O'HARA CORPORATION v. AUTONAV MARINE SYSTEMS INC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

O’HARA CORP., )

)

Plaintiff, )

)

v. ) Docket No. 2:19-cv-00467-NT

)

AUTONAV MARINE SYSTEMS, )

INC., )

)

and )

)

)

PAUL WAGNER, )

)

Defendants. )

ORDER ON DEFENDANTS’ MOTION TO DISMISS

Before me is the Defendants’ motion to dismiss the Plaintiff’s Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(2). (“Defs.’ Mot.”) (ECF No. 7). For

the reasons stated below, the motion to dismiss is GRANTED.

BACKGROUND

When evaluating a motion to dismiss for lack of personal jurisdiction, I take

“the plaintiff’s properly documented evidentiary proffers as true and construe them

in the light most favorable to the plaintiff’s jurisdictional claim.” PREP Tours, Inc. v.

Am. Youth Soccer Org., 913 F.3d 11, 16–17 (1st Cir. 2019) (alterations, quotation

marks, and citations omitted). I also consider undisputed facts that are offered by the

defendant. Id; see also Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825

F.3d 28, 34 (1st Cir. 2016).

Plaintiff, O’Hara Corporation (“O’Hara” or the “Plaintiff”), is a fully

integrated fishing vessel operator that catches, processes, and packages seafood with

operations on the East Coast and in the Pacific Northwest of the United States.

Compl. ¶¶ 1, 5 (ECF No. 6-4); Declaration of Frank O’Hara ¶ 7 (“O’Hara Decl.”)

(ECF No. 10-1). O’Hara is a Maine corporation with its principal place of business in

Rockland, Maine. Compl. ¶ 1; O’Hara Decl. ¶ 4.

Defendant, AutoNav Marine Systems, Inc. (“AutoNav”), designs and

manufactures manual hydraulic and electrohydraulic steering systems for marine

vessels. Compl. ¶ 6. AutoNav is a Canadian corporation, with its principal place of

business in Port Moody, British Columbia. Compl. ¶ 2; Declaration of Paul Wagner

¶ 3 (“Wagner Decl.”) (ECF No. 7-1). Defendant, Paul Wagner, is the President and

sole shareholder of AutoNav, which was founded in 2004.1 Wagner Decl. ¶¶ 3, 8. Paul

Wagner has never traveled to Maine, and neither he nor AutoNav has manufactured

products in the state or solicited O’Hara in Maine. Wagner Decl. ¶¶ 10, 20, 22–23.

In 2012, O’Hara designed a new vessel, the F/T Araho IV, for its fleet. O’Hara

Decl. ¶ 25. O’Hara hired Eastern Shipbuilding Group (“ESG”) to serve as general

1 Wagner’s father, William, was also in the hydraulic steering business, and he ran Wagner

Engineering until it ceased to operate in 1989. Declaration of Frank O’Hara ¶¶ 9–10, 24 (“O’Hara

Decl.”) (ECF No. 10-1); Declaration of Paul Wagner ¶ 7 (“Wagner Decl.”) (ECF No. 7-1). Wagner

Engineering is a distinct entity from AutoNav, which did not come into existence until 2004. Wagner

Decl. ¶¶ 7–8; O’Hara Decl. ¶ 24.

Frank O’Hara avers that “[w]hether through AutoNav or Wagner Engineering, the Parties

have had a mutually beneficial business relationship for the better part of fifty (50) years.” O’Hara

Decl. ¶ 10. O’Hara also claims that “Wagner built” steering systems for his various vessels in each of

the following years: 1963, 1967, 1970, 1971, 1979, 1980, 1982, 1983, 1987, 1994, 2001, and 2013.

O’Hara Decl. ¶¶ 11–23. O’Hara’s Declaration indicates that “Wagner” is Paul Wagner. O’Hara Decl.

¶ 2.

contractor to construct the vessel. Compl. ¶ 9; O’Hara Decl. ¶ 26. ESG built the vessel

in Panama City, Florida. Wagner Decl. ¶ 11. Based on its longstanding relationship

with Wagner Engineering and AutoNav, O’Hara suggested that ESG hire AutoNav

to design and manufacture the vessel’s steering system. Compl. ¶ 10; O’Hara Decl.

¶¶ 10, 27.

In 2012, O’Hara and AutoNav exchanged a handful of phone calls and emails

to address the technical requirements for the steering system. Wagner Decl. ¶ 10.

ESG sent AutoNav a purchase order dated May 30, 2013, indicating a price of

$154,630. Purchase Order (ECF No. 7-3). The Purchase Order indicates that ESG

would pay AutoNav 35% of the total price at the time the Purchase Order was

entered, 25% six months from the date of the Purchase Order, 30% upon shipment,

and 10% upon the completion of a successful sea trial. Purchase Order at 3–4.

O’Hara learned in late 2016 that Wagner and AutoNav were not performing

and were unable to show any meaningful progress on the steering gear. Compl. ¶ 12.

Wagner asserts that problems at ESG caused the delays and made it impossible to

obtain needed certifications, which stymied AutoNav.2 Wagner Decl. ¶¶ 12–13.

AutoNav had subcontracted with Ebco Industries, Ltd. (“Ebco”) to

manufacture parts of the steering gear for the O’Hara project, but the delays caused

Ebco to take other work, and, by the time AutoNav was ready to proceed, Ebco had

2 O’Hara does not identify the reasons for the delay or dispute AutoNav’s assertion that the

delay was caused by problems at ESG, but O’Hara asserts generally that “AutoNav’s incompetency

forced O’Hara to intervene at every stage of the steering gear manufacture in order to protect its asset

. . . .” O’Hara Decl. ¶ 38.

no room in its schedule. Compl. ¶ 14; Wagner ¶ 14. ESG and O’Hara were unwilling

to wait another three months for Ebco to resume work, and they asked AutoNav to

recommend alternative subcontractors to provide the same services. Wagner Decl.

¶ 14. AutoNav suggested that Sicom Industries, Ltd. (“Sicom”) could complete the

work that Ebco had started. Wagner Decl. ¶ 14. Ebco, however, demanded $26,517.03

to release its work to Sicom. Wagner Decl. ¶ 17; O’Hara Decl. ¶ 33. Due to AutoNav’s

alleged lack of funds, O’Hara paid Ebco, and O’Hara and Wagner executed a

promissory note in the amount of $33,825.12 in June of 2016.3 O’Hara Decl. ¶ 34;

Promissory Note (ECF No. 6-5). The Promissory Note listed O’Hara’s Rockland

address, and the Note provides that it will be “governed by the laws of the State of

Maine.”4 Promissory Note.

Ultimately, AutoNav designed and delivered the steering system to ESG in

Florida, and ESG paid AutoNav in accordance with the Purchase Order.5 Wagner

Decl. ¶¶ 11, 20. The vessel is now in use in the Pacific Northwest. Defs.’ Mot. Ex. C

(ECF No. 7-4); Wagner Decl. ¶ 11.

3 The Complaint alleges and O’Hara avers that Wagner promised to pay O’Hara $26,517.03. The

record is unclear, but the difference may be due to whether the amount is calculated in American or

Canadian dollars. Compl. ¶ 14 (ECF No. 6-4); O’Hara Decl. ¶ 34.

4 O’Hara hired Sicom at a cost of $58,998.15 to finalize manufacturing. O’Hara Decl. ¶ 36.

O’Hara also hired Puget Sound Hydraulics, Inc. at an additional cost of $13,446.31 for other items

needed for the job. O’Hara Decl. ¶ 37. Wagner claims that AutoNav paid both Sicom and Puget Sound

Hydraulics in full. Wagner Decl. ¶ 16. Neither party provided documentation. Because these facts are

not particularly material to the jurisdictional question, I sidestep them.

5 O’Hara does not dispute that the steering system was delivered, but he asserts that the

purchase price was $144,000 and ESG paid AutoNav $100,000 down and $44,000 once the steering

system was delivered and running. O’Hara Decl. ¶ 29. The disputed amount and payment schedule

are not material to the jurisdictional question.

O’Hara asserts that AutoNav’s failure to perform set the construction schedule

back months and required O’Hara to expend $98,961.49 over the originally

contemplated price for the steering gear. Compl. ¶¶ 15–18. In July of 2019, the

Plaintiff filed this action in state court asserting three claims: (1) breach of contract,

(2) quantum meruit, and (3) unjust enrichment. Compl. ¶¶ 20–32; District Court

Docket Record (ECF No. 6-1). The Defendant removed the action to this Court in

October of 2019. Notice of Removal (ECF No. 1).

LEGAL STANDARD

On a motion to dismiss under 12(b)(2), the plaintiff bears the burden of

establishing that personal jurisdiction exists over the defendants. PREP Tours, 913

F.3d at 16. In this case, neither party requested an evidentiary hearing, and so I apply

the “prima facie standard” to determine if the plaintiff has met this burden. Daynard

v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50–51 (1st Cir.

2002). Under the prima facie standard, the plaintiff is required to “ ‘proffer[ ] evidence

that, if credited, is enough to support findings of all facts essential to personal

jurisdiction.’ ” PREP Tours, 913 F.3d at 16 (quoting Boit v. Gar-Tec Prods., Inc., 967

F.2d 671, 675 (1st Cir. 1992)); Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.

2008). Ordinarily, the plaintiff “is obliged to adduce evidence of specific facts” beyond

the allegations of the complaint. PREP Tours, 913 F.3d at 16 (internal quotations

omitted).

DISCUSSION

The Defendants argue that I should not exercise personal jurisdiction over

them because they lack legally sufficient contacts with Maine. Defs.’ Mot. 2. The

Plaintiff counters that specific personal jurisdiction exists because of the Promissory

Note between Paul Wagner and O’Hara and because the parties have a business

relationship spanning 50 years. Pl.’s Opp’n 1 (ECF No. 10).

I. Personal Jurisdiction Standard

There are two ways of establishing personal jurisdiction over a defendant:

general or specific. See Cossaboon v. Me. Med. Ctr., 600 F.3d 25, 31 (1st Cir. 2010).

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.” Id. (internal quotations

omitted). General jurisdiction is broader and encompasses actions unrelated to such

contacts. Id. The Plaintiff here asserts only that the Court has specific jurisdiction

over the Defendants. Pl.’s Opp’n 5.

Personal jurisdiction must meet the requirements of the forum state’s long-

arm statute and the Due Process Clause of the Fourteenth Amendment. See LP

Solutions LLC v. Duchossois, 907 F.3d 95, 102 (1st Cir. 2018); Cossaboon, 600 F.3d

at 32. Maine’s long-arm statute specifically identifies the “transaction of any business

within this State” as conduct conferring personal jurisdiction. 14 M.R.S.A. § 704-A(2).

Maine’s statute also provides that,

to insure maximum protection to citizens of this State, [this section]

shall be applied so as to assert jurisdiction over nonresident defendants

to the fullest extent permitted by the due process clause of the United

States Constitution, 14th amendment.

Id. § 704-A(1); see also LP Solutions, 907 F.3d at 102. Under the Due Process Clause,

a court may “exercise jurisdiction over an out-of-forum defendant only if, with respect

to the claims at issue, the defendant has certain minimum contacts with the forum

such that the maintenance of the suit does not offend traditional notions of fair play

and substantial justice.” PREP Tours, 913 F.3d at 17 (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945)) (internal alterations and quotations omitted).

To establish specific jurisdiction the plaintiff must show “an affiliation between

the forum and the controversy underlying the plaintiff’s claims.” Id. (quoting

Goodyear Dunlop Tire Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)) (internal

alterations and quotations omitted). The First Circuit applies a three-part test to

determine whether this “minimum contacts” requirement is met. Id. First, the

plaintiff’s claim must be sufficiently related to the defendant’s in-forum activities;

second, the defendant must have purposefully availed itself of the privilege of doing

business in the forum state; and third, assertion of jurisdiction over the defendant

must be reasonable. Scottsdale Capital Advisors Corp. v. The Deal, LLC, 887 F.3d 17,

20 (1st Cir. 2018). “Jurisdictionally speaking, each defendant must stand or fall based

on its own contacts with the forum.” Phillips Exeter Acad. v. Howard Phillips Fund,

196 F.3d 284, 288 n.2 (1st Cir. 1999).

The mere existence of a contract is insufficient to establish minimum contacts.

See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 621 (1st Cir. 2001). Rather,

the court must apply a “contract-plus” analysis. See id.; see also Phillips Exeter, 196

F.3d at 289. Under this approach, the focus is on “the parties’ prior negotiations and

contemplated future consequences, along with the terms of the contract and the

parties’ actual course of dealing.” Daynard, 290 F.3d at 52 (internal quotations

omitted); see also C.W. Downer & Co. v. Bioriginal Food & Science Corp., 771 F.3d

59, 66 (1st Cir. 2014).

II. Application

A. Relatedness

The relatedness prong of the personal jurisdiction test “ensures fundamental

fairness by protecting a defendant from being hauled into an out-of-state forum based

on a single contact with that forum that is wholly unrelated to the suit at issue.”

Swiss Am. Bank, 274 F.3d at 623. “[T]he claim underlying the litigation must directly

arise out of, or relate to, the defendant’s forum-state activities.” United Elec., Radio

& Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992).

“In this inquiry, foreseeability is critical.” Id. However, this is a “flexible, relaxed

standard,” requiring only a “demonstrable nexus between the complaint’s claims and

the activities in the forum that properly may be attributed to the defendants.” PREP

Tours, 913 F.3d at 18 (internal quotations omitted).

Here, the Plaintiff asserts three contract-based causes of action that arise out

of the Defendants’ alleged failure to adequately and timely manufacture the steering

equipment for the vessel and Paul Wagner’s failure to repay the promissory note.

Compl. ¶¶ 20–32. For contract claims, I determine “whether the defendant’s contacts

with the forum were instrumental either in the formation of the contract or in its

breach.” Phillips Exeter, 196 F.3d at 289; Reed & Reed, Inc. v. George R. Cairns &

Sons, Inc., 519 F. Supp. 2d 148, 154 (D. Me. 2007); Telford Aviation, Inc. v. Raycom

Nat’l, Inc., 122 F. Supp. 2d 44, 46 (D. Me. 2000).

As an initial step, I must identify the Defendants’ contacts with Maine, “since

there can be no requisite nexus between the contacts and the cause of action if no

contacts exist.” Swiss Am. Bank, 274 F.3d at 621. I begin with Defendant Wagner. As

the Plaintiff concedes, “the number of contacts that Wagner had with the State of

Maine was limited.” Pl.’s Opp’n 8. For the relatedness prong, the Plaintiff focuses

entirely on the Promissory Note between O’Hara and Paul Wagner. Pl.’s Opp’n 7–8.

The Promissory Note is on O’Hara Corporation letterhead with its Rockland,

Maine address. Promissory Note. It identifies “Paul Wagner, paulwagner@shaw.ca”

as the “Borrower” and “O’Hara Corporation, 120 Tillson Avenue, Ste. 1, Rockland,

ME 04841” as the “Lender.” Promissory Note. The Note indicates that the “Borrower

promises to pay to the Lender at such address as may be provided to the borrower.”

Promissory Note. Although the Rockland, Maine address is not specifically identified

as the “payment address,” it is the only address for the Lender that is given in the

note. The Promissory Note indicates that “This Note will be construed in accordance

with and governed by the laws of the State of Maine.” 6 Promissory Note. Wagner

admits that he signed the note, although he now disputes its validity. Wagner Decl.

¶ 19. I set aside the dispute on the merits as not germane to the personal jurisdiction

6 The Plaintiff claims that the Promissory Note “included a clause permitting jurisdiction in the

courts of the State of Maine.” Pl.’s Opp’n 7 (ECF No. 10). The Promissory Note states only: “This Note

will be construed in accordance with and governed by the laws of the State of Maine.” Promissory Note

(ECF No. 6-5). It says nothing about jurisdiction in the courts of the State of Maine.

analysis. Neither Wagner nor AutoNav ever made any payment on the Promissory

Note. Wagner Decl. ¶ 20. Collection efforts were made by O’Hara from Maine. O’Hara

Decl. ¶ 39.

Wagner concedes that he communicated by telephone and email with O’Hara

in Maine about “how to address vendor/subcontractors.” Wagner Decl. ¶ 22. Wagner

contends, and O’Hara does not dispute, that O’Hara “demanded as a condition of

continuing further work on the Project, that [Wagner] personally assure and promise

to pay O’Hara $33,825.12 Canadian dollars based on the release payment that

O’Hara asserts it made to Ebco . . . .” Wagner Decl. ¶ 19; O’Hara Decl. ¶ 34. While

O’Hara does not claim that Wagner solicited the payment, the breach of the

Promissory Note arguably occurred in Maine, because Wagner was obliged to send

payment to the Plaintiff’s office in Rockland, Maine. Although “the location where

payments are due under a contract alone does not possess decretory significance,” it

is some indication that Wagner had at least some minimal contacts with the State of

Maine that are related to the subject of the litigation. Philips Exeter, 196 F.3d at 291.

The Plaintiff claims that this litigation centers around the Promissory Note,

but the claims in the Complaint are considerably broader than the Note, which

relates only to the payment O’Hara made to Ebco. Compl. ¶ 14. The litigation as a

whole arises out of AutoNav’s alleged incompetence and untimeliness, which set the

construction schedule back months and drove up costs. Compl. ¶¶ 15, 18. Each of the

Counts brought by the Plaintiff includes AutoNav’s performance under its contract

with ESG. Compl. ¶¶ 21, 27, 31. Thus, the Complaint involves the overall

arrangement between ESG, O’Hara, and AutoNav.

Moreover, the Promissory Note was executed by Wagner alone. The Plaintiff

points to no contacts that AutoNav had with Maine, although Wagner himself

acknowledges that “O’Hara and AutoNav exchanged a few telephone calls and emails

addressed to technical issues to provide AutoNav with a better sense of the technical

requirements for the Project for ESG.” Wagner Decl. ¶ 10. These isolated contacts are

insufficient to establish relatedness.

In sum, as to the relatedness prong, I conclude that the Plaintiff has

established a demonstrable nexus between its claims related to the Promissory Note

and the minimal activities in the forum that can be attributed to Paul Wagner, and

that Wagner’s contacts with the forum, while not instrumental to the formation of

the contract were essential to its breach. I further conclude that the claims against

AutoNav are unrelated to the forum state.

B. Purposeful Availment

The second prong—the purposeful availment inquiry—focuses on the

defendant’s “intentionality.” Swiss Am. Bank, 274 F.3d at 623. The plaintiff must

point to “some act by which the defendant purposefully avail[ed] itself of the privilege

of conducting activities within the forum State, thus invoking the benefits and

protections of its laws.” Burger King v. Rudzewicz, 471 U.S. 462, 474 (1985) (internal

quotations omitted); see also PREP Tours, 913 F.3d at 19. Due to the nature of this

inquiry, “the two cornerstones of purposeful availment are voluntariness and

foreseeability.” Id. at 19–20 (internal quotations omitted). Voluntariness requires

that the defendant’s contacts with the forum “proximately result” from the

defendant’s own actions, rather than the unilateral action of another. Id. at 20.

Foreseeability requires a showing that the defendant’s connections with the forum

“are such that he should reasonably anticipate being haled into court there.” Id.

(quoting Burger King, 471 U.S. at 474) (internal quotations omitted). Thus, “random,

fortuitous, or attenuated contacts” are insufficient. Knox v. MetalForming, Inc., 914

F.3d 685, 691 (1st Cir. 2019) (internal quotations omitted). In contract cases,

jurisdiction can be “reasonably foreseeable when the defendant deliberately directed

its efforts toward the forum state” or “entered a contractual relationship that

envisioned continuing and wide-reaching contacts in the forum State.” LP Solutions,

907 F.3d at 104 (internal alterations and quotations omitted).

To establish purposeful availment, the Plaintiff avers that the parties have

had a longstanding business relationship, ticking off the many steering systems that

O’Hara purchased from Wagner7 over the past fifty years. Pl.’s Opp’n 10–11; O’Hara

Decl. ¶¶ 2, 11–22. Setting aside the Plaintiff’s confusing conflation of Paul Wagner

with his father and AutoNav with Wagner Engineering,8 the fundamental problem

7 Frank O’Hara asserts, and I accept as true, that “Wagner”—defined in his declaration as “Paul

Wagner”—built the various steering systems. O’Hara Decl. ¶¶ 2, 11–22.

8 The Plaintiff plays fast and loose with the various entities. O’Hara avers that “whether

through AutoNav or Wagner Engineering, the Parties have had a mutually beneficial business

relationship for the better part of fifty (50) years.” O’Hara Decl. ¶ 10. “Wagner Engineering, which was

founded by the Defendant’s father, William Wagner, in the first part of the twentieth century,” O’Hara

Decl. ¶ 9, ceased doing business in 1989. Wagner Decl. ¶ 7. O’Hara does not specify when or how Paul

Wagner was involved in Wagner Engineering. And although O’Hara claims that Wagner Engineering

was the predecessor to AutoNav, O’Hara Decl. ¶ 9, AutoNav did not come into existence until 2004.

Wagner Decl. ¶¶ 7–8. At one point, O’Hara concedes that the Wagner Engineering and AutoNav may

be separate legal entities. O’Hara Decl. ¶ 24. “ ‘A corporation’s contacts with a forum may be imputed

to its successor if forum law would hold the successor liable for the actions of its predecessor.’ ” Doucet

v. FCA US LLC, No. 19-CV-10514-ADB, 2020 WL 128655, at *3 (D. Mass. Jan. 10, 2020) (quoting

with the Plaintiff’s purposeful availment argument is that it fails to tether the

claimed historical contacts to the forum state. Although I understand that O’Hara

has its principal place of business in Maine, the facts involving the F/T Araho IV

demonstrate that it is possible that O’Hara used out-of-state contractors to build the

other vessels and that Wagner had little or nothing to do with Maine on those

projects. I cannot speculate about details that are within O’Hara’s knowledge but that

O’Hara does not provide. Defendant Wagner asserts, without dispute, that he has not

had any business dealings with O’Hara that implicate Maine except for very limited

emails and that he did not provide any services or sell any goods to O’Hara in Maine.

Wagner Decl. ¶ 23. As for AutoNav, it was not even in existence during the time when

the other vessels were built. Accordingly, the Plaintiff’s fifty-year business

relationship with Wagner does not establish that the Defendants purposefully availed

themselves of the privilege of doing business in Maine.

As to the steering system for the F/T Araho IV, neither Paul Wagner nor

AutoNav deliberately sought to do business in Maine. And neither Defendant entered

a contract that envisioned continuing and wide-reaching contacts here. See id. ESG,

the Florida general contractor for the buildout of the vessel, solicited AutoNav to

provide a steering system. Compl. ¶¶ 9–11. ESG entered into a contract with AutoNav

with the understanding that the steering system would be manufactured in Canada

McClary v. Erie Engine & Mfg. Co., 856 F. Supp. 52, 57 (D.N.H. 1994)). But here the record does not

support a conclusion that AutoNav is a corporate successor to Wagner Engineering. Similarly, William

Wagner is a separate legal entity from Paul Wagner. Contacts with William Wagner cannot be imputed

to Paul Wagner.

and shipped to ESG in Florida. Purchase Order at 1. The steering system was

delivered to Florida, where it was installed and successfully sea-tested by ESG.

Wagner Dec. ¶ 15. ESG paid AutoNav from Florida. Wagner Decl. ¶ 15. The vessel is

now being operated in the Pacific Northwest. Wagner Decl. ¶ 11. Clearly, as to the

overall contract for the steering system, neither Paul Wagner nor AutoNav could have

foreseen being haled to Maine to defend a lawsuit.

Even as to the Promissory Note, the Plaintiff has not established purposeful

availment. Paul Wagner did not solicit O’Hara to pay Ebco. O’Hara Decl. ¶ 27;

Wagner Decl. ¶¶ 10, 20, 22–23. At O’Hara’s insistence, Paul Wagner promised to

repay O’Hara for the Ebco release payment. Though not determinative, lack of

solicitation in Maine weighs against finding that the Plaintiff has established

purposeful availment. See LP Solutions, 907 F.3d at 104; see also Adams v. Adams,

601 F.3d 1, 6–7 (1st Cir. 2010) (“[T]he fact that [the defendant] accepted funds from

an individual who happened to be a Massachusetts resident and executed a promise

to repay that individual does not persuade us that he should have foreseen that he

could be haled into court in Massachusetts.”). By the terms of the Promissory Note,

Wagner would not have envisioned continuing and wide-reaching contacts with

Maine. The Promissory Note envisions repayment within two months. See

Promissory Note.9

9 The Plaintiff suggests that Paul Wagner was required to make “monthly” payments on the

promissory note, Pl.’s Opp’n 3, O’Hara Decl. ¶ 34, but the document shows that the only repayment

requirement was that the total amount be repaid by August 15, 2016. Promissory Note; see also PREP

Tours, Inc. v. Am. Youth Soccer Org., 913 F.3d 11, 24 (1st Cir. 2019) (not accepting plaintiff’s

characterization of communications that were undermined by the undisputed record).

The Promissory Note did contain a choice-of-law provision establishing that

Maine law would apply to any disputes, which is relevant but not dispositive for a

finding of purposeful availment.10 LP Solutions, LLC v. Duchossois, No. 2:18-CV-25-

DBH, 2018 WL 1768037, at *9 (D. Me. Apr. 11, 2018), aff’d, 907 F.3d 95 (1st Cir. 2018)

(citing Burger King, 471 U.S. at 482). Although a choice-of-law clause can tip the scale

toward a finding of purposeful availment if there is otherwise a significant

relationship with a forum State, that is not the case here. See Ganis Corp. of Cal. v.

Jackson, 822 F.2d 194, 198 (1st Cir. 1987) (citing Burger King, 471 U.S. at 482)

(defendant’s actual dealings with forum state over five-year business relationship,

plus choice-of-law provision, supported exercise of personal jurisdiction).

Paul Wagner had limited communications with O’Hara via phone and email

prior to executing the Promissory Note, and he sent the signed agreement to O’Hara

in Maine, but he never sent payment to Maine11 or otherwise performed under the

Promissory Note in Maine. Wagner Decl. ¶¶ 22–24. These isolated and occasional

contacts fall short of the “stream of payments” or “plethora of activities” that can

10 By contrast, “a forum selection clause . . . in conjunction with a choice-of-law provision can

make jurisdiction ‘eminently foreseeable.’ ” LP Solutions, LLC v. Duchossois, No. 2:18-CV-25-DBH,

2018 WL 1768037, at *9 n.17 (D. Me. Apr. 11, 2018), aff’d, 907 F.3d 95 (1st Cir. 2018) (quoting Bluetarp

Fin., Inc. v. Matrix Const. Co., 709 F.3d 72, 82 (1st Cir. 2013)). Despite the Plaintiff’s statement to the

contrary, see Pl.’s Opp’n 12 n.2, the Promissory Note did not contain a forum selection clause.

Promissory Note.

11 O’Hara’s attempts to contact the Defendants and secure payment, O’Hara Decl. ¶ 39, are not

relevant because the unilateral acts of the Plaintiff cannot establish the Defendant’s purposeful

availment. See PREP Tours, 913 F.3d at 27 (citing Burger King v. Rudzewicz, 471 U.S. 462, 474 (1985));

see also Adams v. Adams, 601 F.3d 1, 7 (1st Cir. 2010) (“A phone call from [the plaintiff in

Massachusetts] to [the defendant] in Texas concerning a contract that [the plaintiff] demanded that

[the defendant] execute is not sufficient evidence that [the defendant] ‘reached into’ Massachusetts.”).

establish purposeful availment. See LP Solutions, 907 F.3d at 105–06 (citing Baskin-

Robbins, 825 F.3d at 38–39). The fact that Wagner “entered into a tendered

relationship does not carry the day,” where he did not reach out into Maine to solicit

that contract. See Phillips Exeter, 196 F.3d at 292.

I conclude that neither AutoNav nor Paul Wagner purposefully availed

themselves of the privilege of conducting activities within the forum State.

C. Reasonableness

The third prong of the three-part test considers the reasonableness of

exercising personal jurisdiction over a defendant. The five “Gestalt factors” typically

applied to assess the reasonableness are: (1) the burden on the defendant of

appearing: (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s

interest in obtaining convenient and effective relief; (4) judicial economy; and (5) the

“common interests of all sovereigns in promoting substantive social policies.” Adelson

v. Hananel, 510 F.3d 43, 51 (1st Cir. 2007). Courts assess these factors on a “sliding

scale: the weaker the plaintiff’s showing on the first two prongs (relatedness and

purposeful availment), the less a defendant need show in terms of unreasonableness

to defeat jurisdiction.” Baskin-Robbins, 825 F.3d at 40 (internal quotations omitted).

In this case, the Gestalt factors favor the Defendants. There is no evidence in

this record that either Paul Wagner or AutoNav sought to do business in Maine. They

were approached by ESG, a Florida company, to provide a steering system for a vessel

being built in Florida. They contracted with ESG, not O’Hara, to deliver that steering

system. When a dispute arose over the payment of AutoNav’s subcontractor, Ebco,

O’Hara required Paul Wagner to sign a Promissory Note to ensure that O’Hara would

be reimbursed for its release payment to Ebco.

Requiring the Defendants to appear in Maine would be extremely burdensome.

They operate out of British Columbia, Canada, roughly three thousand miles from

Portland, Maine, and, particularly with flights restricted due to a global pandemic,

travel would carry risks and be difficult. While Maine has an interest in adjudicating

the disputes of businesses within its borders, the Defendants were not in any sense

conducting ongoing or continuous business in Maine. The Plaintiff no doubt has an

interest in obtaining relief near its principle place of business in Rockland, Maine,

but the Plaintiff does not dispute that it also has offices in Seattle, Washington.

O’Hara Decl. ¶ 4; Wagner Decl. ¶ 9. The witnesses involved in this case will likely

hale from either the British Columbia/Washington State area (Ebco, Sicom, Puget

Sound Hydraulics) or Florida (ESG). The most efficient resolution of this dispute

would be in one of those locations. The common interests of all sovereigns would be

to provide judicial access in a forum where the most efficient resolution can be

achieved. On balance, the reasonableness factors tip toward the Defendants.

CONCLUSION

Although Paul Wagner’s signing of the Promissory Note tendered by O’Hara

makes some of the claims against him related to Maine, he did not purposefully avail

himself of doing business in Maine and allowing O’Hara to hale him into Maine to

defend this action is not reasonable. AutoNav has had virtually no contacts with

Maine related to this litigation aside from isolated phone or email communications to

get design specifications from O’Hara at the beginning of the project. AutoNav did

not purposefully avail itself of doing business in Maine, and allowing O’Hara to bring

AutoNav to Maine is also not reasonable. Because I find that neither Defendant has

had sufficient contacts with Maine to support personal jurisdiction over them, I

GRANT the Defendants’ motion to dismiss.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 27th day of May, 2020.