Boit v. Gar-Tec Products, Inc.

Decision Date10 April 1992
Docket NumberGAR-TEC,No. 91-2179,91-2179
Citation967 F.2d 671
PartiesRobert S. BOIT, et al., Plaintiffs, Appellants, v.PRODUCTS, INC., Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Gail Fisk Malone with whom David C. King and Rudman & Winchell, Bangor, Me., were on brief, for plaintiffs, appellants.

John B. Lucy with whom Richardson & Troubh, Portland, Me., were on brief, for defendant, appellee.

Harold J. Friedman, Karen Frink Wolf, and Friedman & Babcock, Portland, Me., on brief, for third-party defendant.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and KEETON, * District Judge.

KEETON, District Judge.

Plaintiffs-appellants Robert and Agnes Boit ("Boits") filed a product liability complaint against appellee-defendant Gar-Tec Products, Inc. ("Gar-Tec"), an Indiana corporation, in November of 1990. Gar-Tec subsequently removed the action to the United States District Court for the District of Maine. On March 1, 1991, Gar-Tec moved to dismiss the complaint against it for lack of in personam jurisdiction. The district court allowed the motion on the ground that the Boits failed to make a prima facie showing that Gar-Tec is subject to jurisdiction under the Maine long-arm statute. We affirm.

I. Background

On August 27, 1987, William Babson, a contractor, used an electric hot air gun to strip paint from the exterior clapboards of the Boits' home in Blue Hill, Maine. The Boits allege that heat from the hot air gun penetrated the exterior wall of their home and ignited materials inside the wall, causing a fire that seriously damaged their home and belongings.

In support of its motion to dismiss, Gar-Tec submitted the affidavit of Judith Duran, Gar-Tec's Controller. She declared that Gar-Tec is an Indiana corporation with a principal place of business in Lowell, Indiana and is a wholesaler and importer of power tools and products, primarily saw chain products. In addition, she stated that Gar-Tec had never conducted or transacted any business in Maine, had never owned or operated any wholesale or retail sales outlets in Maine, had never advertised in Maine, had never employed any persons in Maine, and had never owned any real estate or other property in Maine. Duran further stated that Gar-Tec did not manufacture the hot air gun used by Babson; rather the gun was manufactured by Kress Elektrik G.M.B.H. of Germany.

In opposing Gar-Tec's motion to dismiss, the Boits submitted the deposition of Babson, the contractor. He testified that after receiving a Brookstone catalog at his home in Maine, he placed a written order with Brookstone for the hot air gun that is the subject of the Boits' complaint. Brookstone subsequently shipped the hot air gun to Babson through the mail. Babson also testified that the hot air gun was labelled "Gar-Tec" and that the box in which the gun was shipped contained an operator's manual that bore the word "Gar-Tec" in one-inch high letters. In addition, the manual stated that warranty service is available by "contacting" Gar-Tec at its Lowell, Indiana address.

The Boits also submitted the affidavit of their counsel. 1 The attorney attested that Brookstone, a specialty tool company, has a retail outlet in Maine and that she had personally received Brookstone mail order catalogs delivered to her through the postal service at her home in Bangor, Maine.

The district court referred Gar-Tec's motion to dismiss to a magistrate judge for a recommendation. On August 6, 1991, the magistrate judge issued a decision recommending that Gar-Tec's motion to dismiss be allowed. After reviewing the affidavits of the parties, the magistrate judge concluded:

Based on these facts, I cannot find the requisite minimum contacts necessary to sustain personal jurisdiction over the defendant. Despite the plaintiffs' allegations, the motion record does not contain any information of evidentiary quality establishing that the defendant sold and distributed the hot air gun at issue to Brookstone or that the gun was purchased from Brookstone by mail and shipped by it into Maine.

Recommended Decision on Motion to Dismiss at p. 3 (emphasis added). After making a nondeferential (de novo) determination of all matters addressed by the magistrate judge, the district court entered an order allowing Gar-Tec's motion to dismiss "for the reasons set forth in [the magistrate judge's] Recommended Decision." Final judgment was entered forthwith, and this appeal followed.

II. Legal Standards and Methods of Adjudication

When a defendant presents to a district court a motion to dismiss for lack of in personam jurisdiction, the court may proceed to adjudication by one or another among several different methods. The different methods involve application by the district court of different legal standards. The standard of appellate review--whether deferential (under either the "clearly erroneous" or "abuse of discretion" standard) or nondeferential (under the "de novo " standard) depends in part on which method for determining the motion to dismiss the district court used and the nature of the proceedings before the court. The proceedings may involve proffers of evidence by affidavits (with or without opportunity for cross-examination), depositions, answers to interrogatories, admissions, authenticated documents, or oral testimony before the court.

Under every method for determining a motion to dismiss for lack of in personam jurisdiction, and regardless of the nature of the proceedings and the form of the proffers, "the plaintiff has the burden of showing that jurisdiction exists." Ealing Corp. v. Harrods Ltd., 790 F.2d 978, 979 (1st Cir.1986); accord McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Dalmau Rodriguez v. Hughes Aircraft Co., 781 F.2d 9, 10 (1st Cir.1986). The different standards applicable under different methods of adjudication concern what kind of "showing" the plaintiff must make for the case to survive the defendant's motion to dismiss.

A. Prima Facie Showing

The most commonly used method of determining a motion to dismiss for want of personal jurisdiction is for the district 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. To defeat a motion to dismiss when the court uses this method the plaintiff must make the showing as to every fact required to satisfy "both the forum's long-arm statute and the due process clause of the Constitution." U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st Cir.1990); accord Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1389 (8th Cir.1991); American Express International, Inc. v. Mendez-Capellan, 889 F.2d 1175, 1178 (1st Cir.1989); CutCo Indus., Inc. v. Naughton, 806 F.2d 361, 364-65 (2d Cir.1986). This standard for deciding a motion to dismiss is commonly referred to as the "prima facie " standard or a standard requiring a "prima facie " showing. In this Opinion, we use "prima facie " showing in this sense. 2

The prima facie showing of personal jurisdiction must be based on evidence of specific facts set forth in the record. Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7, 9 (1st Cir.1986). The "plaintiff must go beyond the pleadings and make affirmative proof." Chlebda v. H.E. Fortna & Bro. Inc., 609 F.2d 1022, 1024 (1st Cir.1979); see also Serras v. First Tennessee Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989) (noting that plaintiffs may not rest on their pleadings to make the prima facie showing).

We recognize that some courts--but a minority--appear to hold that allegations in a complaint, unsupported by any evidence in the record before the court, are sufficient to make a prima facie showing of personal jurisdiction so long as the defendant does not present evidence to contradict the allegations. See, e.g., Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987); Dowless v. Warren-Rupp Houdailles, Inc., 800 F.2d 1305, 1307 (4th Cir.1986). It has long been the rule of this circuit, however, that plaintiffs may not rely on unsupported allegations in their pleadings to make a prima facie showing of personal jurisdiction. See Chlebda, 609 F.2d at 1024 (observing that believing that jurisdictional allegations must be taken as true is an "elementary mistake").

In determining whether a prima facie showing has been made, the district court is not acting as a factfinder. It accepts properly supported proffers of evidence by a plaintiff as true. See, e.g., Dakota Industries, Inc., 946 F.2d at 1389; Serras, 875 F.2d at 1214; Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 663 (1st Cir.1972). Because the determination of the district court in applying the prima facie standard is one of law, review in the appellate court is nondeferential ("de novo "). See, e.g., Olivier v. Merritt Dredging Co., 954 F.2d 1553, 1555 (11th Cir.1992); Reed v. International Union of UAW, 945 F.2d 198, 201 (7th Cir.1991).

Federal Rule of Civil Procedure 12 provides that a defense of lack of jurisdiction over the person,

whether made in a pleading or by motion, ... shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

Fed.R.Civ.P. 12(d). If a district court applies the prima facie standard and allows a motion to dismiss, it complies with the directive that the motion "shall be heard and determined before trial...." If, instead, it applies the prima facie standard and denies the motion to dismiss, it is implicitly, if not explicitly, ordering "that hearing and determination [of the motion to dismiss] be deferred until the trial." Id.

B. Other Standards

A court may determine that in the circumstances of a particular case it is unfair to force an out-of-state defendant to incur the expense and...

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