Cappello v. Restaurant Depot, LLC et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Anthony Cappello
v. Civil No. 21-cv-356-SE
Opinion No. 2023 DNH 027
Restaurant Depot, LLC, et al.
O R D E R
Anthony Cappello asserts that the remaining defendants in
this case, out-of-state companies, are subject to specific
personal jurisdiction in New Hampshire for claims stemming from
his consumption of contaminated lettuce in New Jersey. To show
that a defendant has sufficient minimum contacts with a forum to
allow a court to exercise specific personal jurisdiction over
that defendant, a plaintiff must demonstrate the existence of
three familiar prongs: relatedness, purposeful availment, and
reasonableness. The first two prongs are distinct concepts.
Relatedness focuses narrowly on the relationship between the
plaintiff’s claim and the defendant’s contacts with the forum.
Purposeful availment considers the defendant’s contacts with the
forum generally. That distinction is critical in this case.
Notwithstanding the Supreme Court’s recent clarification that it
rejects a causation-only approach, the requirement that a
plaintiff’s claims “arise out of or relate to” a defendant’s
conduct “incorporates real limits.” Ford Motor Co. v. Mont.
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Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021). Even if the
plaintiff has met his burden to show that the defendants
purposefully availed themselves of doing business in New
Hampshire, he has not shown that his claims relate to any of the
defendants’ contacts with New Hampshire. As such, the court
cannot exercise personal jurisdiction over either of the
remaining defendants in this case and grants their motions to
dismiss.
Standard of Review
Cappello’s objections to the motions to dismiss included a
conditional request for a hearing. Doc. nos. 67 and 68 (asking
the court to “[g]rant an evidentiary hearing if the motion to
dismiss will not be denied on the pleadings”). Because Cappello
has not provided any reason that an evidentiary hearing would
assist in the jurisdictional analysis and because the court’s
reasoning rests on legal conclusions drawn from uncontroverted
facts rather than the determination of any factual dispute, a
hearing is not necessary.
When, as here, the court does not hold an evidentiary
hearing on a Rule 12(b)(2) motion, the prima facie approach
applies. Rodriguez-Rivera v. Allscripts HealthCare Solutions,
Inc., 43 F.4th 150, 157 (1st Cir. 2022). Under that approach,
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the court acts “as a data collector” but not as a factfinder.
Id. (quotation omitted).
As a data collector, the court takes the plaintiff’s
“properly documented evidentiary proffers as true and
construe[s] them in the light most favorable to [the
plaintiff’s] jurisdictional claim.” A Corp. v. All Am. Plumbing,
Inc., 812 F.3d 54, 58 (1st Cir. 2016). The plaintiff cannot
establish jurisdiction based on allegations in the complaint but
instead “must put forward evidence of specific facts to
demonstrate that jurisdiction exists.” Id. The court “also
consider[s] facts offered by [the defendant], to the extent that
they are not disputed.” Id. The plaintiff bears the burden of
showing that specific personal jurisdiction exists. Rodriguez-
Rivera, 43 F.4th at 160.
Background
On November 9, 2018, Cappello, a New Hampshire resident,
purchased and ate a salad from a restaurant in Fairfield, New
Jersey. The restaurant prepared the salad using romaine lettuce
grown or distributed by D’Arrigo Bros., Co., a California
corporation. It was sold to the restaurant by Restaurant Depot,
LLC, which is incorporated in Delaware and has its principal
place of business in New York.
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The following day when he was back at his home in Bedford,
New Hampshire, Cappello began feeling stomach pains. His
symptoms gradually worsened. Ultimately, his life was in danger,
and he had his colon surgically removed on November 16, 2018. He
spent nearly three weeks in the hospital recovering and received
continuing medical treatment for several months, including two
additional surgeries.
Cappello alleges that his injuries were caused by the salad
he ate in New Jersey on November 9, 2018. Specifically, he
alleges that the lettuce in the salad was contaminated with E.
coli O157:H7. He brings product liability, breach of warranty,
and negligence claims against D’Arrigo and Restaurant Depot.1
The defendants separately move to dismiss, arguing that the
court cannot exercise personal jurisdiction over them. See doc.
nos. 47 and 48. The court extended the time for Cappello to
object to allow him to conduct jurisdictional discovery. He has
since filed his objections, and the motions have been fully
briefed.
1 Cappello brought suit against additional defendants,
including the restaurant from which he purchased the salad. He
has voluntarily dismissed those claims. D’Arrigo and Restaurant
Depot are the only remaining defendants.
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Discussion
When a defendant in a diversity case challenges personal
jurisdiction, the court “must determine whether the defendant’s
contacts with the state satisfy both the state’s long-arm
statute as well as the Due Process Clause of the Fourteenth
Amendment.” Vapotherm, Inc. v. Santiago, 38 F.4th 252, 258 (1st
Cir. 2022). New Hampshire’s long-arm statute allows personal
jurisdiction over an out-of-state defendant to the extent
allowed by due process. Id. Thus, specific personal
jurisdiction, as Cappello asserts here, requires the plaintiff
to show:
(1)[his] claim directly arises out of or relates to
the defendant’s forum-state activities; (2) the
defendant’s contacts with the forum state represent a
purposeful availment of the privilege of conducting
activities in that state, thus invoking the benefits
and protections of that state’s laws and rendering the
defendant’s involuntary presence in that state's
courts foreseeable; and (3) the exercise of
jurisdiction is ultimately reasonable.
Scottsdale Cap. Advisors Corp v. The Deal, LLC, 887 F.3d 17, 20
(1st Cir. 2018). The court may exercise personal jurisdiction
over the defendants only if the plaintiff satisfies all three
prongs of the specific jurisdictional analysis. Motus, LLC v.
CarData Consultants, Inc., 23 F.4th 115, 122 (1st Cir. 2022).
Cappello submits evidence to show the following facts in
support of the existence of personal jurisdiction over the
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defendants.2 After an investigation, the Centers for Disease
Control and Prevention (“CDC”) and the United States Food and
Drug Administration determined that there was an outbreak of E.
coli 0157:H7 linked to romaine lettuce around the time Cappello
became ill. From October through early December 2018, 62 people
from 16 states (including New Hampshire), the District of
Columbia, and Canada were infected with E. coli due to
contaminated romaine lettuce.
The CDC determined that the contaminated lettuce came from
areas in northern and central California, including the region
in which D’Arrigo grows its lettuce. During the relevant time
period, Restaurant Depot purchased lettuce from D’Arrigo and
distributed it to its stores in New Jersey and New England. On
November 20, 2018, Restaurant Depot removed all romaine lettuce
from the shelves in its East Coast retail stores in response to
the CDC’s public health advisory regarding the E. coli outbreak.
Although Restaurant Depot does not have any locations in
New Hampshire, it has various connections to the state. From
2017 through 2022, it contracted for the sale of food to
thousands of business locations in New Hampshire and received
2 Restaurant Depot disputes several of the facts Cappello
offers to support personal jurisdiction. Because, accepting
Cappello’s facts as true, he cannot carry his burden to show the
existence of personal jurisdiction over either remaining
defendant, the court assumes for the purposes of this order only
that they are true.
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many millions of dollars in revenue from its New Hampshire
members. It also sent its New Hampshire members monthly
advertisements and email solicitations. In addition, Restaurant
Depot has agreements with partners who deliver its food items to
members in New Hampshire.
D’Arrigo’s contacts with New Hampshire are more attenuated.
It does not ship its products to New Hampshire or have any
direct contact with the state. Rather, viewed generously,
Cappello offers evidence to show that D’Arrigo sells romaine
lettuce products to major New England distributors and grocery
stores with the knowledge that its products will then be sold in
New Hampshire.
With those facts set forth, the court now turns to the
specific jurisdiction analysis.
I. Relatedness
The standards for weighing relatedness under New Hampshire
law and due process are different for contract and tort claims.
Vapotherm, 38 F.4th at 258. When, as here, a plaintiff brings
both contract and tort claims, the court must address
relatedness under both standards. Id. at 259.
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A. Tort Claims
Cappello asserts three tort claims against the defendants:
strict product liability, negligence, and negligence per se. In
determining relatedness for the purpose of a tort claim, the
court “must probe the causal nexus between the defendant’s
contacts and the plaintiff’s cause of action.” Vapotherm, 38
F.4th at 260. The court considers “whether the tort claim arises
out of or relates to the defendant’s contact with the forum.”
Id. (quotation and alterations omitted).
As the defendants argue, Cappello’s tort claims do not
appear on their face to arise out of or relate to the
defendants’ contacts with New Hampshire. Cappello purchased and
ate the salad containing the contaminated lettuce in New Jersey,
not in New Hampshire. The defendants had general business
contacts with New Hampshire, but none that relates to the salad
Cappello ate in New Jersey.
Nevertheless, Cappello argues that he can establish
relatedness with respect to the defendants by relying on the
more relaxed standard illuminated in Ford Motor Co. v. Montana
Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021). In Ford, two
plaintiffs were injured in car accidents in Montana and
Minnesota, and brought suit against the manufacturer of the
vehicles, Ford Motor Company, in those states. Id. at 1023. Ford
moved to dismiss both suits for lack of personal jurisdiction,
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arguing that the vehicles were designed, manufactured, and
purchased in other states. Id. After the state courts determined
that they could exercise specific personal jurisdiction, Ford
appealed, and the Supreme Court affirmed. Id. at 1032.
In determining that the plaintiffs had met the relatedness
prong, the Supreme Court noted that Ford had, “by every means
imaginable,” urged Montanans and Minnesotans to buy its
vehicles. Id. at 1028. Ford dealers in those states regularly
maintained and repaired Ford cars. Id. Ford had worked “hard to
foster ongoing connections to its cars’ owners” in both states.
Id. It “had systematically served a market in Montana and
Minnesota for the very vehicles that the plaintiffs allege
malfunctioned and injured them in those States.” Id.
Cappello argues that, as in Ford, the defendants’ business
in the forum state satisfies the relatedness prong of the
specific jurisdiction analysis. He points to Restaurant Depot’s
advertisements and sales in New Hampshire, and the fact that
Restaurant Depot made available for sale in New Hampshire and
then ultimately destroyed lettuce contaminated with E. coli
during the relevant timeframe.3 Cappello offers less with respect
3 Restaurant Depot submits evidence to show that few, if
any, of these contacts existed prior to November 2018, when
Cappello ate the salad with the contaminated lettuce. It argues
that, therefore, the court should not consider those contacts
when analyzing the relatedness prong of the jurisdictional
analysis. See Harlow v. Children’s Hosp., 432 F.3d 50, 62 (1st
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to D’Arrigo, arguing only that it ships its lettuce to
distributors located in neighboring states who then sell it in
New Hampshire.
The Supreme Court’s analysis in Ford does not support
jurisdiction over the defendants in this case. Although
Restaurant Depot does business in the forum state and D’Arrigo’s
product is sold by others here, any similarities to Ford end
there. The nature and extent of the defendants’ activity in New
Hampshire is a far cry from the situation in Ford, where the
court looked at the contacts of “a global car company,
extensively serving the state market [for] a vehicle.” Ford, 141
S. Ct. at 1028.
Further, unlike the circumstances in Ford, there is no
allegation that Cappello knew that the salad he purchased in New
Jersey contained lettuce grown or distributed by the defendants.
The Supreme Court cautioned that jurisdiction should not “ride
on the exact reasons for an individual’s purchase, or on his
ability to present persuasive evidence about them.” Id. at 1029.
Yet, the Ford decision relied heavily on Ford’s contacts with
Cir. 2005) (“Because causation is central to the relatedness
inquiry, in most cases, contacts coming into existence after the
cause of action arose will not be relevant.” (citation
omitted)). As stated above, because Cappello has not carried his
burden to demonstrate relatedness, the court will assume for the
purposes of this order only that Restaurant Depot’s post-
November 2018 contacts are relevant to the relatedness inquiry.
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the forum states that “might turn any resident of Montana or
Minnesota into a Ford owner—even when he buys his car from out
of state.” Id. There is no evidence to suggest that the
defendants’ contacts with New Hampshire were designed to
persuade, or even capable of persuading, any New Hampshire
resident to purchase a particular prepared salad in a foreign
restaurant, let alone one containing the specific lettuce that
the defendants grow or distribute.
Moreover, Cappello ignores a central limitation to the
Supreme Court’s holding in Ford: the fact that the plaintiffs’
claims brought in Montana and Minnesota courts arose because the
defendant’s vehicles “malfunctioned and injured them in those
States.” Id. at 1028 (noting that the facts of the case,
including “an in-state accident,” is “a paradigm example . . .
of how specific jurisdiction works”). Indeed, the Ford opinion
is riddled with that qualification throughout. See, e.g., id. at
1027 (jurisdiction exists “when a company like Ford serves a
market for a product in the forum State and the product
malfunctions there”), 1028 (“Each plaintiff’s suit, of course,
arises from a car accident in one of [the forum] States.”), 1031
(distinguishing Bristol-Myers Squibb Co. v. Superior Ct. of
Cal., 582 U.S. 255 (2017) in part on the basis that the
plaintiffs in Ford used the allegedly defective products in the
forum state and were injured there). In contrast, Cappello was
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injured in New Jersey, where he purchased and ate the salad
containing the contaminated lettuce.
On that point, Cappello argues otherwise. He offers a novel
theory: that an injury such as food poisoning does not occur
when and where a plaintiff consumes contaminated food. He urges
instead that the “existence of an incubation period between
initial exposure and onset of injury makes the situs of where
the injury is first experienced more significant in this
jurisdictional analysis.” Doc. no. 67-1 at 19-20. In other
words, Cappello argues that he suffered his injury for the
purpose of the specific jurisdiction analysis in New Hampshire
because that is where he was when the E. coli’s incubation
period expired and he first experienced food poisoning symptoms
from eating the contaminated lettuce.
A jurisdictional rule driven by the length of an
incubation period would be difficult to employ. It could result
in a court concluding that a food-poisoning injury occurred in a
state a plaintiff passed through only briefly as he traveled
from the location of ingestion to his final destination. A court
could do so only after it received and considered evidence
regarding the bacteria’s precise incubation period in a
particular plaintiff. Indeed, Cappello’s arguments in this case
only underscore the impracticability of such a rule, as he
asserts that the “incubation period for E. coli infection, which
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is the time from exposure to onset of symptoms in outbreaks, can
vary between one and 10 days.” Doc. no. 67-1 at 4. It is unclear
whether the “onset of symptoms” Cappello advances as the
jurisdictional imperative would concern small, perhaps
imperceptible, internal changes that cause lasting damage or
would require perceived symptoms. Either way, the rule would be
unworkable.
Cappello purchased and ate the contaminated food in New
Jersey. He offers no legal justification for pinning the injury
at the moment of the onset of symptoms rather than at the moment
of consumption. Cappello was injured when he ingested
contaminated lettuce and, therefore, his injury occurred in New
Jersey for the purpose of specific jurisdiction. See, e.g.,
Turley v. Vaudeville Cafe, LLC, No. 1:10-CV-2284-JEC, 2011 WL
3844361, at *2 (N.D. Ga. Aug. 26, 2011) (holding that for
purpose of personal jurisdiction, the “plaintiff’s injury
occurred when and where she was served the contaminated food,
which was in Tennessee”).
Cappello’s reliance on Ford’s relatedness analysis is
unavailing. Because, as discussed above, his injury occurred in
New Jersey, so too are his passing references in his surreply to
Pizz v. Jebeli, No. 2018-0016, 2018 WL 3237987 (N.H. June 8,
2018) and Kimball Union Acad. v. Genovesi, 165 N.H. 132 (2013).
Cappello has not shown that his tort claims arise out of or
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relate to the defendants’ activities in New Hampshire.
Therefore, he has not carried his burden to establish the
relatedness prong of the personal jurisdiction analysis for
those claims.
B. Contract Claims
Cappello asserts a breach of warranty claim in Count II. He
alleges that the defendants breached express and implied
warranties of merchantability or fitness for a particular use.
In the context of breach of contract claims, the relatedness
requirement directs the court to “ask whether the defendant’s
activity in the forum state was instrumental in either the
formation of the contract or its breach.” Vapotherm, 38 F.4th at
258-59 (quotation omitted).
Cappello addresses the relatedness prong for his breach of
warranty claim against Restaurant Depot in a footnote, stating
simply that he can meet the test “because [Restaurant Depot]
advertised the sale of romaine products in New Hampshire and
represented that its romaine products were fit for human
consumption.” Doc. no. 67-1 at 17 n.6. He does not address
relatedness with respect to D’Arrigo at all except to
acknowledge that it is legally required.
These statements cannot carry his burden. Cappello does not
allege or argue that the defendants’ New Hampshire activity was
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instrumental to the formation of the “contract” – that he
purchased or ate the salad in New Jersey because of the
defendants’ advertising, business, or express or implied
warranty as to the lettuce in New Hampshire. Indeed, Cappello
does not allege that he had any knowledge at all as to the
source of the lettuce in his salad.
Nor can Cappello establish that the defendants’ conduct in
New Hampshire was instrumental to the breach of any warranty.
The warranties were allegedly breached when Cappello purchased
and ate the salad with contaminated lettuce in New Jersey. Any
breach of warranty claim arising out of that event does not
relate to the defendants’ New Hampshire contacts for the purpose
of personal jurisdiction.
II. Remaining Prongs of Jurisdictional Analysis
Cappello’s failure to demonstrate relatedness between any
of his claims and the defendants’ contacts with New Hampshire
means that this court lacks personal jurisdiction over both
defendants. Although Cappello urges the court to analyze the
remaining prongs of the specific jurisdiction analysis even if
it determines that he has not shown the relatedness prong, doc.
no. 67-1 at 20, there is no need to do so. Restaurant Depot and
D’Arrigo are entitled to dismissal of Cappello’s complaint for
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lack of personal jurisdiction, and the court grants their
motions to dismiss.
Conclusion
For the foregoing reasons, D’Arrigo’s motion to dismiss
(doc. no. 47) and Restaurant Depot’s motion to dismiss (doc. no.
48) are granted. The clerk of court shall enter judgment
accordingly and close the case.
SO ORDERED.
______________________________
Samantha D. Elliott
United States District Judge
March 21, 2023
cc: Counsel of record.
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