Hoplite, LLC v. The Catholic Univ. of Am., No. 1226-12-12 Cnsc (Crawford, J., Feb. 7, 2013)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                        CIVIL DIVISION
Chittenden Unit                                                                                       Docket No.: 1226-12-12 Cnsc

Hoplite, LLC
       Plaintiff

           v.

The Catholic University of America
      Defendant

                                           DECISION ON MOTION TO DISMISS

        In this small claims case, plaintiff Hoplite, LLC (Hoplite) sues defendant The Catholic
University of America (the University), alleging that the University booked Hoplite’s clients to
perform at an event, but then changed its mind. The University, represented by its Associate
General Counsel Margaret O’Donnell, has filed a motion to dismiss for lack of personal
jurisdiction pursuant to V.R.S.C.P. 4(e) (Cum. Supp. 2012).1 Hoplite, represented by its
President and CEO Thomas E. Baggott, opposes the University’s motion, and has filed twelve
exhibits in support of its opposition.

        The court applies the V.R.C.P. 12(b)(2) standard to a Small Claims Rule 4(e) motion to
dismiss. “A court has discretion to decide a pretrial motion to dismiss for lack of personal
jurisdiction on the basis of affidavits alone, to permit discovery, and to conduct an evidentiary
hearing.” Godino v. Cleanthes, 163 Vt. 237, 239 (1995) (citing Roman Catholic Diocese of
Burlington, Inc. v. Paton Insulators, Inc., 146 Vt. 294, 296 (1985)). Here, neither party has
requested an evidentiary hearing on the University’s motion to dismiss, and the court concludes
that the parties’ dispute on this matter is entirely legal. To meet its burden of showing that the
court has personal jurisdiction over the University, Hoplite need only make “a prima facie
showing of jurisdiction, or, in other words, demonstrate facts which would support a finding of
jurisdiction.” Mitec, 2008 VT 96, ¶ 15, 184 Vt. 303 (quoting Godino, 163 Vt. at 239).

       Considered in the light most favorable to Hoplite, the parties’ pleadings and other
materials suggest as follows. Hoplite is a Vermont corporation that, among other things, books
musical performances. In May 2012, Bridgette Acklin—a student at the University and the
“Events Coordinator” for the University’s Graduate Student Association—contacted Hoplite

1
  There is no question that venue in the Chittenden Unit is proper pursuant to V.R.S.C.P. 2(b), since Hoplite is
located in Burlington, Vermont. Even if venue is proper, that does not necessarily mean that the court has personal
jurisdiction over the University.
regarding a potential fall concert at the University’s Washington, D.C. campus. Hoplite sent
proposed contracts to Ms. Acklin in June, and Ms. Acklin submitted the proposed contracts to
University personnel for processing. According to Hoplite, the proposed contracts included the
following language:

         It is mutually understood and agreed that this contract shall be governed by the
         laws of the State of Vermont, both as to interpretation and performance.
         Furthermore, any action at law, suit in equity, arbitration or other judicial
         proceeding for the enforcement of this contract or any provision thereof shall be
         instituted only in the courts of the State of Vermont.

Hoplite’s Opp’n at 1 (filed Jan. 22, 2013).2

       Ms. Acklin and Hoplite continued to exchange emails, and at one point Hoplite even
offered to put in some calls to production companies once it became clear that the University
would not be able to handle the technical production with its own staff and equipment. On
August 28, the University’s Campus Activities Program Coordinator, Steve Kreider, emailed
Hoplite and noted that the University’s General Counsel was uncomfortable with certain
language in the contract. The language that was the basis of the General Counsel’s discomfort
was not the forum-selection and choice-of-law clause recited above. On August 30, Mr. Kreider
emailed Hoplite again and indicated that the University would not be signing the proposed
contracts. Hoplite filed this suit on December 10, 2012.

                                                    ANALYSIS

        The terms of Vermont’s long arm statutes are “broad enough to permit a court to exercise
jurisdiction over an absent defendant ‘to the full extent permitted by the Due Process Clause.’”
In re R.W., 2011 VT 124, ¶ 23, 191 Vt. 108 (quoting N. Aircraft, Inc. v. Reed, 154 Vt. 36, 40
(1990)). “Due process allows a forum to assert jurisdiction over a nonresident defendant who
has ‘certain minimum contacts with [the forum state] such that the maintenance of the suit does
not offend traditional notions of fair play and substantial justice.’” Id. Either specific
jurisdiction or general jurisdiction can satisfy the constitutional minimum contacts requirement.
See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 164 (2d Cir. 2010) (noting
distinction between specific and general jurisdiction for purposes of the minimum contacts
inquiry).




2
 Hoplite asserts in its motion that this language appears in its Exhibit A. It does not, nor does it appear elsewhere in
Hoplite’s exhibits. The court will nevertheless presume for present purposes that the language did appear in the
draft contract documents that the parties circulated.

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       The court agrees with the University that general jurisdiction is not present here. The
University undoubtedly has contacts with Vermont that are typical of any nationally prominent
university—e.g., some students come from Vermont, the University’s website may be viewed by
individuals in Vermont, etc. Such contacts are not the kind of continuous and systematic
contacts with Vermont such that Vermont could exercise general jurisdiction over the University.
E.g., Gehling v. St. George’s Sch. of Medicine, Ltd., 773 F.2d 539, 541–43 (3d Cir. 1985) (no
general jurisdiction in Pennsylvania over Grenada, West Indies medical school even though the
school solicited students by touring in some Pennsylvania cities and by placing ads in national
publications, enrolled some Pennsylvania students, and established a joint program with a
Pennsylvania college). Hoplite has not alleged any facts that would support a contrary
conclusion.

        “Specific jurisdiction exists when a State exercises personal jurisdiction over a defendant
in a suit arising out of or related to the defendant’s contacts with the forum.” Havill v.
Woodstock Soapstone Co., 172 Vt. 625, 626 (2001) (mem.) (quoting Metro. Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 567–68 (2d Cir. 1996)). The central question in the specific
jurisdiction inquiry is “whether the defendant has purposefully availed itself of the privilege of
acting in the forum state.” N. Sec. Ins. Co. v. Mitec Elecs., Ltd., 2008 VT 96, ¶ 14, 184 Vt. 303.
The purposeful-availment requirement “ensures that a defendant will not be haled into a
jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the
‘unilateral activity of another party or a third person.’” Id. (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985)).

       “The fact that an out-of-state party contracts with a Vermont company does not, by itself,
automatically establish sufficient minimum contacts in Vermont to render an assertion of
personal jurisdiction constitutional.” Mansfield Heliflight, Inc. v. Heli-One Canada Inc., No.
2:12-CV-46, 2012 WL 4479851, at *8 (D. Vt. Sept. 28, 2012) (citing Burger King, 471 U.S. at
478). There is no such “mechanical” test for personal jurisdiction. Burger King, 471 U.S. at
478. Instead, the court must take a “highly realistic” approach and evaluate a variety of factors
including “prior negotiations and contemplated future consequences, along with the terms of the
contract and the parties’ actual course of dealing . . . .” Id. at 479.

        Here, the University entered into no contract with Hoplite at all, and the parties never
engaged in any course of dealing—at best the parties engaged in negotiations by email. Had the
parties entered into a contract, the musical performances would have occurred in the District of
Columbia, Hoplite would have been paid for its services, and subsequently the parties’
contractual relationship would have ended—a far cry from the kinds of continuing obligations
envisioned by the contract in Burger King.




                                                3
        The fact that the draft contract circulated among the parties might have included Vermont
forum-selection and choice-of-law clauses does not compel a contrary result. Certainly if the
University had entered into a contract containing such a clause, it would have effected a waiver
of any claim of lack of personal jurisdiction over the University in Vermont. See Int’l Collection
Serv., Inc. v. Gibbs, 147 Vt. 105, 107 (1986). But such a waiver only occurs when the forum
selection clause is enforceable. Id. In this case, even though the University apparently did not
object to the clause in the course of the negotiations as far as those negotiations proceeded, the
University never agreed to any contract.3

                                                     ORDER

         The University’s motion to dismiss (filed Dec. 31, 2012) is granted.

Dated at Burlington this ___ day of February 2013
                                                                                 ___________________
                                                                                 Geoffrey Crawford,
                                                                                 Superior Court Judge




3
  A contrary conclusion would mean that plaintiffs bringing suits related to failed contract negotiations could impose
their forum upon unwilling defendants merely by inserting forum-selection and choice-of-law clauses in draft
language and later arguing that the defendant did not specifically object during the negotiations.

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