Edward Farley v. Ubiratan Marinho, Jr. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0087, Edward Farley v. Ubiratan Marinho,
Jr. & a., the court on October 11, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, Edward Farley, appeals an order of the
Superior Court (Ruoff, J.) denying his motion to amend his complaint against
the defendants, Ubiratan Marinho, Jr. and Prime Auto Center, LLC (Prime
Auto). In denying the motion, the trial court reasoned that the plaintiff’s
proposed amendment did not cure defects identified in its earlier dismissal of
the plaintiff’s complaint for lack of personal jurisdiction. We affirm.

Whether to allow an amendment to a complaint is a matter resting within
the trial court’s sound discretion, and we will not disturb a decision to deny a
motion to amend absent an unsustainable exercise of discretion. See New
London Hosp. Ass’n v. Town of Newport, 174 N.H. 68, 76 (2021). Although trial
courts generally should allow liberal amendment of pleadings to correct purely
technical defects, the court may deny a motion to amend when the proposed
amendment would not cure a deficiency identified in the original complaint.
See id. at 75-76. When reviewing whether the trial court sustainably exercised
its discretion, we examine whether the record establishes an objective basis
sufficient to sustain its discretionary judgment. See id. at 76.

In this case, the plaintiff, a New Hampshire resident, sued Prime Auto, a
Florida limited liability company with an address in Florida, and Marinho,
Prime Auto’s member and agent with addresses in Florida, Connecticut, and
Maryland. The plaintiff alleged that (1) he purchased a car from the defendants
over the internet; (2) the defendants “deceptively advertised” the car in an on-
line advertisement; (3) the defendants shipped the car to the plaintiff through
“their carrier”; (4) following his purchase, the plaintiff expended $13,290.29 to
repair the car; and (5) although Prime Auto initially “agree[d] to restore [the]
vehicle to [its] advertised condition,” the defendants subsequently failed to do
so. The plaintiff sought treble damages pursuant to the New Hampshire
Consumer Protection Act. See RSA 358-A:10, I (2022).

The defendants moved to dismiss, asserting, in part, that the trial court
lacked personal jurisdiction. In granting the motion, the trial court analyzed
whether the plaintiff had established that the defendants maintained sufficient
contacts with New Hampshire to constitutionally justify its exercise of “specific”
personal jurisdiction. See, e.g. Red Oak Apartment Homes v. Holmes Carpet
Ctr., 173 N.H. 529, 533 (2020). The court concluded that the plaintiff did not
demonstrate that the defendants purposely availed themselves of the protection
of New Hampshire’s laws such that the exercise of jurisdiction over them was
foreseeable. See id. at 533-34.

The trial court gave the plaintiff thirty days from its September 25, 2023,
notice of decision within which to seek to amend the complaint to cure the
deficiencies it had identified, noting that any motion to reconsider would not
toll the thirty-day deadline. See ERG, Inc. v. Barnes, 137 N.H. 186, 189
(1993). The plaintiff filed a motion to amend the complaint on October 27,
2023, two days following expiration of the thirty-day amendment deadline. On
December 18, 2023, the trial court denied the motion to amend, ruling,

Upon review of the facts plead[ed] in this Amended Complaint, the
core facts concerning “minimal contacts” remain unchanged. A
one-time online purchase and sale transaction is not sufficient, or
reasonable, to vest the Court with personal jurisdiction over the
defendants. Although the plaintiff asserts some limited exchanges
with the defendants about servicing or repairing the car ― that is
not enough to establish personal jurisdiction over Florida
defendants.

Following the denial of his timely motion to reconsider this order, the plaintiff
filed the present appeal, identifying the denial of the motions to amend the
complaint and to reconsider as the decisions he is appealing.

On appeal, the plaintiff argues that the trial court erred by not
addressing whether the exercise of personal jurisdiction was consistent with
New Hampshire’s long arm statute. The plaintiff further argues that the trial
court erred by focusing upon the quantity of the defendants’ contacts with New
Hampshire only, and not upon their quality. According to the plaintiff, the
facts of this case are “nearly identical” to the facts in Lee v. Frank’s Garage &
Used Cars, Inc., 97 P.3d 717 (Utah Ct. App. 2004), and thus, the plaintiff
contends that the trial court erred by concluding that it lacked specific
personal jurisdiction in denying the motion to amend. We disagree.

At the outset, we emphasize that the only decisions from which the
plaintiff has timely appealed are the trial court’s orders denying his untimely
motion to amend and his motion to reconsider that decision. Indeed, because
the plaintiff failed to timely move to amend his complaint, and because the trial
court did not waive the untimeliness of his motion to amend within the appeal
period of Rule 7, the motion to amend did not stay the running of the appeal
period, resulting in the dismissal order becoming a final decision on the merits
for purposes of Supreme Court Rule 7. See Sup. Ct. R. 7(1)(C) (stating that
untimely post-decision motion does not stay running of 30-day appeal period

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unless trial court waives untimeliness within appeal period, and that absent a
waiver of untimeliness within appeal period, the trial court’s ruling on untimely
post-decision motion does not extend appeal period); Germain v. Germain, 137
N.H. 82, 84-85 (1993) (limiting appeal to decision denying untimely motion to
reconsider and dismissing appeal as to earlier decision on the merits, because
appealing party neither timely moved to reconsider nor timely appealed the
final decision on the merits). Accordingly, the merits of the dismissal order are
not properly before us.

We reject the plaintiff’s argument that the trial court erred by not
addressing whether the exercise of jurisdiction was consistent with New
Hampshire’s long arm statute in denying the motion to amend. In its original
dismissal order, the trial court correctly observed that New Hampshire’s long
arm statute authorizes the exercise of personal jurisdiction to the maximum
extent permitted under the Federal Due Process Clause, and thus, a due
process analysis is ordinarily determinative of a personal jurisdiction question
in New Hampshire. See Red Oak Apartment Homes, 173 N.H. at 533. Here,
the jurisdictional defect identified in the original complaint was the failure to
establish that the defendants had sufficient contacts with New Hampshire to
demonstrate that they purposely availed themselves of the protection of New
Hampshire’s laws. This is a component of the due process analysis for specific
personal jurisdiction. See id. at 533-34. Accordingly, the trial court did not err
by failing to address whether the exercise of jurisdiction complied with the long
arm statute when it denied the motion to amend the complaint.

Nor did the trial court focus solely upon the quantity of the defendants’
contacts with New Hampshire. In its dismissal order, the trial court
emphasized that the defendants’ only contacts with New Hampshire
established in the original complaint failed to demonstrate purposeful
availment. In denying the motion to amend, the trial court correctly observed
that the primary facts in the amended complaint regarding the defendants’
contacts with New Hampshire remained unchanged. The trial court further
acknowledged that the plaintiff had added new allegations regarding his
communications with the defendants, but determined that the substance of the
allegations did not establish personal jurisdiction. We conclude that the trial
court, in denying the motion to amend the complaint, did not focus solely upon
the quantity of the defendants’ contacts with New Hampshire and ignore their
quality.

Finally, we reject the plaintiff’s argument that Lee v. Frank’s Garage &
Used Cars, Inc. compelled a different result. It was the plaintiff’s burden to
offer evidence that, if credited, would support a finding that the defendants
purposely availed themselves of the protection of New Hampshire’s laws such
that the exercise of jurisdiction over them in New Hampshire was foreseeable.
See Red Oak Apartment Homes, 173 N.H. at 533-34. Having reviewed the Lee
court’s analysis of the facts specifically pleaded in that case relative to

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purposeful availment and the facts pleaded in the plaintiff’s proposed amended
complaint, we conclude that the plaintiff did not carry this burden with respect
to the new allegations in his amended complaint. Accordingly, the trial court
sustainably exercised its discretion when it denied the motion to amend. See
New London Hosp. Ass’n, 174 N.H. at 75-76.

The remaining arguments in the plaintiff’s brief either are insufficiently
developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), or otherwise do not
warrant further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

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