Aprisma v. System CV-02-591-M 03/12/03
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Aprisma Management
Technologies, Inc.,
Plaintiff
v. Civil No. 02-591-M
Opinion No. 2003 DNH 036
System Management Arts, Inc.,
Defendant
O R D E R
Defendant in this patent infringement suit. System
Management Arts, Inc. ("SMA"), moves to dismiss plaintiff's
complaint, alleging that the court lacks personal jurisdiction
over it. See Fed. R. Civ. P. 12(b)(2). In the alternative, it
seeks an order transferring the case to the Southern District of
New York. See 28 U.S.C. § 1404(a). Plaintiff objects.
The standard of review applicable to 12(b) (2) motions to
dismiss (as well as motions to change venue) in the context of a
patent suit is well known and need not be repeated. See
generally R & J Tool v. Manchester Tool, No. CV-99-242-M, 2000
DNH 097 (D.N.H. April 21, 2000). It is sufficient to note that,
in the absence of an evidentiary hearing, plaintiff need only
make a prima facie showing that jurisdiction exists. See
Kowalski v. Doherty, Wallace, Pillsburv & Murphy,
787 F.2d 1 , 8
(1st Cir. 1986). It has succeeded.
Among other things, SMA acknowledges that: (1) it contracted
with a New Hampshire marketing firm which provides SMA with
inside sales (e.g., telemarketing) and marketing initiatives; (2)
it employed three New Hampshire residents, two of whom work at
least two days of the week from their home offices, in New
Hampshire; and (3) in June of 2002, SMA demonstrated its products
for a company located in Portsmouth, New Hampshire. See
Affidavit of Michelle Ciccone, Exhibit 1 to plaintiff's motion.
Plainly, then, SMA employs workers who reside in and work from
this district and, through its agent (the marketing company), SMA
conducts sales-related activity in this district. And, whether
the product demonstration is viewed as a "use" of an allegedly
infringing product, see, e.g.. Patent Tube Corp. v. Bristol-Myers
C o ., 25 F. Supp. 776 (S.D.N.Y. 1938), or as the "sale" of an
allegedly infringing product, see Union Asbestos & Rubber Co. v.
Evans Products Co.,
328 F.2d 949 (7th Cir. 1964), it is
sufficient conduct within this district, when combined with the
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other factors listed above, to warrant the exercise of personal
jurisdiction over SMA.
As to SMA's motion to transfer this case to the United
States District Court for the Southern District of New York,
while the case certainly could have been brought in that forum,
the equities, on balance, do not counsel in favor of transfer.
See generally, Environamics v. Master Pump, CV-96-476-M (D.N.H.
January 08, 1997).
Defendant's motion to dismiss or, in the alternative, to
transfer (document no. 5) is, therefore, denied. Of course, the
court's ruling is without prejudice to SMA's right to again
challenge the exercise of personal jurisdiction, once the record
has been more fully developed.
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SO ORDERED.
Steven J. McAuliffe
United States District Judge
March 12, 2003
cc: George R. Moore, Esg.
Paul J. Hayes, Esg.
Garry R. Lane, Esg.
Leslie B. Zacks. Esg.
J. Michael Martinez de Andino, Esg.
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