Vu v. RSI Racing Solutions, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sonny Vu
v. Civil No. 19-cv-00680-LM
Opinion No. 2019 DNH 181
RSI Racing Solutions, Inc.
O R D E R
Plaintiff Sonny Vu sues defendant RSI Racing Solutions,
Inc. (“RSI”) for claims arising out of the parties’ agreements
regarding upgrades to a Dodge Viper automobile. RSI moves to
dismiss this action pursuant to Federal Rule of Civil Procedure
12(b)(2), claiming that the court lacks personal jurisdiction
over it. Doc. no. 14.1 Alternatively, RSI requests that the
court transfer this case to the United States District Court for
either the Eastern or Northern District of Texas pursuant to 28
U.S.C. § 1404(a). Doc. no. 15. Vu objects to both motions.
Doc. nos. 17 & 19. On October 11, 2019, the court heard oral
argument on these motions. Because Vu has failed to make a
prima facie showing that this court has personal jurisdiction
over RSI, the court cannot exercise jurisdiction over this suit.
Instead of dismissing this action, however, the court will
1 RSI also moves to dismiss for forum non conveniens.
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transfer the case to the United States District Court for the
Eastern District of Texas.
STANDARD OF REVIEW
When a defendant contests personal jurisdiction under Rule
12(b)(2), the plaintiff bears the burden of persuading the court
that jurisdiction exists. See Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998). Where,
as here, the court considers a Rule 12(b)(2) motion without
holding an evidentiary hearing, the court applies the prima
facie standard. See Sawtelle v. Farrell, 70 F.3d 1381, 1386 n.1
(1st Cir. 1995). To make a prima facie showing of jurisdiction,
a plaintiff cannot rest on the pleadings, but must adduce
evidence of specific facts supporting jurisdiction. See Foster-
Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st
Cir. 1995).
The court “draws the facts from the pleadings and the
parties’ supplementary filings, including affidavits, taking
facts affirmatively alleged by the plaintiff as true and viewing
disputed facts in the light most favorable to plaintiff.”
Sawtelle, 70 F.3d at 1385. The court may also consider the
facts posited by defendant, to the extent they are
uncontradicted. See Mass. Sch. of Law, 142 F.3d at 34. But the
court need not “credit conclusory allegations or draw farfetched
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inferences.” Id. (internal quotation marks omitted). In short,
the court does not sit as a fact-finder; it “ascertains only
whether the facts duly proffered, fully credited, support the
exercise of personal jurisdiction.“ Rodriguez v. Fullerton
Tires Corp., 115 F.3d 81, 84 (1st Cir. 1997).
BACKGROUND
During all relevant times, Vu lived part-time in New
Hampshire and part-time in Vietnam. He paid taxes as a resident
of Salem, New Hampshire and held a New Hampshire driver’s
license.
Vu wanted to buy a used Dodge Viper automobile and sought
the assistance of an experienced Viper mechanic or dealer to
help him. In November 2015, Vu found RSI’s website,
www.racingsolutions.com. RSI is a corporation incorporated in
Texas, with its principal and sole place of business in Plano,
Texas. RSI does not have a physical office in New Hampshire or
own any assets or property in this state. RSI’s website
advertises it as “the leader in Dodge Viper performance” and
explains that it provides “retail or wholesale product sales,
manufacturing, tuning and turn-key installations.” Doc. nos. 11
at ¶ 8, 19-4 at 3. The website also advertises that “in less
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than 4 weeks you could be driving your very own RSI Twin Turbo
Gen 5 Viper!” Doc. no. 19-4 at 2.
Vu contacted RSI via email about visiting RSI while Vu was
in Texas. Doc. no. 14-3 at 3. RSI’s owner responded to Vu’s
email and informed him of RSI’s business hours. After visiting
RSI’s shop in Texas, Vu entered into a written contract with RSI
to purchase a used 2014 Dodge Viper located in West Virginia.
Doc. no. 14-4. Pursuant to the contract, an RSI representative
traveled to West Virginia on Vu’s behalf, inspected the 2014
Dodge Viper, purchased it, and transported it back to RSI’s shop
in Plano, Texas. Vu paid RSI $82,500.00 for the cost of the
vehicle, inspection, and transportation.
Vu and RSI subsequently made multiple oral agreements, via
email and telephone, regarding modifications and upgrades to the
Viper. See, e.g., doc. no. 14-7 at 2-4. RSI initiated these
agreements by calling Vu or sending him emails to convince him
to agree to and pay for additional upgrades. See doc. no. 19-3.
RSI mailed the sales orders for these upgrades to Vu’s mailing
address in New Hampshire. Doc. no. 14-5.2
2 During their correspondence, however, Vu also provided RSI
with two addresses in other states. He instructed RSI to mail a
package to an address in Burlingame, California, doc. no. 14-7
at 1, and he provided RSI with proof of insurance for the Viper
that listed an address in Farmers Branch, Texas, doc. no. 14-6
at 1. Vu asserts that both the California and Texas addresses
were business addresses associated with his former employer.
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Between November 2015 and August 2016, Vu sent RSI six
additional payments totaling over $150,000.00 for upgrades to
the Viper. Vu submitted all payments to RSI via wire transfer
from a bank in New Hampshire. RSI initially promised that the
modifications and upgrades would be completed during the first
half of 2016. It then postponed the completion date until 2017.
By June 2019, when Vu filed this suit, the modifications
remained incomplete and RSI retained possession of the Viper.
Vu filed an amended complaint in August 2019. Doc. no. 11. The
amended complaint alleges six claims: breach of contract; unjust
enrichment; breach of implied covenant of good faith and fair
dealing; violation of the New Hampshire Consumer Protection Act
(“CPA”); intentional misrepresentation; and conversion.
According to Vu, these claims are not premised on breach of the
parties’ written contract; rather, they arise from the parties’
subsequent oral agreements for modifications and upgrades to the
Viper.
DISCUSSION
RSI moves to dismiss Vu’s suit, arguing that this court
lacks personal jurisdiction over RSI. Alternatively, RSI
requests that this court transfer the action to a district court
in Texas. The court addresses each motion in turn.
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I. Motion to Dismiss for Lack of Personal Jurisdiction
“Personal jurisdiction implicates the power of a court over
a defendant.” Foster-Miller, 46 F.3d at 143. “An exercise of
jurisdiction must be authorized by state statute and must comply
with the Constitution.” Harlow v. Children’s Hosp., 432 F.3d
50, 57 (1st Cir. 2005). New Hampshire’s long-arm statute
reaches as far as the Constitution allows. Phillips Exeter
Acad. v. Howard Phillips Fund, 196 F.3d 284, 287 (1st Cir.
1999). Therefore, the court’s inquiry is whether the
constitutional requirements of due process have been met. See
id. “The Due Process Clause prohibits a court from imposing its
will on persons whose actions do not place them in a position
where they reasonably can foresee that they might be called to
account in that jurisdiction.” Id. Grounded in principles of
fundamental fairness, the court’s personal jurisdiction inquiry
focuses on the quality and quantity of defendant’s contacts with
the forum state. See id. at 288.
Personal jurisdiction may be either specific or general.
Cossaboon v. Maine Med. Ctr., 600 F.3d 25, 31 (1st Cir. 2010).
Vu argues only that this court has specific jurisdiction over
RSI. The court limits its analysis accordingly.
Specific jurisdiction allows the court to hear a case if
the action “relates sufficiently to, or arises from, a
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significant subset of contacts between the defendant and the
forum.” Baskin-Robbins Franchising LLC v. Alpenrose Dairy,
Inc., 825 F.3d 28, 35 (1st Cir. 2016) (internal quotation marks
omitted). To determine whether specific jurisdiction exists,
courts consider three elements: relatedness, purposeful
availment, and reasonableness. Phillips v. Prairie Eye Center,
530 F.3d 22, 27 (1st Cir. 2008). Plaintiff must prove that each
of these three requirements is met. Id. The court assumes for
the sake of argument that Vu can satisfy the relatedness prong
of the tripartite test and focuses its analysis on the
purposeful availment inquiry. See Copia Commc’ns, LLC v.
AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016) (skipping to
purposeful availment inquiry and resting decision on plaintiff’s
failure to meet that requirement); Adams v. Adams, 601 F.3d 1, 6
(1st Cir. 2010) (assuming for the sake of argument that
plaintiff could satisfy relatedness element and focusing on
purposeful availment requirement).
The purposeful availment requirement relates to the
defendant’s “intentionality” with respect to the forum state.
Adams, 601 F.3d at 6. In considering this element, the court
must ask “whether a defendant has deliberately targeted its
behavior toward the society or economy of a particular forum
such that the forum should have the power to subject the
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defendant to judgment regarding that behavior.” Baskin-Robbins,
825 F.3d at 36 (internal quotation marks and brackets omitted).
This requirement ensures that a defendant will not be subjected
to the exercise of jurisdiction based “solely on random,
isolated or fortuitous contacts with the forum state.” Id.
(internal quotation marks omitted).
The two “cornerstones” of purposeful availment are
voluntariness and foreseeability. PREP Tours, Inc. v. Am. Youth
Soccer Org., 913 F.3d 11, 19-20 (1st Cir. 2019). Voluntariness
requires that the defendant’s contacts with the forum state
result from actions of the defendant itself; not from the
unilateral actions of the plaintiff. See id. at 20.
Foreseeability in this context means that defendant’s conduct
and connection to the forum state “are such that he should
reasonably anticipate being haled into court there.” Id.
(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474
(1985)).
Vu contends that the court must conduct this analysis
separately with respect to his contract and tort claims. This
divided analysis is typically applied under the “relatedness”
prong of the specific jurisdiction test. See Phillips Exeter,
196 F.3d at 288-89 (explaining that “relatedness” inquiry is
done on a “claim-by-claim basis”). It may also be applied with
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respect to the purposeful availment inquiry when the contacts
underlying the plaintiff’s contract claims differ from those
forming the basis of the tort claims. See PREP Tours, 913 F.3d
at 21 at n.6.
That is not the case here, however. Though Vu attempts to
lay out distinct contacts underlying each category of claims,
the primary contacts he relies on regarding all claims are:
RSI’s website and Facebook page; the parties’ communications via
telephone and email while Vu was in New Hampshire that comprise
both the alleged misrepresentations and negotiations leading to
the agreements; a sales order RSI sent to Vu in New Hampshire;
RSI’s acceptance of multiple payments sent by Vu from New
Hampshire; and the length of the parties’ relationship (nearly
three years) caused by RSI’s failure to timely perform.3 Where,
as here, the contract and tort claims arise from the same
activity or occurrence and the court considers the same set of
contacts as to both claims, the court may conduct a single
purposeful availment analysis for both sets of claims. See PREP
Tours, 913 F.3d at 21 n.6; see also Phillips Exeter, 196 F.3d at
289-92 (analyzing contract and tort claims separately for
3 Vu has not identified which of RSI’s contacts with New
Hampshire, if any, relate to Vu’s conversion claim, which
concerns RSI’s continued exercise of dominion over the Viper in
Texas. See doc. no. 11 at ¶¶ 68-72.
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“relatedness” purposes, but not under purposeful availment
inquiry). Because Vu’s claims arise primarily from the
representations, communications, and correspondence between the
parties, the court will address RSI’s contacts with New
Hampshire under the contracts rubric. See Lucerne Farms v.
Baling Techs., Inc., 226 F. Supp. 2d 255, 258-59 (D. Me. 2002)
(analyzing both tort and contract claims under contract
framework when both sets of claims were based on representations
in the parties’ contract).
A. Voluntariness
Vu has adduced sufficient facts to show that RSI had some
voluntary contact with New Hampshire related to Vu’s claims.
For example, RSI sent a sales order to Vu in New Hampshire. See
Phillips, 530 F.3d at 28. The central question is thus whether
RSI’s contacts are such that RSI could reasonably anticipate
being haled into court here.
B. Foreseeability
For contract claims, the exercise of jurisdiction is
foreseeable to a defendant when it “deliberately directed its
efforts towards the forum state” or when the defendant “entered
into a contractual relationship that envisioned continuing and
wide-reaching contacts” in the forum. LP Solutions LLC v.
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Duchossois, 907 F.3d 95, 104 (1st Cir. 2018). A defendant’s
contract with a resident of the forum state does not
“automatically” establish purposeful availment. Adams, 601 F.3d
at 7. Rather, the court must evaluate the existence of the
parties’ agreement in the context of the parties’ prior
negotiations, the contemplated future consequences of the
agreement, and the parties’ actual course of dealing. Id.
There is no allegation here that any representative of RSI
ever visited New Hampshire. Consequently, Vu relies primarily
on the remote communications between the parties to support the
exercise of jurisdiction. Remote communications directed into
and received from the forum state may support a finding of
purposeful availment. See PREP Tours, 913 F.3d at 20; Downer,
771 F.3d at 68. But the court must scrutinize the number,
quality, and duration of those contacts. See PREP Tours, 913
F.3d at 20; Downer, 771 F.3d at 68. Two cases are instructive
to this analysis: Downer, in which the First Circuit held that
the defendant’s contacts with the forum state supported the
exercise of jurisdiction over it, and Copia, in which the First
Circuit reached the opposite conclusion.
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i. Downer
In Downer, the foreign defendant solicited the in-forum
plaintiff to sell defendant’s company. Downer, 771 F.3d at 63.
The parties engaged in a contractual relationship in which the
foreign defendant expected the in-forum plaintiff to undertake
extensive activities on its behalf. Id. at 67. In performing
its contractual obligations, the plaintiff actually undertook
various in-forum efforts to find a buyer over a four-year
period. Id. During that time period, the parties “collaborated
intensively,” “communicated regularly” by email and telephone,
and defendant sent three payments to plaintiff in the forum.
Id. at 64, 67. The First Circuit concluded that, under these
circumstances, the court’s exercise of specific jurisdiction
over the foreign defendant was proper. Id. at 71.
The First Circuit has characterized Downer as “hinging on”
three factors: “the defendant’s in-forum solicitation of the
plaintiff’s services, the defendant’s anticipation of the
plaintiff’s in-forum services, and the plaintiff’s actual
performance of extensive in-forum services.” Copia, 812 F.3d at
6; see also PREP Tours, 913 F.3d at 20; Cossart v. United Excel
Corp., 804 F.3d 13, 21 (1st Cir. 2015). None of these factors
is present here; quite the opposite.
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First, there is no evidence that RSI solicited Vu directly
or that RSI targeted New Hampshire specifically through its
website, Facebook page, or otherwise. RSI’s Facebook page
describes RSI as the “world’s leading Dodge Viper modification
shop.” Doc. no. 19-4 at 4. This statement indicates RSI’s
intent to direct its services worldwide. There is no evidence
in the record, however, that RSI’s website facilitates RSI’s
interactive contact with consumers across the globe, or in New
Hampshire. A website that offers no “interactive” features
“function[s] more like a digital billboard, passively
advertising the business and offering an email address, fax and
phone number.” A Corp v. All Am. Plumbing, Inc., 812 F.3d 54,
60-61 (1st Cir. 2016).
A screenshot of RSI’s website shows that the website’s
banner includes a tab entitled “Online Store.” Doc. no. 12-4.
This would seem to indicate that the website includes
interactive features; however, Vu has not submitted evidence or
allegations to that effect. Without additional evidence, it is
not clear whether consumers can actually complete a transaction
using the website or must contact RSI directly through the
website. See Cossaboon, 600 F.3d at 35 (explaining that
“something more” than mere existence of website is needed to
support jurisdiction, such as “interactive features which allow
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the successful online ordering of the defendant’s products”
(internal quotation marks and brackets omitted)); cf. Plixer
Int’l, Inc. v. Scrutinizer GmbH, 293 F. Supp. 3d 232, 242 (D.
Me. 2017), aff’d, 905 F.3d 1 (1st Cir. 2018) (finding foreign
defendant purposefully availed itself of Maine laws by selling
cloud-based services through a “highly interactive website,”
interacting with Maine residents through its website, and making
it clear on website that defendant accepted business from all
over the world). There is no evidence here that, in addition to
the existence of its website, RSI sent marketing materials to
New Hampshire residents or otherwise targeted the New Hampshire
economy. Cf. Auburn Mfg., Inc. v. Steiner Indus., 493 F. Supp.
2d 123, 130 (D. Me. 2007) (finding purposeful availment met for
false advertising claim when defendant maintained website and
deliberately sent catalogs to forum-state residents).
Rather, the undisputed evidence here supports the
conclusion that Vu solicited RSI, not the other way around. Vu
contacted RSI via email and then physically visited RSI’s shop
in Texas to inquire about RSI’s services. Though Vu may have
found RSI’s contact information on its website, he did not
contact RSI through the website, but via his personal email
address. Doc. no. 14-3. Vu’s solicitation of RSI’s services in
Texas does not support a finding that RSI purposefully availed
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itself of the laws of New Hampshire. See LP Solutions, 907 F.3d
at 104 (finding purposeful availment requirement not met when
in-forum plaintiff initiated contact with out-of-forum
defendant); Copia, 812 F.3d at 2, 6 (same); Phillips, 530 F.3d
at 29 (same).
Moving to the next Downer factor (i.e., defendant’s
anticipation of plaintiff’s in-forum services), RSI had no
expectation that Vu would perform in-forum services for it. See
Copia, 812 F.3d at 6. Again, the opposite is true. The parties
agreed that RSI would make certain improvements to the Viper at
its facility in Texas in exchange for payment from Vu. This
agreement evinces an intent that performance of the parties’
agreement would occur in Texas, not New Hampshire. See id. at
5-6. Further, the nature of the parties’ contemplated
relationship does not demonstrate RSI’s intent to engage in
continuous and wide-reaching contacts with New Hampshire. Cf.
Lucerne Farms, 226 F. Supp. 2d at 260 (parties’ contract for
sale of bailing machine contemplated continuing relationship
when defendant promised to provide two days of on-site start-up
assistance in the forum state and a thirty-day parts warranty).
The final Downer factor (i.e., plaintiff’s performance of
in-forum services) is also lacking here. The parties never
intended Vu to perform services in New Hampshire for RSI, and he
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never did so. The opposite was expected: RSI’s completion of
upgrades on the Viper in Texas. RSI’s performance of these
agreements—or lack thereof—occurred in Texas, not New
Hampshire. See Phillips Exeter, 196 F.3d at 291 (“[A] contract
is arguably breached where a promisor fails to perform
. . . .”).
Another fact important in Downer that is absent here is
evidence of the frequency of the parties’ contact while Vu was
in New Hampshire. See Downer, 771 F.3d at 64, 67 (relying on
evidence of defendant’s eleven email exchanges with plaintiff’s
in-forum staff, email exchange of one memorandum multiple times
for editing, and plaintiff’s in-forum hosting of a conference
call with defendant and potential buyer). Vu’s objection states
that the parties had “repeated back and forth negotiations” over
the course of a year while he was in New Hampshire, yet the
evidence he submitted does not support this assertion. See
Foster-Miller, 46 F.3d at 145 (plaintiff may not rest on
pleadings but must “adduce evidence of specific facts”).
The record contains three exhibits evidencing the parties’
correspondence: a November 2015 sales order mailed to Vu in New
Hampshire; a January 2016 email chain regarding upgrades to the
vehicle; and a November 2016 email chain offering additional
upgrades. Doc. nos. 15-5, 15-7, 19-3. Vu has adduced no other
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evidence of the frequency of the parties’ correspondence.4 Based
on this evidence, the parties’ communications appear neither
regular nor continuous. See LP Solutions, 907 F.3d at 106-07
(finding exercise of jurisdiction not foreseeable when parties’
communications were “sporadic”).
Additionally, of these three exhibits, only the 2015 sales
order demonstrates RSI’s contact with New Hampshire. The email
correspondence itself offers no evidence that those
communications, including any alleged misrepresentations, took
place while Vu was in New Hampshire. Vu’s own affidavit states
that the “majority of [his] communications, negotiations, and
agreements with RSI took place . . . while [he] was located in
New Hampshire or Vietnam.” Doc. no. 19-2 (emphasis added).
This statement, even construed in Vu’s favor, does not provide
any evidence of the frequency of the parties’ contact while Vu
was in New Hampshire. See Adams, 601 F.3d at 7-8 (finding no
purposeful availment in part because there was no evidence that
the one phone call between the parties occurred while plaintiff
was in forum state).
4 At the hearing, Vu’s counsel represented that RSI sent
numerous other sales orders to Vu in New Hampshire. Such sales
orders, however, are not part of the record before the court.
See Foster-Miller, 46 F.3d at 145 (plaintiff may not rest on
pleadings but must “adduce evidence of specific facts”).
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To the contrary, the evidence demonstrates that Vu split
his time between New Hampshire and Vietnam. And the fact that
Vu informed RSI of mailing addresses in California and Texas
indicates that Vu may well have spent time in other locations
outside of New Hampshire. RSI’s infrequent contact with Vu
while he may or may not have been in New Hampshire fails to
establish that it was foreseeable that RSI could be haled into
court here. Cf. Trade Wings, LLC, v. Technetics, Inc., Civ. 02-
169-B, 2002 WL 31268389, at *4 (D.N.H. Oct. 10, 2002) (finding
purposeful availment requirement met where defendant directed
“numerous” communications to plaintiff’s offices in New
Hampshire, shipped products to New Hampshire office, and sent
fourteen purchase orders to that office). Thus, this case is a
far cry from the contacts in Downer that established purposeful
availment.
ii. Copia
While this case is unlike Downer, the facts are similar to
Copia—a case in which the First Circuit “easily affirm[ed]” a
dismissal for lack of personal jurisdiction. Copia, 812 F.3d at
2. In Copia, the plaintiff was a Massachusetts company that
provided internet services to hotels in Jamaica and the
defendants were a Jamaican resort operator and its Pennsylvania-
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based alter ego. Id. The plaintiff sent defendants an offer to
provide internet services to two planned resorts in Jamaica.
Id. After several months of negotiations, which occurred both
in Jamaica and through remote communications directed to and
received from Massachusetts, the parties reached an agreement.
Id. at 3. Under the contract, the plaintiff agreed to install
internet services at the two resorts in Jamaica and provide
ongoing on-site support and maintenance. Id. During
performance of the contract, the plaintiff shipped equipment to
Jamaica from Massachusetts that was then installed and
maintained entirely in Jamaica. Id. The parties also continued
to communicate remotely, with the plaintiff receiving some
contract-related remote communications in Massachusetts. Id.
Almost five years into the parties’ contractual relationship,
the defendants informed the plaintiffs that they did not intend
to renew the contract terms. Id. at 3. The plaintiff then
brought suit in Massachusetts.
On appeal, the First Circuit affirmed the district court’s
dismissal for lack of personal jurisdiction, focusing its
analysis on the purposeful availment inquiry. Id. at 2, 5-6.
The First Circuit reasoned that none of the Downer factors was
present, demonstrating a lack of purposeful availment. Id. at
6. It further explained that the fact that defendants received
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equipment shipped from Massachusetts and payments from
Massachusetts was not a “voluntary contact” with the forum
state, but a result of the plaintiff’s unilateral activity. Id.
at 5.
The facts here closely resemble those in Copia. Here, as
in Copia, plaintiff solicited defendant in its home
jurisdiction. Likewise, Vu visited RSI’s out-of-forum location,
but no representative of RSI ever visited the forum state. The
parties’ agreements in both cases were the result of remote
communications, via email and telephone, sent to and from the
forum. In both cases, the parties’ agreements contemplated that
performance would occur in defendant’s home jurisdiction and
that is where it actually occurred. Based on these
similarities, the court is inclined to reach the same result
here as the First Circuit did in Copia. See also Hannah Int’l
Foods, Inc. v. House of Thaller, Inc., No. 18-cv-52-AJ, 2018 WL
3827626, at *4-5 (D.N.H. Aug. 10, 2018) (concluding that
plaintiff had not met burden of demonstrating purposeful
availment when plaintiff solicited defendant, defendant never
visited forum state, parties remotely negotiated contract,
contract contemplated performance in defendant’s jurisdiction,
and performance occurred outside of forum).
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Vu’s other asserted contacts between RSI and New Hampshire
do not persuade the court otherwise. Like the plaintiff in
Copia, Vu argues the fact that he sent payments to RSI from the
forum state supports a finding of purposeful availment. But, as
the Court explained in Copia, the fact that the payments
originated in New Hampshire is a result of Vu’s “unilateral
activity.” Copia, 812 F.3d at 5. There is no evidence that the
parties’ agreements required Vu to send his payments from New
Hampshire. See id. Instead, the money traveled to RSI from the
forum state only by virtue of Vu’s unilateral decision to reside
here part-time. See Phillips, 530 F.3d at 28 (“Jurisdiction
cannot be created by and does not travel with the plaintiff . .
. wherever she goes.” (internal quotation marks omitted)).
The same can be said of the fact that RSI mailed at least
one sales order to New Hampshire. The fact that the sales order
traveled to New Hampshire was a result of Vu’s unilateral choice
to reside here part-time, not due to RSI’s targeted efforts
towards this forum. See Copia, 812 F.3d at 5 (finding that fact
that defendant sent notice of nonrenewal to plaintiff’s
registered office in Massachusetts did not support finding of
purposeful availment).
Vu also points to the length of the parties’ relationship
to support jurisdiction. Vu describes the relationship as
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lasting for three years due in large part to RSI’s efforts to
sell Vu additional upgrades and its failure to timely perform.
While RSI has certainly retained Vu’s Viper for over three
years, the record does not demonstrate that the parties
maintained contact throughout that whole time period. Even
crediting Vu’s assertion as to the length of the parties’
relationship, the court does not find that it tips the analysis
one way or the other given the other facts discussed above.
Compare Downer, 771 F.3d at 67-68 (finding purposeful availment
when parties had four-year relationship during which plaintiff
performed in-forum services for defendant), with Copia, 812 F.3d
at 3, 5-6 (finding no purposeful availment when parties’ four-
year contractual relationship involved plaintiff’s performance
of services for defendant in non-forum location).
C. Summary
Considering all the facts discussed above together, RSI’s
contacts with New Hampshire consist of a passive website
accessible in the forum, an unknown amount of remote
communication between RSI and Vu while he was in New Hampshire,
the sales order mailed to New Hampshire, and the money Vu wired
to RSI from New Hampshire. These contacts are not of sufficient
quantity and quality that RSI could foresee being haled into
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court here. See Phillips, 530 F.3d at 28-29 (finding purposeful
availment requirement not met when defendant’s only contact with
forum state was mailing employment contract to plaintiff and
sending three follow-up emails); Labollita v. Home Rental
Connections Ltd., No. CV 16-11433-LTS, 2017 WL 2569522, at *5-6
(D. Mass. June 13, 2017) (no purposeful availment when plaintiff
submitted inquiry through defendant’s website about vacation
rental, parties communicated and entered contract remotely to
rent apartment for short duration, and all performance was
expected to occur outside of forum state).
The court finds that Vu has not met his burden of
demonstrating that RSI purposefully availed itself of suit in
this forum by deliberately targeting its behavior towards New
Hampshire such that this forum “should have the power to subject
[RSI] to judgment regarding that behavior.” Baskin-Robbins, 825
F.3d at 36 (internal quotation marks omitted). Because Vu has
failed to satisfy one of the three elements necessary to
establish specific jurisdiction, the court need not reach the
other two elements. See Copia, 812 F.3d at 4-5. This court
cannot exercise personal jurisdiction over RSI. Given this
conclusion, the court need not address RSI’s alternative
argument supporting dismissal (that the suit be dismissed for
forum non conveniens).
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II. Motion to Transfer Venue
As an alternative to its motion to dismiss, RSI requests
that this court transfer this action to the United States
District Court for either the Eastern or Northern District of
Texas pursuant to 28 U.S.C. § 1404(a). Because this court lacks
personal jurisdiction over RSI, transfer under § 1404 is
“clearly inappropriate.” Albion v. YMCA Camp Letts, 171 F.3d 1,
2 (1st Cir. 1999). The court therefore must deny RSI’s motion
to transfer venue pursuant to 28 U.S.C. § 1404(a).
A court that lacks personal jurisdiction over a suit may,
however, transfer the action under 28 U.S.C. § 1631. Fed. Home
Loan Bank of Bos. v. Moody’s Corp., 821 F.3d 102, 114-19 (1st
Cir. 2016), abrogated on other grounds by Lightfoot v. Cendant
Mortg. Corp., 137 S. Ct. 553 (2017). That statute provides that:
[w]henever a civil action is filed in a court . . .
and that court finds that there is a want of
jurisdiction, the court shall, if it is in the
interest of justice, transfer such action . . . to any
other court . . . in which the action . . . could have
been brought at the time it was filed . . . .
28 U.S.C. § 1631.
This statute establishes a “rebuttable presumption in favor
of transfer” that is overcome only if the “inquiring court
determines that transfer is not in the interest of justice.”
Fed. Home Loan, 821 F.3d at 119 (internal quotation marks
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omitted). In assessing whether transfer is in the interest of
justice, the court should consider the “totality of the
circumstances,” including the relative merits of the suit and
whether transfer would unfairly benefit the proponent, impose an
unwarranted hardship on an objector, or unduly burden the
judicial system. Britell v. United States, 318 F.3d 70, 74-75
(1st Cir. 2003).
At the time it was filed, this suit could have been brought
in the United States District Court for the Eastern District of
Texas. The parties agree that there is complete diversity
between them and that the amount in dispute is greater than
$75,000. Thus, the court would have diversity jurisdiction over
this action. See 28 U.S.C § 1332. RSI would plainly be subject
to personal jurisdiction in the Eastern District of Texas, as it
is incorporated in Texas and has its principal place of business
there. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)
(corporation subject to general personal jurisdiction in place
of incorporation and principal place of business). Finally,
venue is proper in the Eastern District of Texas as RSI’s
principal and sole place of business is in Plano, Texas, which
is in the Eastern District of Texas. See 28 U.S.C. § 1391(b).
The court sees no facts in the record that would overcome §
1631’s presumption in favor of transfer. There is no indication
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in the record that transfer would unfairly benefit RSI (as
outright dismissal would), impose unwarranted hardship on Vu, or
unduly burden the judicial system. And Vu’s claims appear to be
far from frivolous. A transfer to the Eastern District of Texas
is in the interest of justice as it will give Vu a chance to
have his claims resolved on their merits. See Britell, 318 F.3d
at 74. The court will therefore transfer this suit to the
Eastern District of Texas pursuant to its authority under 28
U.S.C. § 1631.5
CONCLUSION
For the foregoing reasons, the court lacks personal
jurisdiction over RSI and cannot hear this matter. The court
therefore grants RSI’s motion to dismiss for lack of personal
jurisdiction (doc. no. 14). Because the court lacks
jurisdiction, it must deny RSI’s motion to transfer venue under
5 In favor of its motion to transfer venue, RSI argues that
the written contract between the parties contains a forum-
selection clause by which Vu agreed to bring suit only in Texas.
Vu argues that this forum-selection clause is not applicable
because his claims in this suit are not premised on the parties’
written contract for purchase of the Viper, but, instead, grow
out of their subsequent oral agreements regarding upgrades to
the Viper. The court need not resolve the parties’ dispute.
Their disagreement about the applicability of the forum-
selection clause does not impact the court’s decision to
transfer under 28 U.S.C. § 1631. See Diving Services, Inc. v.
BTM Machinery, Inc., C.A. No. 16-112 S, 2017 WL 25463, at *4 n.3
(D.R.I. Jan. 3, 2017) (treating forum-selection dispute in same
way in context of transfer under 28 U.S.C. § 1631).
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28 U.S.C. § 1404 (doc. no. 15). Instead of dismissing the case
outright, however, the court will transfer this case to another
forum with such jurisdiction pursuant to its authority under 28
U.S.C. § 1631. The court directs the Clerk’s Office to transfer
this case to the United States District Court for the Eastern
District of Texas.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
October 16, 2019
cc: Counsel of Record
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