Villano v. Long Island Pipe Supply, Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dennis Villano
v. Civil No. 19-cv-808-LM
Opinion No. 2020 DNH 034
Long Island Pipe Supply,
Inc., et al.
O R D E R
Dennis Villano brings this action against Long Island Pipe
Supply, Inc. (“LIPS”), Long Island Pipe Supply of Massachusetts,
Inc. (“LIPSMA”), Long Island Pipe Supply of New Hampshire, Inc.
(“LIPSNH” and, collectively with LIPS and LIPSMA, the “LIPS
companies”)1, Robert Moss (“Robert”), Bradley Moss (“Bradley”),
and Michael Moss (“Michael” and, collectively with Robert and
Bradley, the “Mosses”). Against the LIPS companies, Villano
asserts claims under the Age Discrimination in Employment Act
(the “ADEA”) for age discrimination and retaliation. Against
all defendants, Villano asserts parallel age discrimination and
retaliation claims under both New Hampshire and Massachusetts
law. Now before the court is defendants’ motion to dismiss
1 As will be discussed below, prior to the initiation of
these proceedings, LIPS changed its name to Miles Moss of New
York, Inc., LIPSNH changed its name to Miles Moss of New
Hampshire, Inc., and LIPSMA changed its name to Miles Moss of
Massachusetts, Inc. To reduce the likelihood of confusion, the
court will refer to the corporate defendants by the names under
which they are identified in Villano’s Complaint.
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Villano’s claims against the LIPS companies, Robert, and Bradley
for insufficient service of process and to dismiss Villano’s
claims against LIPSMA and the Mosses for lack of personal
jurisdiction.
BACKGROUND FACTUAL ALLEGATIONS
Villano worked for the LIPS companies as their Vice
President of Information Technology from July 2012 through the
termination of his employment in July 2018. Villano contends
that at all times during the tenure of his employment, the three
LIPS companies were his joint employers and Robert, Bradley, and
Michael were his supervisors and managers.
Villano was 61 years old when he first began working for
the LIPS companies and 67 as of the date of his termination.
According to Villano, he regularly experienced age
discrimination in the LIPS companies’ workplace. Specifically,
Robert repeatedly told Villano that he was the LIPS companies’
oldest employee, mocked him for using dated cultural references,
asked him when he planned to retire, and insinuated that he was
too old to be driving. On at least one occasion, Robert blamed
Villano for a younger employee’s mistake. In addition, when the
LIPS companies needed to hire a new employee, Bradley asserted
that he did not want to hire anyone over 40 years old, and that
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new hires should be “right out of college.” Doc. no. 1 at ¶ 36.
When Villano complained regarding those statements, Robert
dismissed his concerns and expressed agreement with Bradley’s
age-biased statements.
In 2018, the LIPS companies hired a younger employee
ostensibly to fill a position left open after the termination of
another information technology employee, but actually to take
over many of Villano’s employment responsibilities. Villano
viewed the reduction in his responsibilities as a demotion,
notwithstanding that he did not experience a reduction in
compensation or benefits. Shortly thereafter, according to
Villano, the Mosses terminated his employment due to his age.
DISCUSSION
I. Sufficiency of Service
The LIPS companies, Robert, and Bradley (collectively, the
“service defendants”) challenge the sufficiency of Villano’s
efforts to serve them with process in this action. In essence,
the service defendants argue that Villano attempted to serve
them at incorrect addresses.
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A. Legal Standard
Motions to dismiss for insufficient service of process are
governed by Federal Rule of Civil Procedure 12(b)(5).2 Fed. R.
Civ. P. 12(b)(5). Under Rule 12(b)(5), objections to the
validity of service of process must be specific and must
identify with particularity the manner in which the plaintiff
has failed to satisfy the service requirements. See Taite v.
Bridgewater State Univ., 236 F. Supp. 3d 466, 472 (D. Mass.
2017) (citing 2 Moore's Federal Practice § 12.33[1] (3d ed.
2013)); see also, e.g., O'Brien v. R.J. O'Brien & Assocs., 998
F.2d 1394, 1400 (7th Cir. 1993).
Once the objecting party has properly challenged service of
process, the burden shifts to the serving party to prove that
service was sufficient. Rivera-Lopez v. Municipality of Dorado,
979 F.2d 885, 887 (1st Cir. 1992). A docketed return of service
generally creates a rebuttable, prima facie presumption that
service was sufficient. Blair v. City of Worcester, 522 F.3d
2 Defendants purport to move under Federal Rule of Civil
Procedure 12(b)(4). However, Rule 12(b)(4) governs motions to
dismiss for insufficient process, and defendants offer no
evidence or argument that there was any defect in the form of
process at issue (notably, defendants do not assert that process
was insufficient because the summons and complaint identifies
the corporate defendants by their former corporate names).
Instead, defendants argue only that service of process was
insufficient; motions to dismiss for insufficient service of
process are governed by Rule 12(b)(5). Blair v. City of
Worcester, 522 F.3d 105, 110 (1st Cir. 2008).
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105, 111 (1st Cir. 2008). The challenging party may rebut the
presumption through presentation of evidence, and the serving
party may either present countervailing evidence or seek a stay
of proceedings pending discovery and/or an evidentiary hearing.
Id. at 112-115. Where evidence establishes the insufficiency of
service, courts enjoy broad discretion either to dismiss an
action entirely for failure to effect service or to quash the
defective service and permit re-service, meanwhile retaining the
case. See Henderson v. United States, 517 U.S. 654, 662 (1996);
see also, e.g., Ramirez De Arellano v. Colloides Naturels Int'l,
236 F.R.D. 83, 85 (D.P.R. 2006).
B. Analysis
Before a federal court may exercise jurisdiction over a
defendant, that defendant must first be properly served with
process under Federal Rule of Civil Procedure 4. See United
States v. Carr, Case No. 2:11-cv-00280-GZS, 2012 U.S. Dist.
LEXIS 27930, *4 (D. Me. Mar. 2, 2012); see also, e.g., Direct
Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d
685, 688 (9th Cir. 1988) (citations omitted). This is not
because service of process is itself a jurisdictional
requirement, but rather because proper service is the mechanism
through which exercise of jurisdiction is effected:
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Before a federal court may exercise personal
jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied.
“Service of summons is the procedure by which a court
having venue and jurisdiction of the subject matter of
the suit asserts jurisdiction over the person of the
party served.” Mississippi Publishing Corp. v.
Murphree, 326 U.S. 438, 444–445 (1946). Thus, before
a court may exercise personal jurisdiction over a
defendant, there must be more than notice to the
defendant and a constitutionally sufficient
relationship between the defendant and the forum.
There also must be a basis for the defendant's
amenability to service of summons. Absent consent,
this means there must be authorization for service of
summons on the defendant.
Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104
(1987) (internal modifications omitted).
1. Sufficiency of Service on the LIPS Companies
Under Federal Rule of Civil Procedure 4, a plaintiff may
serve a corporate defendant within a judicial district of the
United States by delivering a copy of the summons and complaint
to an officer, to a managing or general agent of the defendant,
or to any authorized agent of the defendant for service of
process. Fed. R. Civ. P. 4(h)(1)(B). In the alternative, a
plaintiff may serve a corporate defendant by following the law
governing service of either the state where the district court
is located or the state where the defendant is located when
service is made. Fed. R. Civ. P. 4(h)(1)(A), 4(e)(1).
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Here, Villano attempted service on all the LIPS companies
in New York, on LIPSNH additionally in New Hampshire, and on
LIPSMA additionally in Massachusetts. Each of those states has
different service requirements.
Under New Hampshire law, service on a corporation may be
accomplished by serving the corporation’s registered agent. RSA
293-A:5.04, 15:10. In the alternative, a plaintiff may serve a
corporation by mailing a copy of the summons and complaint by
registered or certified mail to the corporate secretary at the
corporation’s principal office (in the case of a domestic
corporation) or to the address of the principal office listed in
the corporation’s most recent annual report (in the case of a
foreign corporation). Id.
Under New York law, there are two alternative methods for
serving a corporation. First, the plaintiff may provide a copy
of the summons to an officer, director, or managing or general
agent of the corporation. NY CPLR § 311(a)(1). Second, the
plaintiff may deliver duplicate copies of the summons, together
with a statutory fee, to the office of the New York Secretary of
State. NY CPLR §§ 306(b)(1), 307(b).
Under Massachusetts law, service on a domestic corporation
is accomplished by delivering a copy of the summons and
complaint to an officer or a managing or general agent of the
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corporation at its principal place of business. Mass. R. Civ.
Pr. 4(d)(2).
As a matter of federal procedural law, minor formal defects
in service may be disregarded so long as the defendant receives
actual notice of the complaint and the method of service is in
substantial compliance with the requirements of Rule 4. See
Precision Etchings & Findings, Inc. v. LGP Gem, Ltd., 953 F.2d
21, 23-25 (1st Cir. 1992) (citations omitted).
a. Service on LIPS
On July 11, 2019, LIPS amended its articles of
incorporation for the sole purpose of changing its name to Miles
Moss of New York, Inc. Doc. no. 15-2, exh. 3. Both before and
after that amendment, the records of the New York Department of
State reflected that LIPS’s principal business office and
address for service of process were 586 Commercial Avenue,
Garden City, NY, 11530. Id. at 1.
Villano attempted to serve LIPS on October 28, 2019, by
hand-delivering a copy of the summons and complaint to the
Garden City address, specifically to a person identified in the
service return documents as the “Branch Manager” of the business
located at that address. Doc. no. 8, at 3. In addition, also
on October 28, 2019, Villano mailed a copy of the summons and
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complaint to LIPS at the Garden City address through regular
mail. Id.3 At the time Villano made these efforts to serve
LIPS, the records of the New York Department of State indicated
that the Garden City address was LIPS’s principal business
office and designated address for service of process. Doc. no.
16, at ¶¶ 2, 6; doc. no. 15-2, exh. 3, at 1. Moreover, this
court can properly take judicial notice (and does so notice)
that, as of the date of this order, the New York Department of
State’s Corporation and Business Entity Database continues to
identify the Garden City address as the principal office and
designated address for service of process for Miles Moss of New
York, Inc. (formerly known as LIPS).4
In support of their challenge to the sufficiency of service
on LIPS, the service defendants offer the affidavit of Kathy
Fields, the former Chief Financial Officer of all three of the
LIPS companies. Doc. no. 12-2. Fields states that on July 8,
3 On October 29, 2019, Villano made a further effort to
serve LIPS by hand-delivery and regular mail at a residence
located at 20 Eagle Chase, Woodbury, NY 11797. Doc. no. 8, at
2. Because nothing in the record suggests that LIPS has ever
maintained offices at the Woodbury address for any purpose, the
court disregards Villano’s attempt to serve LIPS at that
address.
4 Courts may properly take notice sua sponte of facts not
subject to reasonable dispute where they are subject to accurate
and ready determination from reliably accurate sources. Fed. R.
Evid. 201(b)(2), (c).
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2019, the Mosses caused the sale of all assets of the LIPS
companies to a third party, Core & Main LP (“Core”). Id. at
¶ 4. Fields states that, following that sale, the Garden City
address ceased to be a business location of LIPS, and no person
working at that address was an employee or agent LIPS for any
purpose, including for purposes of service of process. Doc. no.
12-2, at ¶¶ 4-7.
Notwithstanding Fields’ affidavit, LIPS did not at any
material time amend its designations with the New York
Department of State. Thus, as a matter of New York law, at the
time of service the Garden City address was LIPS’s principal
business address and address for service of process. NY BCL §§
304(d), 408(1), 408(7). Even fully crediting Fields’ testimony
that no person employed at that address was in fact an agent of
LIPS for any purpose, Villano’s hand-delivery of the summons and
complaint to a person identified as a Branch Manager of the
business operating at LIPS’s principal business address
constituted, at minimum, substantial compliance with the
requirements of Rule 4(h)(1)(B). Similarly, Villano’s having
sent copies of the summons and complaint through regular mail to
LIPS’s designated address for service of process constituted
substantial compliance with the requirements of RSA 293-A:15.10.
In addition, it is undisputed that LIPS received timely actual
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notice of this action and actually received copies of the
summons and complaint. See, e.g., doc. no. 15-2 at ¶ 5. It
follows that such substantial compliance with the formal
requirements of service is sufficient for purposes of Rule
12(b)(5). See Precision Etchings, 953 F.2d at 23-25. The
service defendants’ motion to dismiss is therefore denied as to
defendant LIPS.
b. Service on LIPSNH
On January 4, 2019, LIPSNH filed an annual report with the
New Hampshire Department of State reciting the Garden City, New
York address as its principal office address and as the business
address of all three Mosses. Doc. no. 15-2, exh. 5. The 2019
annual report recited a Concord, New Hampshire, address for the
company’s registered agent. Id. However, effective January 14,
2019, LIPSNH filed a statement of change with the New Hampshire
Department of State, naming Robert as LIPSNH’s registered agent
for service of process and stating the registered company’s
address for service as 50B Northwestern Drive, Unit 6, Salem, NH
03079. Doc. no. 15-2, exh. 6. The January 14 amendment
effected no change to the recorded principal business office of
the company or to the recorded business offices of the Mosses.
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On April 30, 2019, LIPSNH amended its articles of incorporation
solely to change its name to Miles Moss of NH, Inc.
Villano attempted to serve LIPSNH on October 25, 2019, by
hand-delivering a copy of the summons and complaint to the Salem
address, specifically to a person identified in the service
return documents as authorized to accept service on behalf of
“Robert Moss.” Doc. no. 4 at 2. On October 28, 2019, Villano
further attempted to serve LIPSNH by hand-delivering a copy of
the summons and complaint to a person employed at the Garden
City address. Doc. no. 9 at 1.5 At the time Villano made these
efforts to serve LIPSNH, the records maintained by the New
Hampshire Department of State indicated that the Garden City
address was LIPSNH’s principal business address, that Robert was
LIPSNH’s registered agent, and that the Salem address was
LIPSNH’s address for service of process. Doc. no. 16 at ¶¶ 2,
6; Doc. no. 15-2, exh. 5. Pursuant to Rule 201, the court takes
judicial notice that the corporate records database of the
Corporate Division of the New Hampshire Department of State
continues to identify the Garden City address as the principal
5 On October 29, 2019, Villano made a further effort to
serve LIPSNH by hand-delivery and regular mail to the Woodbury,
New York address. Because nothing in the record suggests that
LIPSNH has ever maintained offices at the Woodbury address for
any purpose, the court disregards the attempt to serve LIPSNH at
that address.
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business address, Robert as the registered agent, and the Salem
address as the registered address for service of process for
Miles Moss of NH, Inc. (formerly known as LIPSNH). Fed. R.
Evid. 201(b)(2), (c).
In support of their challenge to the sufficiency of service
on LIPSNH, the service defendants rely on Fields’ statement that
following the sale of the LIPS companies’ assets to Core, the
Garden City address and Salem address ceased to be business
locations of LIPSNH, and that thereafter no person working at
either of those addresses was an employee or agent of LIPSNH for
any purpose, including for purposes of service of process. Doc.
no. 12-2 at ¶¶ 4-7. However, Fields’ affidavit does nothing to
change the fact that LIPSNH did not at any material time file a
statement of change with the New Hampshire Secretary of State to
name a new registered agent or to register any new address as
the corporation’s address for service of process. As a result,
at the time of service, the Salem address was LIPSNH’s
registered address for service of process as a matter of New
Hampshire law, and Robert was LIPSNH’s registered agent.
Villano’s hand-delivery to a person at the Salem address who
identified himself as authorized to accept such service on
Robert’s behalf was therefore, at minimum, substantially
compliant with the requirements of both Rule 4(h)(1)(B) and RSA
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293-A:504. Further, Villano’s efforts to effect service
resulted in LIPSNH’s actual knowledge of this action and actual
receipt of the summons and complaint. Such substantial
compliance is sufficient for purposes of Rule 12(b)(5). See
Precision Etchings, 953 F.2d at 23-25. The service defendants’
motion to dismiss is therefore denied as to defendant LIPSNH.
c. Service on LIPSMA
On April 30, 2019, LIPSMA amended its articles of
incorporation solely to change its name to Miles Moss of MA,
Inc. Doc. no. 15-2, exh. 8. On June 4, 2019, LIPSMA filed an
annual report with the Secretary of the Commonwealth of
Massachusetts6 which stated the address of LIPSMA’s principal
office as 210 Ricciuti Dr., Quincy MA 02169, and identified the
company’s registered agent as Robert, also at the Quincy
address. Id.
Villano attempted to serve LIPSMA on October 24, 2019, by
hand-delivering a copy of the summons and complaint to the
Quincy address, specifically to a person identified both as
“Thomas Villano” (apparently the son of the plaintiff in this
6 Notwithstanding the amendment of April 30, 2019, LIPSMA’s
annual report of June 4, 2019, stated its “exact” corporate name
as “Long Island Pipe Supply of Massachusetts.”
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action) and as a “Branch Manager” of LIPSMA. Doc. no. 3.7 At
that time, the records maintained by the Massachusetts
Corporations Division indicated that the Quincy address was
LIPSMA’s principal business address and address for service of
process. Doc. no. 16 at ¶¶ 2, 6; Doc. no. 15-2, exh. 4.
Pursuant to Rule 201, the court takes judicial notice that, as
of the date of this order, the corporate records database of the
Corporate Division of the Secretary of the Commonwealth of
Massachusetts continues to identify the Quincy address as the
principal business address, Robert as the registered agent, and
the Quincy address as the registered address for service of
process for Miles Moss of MA, Inc. (formerly known as LIPSMA).
Fed. R. Evid. 201(b)(2), (c).
In support of their challenge to the sufficiency of service
on LIPSMA, the service defendants rely on Fields’ statements
that following the sale of the LIPS companies’ assets to Core,
the Quincy address ceased to be a business location of LIPSMA,
and that thereafter no person working at that address was an
7 On October 28, 2019, Villano made a further attempt to
serve LIPSMA, by hand-delivery to the Garden City, New York
address. On October 29, 2019, Villano made yet a further such
attempt, by hand-delivery and regular mail to the Woodbury, New
York address. Because nothing in the record suggests that LIPSMA
has ever maintained offices at either the Garden City address or
the Woodbury address for any purpose, the court disregards the
attempts to serve LIPSMA at those addresses.
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employee or agent LIPSMA for any purpose, including for purposes
of service of process. Doc. no. 12-2 at ¶¶ 4-7. However,
LIPSMA, like the other LIPS companies, did not at any material
time file an annual report or statement of change identifying a
new principal office, registered agent, or registered address
for service of process. Fields’ affidavit therefore does not
provide grounds for modifying the conclusion that as a matter of
Massachusetts law, at all material times Robert was LIPSMA’s
registered agent and the Quincy address was LIPSMA’s principal
office and registered address for service of process. MA ST
156D §§ 1.40, 5.01, 5.02. Villano’s hand-delivery of the
summons and complaint to a person identified as a managing
employee at the Quincy address was therefore substantially
compliant with the formal requirements of Rule 4(h)(1)(B), RSA
293-A:15.10, and Mass. R. Civ. Pr. 4(d)(2). Further, because
Villano’s efforts to effect service resulted in LIPSMA’s actual
knowledge of this action and actual receipt of the summons and
complaint, such substantial compliance is sufficient for
purposes of Rule 12(b)(5). See Precision Etchings, 953 F.2d at
23-25. The service defendants’ motion to dismiss is therefore
denied as to defendant LIPSMA.
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2. Sufficiency of Service on Robert and Bradley
Rule 4 also sets forth the requirements governing service
on an individual defendant. A plaintiff may serve an individual
by (i) delivering a copy of the summons and complaint to the
individual personally; (ii) leaving a copy of the summons and
complaint at the individual’s usual place of abode with a person
residing there of suitable age and discretion; or (iii)
delivering a copy of the summons and complaint to an authorized
agent for receiving such service. Fed. R. Civ. P. 4(e)(2). In
the alternative, a plaintiff may serve an individual by
following the law governing service of either the state where
the district court is located (here, new Hampshire) or the state
where the defendant is located when service is made (here, New
York). Fed. R. Civ. P. 4(e)(1).
New Hampshire law provides for service on a nonresident
individual defendant through sending the summons and complaint
to the defendant’s last known abode or place of business through
registered mail, then providing proof of such mailing, together
with a statutory fee and further copies of the summons and
complaint, to the New Hampshire Secretary of State. RSA
510:4(II). Here, there is no suggestion in the record that
Villano attempted service through the office of the New
Hampshire Secretary of State.
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Under New York law, service on an individual may be
accomplished using three alternative methods. First, a
plaintiff may serve an individual by delivering the summons to
the defendant in New York. NY CPLR § 308(1). Second, a
plaintiff may serve an individual by delivering the summons to a
person in New York of suitable age and discretion at the
defendant’s actual place of business, dwelling place, or usual
place of abode, and by either mailing the summons to the
defendant’s last known residence or mailing the summons by first
class mail in an envelope marked “personal and confidential”
(and not otherwise indicating that it contains a summons or
pertains to a legal action against the defendant) to the
defendant’s actual place of business. NY CPLR § 308(2). Third,
and finally, service on an individual may be accomplished by
delivering the summons to the defendant’s designated agent for
service of process in New York. NY CPLR § 308(3).
As noted, as a matter of federal procedural law, minor
formal defects in service may be disregarded so long as the
defendant receives actual notice of the complaint and the method
of service is in substantial compliance with the requirements of
Rule 4. See Precision Etchings, 953 F.2d at 23-25.
Prior to attempting service on Robert and Bradley,
Villano’s counsel relied on available public documents and on
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paid online services in an attempt to identify one or more
addresses of record for those defendants. Doc. no. 16, at ¶ 2.
Counsel’s efforts uncovered two residential addresses for
Robert—the Woodbury, NY address and a Granby, CT, address—and
two residential addresses for Bradley—the Woodbury address and a
New York City address. Id. at ¶ 3. On the accurate
understanding that Robert was at all material times a resident
of New York, counsel disregarded the Connecticut address for
purposes of effecting service. Id. at ¶¶ 5, 8. Counsel further
verified that, although the deed to the premises at the Woodbury
address had been in the name of Wendy Moss since 1994, Wendy is
a member of Robert’s and Bradley’s family. Id. at ¶¶ 5, 7.
On October 29, 2019, Villano attempted to serve Robert and
Bradley with process by hand-delivering copies of the summons
and complaint to a security guard at the gate of the Woodbury
address and mailing further copies to that same address.8 Doc.
no. 10.
In support of their challenge to the sufficiency of service
on Robert and Bradley, the service defendants offer those
defendants’ affidavits that neither has resided at the Woodbury
address since 2002. Doc. no. 12-3 at ¶ 4; doc. no. 12-4 at
8 The record reveals no grounds for Villano’s decision to
disregard the New York City address associated with Bradley.
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¶ 4. That testimony is sufficient to rebut any presumption that
the Woodbury address could have been either Robert’s or
Bradley’s usual place of abode at or around the time Villano
attempted service there.
Because Robert and Bradley have not maintained a residence
at the Woodbury address for nearly two decades, Villano’s
efforts were not substantially compliant with the requirements
of Rule 4(e)(2) or NY CPLR § 308. The service defendants’ Rule
12(b)(5) motion is therefore granted as to Robert and Bradley,
and service on them is quashed. Villano shall have thirty days
from the date of this order to serve Robert and Bradley with
process in this action.
II. Personal Jurisdiction
LIPSMA and the Mosses (collectively, the “personal
jurisdiction defendants”) assert that this court may not
properly exercise personal jurisdiction over them in connection
with this action because they lack the requisite contacts with
New Hampshire. On that basis, the personal jurisdiction
defendants move for dismissal of Villano’s claims against them.
As to LIPSMA, Villano contends that it is subject to
personal jurisdiction here because it (jointly with LIPS and
LIPSNH) employed him to perform services in this state. The
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personal jurisdiction defendants argue that LIPSMA was not at
any time Villano’s employer, and that Villano’s presence in New
Hampshire was incidental to LIPSMA’s contacts with him.
As to the Mosses, it is Villano’s position that they are
properly subject to personal jurisdiction in New Hampshire
because they each took affirmative steps to supervise his work
activities and to dictate the terms and conditions of his
employment in this state. The personal jurisdiction defendants
argue that Villano’s allegations and evidentiary proffer are
insufficient to support the conclusion that any of the Mosses
purposefully availed themselves of the privilege of conducting
any activities in New Hampshire.
A. Legal Standard
“To hear a case, a court must have personal jurisdiction
over the parties, that is, the power to require the parties to
obey its decrees.” Astro–Med, Inc. v. Nihon Kohden Am., Inc.,
591 F.3d 1, 8 (1st Cir. 2009) (internal citation and quotations
omitted). Where, as here, a defendant challenges personal
jurisdiction through a motion under Federal Rule of Civil
Procedure 12(b)(2), the plaintiff has the burden to establish
that the court may properly exercise such jurisdiction. See
Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008); GT Solar
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Inc. v. Goi, Case. No. 08–cv–249–JL, 2009 WL 3417587, at *2
(D.N.H. 2009); ICP Solar Techs., Inc. v. TAB Consulting, Inc.,
413 F. Supp. 2d 12, 14 (D.N.H. 2006). Allegations of
jurisdictional facts are construed in the plaintiff's favor.
ICP Solar, 413 F. Supp. 2d at 14.
There are several appropriate methods for determining
whether a plaintiff has met the burden to establish personal
jurisdiction over a defendant, the “most conventional” of which
(at the pleading stage of a proceeding) is the prima facie
method. See Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002) (citations
omitted). The prima facie method requires the court to consider
“only whether the plaintiff has proffered evidence that, if
credited, is enough to support findings of all facts essential
to personal jurisdiction.” Boit v. Gar-Tec Prod., Inc., 967
F.2d 671, 675 (1st Cir. 1992). The court applies the prima
facie method here.9
9 Naturally, where the court denies a party’s motion to
dismiss for lack of personal jurisdiction in reliance on the
prima facie standard, the party challenging such jurisdiction
retains the right to a determination of jurisdictional issues on
a preponderance-of-the-evidence standard at trial or otherwise
at a subsequent pretrial plenary evidentiary hearing. See Boit
v. Gar-Tec Prods., Inc., 967 F.2d 671, 676 (1st Cir. 1992);
Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145-
146 (1st Cir. 1995).
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Under the prima facie standard, courts “take specific facts
affirmatively alleged by the plaintiff as true (whether or not
disputed) and construe them in the light most congenial to the
plaintiff's jurisdictional claim.” Mass. Sch. of Law at
Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998).
To make a prima facie showing of [personal
jurisdiction over a defendant], the plaintiff
ordinarily cannot rest upon the pleadings, but is
obliged to adduce evidence of specific facts. . . .
[T]he district court acts not as a factfinder, but as
a data collector. That is to say, the court, in a
manner reminiscent of its role when a motion for
summary judgment is on the table, . . . must accept
the plaintiff's (properly documented) evidentiary
proffers as true for the purpose of determining the
adequacy of the prima facie jurisdictional showing.
Foster–Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145
(1st Cir. 1995). The plaintiff is thus ordinarily obliged to
rely on specific facts supported by record evidence to defeat a
defendant's motion to dismiss for lack of personal jurisdiction.
See ICP Solar, 413 F. Supp. 2d at 14. The court may also
consider uncontested facts submitted by the defendant. See
Mass. Sch. of Law., 142 F.3d at 34. The court does not assess
credibility or engage in other “differential factfinding.”
Foster–Miller, 46 F.3d at 145. “Despite the liberality of this
approach, the law does not require [the court] . . . to credit
conclusory allegations or draw farfetched inferences.” Mass.
Sch. of Law, 142 F.3d at 34 (internal quotations omitted).
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B. Analysis
"Personal jurisdiction implicates the power of a court over
a defendant." Foster-Miller, 46 F.3d at 143. The outer limits
of that power are bounded by the requirements of federal
constitutional due process. Ins. Corp. of Ir. v. Compagnie Des
Bauxites De Guinee, 456 U.S. 694, 702 (1982). Where, as here,
no federal statute governs personal jurisdiction, the district
court looks to the law of the forum state to determine whether
that law calls for any narrower limitation on the court’s
personal jurisdictional power. See, e.g., Sawtelle v. Farrell,
70 F.3d 1381, 1387 (1st Cir. 1995). New Hampshire’s long-arm
personal jurisdiction statute creates a standard co-extensive
with federal jurisdictional standards, so a federal court
sitting in the District of New Hampshire may exercise personal
jurisdiction wherever it is possible to do so within the limits
of federal constitutional due process. Phillips Exeter Acad. v.
Howard Phillips Fund, 196 F.3d 284, 287 (1st Cir. 1999); see
also Phelps v. Kingston, 130 N.H. 166, 171 (1987).
Constitutional due process generally requires that the
exercise of personal jurisdiction over a defendant “be
‘consistent with traditional notions of fair play and
substantial justice.’” D'Almeida v. Stork Brabant B.V., 71 F.3d
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50, 51 (1st Cir. 1995) (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). Specifically, the due
process clause of the Fourteenth Amendment “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." Phillips
Exeter, 196 F.3d at 287 (citing World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). The court’s analysis of
jurisdictional fairness centers on the quality and quantity of
the defendant's contacts with the forum state. See id. at 288.
Two forms of personal jurisdiction can apply to a
nonresident defendant: general and specific. Cossaboon v. Maine
Med. Ctr., 600 F.3d 25, 31 (1st Cir. 2010). Here, Villano
relies only on specific jurisdiction. The court limits its
analysis accordingly.
Specific personal jurisdiction allows a court to consider a
claim against a defendant so long as the claim “relates
sufficiently to, or arises from, a significant subset of
contacts between the defendant and the forum." Phillips Exeter,
196 F.3d at 288. The courts of the First Circuit conduct a
three-part inquiry to determine whether, in connection with a
given claim, the exercise of specific personal jurisdiction over
a nonresident defendant is appropriate:
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(1) whether the claim directly arises out of, or
relates to, the defendant's forum state activities;
(2) whether the defendant's in-state contacts
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; and (3) whether
the exercise of jurisdiction is reasonable.
Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825
F.3d 28, 35 (1st Cir. 2016) (citations and internal
modifications and quotation marks omitted). The plaintiff bears
the burden in connection with the first two elements of the
inquiry. The burden then shifts to the defendant to "present a
compelling case,” in light of the strength of the plaintiff’s
showing in connection with the first two elements, that the
exercise of jurisdiction would not be reasonable. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 476-478 (1985); see also
Baskin-Robbins, 825 F.3d at 38. All three elements must be
established before specific personal jurisdiction may attach.
Phillips v. Prairie Eye Center, 530 F.3d 22, 27 (1st Cir. 2008).
At all steps of the inquiry, the court analyzes each defendant’s
contacts with the forum separately. Calder v. Jones, 465 U.S.
783, 790 (1984).
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1. Jurisdictional Facts
The parties agree as to all material jurisdictional facts,
and disagree only as to the legal conclusions that may properly
be drawn from them. Thus, the personal jurisdiction defendants’
evidentiary proffer is in all material respects consistent with
Villano’s jurisdictional allegations. In what follows, the
court therefore summarizes Villano’s material allegations and
the parties’ evidentiary proffers together.
LIPS and LIPSNH were at all relevant times affiliated
companies under the ownership and control of the Mosses,10 doc.
no. 12-2 at ¶ 2, and LIPSMA was a wholly-owned subsidiary of
LIPS, id., doc. no. 1-2 at ¶ 3. The parties are in agreement
that the LIPS companies shared common management and common
ownership. Doc. no. 12-2. at ¶ 2; doc. no. 1-2 at ¶¶ 7, 19.
Villano alleges that the LIPS companies, in addition, shared
centralized control of labor relations and had interrelated
operations; defendants offer no contrary evidence. Doc. no. 1-2
at ¶ 19.
10 Villano alleges that LIPSNH was a wholly-owned subsidiary
of LIPS, but offers no evidence in support of that allegation.
The personal jurisdiction defendants offer evidence tending to
establish that LIPS and LIPSNH were affiliated companies, each
wholly owned by the Mosses. This immaterial disagreement
regarding ownership of LIPSNH is the sole point of direct
conflict between the parties’ versions of the relevant facts.
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Villano offers his affidavit stating that in July 2012,
Robert interviewed him in Salem, New Hampshire, for a position
as director of the information technology department for all
three of the LIPS companies. Doc. no. 15-4 at ¶ 1. The parties
are in agreement that after the LIPS companies hired Villano for
that position, he maintained an office in LIPSNH’s New Hampshire
offices and primarily served the LIPS companies from that
office. Id. at ¶¶ 3-4; doc. no. 15-4 at ¶ 10. Villano alleges
that he received his compensation and W-2 forms at all material
times from LIPSMA. Doc. no. 1-2 at ¶ 14. It is Villano’s
position that he was jointly employed by LIPS, LIPSMA, and
LIPSNH during the entire tenure of his employment by the LIPS
companies. Id. at ¶ 18.
According to Villano’s affidavit testimony, Robert
expressly instructed Villano that each of the Mosses would
supervise his employment. Doc. no. 15-4 at ¶ 6. In fact,
according to Villano, all three Mosses frequently and regularly
supervised Villano’s work, both in person and telephonically.
Id. at ¶¶ 7-9. Villano alleges that employees of all three of
the LIPS companies supervised his work, set his work schedule,
issued job-related instructions, and dictated his travel
requirements. Doc. no. 1-2 at ¶ 16. However, notwithstanding
that Villano primarily served the LIPS companies from an office
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29
in LIPSNH’s headquarters, received his compensation from LIPSMA,
and received supervision from employees of all three entities,
the LIPS companies classified Villano in their internal records
as an employee only of LIPS. Doc. no. 15-4 at ¶¶ 8-9.
According to Villano’s affidavit testimony, Robert told him
that his employment was terminated on July 16, 2018, while
Villano was in New Hampshire. Doc. no. 15-4 at ¶ 12. Villano
alleges that all three Mosses contributed to the decision to
terminate his employment. Doc. no. 1-2 at ¶¶ 69-72, 89-90.
While none of the Mosses regularly conducts business “on [his]
own behalf” in New Hampshire, doc. no. 12-3 at ¶ 5, doc. no. 12-
4 at ¶ 5, doc. no. 12-5 at ¶ 5, the Mosses do not deny regularly
visiting or conducting business in New Hampshire on behalf of
one or all of the LIPS companies, including in connection with
the terms and conditions of Villano’s employment there.
2. Personal Jurisdiction Over LIPSMA in New
Hampshire
Villano appears to take the position that, because he was
(in his view) jointly employed by all three LIPS companies, all
of the LIPS companies’ contacts with New Hampshire may be
imputed to LIPSMA for jurisdictional purposes. The court
disagrees. Regardless of whether it may ultimately be
established that the LIPS companies were Villano’s joint
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30
employers, each defendant’s forum-related contacts must be
evaluated independently. Calder, 465 U.S. at 790; see also
Daimler AG v. Bauman, 571 U.S. 117, 134-136 (2014).
Villano has nevertheless met his burden to establish a
prima facie case that LIPSMA is properly subject to personal
jurisdiction in New Hampshire in connection with his claims.
Villano’s evidentiary proffer, viewed in light of the Rule
12(b)(2) prima facie standard, establishes that LIPSMA (together
with the other LIPS companies) hired Villano to perform services
for it in New Hampshire and in other locations (including its
own facilities in Massachusetts), and compensated him for his
services performed primarily in New Hampshire. LIPSMA employees
(together with employees of the other LIPS companies) supervised
Villano’s work, set his work schedule, issued job-related
instructions, and dictated his travel requirements.
The first element of the specific personal jurisdiction
inquiry, relatedness, requires the plaintiff to show that the
claim arises directly out of specific contacts between the
defendant and the forum state. Sawtelle, 70 F.3d at 1389. The
courts apply a “flexible, relaxed standard" in determining
whether the plaintiff has met the burden to establish
relatedness. Pritzker v. Yari, 42 F.3d 53, 61 (1st Cir. 1994).
Here, Villano’s claims arise from the terms and conditions of
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31
his employment and from the termination of his employment.
Because the record supports the conclusion for prima facie
purposes that LIPSMA had a degree of control over the terms and
conditions of Villano’s employment, which occurred primarily in
New Hampshire, Villano has met his burden in connection with
relatedness.
The second element of the inquiry, purposeful availment,
requires the plaintiff to show that the defendant “deliberately
targeted . . . behavior toward the society or economy of a
particular forum such that the forum should have the power to
subject the defendant to judgment regarding that behavior."
Baskin-Robbins, 825 F.3d at 36 (internal quotation marks and
modifications omitted) (quoting Carreras v. PMG Collins, LLC,
660 F.3d 549, 555 (1st Cir. 2011)). The function of the
purposeful availment inquiry is to ensure that the defendant
will not be subjected to jurisdiction in a foreign forum “based
solely on random, isolated or fortuitous contacts.” Id.
(citations and internal quotation marks omitted). Thus, 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 rather than from from the unilateral actions of
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32
the plaintiff. See id. at 20. Foreseeability requires that the
defendant's conduct and connection to the forum state "are such
that [the defendant] should reasonably anticipate being haled
into court there." Id. (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474 (1985)).
Villano’s purposeful availment showing is sufficient to
meet his burden. The record supports the conclusion for prima
facie purposes that LIPSMA elected to hire an employee in New
Hampshire, compensated that employee for his services performed
primarily in New Hampshire, and supervised the terms and
conditions of his employment there. In light of these voluntary
actions, it was foreseeable that LIPSMA could be haled into
court in New Hampshire in connection with claims arising out of
the terms and conditions of Villano’s employment. This is
sufficient to satisfy Villano’s burden in connection with
purposeful availment.
Because Villano has made a sufficient showing in connection
with the relatedness and purposeful availment elements of the
inquiry, the burden shifts to LIPSMA to show that it would
nevertheless be unreasonable to require it to litigate here.
They have not even attempted to meet this burden. The court
nevertheless reviews the jurisdictional record to determine
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33
whether it supports the conclusion that it would be unreasonable
to require LIPSMA to litigate here.
The courts consider five factors, sometimes referred to as
the “gestalt factors,” in determining whether the defendant has
met its burden at the final step of the inquiry. Ticketmaster-
New York v. Alioto, 26 F.3d 201, 209 (1st Cir. 1994). The
gestalt factors are as follows: (1) the burden on the defendant
if the defendant is required to litigate in the forum, (2) the
forum state’s interest in adjudicating the dispute, (3) the
plaintiff’s interest in obtaining convenient and effective
relief, (4) the interests of judicial efficiency, and (5) the
relative policy interests of all candidate fora. See Baskin-
Robbins, 825 F.3d at 38.
As to the first gestalt factor—the burden of litigating in
New Hampshire—it is of course necessarily burdensome to defend a
lawsuit. However, only in the case of a special or unusual
burden does this factor weigh against exercise of personal
jurisdiction. Hannon v. Beard, 524 F.3d 275, 285 (1st Cir.
2008). Here, defendants concede personal jurisdiction over LIPS
and LIPSNH, such that the LIPS companies will be litigating in
New Hampshire regardless of whether this court considers
Villano’s claims specifically against LIPSMA. Moreover, because
LIPSMA is a wholly-owned subsidiary of LIPS, under common
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34
management with LIPS and LIPSNH, it appears highly unlikely that
requiring LIPSMA to litigate in this forum together with its
closely related co-defendants will pose any special or unusual
burden on it.
The second gestalt factor—the forum state’s interest in
adjudicating the dispute—also weighs in favor of the exercise of
personal jurisdiction. New Hampshire has at least some interest
in providing a forum for the redress of injuries to persons
employed in New Hampshire. So long as the forum state has at
least some degree of interest in adjudicating the dispute, this
factor weighs in favor of exercising personal jurisdiction over
the foreign defendant. Id.
The third gestalt factor—the plaintiff’s interest—
virtually always weighs in favor of the exercise of personal
jurisdiction over the foreign defendant. Sawtelle, 70 F.3d at
1395. No grounds exist for disturbing that norm where, as here,
the plaintiff will be litigating his dispute in the forum state
whether or not the court exercises jurisdiction over the
specific defendant. Similarly, because it is not in the
interests of judicial efficiency to require Villano to pursue
his claims against the defendants in multiple fora, the fourth
gestalt factor—the interests of judicial efficiency—likewise
weighs in favor of the exercise of jurisdiction over LIPSMA.
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35
Finally, the fifth gestalt factor—relative policy interests
of New Hampshire and Massachusetts—weighs mildly against the
exercise of jurisdiction over LIPSMA here. This is because
Massachusetts arguably has a greater interest in providing a
forum for this litigation than New Hampshire.
Even assigning disproportionate weight to the fifth gestalt
factor, taken together the factors do not suggest in any degree
that the exercise of jurisdiction over LIPSMA in New Hampshire
would be so unfair or unreasonable as to raise constitutional
concerns. For these reasons, the personal jurisdiction
defendants’ motion to dismiss is denied as to LIPSMA.
3. Personal Jurisdiction Over the Mosses in New
Hampshire11
Villano has likewise met his burden to establish a prima
facie case that each of the Mosses is properly subject to
11 Although Robert and Bradley have not yet been properly
served in this action, such that this court may not properly
exert jurisdiction over them for general purposes, by filing a
Rule 12(b)(2) motion to dismiss they have effectively submitted
themselves to the jurisdiction of the court for the limited
purpose of permitting the court to determine whether the
exercise of personal jurisdiction over them could be proper.
See Ins. Corp. of Ireland, 456 U.S. at 706. The court therefore
considers the merits of the personal jurisdiction defendants’
motion to dismiss as to Robert and Bradley, notwithstanding that
they have not yet been properly served. In the event Villano
fails properly to serve Robert or Bradley, the unserved
defendant or defendants will be dismissed from this action on
Rule 12(b)(5) grounds.
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36
personal jurisdiction in New Hampshire in connection with his
claims. Villano’s evidentiary proffer, viewed in light of the
Rule 12(b)(2) prima facie standard, establishes that Robert
interviewed Villano in New Hampshire for a position in which he
would direct the information technology department for all three
of the LIPS companies. Robert instructed Villano that he would
perform services for the LIPS companies primarily from New
Hampshire. After Villano’s hire, all three of the Mosses
frequently and regularly supervised Villano’s work, both in
person and telephonically. All three Mosses also contributed to
the decision to terminate Villano’s employment, and Robert
communicated that decision to Villano by telephone while Villano
was in New Hampshire.
As to the relatedness inquiry, Villano’s claims arise from
the terms and conditions of his employment and from the
termination of his employment. Because the record supports the
conclusion for prima facie purposes that each of the three
Mosses regularly exercised control over the terms and conditions
of Villano’s employment, Villano has met his burden in
connection with relatedness.
As to purposeful availment, Villano has again met his
burden. Robert traveled to New Hampshire in order to interview
Villano to work for the LIPS companies while primarily based in
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37
New Hampshire. After hiring him, Robert exercised control over
the terms and conditions of Villano’s employment in New
Hampshire, contributed to the decision to terminate Villano’s
employment, and informed Villano of his termination while
Villano was in New Hampshire. Bradley and Michael exercised
control over the terms and conditions of Villano’s employment in
New Hampshire and contributed to the decision to terminate
Villano’s employment in New Hampshire. The Mosses voluntarily
took actions to supervise the employment of a New Hampshire
employee and decided to terminate that employee. As such, the
Mosses availed themselves of the obligations, protections, and
benefits of New Hampshire employment law. It was therefore
foreseeable that the Mosses might be haled into a New Hampshire
court in connection with claims arising out of the terms and
conditions of Villano’s employment.
The burden therefore shifts to the personal jurisdiction
defendants to make a compelling case that it would nevertheless
be unreasonable for the Mosses to be required to litigate here.
Again, they have made no effort to meet this burden. The court
nevertheless reviews the jurisdictional record to determine
whether it supports the conclusion that it would be
unreasonable, in light of the gestalt factors, to require the
Mosses to litigate here.
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For the same reasons discussed in connection with LIPSMA,
there would be no special or unusual burden if the Mosses were
required to litigate in New Hampshire. New Hampshire has at
least some interest in adjudicating Villano’s claims against the
Mosses; Villano has an interest in litigating this dispute in
New Hampshire; it is in the interests of judicial efficiency for
Villano to pursue his claims in a single forum; and weighing the
policy interests of New Hampshire against those of New York is
effectively a draw. The five gestalt factors, therefore, do not
suggest that the exercise of jurisdiction over any of the three
Mosses in New Hampshire would be so unfair or unreasonable as to
raise constitutional concerns. For these reasons, the personal
jurisdiction defendants’ motion to dismiss is denied as to the
Mosses.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 12) is granted in part and denied in part as discussed
above. Specifically, the motion is granted as to defendants
Robert Moss and Bradley Moss for insufficiency of service and is
otherwise denied. Service on Robert Moss and Bradley Moss is
quashed, and Villano shall have until April 16, 2020, to serve
Robert Moss and Bradley Moss with process in this action.
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Pending such service, the court will retain Villano’s action to
the extent filed against those defendants.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 16, 2020
cc: Counsel of Record
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