S.M.W. Seiko, Inc. v. Howard Concrete Pumping Co.

• Citation: 170 F.Supp.2d 152
• Decision Date: 18 October 2001
• Docket Number: No. Civ. 01-183-JM.,Civ. 01-183-JM.
• Parties: S.M.W. SEIKO, INC. v. HOWARD CONCRETE PUMPING CO., INC.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire

170 F.Supp.2d 152 S.M.W. SEIKO, INC.
v.
HOWARD CONCRETE PUMPING CO., INC. No. Civ. 01-183-JM. United States District Court, D. New Hampshire. October 18, 2001.

Page 153

COPYRIGHT MATERIAL OMITTED

Page 154

David W. Rayment, Cleveland Waters & Bass PA, Concord, NH, for plaintiff.

Richard C. Gagliuso, Gagliuso & Gagliuso PA, Merrimack, NH, for defendant.

ORDER

MUIRHEAD, United States Magistrate Judge.

Before the court for consideration is the defendant's motion to dismiss for lack of personal jurisdiction, improper venue and insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(2), (3) & (5), or, in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the defendant's motion (document no. 6) is denied in its entirety.

Background

Plaintiff S.M.W. Seiko, Inc. ("Seiko") is a California corporation with offices located throughout the United States, including New Hampshire. Defendant Howard Concrete Pumping Co., Inc. ("Howard") is a Pennsylvania corporation with a principal place of business in Pennsylvania. In June 2000, Seiko and Howard entered into an agreement ("Agreement") whereby Seiko agreed to lease to Howard certain equipment for use on a construction project in Pennsylvania. Paragraph 19 of the Agreement, which is entitled "Venue and Applicable Law," states that "[t]his agreement and all actions arising here from shall be governed by the laws and venues in the State of New Hampshire." See Document no. 8, Exhibit 2.A.¹

Following the parties' execution of the Agreement, Howard arranged to have the equipment shipped from Seiko's Merrimack, New Hampshire facility to Pennsylvania for use at the project site. After completion of the project, Howard arranged

Page 155

to have the equipment returned to Seiko's New Hampshire facility, where it is currently stored.

In April 2001, Seiko brought suit against Howard in New Hampshire Superior Court seeking recovery for damage that allegedly occurred to the equipment while it was in Howard's possession. Pursuant to New Hampshire's long-arm statute, N.H.Rev.Stat.Ann. § 510:4, Seiko served Howard with a Writ of Summons by leaving a copy of the Writ with the Secretary of State.

On May 18, 2001, counsel for Howard filed a general appearance in the Superior Court. On that same date, Howard removed the action to this court.

Discussion

A. Personal Jurisdiction

Howard moves to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2).² "When the court's jurisdiction is contested, the plaintiff has the burden of proving that jurisdiction exists." Kowalski v. Doherty, Wallace, Pillsbury & Murphy, 787 F.2d 7, 8 (1st Cir.1986). See also Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir.1995). Where, as here, "there has been no evidentiary hearing and the court proceeds upon written submissions, plaintiff `need only make a prima facie showing that jurisdiction exists'." Kowalski, 787 F.2d at 8 (quoting 2A J. Moore & J. Lucas, Moore's Federal Practice ¶ 12.07[2.-2] (2d ed.1985)). In determining whether a prima facie showing has been made, the court does not act as factfinder, but accepts the plaintiff's properly supported proffers of evidence as true. Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir.1992).

It is unnecessary to evaluate whether Howard has sufficient contacts with the State of New Hampshire to satisfy the state's long-arm statute and the Fourteenth Amendment's Due Process clause. Here, as Seiko argues, Howard waived its right to contest personal jurisdiction when it filed a general appearance in state court.

In New Hampshire, a defendant who files a general appearance waives all objections to personal jurisdiction.³ R. Wiebusch, 4 N.H.Prac. Series, Civ.Prac. & Proc. § 15.11 (2d ed.1997) (citing Woodbury v. Swan, 58 N.H. 380 (1878)). See also Barton v. Hayes, 141 N.H. 118, 120, 677 A.2d 694 (1996) (personal jurisdiction argument waived by defendant's general appearance moving to strike default judgment); Lachapelle v. Town of Goffstown, 134 N.H. 478, 480, 593 A.2d 1152 (1991) (by moving for late entry of appearance and to strike default, defendant submitted to jurisdiction); Brodowski v. Supowitz, 122 N.H. 694, 696, 448 A.2d 430 (1982) (defendant submitted to jurisdiction of the court by moving to file a general appearance). By filing a general appearance in New

Page 156

Hampshire Superior Court, therefore, Howard submitted to the jurisdiction of that court.

After removal, the federal court takes up the case where the state court left off. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 436, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) (citation omitted). Upon removal, therefore, "a defendant may assert any defense that would have been available to him in state court and which has not been lost through the operation of either Fed. R.Civ.P. 12(g) or 12(h)."⁴ Nationwide Eng'g & Control Sys., Inc. v. Thomas, 837 F.2d 345, 348 (8th Cir.1988). Where a defendant has waived his right under state law to contest jurisdiction, he is barred from asserting a defense of personal jurisdiction in federal court. Id. See also Hakemy v. Jackson, 2001 WL 492378 *1-2 (N.D.Tex. May 4, 2001) (following Nationwide Eng'g in holding that a defendant who waives the defense of personal jurisdiction in state court cannot assert the defense following removal to federal court); Haedike v. Kodiak Research, Ltd., 814 F.Supp. 679, 681-82 (N.D.Ill.1992) (same); Delloma v. Consol. Coal Co., ___ F.Supp.3d ___, 1992 WL 510617 *1-2 (S.D.Ill. April 3, 1992) (defendant who generally appeared in state court on the same date that he filed a petition for removal to federal court was precluded from challenging personal jurisdiction). Accordingly, Howard's motion to dismiss for lack of personal jurisdiction and for insufficient service of process is denied.

B. Venue

Howard's venue challenge is equally unavailing. Contrary to the parties' assertions, 28 U.S.C. § 1391 is inapplicable to this matter because it is a removed action. See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665, 73 S.Ct. 900, 97 L.Ed. 1331 (1953); Lambert v. Kysar, 983 F.2d 1110, 1113 n. 2 (1st Cir.1993). Instead, the venue of removed actions is governed by 28 U.S.C. § 1441(a), which provides that the proper venue is "the district...