complaint, Ware, in his

capacity as Symbol’s regional manager, conspired with Solutions’

competitors to:

1. Misappropriate trade secrets and

other proprietary information owned by the

plaintiffs, including computer hardware and

software, the TEA-Perishable software,

customer lists, business pipelines, and

customer proposals; 

2. Use this information to secure

contracts and business with customers of the

plaintiffs; and 

3. Inform customers of the plaintiffs

that Blue Ivy Mobility Solutions, LLC--

another company that directly competes with

Solutions--is, in fact, Solutions with a new

name, and has been diverting business,

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contracts and customers of the plaintiffs to

its competitors.

The plaintiffs allege that these claims arise directly out of

Ware’s specific contacts with New Hampshire. In particular, the

plaintiffs point to an e-mail Ware sent to Gary Bowser, the thenPresident of Solutions who has since gone to work for Blue Ivy

Mobility Solutions, a competitor of Solutions, inquiring about

“the new company.” The plaintiffs argue that “this e-mail

evidences the defendant’s role in facilitating, through his

contacts with Bowser in the State of New Hampshire, the

establishment of [Blue Ivy] Mobility [Solutions] as a Symbol

distributor standing in the shoes of Solutions.” 

III. Analysis

Based on the evidence before the court, it is unclear

whether Ware possesses sufficient minimum contacts with New

Hampshire “such that the maintenance of the suit does not offend

traditional notions of fair play and substantial justice.” Int’l

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The plaintiffs

have, however, presented a claim of jurisdiction that is, at

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

610, 626 (1st Cir. 2001) (“a diligent plaintiff who sued an outof-state corporation and who makes out a colorable case for the

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existence of in personam jurisdiction may well be entitled to a

modicum of jurisdictional discovery”). As the plaintiffs have

produced specific e-mails that Ware apparently directed to

Solutions’ employees in New Hampshire, and which relate, at least

arguably, to the plaintiffs’ underlying claims, the court

concludes that jurisdictional discovery is likely to shed light

on whether jurisdiction over Ware is appropriate. See id. at 625

(explaining the district court’s broad discretion to order

jurisdictional discovery). 

IV. Conclusion

Ware’s motion to dismiss (document no. 5) is denied without

prejudice to its reinstatement after the plaintiff has had an

opportunity to conduct jurisdictional discovery. The court

grants the plaintiffs 60 days to conduct limited discovery,

restricted to specific facts that bear on the issue of personal

jurisdiction. The permitted discovery is limited to 20 written

interrogatories, and 15 document requests. The clerk is directed

to schedule a show-cause hearing 60 days from the issuance of

this order to provide the plaintiffs with an opportunity to

persuade the court that its complaint should not be dismissed for

lack of personal jurisdiction. 

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SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: September 30, 2008

cc: Cyrus F. Rilee, III, Esq.

Jennifer Turco Beaudet, Esq.

Paul R. Kfoury, Sr., Esq.

Daniel E. Will, Esq.

Jonathan M. Shirley, Esq.

Leigh S. Willey, Esq.

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