United States Court of Appeals
For the First Circuit
No. 09-1550
AMANDA COSSABOON,
Plaintiff, Appellant,
v.
MAINE MEDICAL CENTER,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Boudin, Stahl and Lipez,
Circuit Judges.
Matthew R. Serge, with whom Heather M. Burns, Upton &
Hatfield, LLP was on brief, for appellant.
Gerald F. Petruccelli, with whom Petruccelli, Martin & Haddow,
LLP was on brief, for appellee.
March 25, 2010
LIPEZ, Circuit Judge. Plaintiff Amanda Cossaboon,
individually and as mother and next friend of E.C., appeals from
the district court's dismissal of her medical malpractice action
against defendant Maine Medical Center (MMC) for lack of personal
jurisdiction. Cossaboon contends that MMC purposefully established
sufficient contacts with New Hampshire to permit the exercise of
general personal jurisdiction in New Hampshire. We disagree and
affirm.
I.
On June 3, 2008, Cossaboon, a New Hampshire resident,
filed this medical malpractice action against MMC in New Hampshire
Superior Court. Cossaboon alleged that on April 15, 2007, she gave
birth to twin daughters at Portsmouth Hospital in New Hampshire.
The twins were born prematurely, and E.C., upon referral from her
New Hampshire physician, was transferred to the neonatal intensive
care unit at MMC four hours after her birth. On May 1, 2007, an
employee of MMC placed a hot, wet diaper on E.C.'s heel. The
diaper burned E.C.'s heel, causing scarring and requiring
additional medical services. Cossaboon alleged that MMC breached
the standard of care by placing the hot diaper on E.C.'s foot, and
sought compensation, individually and as mother and next friend of
E.C., for the resulting injury and economic losses.
MMC removed the action to federal court on the basis of
diversity of citizenship on June 30, 2008, and later moved to
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dismiss for lack of personal jurisdiction. Cossaboon opposed the
motion to dismiss, contending that MMC was subject to both specific
and general personal jurisdiction. After hearing argument from
counsel, the district court granted MMC's motion to dismiss.
The court concluded that MMC was not subject to specific
personal jurisdiction because Cossaboon's claim did not directly
relate to or arise from MMC's activities in New Hampshire.
Instead, the act from which the claim arose, the application of the
hot diaper to E.C.'s heel, occurred in Maine nearly two weeks after
E.C.'s transfer from Portsmouth Hospital to MMC. The court further
determined that MMC was not subject to general personal
jurisdiction because MMC had not purposefully established
"continuous and systematic" contacts with New Hampshire. In light
of its conclusion that MMC was not subject to either specific or
general jurisdiction, the court found it unnecessary to reach the
issue of whether New Hampshire's long-arm statute conferred
jurisdiction over MMC.1
1
In addition to constitutional requirements, an exercise of
jurisdiction over an out-of-state defendant must be authorized by
the forum's long-arm statute. Harlow v. Children's Hosp., 432 F.3d
50, 57 (1st Cir. 2005). In its motion to dismiss, MMC contended
that no New Hampshire statute asserted long-arm personal
jurisdiction over foreign not-for-profit corporations such as MMC.
Cossaboon countered that New Hampshire's long-arm legislation
authorized jurisdiction over foreign corporations to the full
extent permitted by due process. We, like the district court, find
it unnecessary to address this issue.
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Cossaboon filed this timely appeal, challenging only the
district court's ruling that MMC is not subject to general personal
jurisdiction.
II.
A. Jurisdictional Facts
For purposes of the general jurisdiction analysis, we
"consider all of a defendant's contacts with the forum state prior
to the filing of the lawsuit." Harlow v. Children's Hosp., 432
F.3d 50, 65 (1st Cir. 2005). The relevant facts in this case are
largely undisputed.
Cossaboon is a New Hampshire resident. MMC is a not-for-
profit corporation organized in the state of Maine with its
principal place of business in Portland, Maine. MMC does not hold
any license from the state of New Hampshire, and does not own,
lease, or occupy any real property in New Hampshire. It does not
employ any physicians, nurses or other healthcare professionals who
provide professional services in New Hampshire and does not require
employees to hold medical licenses from New Hampshire.
At the time that E.C.'s injury occurred, MMC was
registered to do business in New Hampshire as a foreign not-for-
profit corporation, and had registered the trade name "Northern New
England Poison Control Center." On its Application for
Registration of a Foreign Nonprofit Corporation, MMC stated that
the "principal purpose or purposes which it proposes to pursue in
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the transaction of business in New Hampshire" was "including but
not limited to poison control center serv[ic]es." The Northern New
England Poison Control Center (Poison Control Center) operates a
poison hotline in Portland, Maine that accepts phone calls from New
Hampshire, Maine and Vermont. All calls to the Poison Control
Center are handled by MMC personnel in Portland; MMC provides no
poison-related medical services other than at locations in
Portland. At the time of E.C.'s injury, MMC employed one person in
New Hampshire. That employee did not provide medical services in
New Hampshire, but was employed to provide education and
consultation services to healthcare providers, educators, first
responders and others interested in the work of the Poison Control
Center.2
MMC does not purchase advertisements in any New
Hampshire-based newspapers, telephone directories or television or
radio stations. MMC does issue periodic press releases to a range
of media outlets, including two New Hampshire-based newspapers
(Foster's Daily Democrat and the Portsmouth Herald) and a few
regional and national news outlets that reach New Hampshire (such
as The Boston Globe and New England Cable News). MMC has placed
job listings in the regional trade publication HealthCare Review,
which is produced in New Hampshire. MMC also advertises on radio
2
MMC employed this New Hampshire-based employee from November
8, 2004 to September 1, 2007.
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and television stations whose signals may reach parts of New
Hampshire, including WGME, a television station broadcast from
southern Maine.
MMC operates a website that provides information about
the hospital's services and staff. The website allows users to
make online charitable donations to the hospital, complete patient
pre-registration, register for classes and events, find a doctor,
and apply for an employment position at the hospital. The website
describes certain hospital services and programs, four of which
mention that MMC serves patients from New Hampshire.
MMC participates in the Regional Emergency Medical
Information System (REMIS), a twenty-four-hour communication center
that facilitates transfers to MMC from other hospitals and
caregivers. When a caregiver calls MMC with a request to transfer
a patient, REMIS facilitates communications related to patient
status, bed availability, and other information necessary for the
transfer. Contacts regarding transfer to MMC are initiated by the
patients' caregivers. MMC has no agreements with New Hampshire
physicians under which patients are directed to MMC for medical
services.
MMC has also entered into an agreement with Dartmouth
Medical School in New Hampshire whereby medical students at
Dartmouth may be placed at MMC for clinical training rotations.
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The agreement specifies that the Dartmouth students are present at
MMC "in their learning capacity" and not as employees of MMC.
Finally, MMC treats patients from New Hampshire at its
Portland hospital. In the approximately two years before Cossaboon
filed suit, New Hampshire residents represented approximately 1.23%
of all patients treated at MMC, whether admitted as in-patients or
treated as out-patients (8,107 New Hampshire patients out of a
total of 660,524 patients). In 2006 and 2007, New Hampshire
residents admitted as in-patients at MMC represented 2.9% of all
in-patient admissions to MMC. New Hampshire residents represented
a somewhat higher percentage of patients admitted to the neonatal
unit at MMC, approximately 8.8% of neonatal admissions in 2007.
A portion of MMC's revenue is derived from its treatment
of New Hampshire residents. In the roughly two years prior to
Cossaboon's suit, MMC received approximately $72,537,073 in
payments for treatment of New Hampshire residents. These payments
represented approximately 3.24% of MMC's total revenue for this
period. MMC received $2,613,951 in payments from New Hampshire
Medicaid, .001% of MMC's total revenue during this period.
B. Legal Background on Personal Jurisdiction
1. Standard of Review
Where, as here, the district court "held no evidentiary
hearing but instead conducted only a prima facie review of the
jurisdictional facts," we review de novo the district court's
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decision to dismiss for lack of personal jurisdiction. Harlow, 432
F.3d at 57 (quotation marks and citation omitted). In reviewing a
decision made under the prima facie standard, we consider the
plaintiff's allegations "so far as evidence supports them after
preliminary jurisdictional discovery." Jet Wine & Spirits, Inc. v.
Bacardi & Co., 298 F.3d 1, 4 (1st Cir. 2002); see United States v.
Swiss Am. Bank, Ltd., 274 F.3d 610, 619 (1st Cir. 2001) (holding
that the prima facie showing "must be based upon evidence of
specific facts set forth in the record") (quotation marks and
citation omitted). In addition, "[w]e then add to the mix facts
put forward by the defendants, to the extent that they are
uncontradicted." Mass. Sch. of Law at Andover, Inc. v. Am. Bar
Ass'n, 142 F.3d 26, 34 (1st Cir. 1998). The plaintiff "ultimately
bears the burden of persuading the court that jurisdiction exists."
Id.
2. Due Process Requirements
Personal jurisdiction may be either general or specific.
Harlow, 432 F.3d at 57. Specific jurisdiction "may only be relied
upon where the cause of action arises directly out of, or relates
to, the defendant's forum-based contacts." Pritzker v. Yari, 42
F.3d 53, 60 (1st Cir. 1994) (internal quotation marks and citation
omitted); see Glater v. Eli Lilly & Co., 744 F.2d 213, 215 (1st
Cir. 1984) (stating that specific jurisdiction is based on "the
relationship among the defendant, the forum, and the litigation").
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General jurisdiction, by contrast, "may be asserted in connection
with suits not directly founded on [that defendant's] forum-based
conduct. . . ." Pritzker, 42 F.3d at 59 (quotation marks and
citation omitted). General jurisdiction broadly subjects the
defendant to suit in the forum state's courts "in respect to all
matters, even those that are unrelated to the defendant's contacts
with the forum." Phillips Exeter Acad. v. Howard Phillips Fund,
Inc., 196 F.3d 284, 288 (1st Cir. 1999). On appeal, Cossaboon has
abandoned her claim of specific jurisdiction and contends only that
MMC is subject to general jurisdiction.
Constitutional limitations on the exercise of personal
jurisdiction over out-of-state defendants are rooted in principles
of "fundamental fairness." Id. at 288. The due process clause
"protects an individual's liberty interest in not being subject to
the binding judgments of a forum with which he has established no
meaningful 'contacts, ties, or relations.'" Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 471-72 (1985) (quoting Int'l Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945)). As such, a court is
precluded from asserting jurisdiction unless "the defendant's
conduct and connection with the forum State are such that [it]
should reasonably anticipate being haled into court there." World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Based on the precedents of the Supreme Court, we have
read the due process clause to impose three requirements on the
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exercise of general jurisdiction over out-of-state defendants.
Harlow, 432 F.3d at 57. To justify the exercise of general
jurisdiction, (1) the defendant must have sufficient contacts with
the forum state, (2) those contacts must be purposeful, and (3) the
exercise of jurisdiction must be reasonable under the
circumstances. Id.
In order to satisfy the first requirement, the defendant
must have sufficient contacts with the forum state "such that the
maintenance of the suit does not offend traditional notions of fair
play and substantial justice." Int'l Shoe, 326 U.S. at 316
(internal quotation marks and citation omitted). Although a
showing of "minimum contacts" is sufficient to establish specific
jurisdiction, the standard for establishing general jurisdiction is
"considerably more stringent." Glater, 744 F.2d at 216. To permit
the exercise of general jurisdiction, the defendant must "engage[]
in the 'continuous and systematic' pursuit of general business
activities in the forum state." Id. (quoting Perkins v. Benguet
Consol. Mining Co., 342 U.S. 437, 448 (1952)); see 4A Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1067.5
(3d ed. 2002) ("[T]he defendant must be engaged in longstanding
business in the forum state, such as marketing or shipping
products, or performing services or maintaining one or more offices
there; activities that are less extensive than that will not
qualify for general in personam jurisdiction.)"
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Under the second requirement, the defendant's contacts
with the state must be "purposeful." Harlow, 432 F.3d at 57. That
is, there must be "some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its
laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958). The
purposeful availment test "focuses on the defendant's
intentionality," Swiss Am. Bank, 274 F.3d at 623, and "is only
satisfied when the defendant purposefully and voluntarily directs
his activities toward the forum so that he should expect, by virtue
of the benefit he receives, to be subject to the court's
jurisdiction based on these contacts." Id. at 624. This
requirement ensures that a defendant will not be subjected to
personal jurisdiction on the basis of "random, fortuitous, or
attenuated contacts" or "the unilateral activity of another party
or a third person." Burger King, 471 U.S. at 475 (internal
quotation marks and citations omitted).
Our analysis of whether a defendant's contacts with the
forum state satisfy these first two requirements is not "simply
mechanical or quantitative," but instead depends upon the "quality
and nature" of the defendant's activity in the forum state. Int'l
Shoe, 326 U.S. at 319. The inquiry is "highly idiosyncratic,
involving an individualized assessment and factual analysis of the
precise mix of contacts that characterize each case." Pritzker, 42
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F.3d at 60. Although our inquiry is fact-specific, it is "guided
by the types of contacts deemed sufficiently continuous and
systematic in other cases." Noonan v. Winston Co., 135 F.3d 85, 93
(1st Cir. 1998).
Under the third and final requirement, the exercise of
jurisdiction must be "reasonable under the circumstances."3
Harlow, 432 F.3d at 57. The reasonableness inquiry is "secondary
rather than primary; unless the defendant has some cognizable
contacts with the proposed forum, the court cannot assert general
jurisdiction." Sandstrom v. ChemLawn Corp., 904 F.2d 83, 89 (1st
Cir. 1990) (quotation marks and citation omitted).
C. Analysis
Cossaboon contends that MMC purposefully established
continuous and systematic contacts with New Hampshire sufficient to
subject it to general jurisdiction in the state. She does not
dispute that MMC is organized under Maine law, has its principal
3
The reasonableness inquiry focuses on an assessment of the
so-called "Gestalt factors," which include
(1) the defendant's burden of appearing, (2)
the forum state's interest in adjudicating the
dispute, (3) the plaintiff's interest in
obtaining convenient and effective relief, (4)
the judicial system's interest in obtaining
the most effective resolution of the
controversy, and (5) the common interests of
all sovereigns in promoting substantive social
policies.
Harlow, 432 F.3d at 67 (quotation marks and citation omitted).
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place of business in Portland, Maine, does not own property or
maintain medical facilities in New Hampshire, and does not employ
any healthcare professionals who provide medical services in New
Hampshire. However, she points to evidence that MMC (1) advertised
to New Hampshire residents, (2) operated a website accessible in
New Hampshire, (3) registered to do business in New Hampshire and
employed one person to work in New Hampshire, (4) participated in
REMIS, a system that facilitates patient transfers, (5) entered
into an agreement with Dartmouth Medical School in New Hampshire,
and (6) treated a substantial number of New Hampshire residents at
its Maine facility.
Our analysis of whether MMC's contacts with New Hampshire
are constitutionally sufficient to support the exercise of general
jurisdiction ultimately depends upon those contacts viewed in the
aggregate. See, e.g., Noonan, 135 F.3d at 93. However, we cannot
determine whether MMC's contacts as a whole support the assertion
of general jurisdiction without first exploring each type of
contact to assess its quality, frequency, and, of particular
importance, the extent to which it is purposefully directed toward
New Hampshire residents. Therefore, we examine separately each of
the contacts Cossaboon relies on to support her claim of general
jurisdiction.
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1. Advertising
Cossaboon argues that MMC has "consistently advertised"
its services in New Hampshire and these advertising efforts support
the exercise of general jurisdiction. However, "where defendant's
only activities consist of advertising and employing salesmen to
solicit orders, we think that fairness will not permit a state to
assume jurisdiction." Harlow, 432 F.3d at 66 (internal quotation
marks and citations omitted). In Harlow, we held that the
hospital's advertising activities, which included sending monthly
newsletters and other mailings directly to physicians in the forum
state, were insufficient to support the exercise of general
jurisdiction. Id. at 60, 65-66; see also Sandstrom, 904 F.2d at
89-90 (holding that defendant company's placement of "help wanted"
ads in forum-based newspaper was "neither pervasive nor even
substantial" advertising, and fell "far short of bridging the
jurisdictional gap").
In prior cases, we have found even extensive advertising
contacts with the forum state inadequate to permit an assertion of
general jurisdiction. In Glater, the defendant, a pharmaceutical
company, advertised in trade journals that circulated in the forum
state, employed eight sales representatives to market products to
potential customers in the state, and sold products to wholesale
distributors located in the state. 744 F.2d at 215. We concluded
that these advertising and solicitation activities did not meet the
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stringent standard for general jurisdiction. Id. at 217; see also
Seymour v. Parke, Davis & Co., 423 F.2d 584, 585 (1st Cir. 1970)
(finding no general jurisdiction where defendant drug company
advertised in the forum state by mail and employed six sales
representatives in forum state to disseminate product information
and take orders).
MMC's advertising to New Hampshire residents is less
purposeful and less extensive than the advertising contacts found
insufficient in prior cases. MMC does not purchase advertisements
in any New Hampshire-based newspapers, telephone directories, or
radio or television stations. Although it issues periodic press
releases to forty-five media outlets, only two of those outlets are
based in New Hampshire, and no press releases are sent to only New
Hampshire-based media. Moreover, there is no evidence regarding
the content or frequency of these press releases. MMC has placed
advertisements in one regional trade publication produced in New
Hampshire, but it appears that it merely advertised job openings at
MMC. Finally, MMC advertises on Maine-based radio and television
stations, some of which have signals that reach parts of New
Hampshire. However, this advertising, although it may incidentally
reach some New Hampshire viewers or listeners, is not targeted
toward New Hampshire residents in particular.
Cossaboon relies on Soares v. Roberts, 417 F. Supp. 304
(D.R.I. 1976), to argue that advertising activities similar to
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those engaged in by MMC have been found to support an assertion of
personal jurisdiction. In Soares, the court held that the
defendant, a Boston, Massachusetts medical facility that performed
abortions, was subject to personal jurisdiction in Rhode Island.
Id. at 307. The court based its conclusion in part on evidence
that the facility placed advertisements in local Rhode Island
newspapers, received regular referrals from Rhode Island healthcare
providers, and employed a staff-person to inform Rhode Island
healthcare providers about its services. Id.
Soares does not support a finding of general jurisdiction
in this case. The Soares court exercised specific jurisdiction
over the defendant, but made it clear that it was hesitant to
assert general jurisdiction. Id. at 307-08 (noting that the
facility's advertising had "a direct connection with the case at
bar" because the plaintiff was "within the class of persons" the
advertising was designed to reach, and holding that personal
jurisdiction extended "at least as to those individuals whose
business the solicitation was designed to obtain"). Furthermore,
the advertising to forum state residents in Soares was more
extensive and more purposeful than MMC's occasional press releases
and help-wanted advertisements that may have been viewed by New
Hampshire residents.
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2. MMC Website
Cossaboon contends that MMC's "user-friendly and
interactive website," www.mmc.org, supports the exercise of general
jurisdiction. It is clear that "the mere existence of a website
that is visible in a forum and that gives information about a
company and its products is not enough, by itself, to subject a
defendant to personal jurisdiction in that forum." McBee v. Delica
Co., 417 F.3d 107, 124 (1st Cir. 2005) (addressing analogous issue
of extraterritorial jurisdiction under the Lanham Act). Given the
"omnipresence" of internet websites, such a rule would "eviscerate"
the limits on personal jurisdiction over out-of-state defendants.
Id. Instead, for website activity to support the exercise of
personal jurisdiction, "[s]omething more is necessary, such as
interactive features which allow the successful online ordering of
the defendant's products." Id.
In addressing what "more" is required to support the
exercise of general jurisdiction based on website activity, courts
have focused on the extent to which the defendant has actually and
purposefully conducted commercial or other transactions with forum
state residents through its website. See, e.g., Dagesse v. Plant
Hotel N.V., 113 F. Supp. 2d 211, 223 (D.N.H. 2000) ("[A] proper
analysis of the jurisdictional effects of an internet web site must
focus on whether the defendant has actually and deliberately used
its website to conduct commercial transactions or other activities
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with residents of the forum."); Coastal Video Commc'ns Corp. v.
Staywell Corp., 59 F. Supp. 2d 562, 571-72 (E.D. Va. 1999) (finding
the "mere existence of an interactive website" insufficient to
support general jurisdiction); 4A Wright & Miller, supra, § 1073.1.
We employed such an analysis in Harlow, reasoning that the
hospital's website, although accessible in the forum state, did not
support a finding of general jurisdiction because the hospital did
not "actually do business" through its website. 432 F.3d at 65-66.
Cossaboon emphasizes that MMC's website is not purely
informational, but has interactive features. The website permits
users to make online donations, complete patient pre-registration,
register for classes, find a doctor, and apply for employment.
Although it has these interactive features, MMC's website
does not sell or render services online. Instead, the site is
primarily informational and discusses the healthcare services
provided at MMC's facility in Maine. Moreover, MMC's website is
available to anyone with internet access and does not target New
Hampshire residents in particular. Although MMC's interactive
website advertises MMC's services and may increase the chance that
users turn to MMC for their healthcare needs, that is no more true
of New Hampshire residents than it is of any other visitors to the
website. The mere fact that such an interactive site is accessible
in New Hampshire does not indicate that MMC purposefully availed
itself of the opportunity to do business in New Hampshire.
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Cossaboon asserts that MMC's website is "designed to
reach and appeal to New Hampshire residents specifically."
However, she points only to evidence that a keyword search of MMC's
site for "New Hampshire" yields four web pages that mention the
state.4 These four stray references to New Hampshire on MMC's
website do not indicate that MMC intentionally uses its website to
4
These four entries on MMC's website read, in pertinent part:
Precious Hearts Support Group. Members of the
group are parents of families with children
with congenital heart defects from Maine and
New Hampshire, including those who have lost
their battle with CHD.
Neuro-Endovascular Therapy - Maine
Neurosurgery. The physicians of Maine
Neurosurgery provide care to patients in Maine
and New Hampshire for conditions including
trauma, spine disorders, tumors,
cerebrovascular and carotid artery disease,
peripheral nerve problems, and epilepsy.
Respiratory Care. The Pulmonary Hypertension
Program at Maine Medical Center serves
patients throughout Northern New England, with
current patients from Maine, New Hampshire,
Vermont, New York, and Massachusetts.
Helping Children in our Community. All
fundraising efforts by the Barbara Bush
Children's Hospital at Maine Medical Center
and its Children's Miracle Network in Southern
and Central Maine and Northern New Hampshire
benefit The Barbara Bush Children's Hospital
at Maine Medical Center, reflecting the
founding pledge to keep 100% of the donations
in the local community. Funds raised in our
area help give all children in Maine and New
Hampshire access to quality medical care close
at home.
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target New Hampshire residents. Indeed, the homepage of MMC's
website does not mention New Hampshire at all but instead focuses
on MMC's services to the Portland area and the state of Maine,
stating that MMC "fills a dual role: it is Maine's premier referral
hospital, offering services not available elsewhere in the state,
and it is a community hospital serving the greater Portland
region." MMC's website, although available to New Hampshire
residents, is not purposefully directed toward them.5
5
We note that Cossaboon relies on the often cited Zippo Mfg.
Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), a
case that addressed whether website activity supported a claim of
specific jurisdiction. Id. at 1122. In Zippo, the district court
held that "the likelihood that personal jurisdiction can be
constitutionally exercised is directly proportionate to the nature
and quality of commercial activity that an entity conducts over the
Internet." Id. at 1124. The court then articulated a "sliding
scale" to measure a website's contacts with a forum state:
At one end of the spectrum are situations
where a defendant clearly does business over
the Internet. If the defendant enters into
contracts with residents of a foreign
jurisdiction that involve the knowing and
repeated transmission of computer files over
the Internet, personal jurisdiction is proper.
At the opposite end are situations where a
defendant has simply posted information on an
Internet Web site which is accessible to users
in foreign jurisdictions. A passive Web site
that does little more than make information
available to those who are interested in it is
not grounds for the exercise [of] personal
jurisdiction. The middle ground is occupied
by interactive Web sites where a user can
exchange information with the host computer.
In these cases, the exercise of jurisdiction
is determined by examining the level of
interactivity and commercial nature of the
exchange of information that occurs on the Web
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3. Poison Control Center
Cossaboon emphasizes that at the time of E.C.'s alleged
injury, MMC was registered to do business in New Hampshire and
employed one person in New Hampshire to do work related to the
Poison Control Center. Corporate registration in New Hampshire
adds some weight to the jurisdictional analysis, but it is not
alone sufficient to confer general jurisdiction. See Sandstrom,
904 F.2d at 89 (finding no general jurisdiction where, inter alia,
company was registered to do business in forum and conducted
limited advertising in forum). "[P]reparations to do business at
an indeterminate future date, without more, cannot be confused with
actually doing business" in the forum state. Id. We do not find
site.
Id. (internal citations omitted). While some courts have applied
the Zippo sliding scale to claims of general jurisdiction, see 4A
Wright & Miller, supra, § 1073.1 & n.22 (citing cases), it has been
noted that the Zippo sliding scale "is not well adapted to the
general jurisdiction inquiry, because even repeated contacts with
forum residents by a foreign defendant may not constitute the
requisite substantial, continuous and systematic contacts required
for a finding of general jurisdiction." Revell v. Lidov, 317 F.3d
467, 471 (5th Cir. 2002); see 4A Wright & Miller, supra, § 1073.1
("Note that in theory the Zippo case's sliding scale approach
should be of little value in a general jurisdiction analysis. What
a defendant does on many — but not necessarily all — 'active' and
'interactive' websites will not rise to the level of the systematic
and continuous contacts that are required for the exercise of
general jurisdiction. . . ."). In this case, MMC's website is best
categorized as falling into the intermediate category described by
Zippo, and therefore the Zippo scale provides little assistance
here. Moreover, given the considerably more stringent standard for
establishing general jurisdiction, we find most helpful those
decisions addressing whether website activity supports an exercise
of general, rather than specific, jurisdiction.
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it significant that MMC stated on its application for business
registration that its principal business purpose was "including but
not limited to poison control serv[ic]es." There is no evidence
that MMC conducted any services in New Hampshire apart from those
described above related to the Poison Control Center. At most,
MMC's broad statement of its business purposes on its registration
application suggests preparations to do additional business in New
Hampshire at some point in the future.
Here, MMC's lone Poison Control Center employee in New
Hampshire did not provide any medical services, poison-related or
otherwise, in New Hampshire. Calls to the Poison Control Center
are handled by MMC staff in Maine, and all of MMC's poison-related
medical services are provided in Maine. Instead, MMC's one New
Hampshire-based employee simply provided information and
consultation services to healthcare providers and others interested
in the Poison Control Center's work. MMC's employment of one
person to educate New Hampshire residents about the availability of
MMC's poison-related services is akin to a company's employment of
individuals to advertise company products to forum residents. We
have held that far more extensive advertising and marketing
activities in the forum state fell short of establishing general
jurisdiction. See Glater, 744 F.2d at 215 (employment of eight
salesmen to market products in forum state); Seymour, 423 F.2d at
585 (employment of six salesmen in forum state). Furthermore,
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while in cases like Glater and Seymour the products advertised are
then sold for use in the forum state, here MMC's advertised
services are available only in Maine.
4. REMIS
Cossaboon points to MMC's participation in REMIS to
support her claim of general jurisdiction. REMIS is a twenty-four-
hour communication center that facilitates transfers to MMC once
other hospitals and caregivers have contacted MMC with a transfer
request. For example, when a caregiver calls MMC to request a
transfer, REMIS facilitates determination of the appropriate
services to contact and then monitors the call to collect transfer
information. Transfer requests are initiated by the patient's own
caregiver, not by MMC, and patients still must travel to Maine to
receive MMC's medical services. MMC has no agreement with New
Hampshire physicians whereby patients are directed to MMC for
medical services, and there is no indication that MMC participates
in REMIS in order to attract more referrals from New Hampshire in
particular. MMC's participation in REMIS does not reflect any act
by which MMC purposefully directs its activities toward New
Hampshire residents.
Cossaboon relies on Kenerson v. Stevenson, 604 F. Supp.
792 (D. Me. 1985), to argue that MMC's participation in REMIS
supports a finding of general jurisdiction. In Kenerson, the
district court held that a New Hampshire hospital was subject to
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general jurisdiction in Maine. Id. at 795. The court based its
exercise of jurisdiction on the hospital's treatment of Maine
patients (approximately 8% of total patient admissions), receipt of
reimbursement from the Maine Department of Human Services, and
participation in REMIS, a system that "contemplates emergency
transfer of patients." Id. The district court's opinion in
Kenerson, although not expressly overruled by Harlow, is clearly in
tension with that decision. See Harlow, 432 F.3d at 65 n.9
(neither approving of or distinguishing Kenerson, but instead
stating that "[w]hether Kenerson is correct or not, the evidence
here does not establish general jurisdiction"). In light of our
subsequent holding in Harlow, we find Kenerson unpersuasive here.6
5. Treatment of New Hampshire Patients
Finally, Cossaboon relies on evidence that MMC treats a
substantial number of patients from New Hampshire and derives
revenue from its treatment of those residents. However, MMC treats
New Hampshire residents only in Maine; it provides no medical
services in New Hampshire. As we explained in Harlow, "[t]reating
6
Similarly, MMC's agreement with Dartmouth Medical School in
New Hampshire does not support the exercise of general
jurisdiction. The agreement allows Dartmouth medical students to
be placed at MMC for seven to eight week clinical education
rotations, and specifies that visiting Dartmouth students are not
"employees" of MMC. Dartmouth students must travel to Maine to
take advantage of this educational opportunity at MMC. MMC's
willingness to accept Dartmouth students for clinical rotations at
its Maine facility does not indicate that MMC purposefully availed
itself of the privilege of conducting business activities in New
Hampshire.
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patients from Maine in Massachusetts, even on a regular basis, is
not the same as engaging in continuous and systematic activity in
Maine. A hospital that treats Maine residents in Massachusetts is,
quite simply, in a different position from a hospital that treats
Maine residents in Maine." Harlow, 432 F.3d at 66. Our conclusion
in Harlow was not altered by the fact that the Massachusetts
hospital derived revenue from treating Maine patients, a portion of
which came from Maine Medicaid. Id. at 66 (citing Wolf v. Richmond
County Hosp. Auth., 745 F.2d 904, 906 (4th Cir. 1984), which held
that defendant hospital was not subject to general jurisdiction
even though hospital derived approximately one-fifth of its income
from forum-state residents).
In this case, New Hampshire residents represent only
1.23% of all patients treated at MMC and 2.9% of all in-patient
admissions to MMC. Similarly, payments for treatment of New
Hampshire residents, whether from New Hampshire Medicaid or private
insurers, account for just 3.24% of MMC's total revenue. MMC's
treatment of some patients from the bordering state of New
Hampshire does not indicate that MMC purposefully attracted New
Hampshire patients or otherwise directed its services toward New
Hampshire residents. We cannot subject MMC to general jurisdiction
based on the "unilateral activity" of New Hampshire patients who
choose to travel to Maine for medical treatment at MMC. Burger
King, 471 U.S. at 475.
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D. Conclusion
In Harlow, a case with closely analogous facts, we held
that the defendant, a Massachusetts hospital, was not subject to
general jurisdiction in the District of Maine. 432 F.3d at 65-66.
The hospital was organized under Massachusetts law, had its
principal place of business in Boston, did not own real estate or
maintain branch offices in Maine, and did not provide medical
services in Maine. However, the hospital treated some Maine
residents (approximately .55% of annual patient admissions),
received payments from Maine Medicaid, sent periodic newsletters
and other mailings directly to Maine physicians, and operated a
website accessible to Maine residents. Id. We concluded that
these activities fell "well below the levels of contacts that have
previously been found insufficient to support general
jurisdiction." Id. at 66 (internal quotation marks and brackets
omitted).
Here, too, viewing the contacts relied on by Cossaboon in
the aggregate, as we must, we conclude that MMC has not
deliberately established continuous and systematic contacts with
New Hampshire such that it should reasonably anticipate being
subject to suit in New Hampshire courts. Although Cossaboon points
to various contacts between MMC and New Hampshire, these contacts
do not meet the stringent standard for the exercise of general
jurisdiction. MMC is located in Maine, organized and licensed in
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Maine, and provides medical services to patients exclusively in
Maine. The hospital engages in some advertising of its services,
maintains an interactive website, had one New Hampshire-based
employee for a time, participates in the REMIS referral system, and
treats some New Hampshire residents. However, none of MMC's
advertising, website or referral activities target New Hampshire
residents in particular. In addition, although MMC may attract
nonresidents for medical care or clinical education, its services
are available only in Maine. Viewed as a whole, MMC's contacts
with New Hampshire do not amount to the purposeful, continuous and
systematic pursuit of general business activities in New Hampshire.
On this record, New Hampshire cannot constitutionally exercise
general jurisdiction over MMC.7
III.
For the reasons set forth above, the district court's
order granting MMC's motion to dismiss for lack of personal
jurisdiction is affirmed.
So ordered.
7
In light of our conclusion that MMC lacks constitutionally
sufficient contacts with the forum state, we do not reach the
question of whether the exercise of general jurisdiction would be
reasonable under the circumstances. Sandstrom, 904 F.2d at 89.
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