Britton v. Cann

• Decision Date: 10 March 1988
• Docket Number: Civ. No. 87-291-D.
• Citation: 682 F. Supp. 110
• Parties: Gerald B. BRITTON v. Elsie CANN.
• Court: U.S. District Court — District of New Hampshire

682 F. Supp. 110

Gerald B. BRITTON v. Elsie CANN.

Civ. No. 87-291-D.

United States District Court, D. New Hampshire.

March 10, 1988.

COPYRIGHT MATERIAL OMITTED

Edward L. Minnich, Jr., Plaistow, N.H., for plaintiff.

Mark S. Gearreald, Exeter, N.H., and Paul B. Kleinman, Manchester, N.H., for defendant.

ORDER

DEVINE, Chief Judge.

In this diversity case, 28 U.S.C. § 1332, plaintiff Gerald B. Britton, a New Hampshire resident, seeks damages for personal injuries he suffered when allegedly attacked by defendant's son, Allen W. Cann. Allen Cann is not herein named as a defendant. In a motion to dismiss and subsequent amendatory motion, defendant Elsie Cann contends that the Court may not assert personal jurisdiction over her and that the complaint fails to state a claim upon which relief may be granted. Rules 12(b)(2) and 12(b)(6), Fed.R.Civ.P. Alleging that the suit is frivolous, defendant also seeks sanctions pursuant to Rule 11, Fed. R.Civ.P. The Court resolves said motions on the documents as filed. See Rule 11(g), Rules of the United States District Court for the District of New Hampshire.

Defendant filed her first motion on January 22, 1988, pursuant to Rule 12(b)(6), Fed.R.Civ.P., contending that the complaint fails to state a claim upon which relief may be granted. Attached to the motion is an affidavit, executed by defendant, in which she attests: (1) that she is currently a Massachusetts resident, (2) that her son Allen Cann was thirty-eight years old at the time the incident underlying this litigation occurred, and (3) that her son did not reside with her at the time of the incident, but resided in New Hampshire. Seven days later, on January 29, before plaintiff filed a response or objection, defendant moved to amend her motion to add jurisdictional grounds as a basis on which to dismiss the complaint. Rule 12(b)(2), Fed.R. Civ.P.

On February 1, 1988, plaintiff filed an objection to defendant's first motion, in which plaintiff argues not only that the complaint states a viable claim for relief, but that the Court should disallow defendant's motion because submission of an affidavit with a Rule 12 motion is improper. On February 8, plaintiff objected to defendant's motion to amend, asserting that defendant's submission of the original motion disputing the merits of the complaint constitutes a waiver of subsequent jurisdictional objections.

It is axiomatic that affidavits may accompany a Rule 12 motion, either in support thereof or objection thereto. If matters outside the pleadings are presented to the Court on a motion made pursuant to Rule 12(b)(6) and there has been ample opportunity for the disputants to respond, the Court may accept the materials and proceed under Rule 56. Moody v. Town of Weymouth, 805 F.2d 30, 31 (1st Cir.1986); Rule 12(b), Fed.R.Civ.P.; 5 C. Wright & A. Miller, 5 Federal Practice and Procedure hereinafter 5 Wright & Miller § 1366 (1969 & Supp.1987). And if, as here, the Court is resolving whether dismissal on jurisdictional grounds is warranted, it may consider affidavits even without treating the motion as a matter for summary judgment. See, e.g., Papafagos v. Fiat Auto, S.p.A., 568 F.Supp. 692, 693 n. 1 (D.N.H. 1983) (citing Amoco Oil Co. v. Local 99, International Brotherhood of Electrical Workers, 536 F.Supp. 1203, 1210 n. 9 (D.R. I.1982) (and citations therein)); 5 Wright & Miller § 1364. The Court accordingly considers defendant's affidavit.

Plaintiff's contention that defendant waived subsequent jurisdictional objections by first submitting a motion disputing the merits of the complaint is not groundless. In seeking to eliminate unnecessary delay at the pleading stage, Rules 12(g) and 12(h), which address consolidation and waiver of motions, provide that a party which makes a motion under Rule 12 may not thereafter make a motion based on any defense or objection which was available at the time the first motion was made. See Rules 12(g), 12(h), Fed.R.Civ.P.; 5 Wright & Miller § 1384. However, consistent with the liberalness embodied in the Federal Rules, see, e.g., Rules 1, 8(f), 15, Fed.R. Civ.P., courts have held that a preliminary motion may be amended to include a defense or objection which was inadvertently omitted. Amendment is allowed if sought in good faith, promptly, and before the opposing party has relied on the original grounds, with consideration given by the district court to whether the opposing party will be unduly prejudiced or the case unduly delayed. See 5 Wright & Miller, §§ 1194, 1389.

Here, the motion to amend was filed before plaintiff objected to the first motion which had been filed, and there is no evidence before the Court to suggest that plaintiff suffered a loss or endangerment of his rights due to the one-week delay between submission of the two motions. The delay is not significant given the prefatory stage of this litigation. Also, defendant attests that amendment is sought in good faith and that the omission was inadvertent — attestations which are uncontradicted by other facts before the Court. Accordingly, the Court grants defendant's motion to amend her motion to dismiss (document no. 8).

Defendant's motion to amend having been granted, the issue of personal jurisdiction is before the Court. Consonant with general jurisprudential practice, the Court turns to that issue before considering whether the complaint states a claim upon which relief may be granted. See 5 Wright & Miller § 1351 n. 21 and accompanying text.

Defendant contests personal jurisdiction; therefore, plaintiff has the burden to show that jurisdiction exists. Ealing Corp. v. Harrods, Ltd., 790 F.2d 978, 979 (1st Cir.1986) (citing McNutt v. GMAC, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936)). To meet this burden, plaintiff must make "a prima facie showing of jurisdiction," supported by specific facts alleged in the pleadings and affidavit. Id. (and citations therein). Plaintiff's written allegations of jurisdictional facts are construed in his favor. Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7, 9 (1st Cir.1986).

Defendant asserts that her contacts with New Hampshire at times pertinent to this litigation are insufficient to subject her to the Court's jurisdiction under New Hampshire Revised Statutes Annotated ("RSA") 510:4 I (1983), the New Hampshire long-arm statute applicable to service of process on nonresident individuals. That statute provides:

I. JURISDICTION. Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above.

(Emphasis added.) In considering whether it may assert jurisdiction over a nonresident defendant under RSA 510:4, the Court considers two factors: whether the statutory requirements of the state long-arm statute have been met, and whether defendant's contacts with New Hampshire are sufficient to meet federal constitutional due process concerns. Kowalski, supra, 787 F.2d at 9-10; Phelps v. Kingston, 536 A.2d 740, 741-42 (N.H.1987) (citing, e.g., Weld Power Indus. v. C.S.I. Technologies, 124 N.H. 121, 125, 467 A.2d 568, 570 (1983)).

The New Hampshire Supreme Court has held that the requirements of RSA 510:4 I are satisfied if any of the three acts enumerated in the statute are present, see, e.g., Kinchla v. Baumer, 114 N.H. 818, 330 A.2d 112 (1974), and that the statute is "to be construed in the broadest legal sense to encompass personal, private and commercial transactions," Hall, Morse, Gallagher & Anderson v. Koch & Koch, 119 N.H. 639, 644, 406 A.2d 962, 965 (1979) (quoting Leeper v. Leeper, 114 N.H. 294, 297, 319 A.2d 626, 628 (1974)). Federal due process concerns are met if the defendant "has purposefully availed itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Estabrook v. Wetmore, 129 N.H. 520, 523, 529 A.2d 956, 958 (1987) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)). The New Hampshire Supreme Court has consistently interpreted RSA 510:4 I "to grant jurisdiction whenever the due process clause of the United States Constitution permits it." Id.

The complaint alleges that defendant's husband, a machinist, gave plaintiff a sub-contract to manufacture some special fittings worth approximately $150. Upon completion of the job, defendant took the finished product to her then-hospitalized husband for inspection. Defendant's husband told defendant that the work was unsatisfactory. When defendant communicated this message to plaintiff, a dispute developed, during the course of which defendant became upset and began to cry. Complaint ¶¶ 1-2.

Upon hearing from a third party that plaintiff's actions had caused his mother to cry, Allen Cann contacted his mother and told her that he would speak with plaintiff. Mr. Cann telephoned plaintiff, allegedly after an afternoon of heavy drinking, and subsequently became abusive. Id. ¶¶ 3-4. Plaintiff hung up, after which Allen Cann became extremely angry and went to plaintiff's house with three friends, where he "launched a murderous attack upon plaintiff." Id. ¶ 4. Plaintiff alleges that this attack caused him to have a myocardial infarction approximately two years later. Id. Plaintiff further alleges that defendant knew her son was a violent and dangerous person, with "substance abuse problems as well as an extensive history of emotional illness and violent behavior of an abnormal and aberrant nature." Id. ¶ 5.

In the instant case, in order to be subject to RSA 510:4 I, defendant's actions must constitute either the transacting of business or a tortious...