The opinion
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LeDuc v. Cathedral Ledge Condominium ()wners Assn., Inc., CV-09-217 (Superior Ct.
Cumberland) .. i., .. ':; i., r- .,_
Before the court is a LJ?}v~f?n ):~y ?,e~~~~~t Cathedral Ledge Condominium
Owners Association (Cathedral ledge) to dismIss the complaint for lack of personal
jurisdiction. Cathedral Ledge is a New Hampshire corporation with a principal place of
business in New Hampshire.
1. Legal Standard
Maine's long arm statute, 14 M.R.S. § 704-A, authorizes Maine courts to exercise
jurisdiction over non-residents to the extent that such jurisdiction comports with due
process. To satisfy due process, a three-pronged test must be met: (1) Maine must have
a legitimate interest in the subject matter of the litigation; (2) the defendant by its
conduct reasonably could have anticipated litigation in Maine; and (3) the exercise of
jurisdiction by Maine courts must comport with traditional notions of fair play and
substantial justice. 11g., Bickford v. Onslow Memorial Hospital Foundation Inc., 2004
ME 111 <[10, 855 A.2d 1150, 1155.
The plaintiff has the burden of the first two prongs of this test, after which the
burden shifts to the defendant to negate the third prong. Id. Where there has been no
testimonial hearing and the court considers the parties' pleadings and affidavits,
plaintiff need only make a prima facie showing that jurisdiction exists. Commerce Bank
& Trust Co. v. Dworman, 2004 NIE 142 <[8, 861 A.2d 662, 665. The record is construed in
the manner most favorable to the written allegations supporting jurisdiction. Id.
2. Facts
The following facts are derived from the complaint, from the affidavit of
Christine Poliquin submitted in support of the motion to dismiss, from the affidavit of
Martha Gaythwaite submitted in opposition to the motion to dismiss, from the exhibits
to the Gaythwaite affidavit, and from the memorandum submitted on behalf of plaintiff
Florence LeDuc in opposition to the motion to dismiss. Neither party has requested an
evidentiary hearing on the jurisdictional issue.
Cathedral Ledge sells timeshare interests in condominium units located in
Intervale, New Hampshire. 1 Plaintiff Florence LeDuc is a resident of Maine who is an
owner of a Cathedral Ledge timeshare interest. LeDuc alleges that she was injured
when she fell in the parking lot of Cathedral Ledge's property in New Hampshire in
December 2006, that she thereafter received medical treatment in Maine, and that her
injuries resulted from negligence on the part of Cathedral Ledge.
Cathedral Ledge has timeshare owners from Maine and from such other states as
New Hampshire, Massachusetts, Rhode Island, Connecticut, New Jersey, and
Maryland. Three of the members of the Cathedral Ledge Board of Directors are from
1 Some of the exhibits attached to the Gaythwaite affidavit describe the Cathedral Ledge
property as being located in the neighboring community of Bartlett NH. Whether the units are
located in Intervale NH or Bartlett NH has no bearing on the outcome of this motion.
Maine. Cathedral Ledge does not maintain any offices, any property, or any employees
in Maine. Cathedral Ledge maintains a website which is accessible to Maine residents
but which does not target Maine residents in any discernible fashion. Cathedral Ledge
also maintains a small advertisement on the website of the Cranmore Mountain NH ski
area which is not specifically directed at Maine residents but which may be seen by any
Maine residents who access the Cranmore website.
With the possible exception of advertisements on Craigslist: Maine section
(discussed below), Cathedral Ledge timeshares are not advertised in any publications
circulated in Maine or in an any broadcast media that reaches Maine residents. In
addition to its own website, Cathedral Ledge timeshares are advertised on other travel
related websites that are accessible to Maine residents and all other members of the
general public. Cathedral Ledge also sends notices of assessments and other
communications to the Maine addresses of those Maine residents, including LeDuc,
who own Cathedral Ledge timeshares.
3. Discussion
Although this is a close case, the court concludes that defendant's objection to
personal jurisdiction should be upheld. First, on the issue of whether Maine has a
legitimate interest in the subject matter of this litigation, the Law Court has stated:
Although Maine has 'an interest in providing its citizens with a means of
redress against nonresidents ... , an interest beyond mere citizenry is
necessary, such as the protection of its industries, the safety of its workers,
or the location of witnesses and creditors within its borders.
Murphy v. Keenan, 667 A.2d 591, 594 (Me. 1995) (citations omitted). In this case,
plaintiff's medical treatment largely occurred in Maine and her medical witnesses and
records are in Maine, and the court will therefore conclude that the first prong of the
due process test has been met. Otherwise, however, plaintiff has not articulated any
significant state interest that Maine possesses in the subject matter of the litigation.
Where the court finds that plaintiff has fallen short is on the second prong of the
due process test - whether Cathedral Ledge reasonably could have anticipated
litigation in Maine. On this record the court does not find that plaintiff has made the
required prima facie showing that Cathedral Ledge has "purposely availed itself" of the
privilege of conducting activity within Maine. Id. Accord, Interstate Food Processing
Corp. v. Pellerito Foods Inc., 622 A.2d 1189, 1192 (Me. 1993), quoting Burger King Corp.
v. Rudzewicz, 471 U.s. 462, 474-75 (1985). Specifically, there is no evidence that
Cathedral Ledge has purposely directed its activities at residents of Maine. See
Interstate Food Processing Corp., 622 A.2d at 1192.
LeDuc has offered evidence that timeshare advertisements for Cathedral Ledge
units are advertised on Craigslist: Maine section (Gaythwaite Afft. <JI 10). However,
there is no evidence that Cathedral Ledge placed those advertisements. All the evidence
in the record is to the contrary - that Cathedral Ledge only advertises on its own
website and on the Cranmore ski area website and that any other advertisements were
placed not by Cathedral Ledge but by individual timeshare owners. See Poliquin Afft.
2
9[9[ 6, 11-12. Cathedral Ledge does advertise on the internet, but the court is not
prepared to find that advertising on the internet - accessible to Maine residents but
equally accessible to the residents of all other states and to any persons located
anywhere in the world who have access to a computer - subjects a company to personal
jurisdiction in Maine absent some other activity purposefully directed at Maine
residents or conducted in Maine.
The fact that some Maine residents have purchased timeshares and thereafter
received mail in Maine from Cathedral Ledge is not, in the court's view, evidence that
Cathedral Ledge has purposefully availed itself of the privilege of conducting business
in Maine. 2 Moreover, while the alleged negligence of Cathedral Ledge has resulted in
effects in Maine,
[t]he commission outside the forum state of an act that has consequences
in the forum state is by itself an insufficient contact where all the events
necessary to give rise to a tort claim occurred outside of the forum state.
Murphy, 667 A.2d at 595, quoting Frazier v. Bankamerica IntI., 593 A.2d 661, 663 (Me.
1991) and Martin v. Deschenes, 468 A.2d 618, 619 (Me. 1983).
The Law Court case that most strongly supports the assertion of personal
jurisdiction in the case at bar is Bickford v. Onslow Memorial Hospital Foundation Inc.,
2004 ME Ill, 855 A.2d 1150. That case, however, is distinguishable for three reasons.
First, the starting point for the Law Court's analysis in Bickford was the U.s. Supreme
Court's decision in Calder v, Tones, 465 U.s. 783 (1984). See 2004 ME 111 9[12, 855 A.2d
at 1155. Calder and its progeny concern the specific problem of personal jurisdiction in
defamation cases, involving false information that causes or is intended to cause
reputational injury in the forum state. That line of cases is not on point where
defamation is not at issue.
Second, the Law Court emphasized in Bickford that personal jurisdiction in
Maine resulted from the defendant hospital's actions after the original credit report
when the hospital refused to correct the false information in the credit report. In the
context of claims of false credit reports and defamation, where declining to rectify or
withdraw an allegedly false statement can be an element of the cause of action, this was
found to constitute purposeful conduct toward a Maine resident. See 2004 ME 11 9[13,
855 A.2d at 1156. There is no comparable circumstance in this case.
In addition, the Law Court in Bickford was faced with a situation where
declining jurisdiction would have required a Maine resident to retain North Carolina
counsel and pursue litigation in North Carolina in order to remove a false credit report
from his credit history even though he had not traveled to North Carolina or taken any
action in North Carolina, had no apparent ties to North Carolina, and had not entered
into any contractual relationship with any resident of North Carolina. In contrast, the
plaintiff in this case owns a timeshare in New Hampshire and had traveled to New
2The court reserves decision on whether a different outcome would result if the cause of action
sued upon was based upon the communications sent to Maine addresses.
3
Hampshire of her own accord at the time she sustained the injury which forms the basis
for this suit.
The entry shall be:
Defendant's motion to dismiss for lack of personal jurisdiction is granted. The
Clerk is directed to incorporate this order in the docket by reference pursuant to Rule
79(a).
Dated: September 2..1 .2009
•...... ~---.
Thomas D. Warren
Justice, Superior Court
4
)F COURTS
land County
Box 287
tine 04112-0287
lmRTHA GAYTHWAITE ESQ
PO BOX 4726
PORTLAND ME 04112 P/~
:: COURTS
nd County
ox 287
1e 04112-0287
KENNETH PIERCE ESQ
PO BOX 7046
PORTLAND HE 04112