What Kathleen doesn't want you to see...the Magistrate's Report

I guess I have to post it...

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
KATHLEEN M. DICKSON, and
on behalf of Lara E. Dickson,
Diane M. Dickson, David D.
Dickson, et al., and on behalf :
of all Families and Children
of the State of Connecticut,

Plaintiffs,

V. CA 05-328 T
STATE OF CONNECTICUT,

Defendant.

REPORT AND RECOMMENDATION
David L. Martin, United States Magistrate Judge


Before the court is the Motion to Dismiss (Document ("Doc.")
#21) ("Defendant's Motion to Dismiss") filed by Defendant State
of Connecticut ("Defendant" or "Connecticut") . Plaintiff
Kathleen M. Dickson ("Plaintiff") has filed a response entitled
Motion to Dismiss Defendant's Motions (Doc. #23) ("Plaintiff's
Motion to Dismiss").

This matter has been referred to me for preliminary review,
findings, and recommended disposition pursuant to 28 U.S.C. §
636 (b) (1) (B) and D. R. I. Local R. 32 (c) . The court has determined
that no hearing is necessary.

For the reasons stated herein, I
recommend that Defendant's Motion to Dismiss be granted and that
Plaintiff's Motion to Dismiss be denied.


I. Facts and Travel
On July 28, 2005, Plaintiff filed a thirty-five page typed
Complaint (Doc. #I), with accompanying exhibits. See Docket.
This was followed on August 4, 2005, by a twenty page typed
Amended Complaint and Motion (Docs. #2 and # 3 ) . Plaintiff
subsequently filed another amended complaint on August 22, 2005,
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 1 of 15

which was thirty-one typed pages in length and was accompanied by
a large number of exhibits. See Amended Complaint (Doc. #4)
("Second Amended Complaint") ; see also Docket.

However,
Plaintiff failed to obtain permission to file this Second Amended
Complaint as required by Federal Rule of Civil Procedure 15(a).'

Therefore, the court bases this Report and Recommendation on the
allegations contained in the Amended Complaint (Doc. #2) and not
on those in the Second Amended Complaint (Doc. #4).2 See
Instituto de Educacion Universal Corp. v. U.S. Depft of Educ.,
209 F.3d 18, 24 n.4 (lst Cir. 2000)(stating that pro se parties
are not excused from compliance with procedural rules).

Turning now to the Amended Complaint (Doc. #2),3 as best the
Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 15 (a)
provides in relevant part:
A party may amend the party's pleading once as a matter of
course at any time before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial
calendar, the party may so amend it at any time within 20 days
after it is served. Otherwise a party may amend the party's
pleading only by leave of court . . . .
Fed. R. Civ. P. 15 (a) (bold added) .

However, even if the court were to utilize the allegations
contained in Plaintiff s Second Amended Complaint (Doc. #4), the
result would be the same. The Second Amended Complaint similarly
alleges numerous wrongs being committed in Connecticut by Connecticut
actors (or actors in states other than Rhode Island). Consequently,
there is no basis for this court to exercise jurisdiction over the
matters pled therein. See Second Amended Complaint; see also Mills v.
Brown, 372 F.Supp.2d 683, 687 (D.R.I. 2005).

An amended complaint normally is treated as completely
replacing the original complaint. See Cicchetti v. Lucev, 514 F.2d
362, 366 n.5 (lst Cir. 1975); see also Austin v. Spauldinq, C.A. No.
00-104 T, 2001 U.S. Dist. LEXIS 4955, at *3 (noting that amended
complaint superceded original complaint and rendered original
complaint of no legal effect) (citing Kina v. Doaan, 31 F.3d 344, 346
(Sth Cir. 1994) ; Cicchetti v. Lucev, 514 F. 2d 362, 366 n. 5 (ISt Cir.
1975); Lubin v. Chicaao Title & Trust Co., 260 F.2d 411, 413 (7th Cir.
1958)). Despite occasional references to the original Complaint in
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 2 of 15

court can determine, Plaintiff's claims appear to fall into two
general categories. The larger group of claims involves
allegations that the State of Connecticut, Yale University, the
Centers for Disease Control, a number of pharmaceutical
companies, the American Lyme Disease Foundation, and others are
fraudulently denying persons afflicted with Lyme Disease
effective treatment. Plaintiff refers to this activity as "the
Lyme disease racket . . . . "4 Amended Complaint at 8. A smaller
group of claims seems to relate to the alleged mistreatment of
Plaintiff and other persons, including children, by the State of
Connecticut's Department of Mental Health, Department of Health,
and Department of Children and Families. Plaintiff states that
"due to the total corruption in the State of Connecticut ... this
complaint must be prosecuted from another jurisdiction of the
federal government." Id. at 15-16.

Defendant's Motion to Dismiss (Doc. #21) was filed on
November 15, 2005. On November 21, 2005, Plaintiff's Motion to
Dismiss (Doc. #23) was filed. Both motions were referred to this
Magistrate Judge on December 7, 2005, for findings and
recommendations.

11. Discussion
Defendant moves for dismissal of this action pursuant to
Federal Rule of Civil Procedure ("Fed. R. Civ. P. " ) 12 (b) (1) ,
(2) , ( 3 ) , and (6) based upon lack of subject matter and personal
jurisdiction, improper venue, and failure to state a claim upon
the Amended Complaint, see Amended Complaint at 2, 7, 10, Plaintiff
has not explicitly incorporated the original complaint, see Kina v.
Doaan, 31 F.3d at 346 ("An amended complaint supercedes the original
complaint and renders it of no legal effect unless the amended
complaint specifically refers to and adopts or incorporates by
reference the earlier pleading.").
Plaintiff states that she is an analytical chemist who was
formerly employed by the pharmaceutical company Pfizer. Amended
Complaint at 16.
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 3 of 15

which relief can be granted. See Defendant's Motion to Dismiss
at 1. In addition, Defendant argues that Plaintiff's claims are
not justiciable. See Memorandum of Law in Support of Defendant's
Motion to Dismiss ("Defendantf s Mem. " ) at 9-11. Because the
court concludes that dismissal is warranted due to a lack of
subject matter and personal jurisdiction, the court need not
address Defendant's other arguments.
A. Subject Matter Jurisdiction
In ruling on a motion to dismiss for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12 (b) (1) , a court must
construe the complaint liberally, treat all well-pleaded facts as
true, and indulge all reasonable inferences in favor of the
plaintiff. See Aversa v. United States, 99 F.3d 1200, 1209-10
(ISt Cir. 1996) ; Murphy v. United States, 45 F. 3d 520, 522 (ISt
Cir. 1995). "A plaintiff, however, may not rest merely on
unsupported conclusions or interpretations of law. [Slubjective
characterizations or conclusory descriptions of a general
scenario which could be dominated by unpleaded facts will not
defeat a motion to dismiss." Murphv, 45 F.3d at 522 (alteration
in original)(internal quotation marks and citation omitted). It
is Plaintiff's burden to prove the existence of subject matter
jurisdiction. See Murphy, 45 F. 3d at 522; see also Palazzolo v.
Ruasiano, 993 F.Supp. 45, 46 (D.R. I. 1998) ("Once a defendant
challenges a court's subject matter jurisdiction, the plaintiff
has the burden of establishing that jurisdiction exists.").
Defendant correctly notes that Plaintiff's Amended Complaint
does not contain "a short and plain statement of the grounds upon
which the court's jurisdiction depends." Defendant's Mem. at 2
(citing Fed. R. Civ. P. 8 (a) ') ; see also Mills v. Brown, 372
Fed. R. Civ. P. 8(a) provides in relevant part:
(a) Claims for Relief. A pleading which sets forth a claim
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 4 of 15

F.Supp.2d 683, 688 (D.R. I. 2005) ("A party seeking relief in a
district must at least plead facts which bring the action within
the court's jurisdiction. " ) (citing Fed. R. Civ. P. 8 ( a ) (1) ) .
Regarding jurisdiction, Plaintiff states that "due to the total
corruption in the State of Connecticut . . . this complaint must be
prosecuted from another jurisdiction ...." Amended Complaint at
15-16.
The court on November 16, 2005, directed Plaintiff to file
by December 7, 2005, a Motion for Leave to File a Second Amended
Complaint and to attach to the motion a copy of her proposed
amended complaint, which was to be a complete document that could
be fully understood without reference to other filings and which
complied with Fed. R. Civ. P. 8 (a) . See Order to File Motion for
Leave to Amend (Doc. #20). She failed to do so.7 See Docket.
for relief ... shall contain (1) a short and plain statement
of the grounds upon which the courtr s jurisdiction depends
.. . . , (2) a short and plain statement of the claim showing that
the pleader is entitled to relief, and (3) a demand for
judgment for the relief the pleader seeks.
Fed. R. Civ. P. 8 (a) (bold added) .
Plaintiff further states that "the State of Connecticut
Department of Mental Health and Addiction Services blatantly does not
recognize Lyme neuroborreliosis or Autism, which are among the reasons
this complaint was moved to another US federal district court."
Amended Complaint at 2. Plaintiff alleges that she is disabled due to
"High Functioning Autism and Lyme Disease ...." - Id. at 1.
' Plaintiff on December 27, 2005, resubmitted her Motion to
Dismiss Defendant's Motions ("Plaintiff's Motion to Dismiss"), along
with a cover letter dated December 19, 2005. See Doc. #27. The
letter states in its entirety: "The judge acts like he did not receive
this reply? Did the judge not receive a copy of this? I mailed it on
Nov,., 21, 2005." Id. The letter is signed by "KM Dickson." Id. It
is not clear to the court whether Plaintiff intended this document to
be her response to the court's Order to File Motion for Leave to Amend
(Doc. #20). In any event, Plaintiff's Motion to Dismiss does not
comply with that order or with Fed. R. Civ. P. 8(a). Order to
File Motion for Leave to Amend; Plaintiff's Motion to Dismiss; see
also Mills v. Brown, 372 F.Supp.2d 683, 692 (D.R. I. 2005) ("Although
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 5 of 15

Accordingly, her Motion to Amend was denied on December 13, 2005.
See Order Denying Motion to Amend (Doc. #25). -
The court assumes, for purposes of this Report and
Recommendation, that Plaintiff intends to allege federal question
jurisdiction, see 28 U.S.C. § 1331.' "[Flor federal question
jurisdiction to exist, a controverted question of federal law
must form a substantial part of the plaintiff's case." I Mills
372 F.Supp.2d at 688. Although Plaintiff in her Amended
Complaint refers to the Americans with Disabilities Act ("ADA"),
see Amended Complaint at 2, the Racketeering Influenced and -
Corrupt Organizations Act ("RICO") , see id. at 2, 8, 13, and the
Fifth Amendment to the United States Constitution, see id. at 2,
such passing references are not sufficient to sustain her burden
of establishing subject matter jurisdiction, see Mur~hv, 45 F.3d
at 522.' Plaintiff makes only general allegations that her
rights under the ADA, RICO, and the Fifth Amendment were violated
.. . . pleadings filed by pro se litigants are held to less stringent
standards than formal pleadings drafted by lawyers, all litigants,
including those filing pro se, have an obligation to comply with court
orders and with the Federal Rules of Civil Procedure.") (internal
quotation marks and citations omitted).
The pertinent statute provides that "[tlhe district courts
shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States." 28 U.S.C.
5 1331.
In her original Complaint (Doc. #I), which has been superceded
by the Amended Complaint, see n.3, Plaintiff additionally refers to
criminal statutes, see Complaint at 1 (listing 18 U.S.C. 55 241, 242,
245 and the Connecticut statute prohibiting risk of injury to minors,
Conn. Gen. Stat. § 53-21). However, these statutes do not give rise
to a civil action for damages, see *** v. Cosentino, 876 F.2d 1, 2 (Ist
Cir. 1989), and, therefore, cannot confer subject matter jurisdiction
on this court. Plaintiff also makes passing reference to the First
Amendment and to 42 U.S.C. S 1983. See Complaint at 24. The Second
Amended Complaint (Doc. #4), which was filed without leave of court,
see Section I supra at 2, cites the same statutes and constitutional
amendments as Plaintiff's Complaint and Amended Complaint, see Second
Amended Complaint at 2-3.
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 6 of 15

without alleging facts pertaining to how Defendant violated those
rights. See Mills, 372 F.Supp.2d at 687; see also, e.a., *** v.
Cosentino, 876 F.2d 1, 2 (lst Cir. 1989) ("The complaint makes
only bare and conclusory allegations regarding the appelleesf
collective racketeering activity and fails to specifically
identify the requisite predicate acts or a pattern of
racketeering activity indicating dates, times, and places as
required by 18 U.S.C. § 1862."). Even reading Plaintiff's
Amended Complaint with "an extra degree of solicitude," Rodi v.
Ventetuolo, 941 F.2d 22, 23 (lst Cir. lggl), due to her pro se
status, see id. ; see also Strahan v. Coxe, 127 F.3d 155, 158 n.1
(lst Cir. 1997)(noting obligation to construe pro se pleadings
liberally) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct.
594, 595-96, 30 L.Ed.2d 652 (1972)), her allegations do not
provide a basis for this court to exercise subject matter
jurisdiction over her claims, see Mills, 372 F.Supp.2d at 687
("Plaintiff has neither alleged, nor demonstrated the basic
grounds upon which such allegations must be founded in order to
pass jurisdictional muster ....") ; cf. Ahmed v. Rosenblatt, 118
F.3d 886, 890 (lst Cir. 1997) (noting that "pro se status does not
insulate a party from complying with procedural and substantive
law. The policy behind affording pro se plaintiffs liberal
interpretation is that if they present sufficient facts, the
court may intuit the correct cause of action, even if it was
imperfectly pled. This is distinct from the case at hand, in
which the formal elements of the claim were stated without the
requisite supporting facts.") (citation omitted). "Failure to
plead such facts warrants dismissal of the action." Mills, 372
F.Supp.2d at 688 (citing Fed. R. Civ. P. 12 (h) (3) l o ) .
According to Fed. R. C. P. 12 (h), "[wlhenever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction
of the subject matter, the court shall dismiss the action." Fed. R.
Civ.
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 7 of 15

In addition, Plaintiff does not, and is unable to, allege
diversity of citizenship in order to allow this court to exercise
jurisdiction pursuant to 28 U.S.C. § 1332." Although the
Amended Complaint contains no statement of Plaintiff's
citizenship, it reflects a Connecticut address for Plaintiff,
Amended Complaint at 20. Further, the Amended Complaint purports
to be brought "on behalf of all Families and Children of the
State of Connecticut." Amended Complaint at 1. Accordingly, the
court concludes that there is no diversity of citizenship between
Plaintiff, a resident of Connecticut, and Defendant, Connecticut,
and that, as a result, subject matter jurisdiction based on
diversity jurisdiction does not exist. a Mills, 372 F.Supp.2d
at 688 ("Given Plaintiff's obvious inability to allege diversity
of citizenship between the parties, this Court must conclude that
diversity jurisdiction does not exist .... " ) .
Plaintiff's allegation of "total corruption in the State of
Connecticut," Amended Complaint at 15, is not a basis for this
court to exercise jurisdiction over the action. The court,
therefore, concludes that subject matter jurisdiction is lacking
and recommends that Defendant's Motion to Dismiss be granted on
Section 1332 provides, in relevant part:
(a) The district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and
is between--
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign
state;
(3) citizens of different States and in which citizens or
subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603 (a) of this title,
as plaintiff and citizens of a State or of different States.
28 U.S.C. 5 1332(a).
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 8 of 15

this basis. See Mills, 372 F.Supp.2d at 688 ("Plaintiff has made
no allegations to support a federal cause of action, and this,
together with Plaintiff's failure to plead diversity of
citizenship, leaves this Court no alternative but to grant
Defendantsf motions to dismiss.").
B. Personal jurisdiction
"To hear a case, a court must have personal jurisdiction
over the parties, 'that is, the power to require the parties to
obey its decrees. I " Davnard v. Ness, Motlev, Loadholt,
Richardson & Poole, P.A., 290 F. 3d 42, 50 (ISt Cir. 2002) (quoting
United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (ISt Cir.
1999)). It is Plaintiff's burden to prove that the court
possesses personal jurisdiction over Defendant. See id.
It is well settled in this Circuit that courts use the
prima facie standard to determine whether personal
jurisdiction is appropriate. Under the prima f a c i e
standard, plaintiff must make the showing as to every
fact required to satisfy both the forum's long-arm
statute and the due process clause of the Constitution.
Brian Jackson & Co. v. Eximias Pharm. Corp., 248 F.Supp.2d 31, 34
(D.R.I. 2003)(citations and internal quotation marks omitted);
see also Davnard, 290 F. 3d at 51. "A district court may exercise
authority over a defendant by virtue of either general or
specific [personal] jurisdiction. " Davnard, 290 F. 3d at 51
(quoting Mass. Sch. of Law at Andover, Inc. v. Am. Bar. Assf n,
142 F. 3d 26, 34 (ISt Cir. 1998) ) (alteration in original) ; see
also Brian Jackson & Co., 248 F.Supp.2d at 35.
1. General Jurisdiction
"General jurisdiction exists when the defendant has engaged
in 'continuous and systematic activityf in the forum, even if the
activity is unrelated to the suit." Id. (quoting United Elec..
Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d
1080, 1088 (lst Cir. 1992)). "The continuous and systematic
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 9 of 15

requirement has been characterized as being satisfied when the
defendant's forum contacts are extensive and pervasive." Barrv
v. Mortaaae Servicina Acauisition Corp., 909 F.Supp. 65, 75
(D.R.I. 1995)(citation and internal quotation marks omitted).
The Amended Complaint contains no allegations that
Defendant has engaged in "continuous and systematic activity,"
Davnard, 290 F. 3d at 51, in the forum state, Rhode Island, or
that "extensive and pervasive," Barrv, 909 F.Supp. at 75,
contacts between Connecticut and Rhode Island exist. In fact,
aside from references to the "Rhode Island federal court,"
Amended Complaint at 2, and the "federal court in Rhode Island,"
id. at 16, there is no mention of Rhode Island in the Amended -
Complaint. Accordingly, this court cannot exercise general
jurisdiction over Defendant.
2. Specific Jurisdiction
Specific jurisdiction applies where "the cause of action
arises directly out of, or relates to, the defendant's forum-
based contacts." United Elec., Radio & Mach. Workers of Am., 960
F.2d at 1088-89. For a court properly to exercise specific
personal jurisdiction over the defendant, the requirements of
both the state's long-arm statute and the United States
Constitution must be satisfied. See Barrett v. Lombardi, 239
F.3d 23, 26 (ISt Cir. 2001) ; Pritzker v. Yari, 42 F.3d 53, 60 (lst
Cir. 1994). The Rhode Island long-arm statute, as interpreted by
the Supreme Court of Rhode Island, is coextensive with federal
due process mandates. See Levinaer v. Matthew Stuart & Co.,
Inc., 676 F.Supp. 437, 439 (D.R.I. 1988) (citing Conn v. ITT Aetna
Fin. Co., 252 A.2d 184, 186 (R.I. 1969)); see also Brian Jackson
& Co., 248 F.Supp.2d at 34-35; Microfibres, Inc. v. McDevitt-
Askew, 20 F.Supp.2d 316, 320 (D.R.I. 1998). Therefore,
Fourteenth Amendment due process requirements determine the
exercise of personal jurisdiction in the District of Rhode
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 10 of 15

Island. See Levinaer, 676 F.Supp. at 439; Northeastern Land
Servs., Ltd. v. Schulke, 988 F.Supp. 54, 57 (D.R.I. 1997); see
also Hainev v. World AM Communications, Inc., 263 F.Supp.2d 338,
341 (D.R.I. 2003).
"Due process demands minimum contacts between a nonresident
defendant and the forum such that the maintenance of the suit
does not offend 'traditional notions of fair play and substantial
justice. Northeastern Land Servs., Ltd., 988 F.Supp. at 57
(citing Intfl Shoe Co. v. Washinuton, 326 U.S. 310, 316, 66 S.Ct.
154, 158, 90 L.Ed. 95 (1945) ) . The First Circuit applies a
three-part analysis in evaluating minimum contacts. See Phillips
Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288
(ISt Cir. 1999) ; Sawtelle v. Farrell, 70 F.3d 1381, 1388-89 (lst
Cir. 1995).
First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant's forum-state
activities. Second, the defendant's in-state contacts
must represent a purposeful availment of the privilege of
conducting activities in the forum state, thereby
invoking the benefits and protections of that statef s
laws and making the defendant's involuntary presence
before the state's courts foreseeable. Third, the
exercise of jurisdiction must, in light of the Gestalt
factors, be reasonable.
Sawtelle, 70 F.3d at 1389 (quoting United Elec., Radio & Mach.
Workers o f Am., 960 F.2d a t 1 0 8 9 ) . T h e G e s t a l t f a c t o
r s are: "(1)
the defendant's burden of appearing; (2) the forum state's
interest in adjudicating the dispute; (3) the plaintiff's
interest in obtaining convenient and effective relief; (4) the
judicial system's interest in obtaining the most effective
resolution of the controversy; and (5) the common interests of
all sovereigns in promoting substantive social policies," id.
(citing Buraer King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 11 of 15

a. Relatedness
The first of the three requirements for specific
jurisdiction centers "on the causal nexus between [the
defendant's] forum-based contacts and the harm underlying [the
plaintiff's] complaint." Northeastern Land Servs., Ltd., 988
F.Supp. at 57-58; see also Ticketmaster-New York, Inc. v. Alioto,
26 F.3d 201, 206 (lst Cir. 1994) (same) . Plaintiff here has
failed to show a causal nexus between any contacts between
Defendant, the State of Connecticut, and the forum, Rhode Island
and the harms alleged in the Amended Complaint. Indeed, the
Amended Complaint contains no references whatsoever to contacts
between Connecticut (or any of its agencies) and Rhode Island.12
l2 Even were the court to consider the original Complaint (Doc.
#I), see n.3, that document contains scant reference to Rhode Island.
Plaintiff states that she:
submitted testimony to the April 2002 Rhode Island Tick Borne
Diseases Commission regarding the fraud of Lyme disease, with
substantiating documentation, entitled "The Rhode Island Tick
Borne Diseases Management Plan." Rhode Island passed
legislation protecting physicians from the Organized Crime and
Racketeering-Influenced Corruption as regards Lyme Disease . . . .
Instead of the Plaintiff KM Dickson's Tick Borne
Diseases Management Plan being adopted by the State of Rhode
Island, it was adopted by commercial interests in Rhode
Island.
Complaint at 9-10. This passage hardly demonstrates a "causal nexus
between [the defendant's] forum-based contacts and the harm underlying
[the plaintiff's] complaint." Northeastern Land Servs., Ltd. v.
Schulke, 988 F.Supp. 54, 57-58 (D.R.I. 1997).
Plaintiff fares no better if the Second Amended Complaint (Doc.
#4) is considered, see Section I supra at 2. Aside from mentioning
the filing of this action in the District of Rhode Island, the Second
Amended Complaint contains three references to Rhode Island: the "RI
Tick Borne Diseases Management Plan," Second Amended Complaint at 16;
a "2001 South County RI 'Diseases of Summerr conference," id.; and
"the Management Plan for the State of Rhode Island Tick Borne Diseases
Commission in a hearing held in Rhode Island in April 2002," id. at
19. The above notations fail to demonstrate a basis for exercising
specific jurisdiction over Defendant.
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 12 of 15

b. Purposeful Availment
The second component of the three part test, purposeful
availment, serves "to assure that personal jurisdiction is not
premised solely upon a defendant's 'random, isolated, or
fortuitousf contacts with the forum state." Sawtelle, 70 F.3d at
1391 (quoting Keeton v. Hustler Maaazine, Inc., 465 U.S. 770,
774, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984)); see also
Buraer Kina Corp., 471 U.S. at 475, 105 S.Ct. at 2183 (explaining
that defendant's contacts must qualify as "invoking the benefits
and protections of [the forum statef s] laws"). The goal is to
identify in-state activity "that would make the exercise of
jurisdiction fair, just, or reasonable." Rush v. Savchuk, 444
U.S. 320, 329, 100 S.Ct. 571, 577, 62 L.Ed.2d 516 (1980). The
kind of purposeful availment necessary in the First Circuit
requires in-state conduct by the defendant which is both
voluntary and which makes it reasonably foreseeable that the
defendant might be sued in the forum. See Ticketmaster-New York,
Inc 26 F.3d at 207. -f
The voluntariness element requires that there be evidence
of "a voluntary decision by the defendant to inject itself into
the local economy as a market participant." Brian Jackson & Co.,
248 F.Supp.2d at 35-36. The foreseeability component requires
that a defendant have "fair warning that a particular activity
may subject [it] to the jurisdiction of a foreign sovereign."
Buraer Kina Cor~., 471 U.S. at 472, 105 S.Ct. at 2182 (citing
Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53
L.Ed.2d 683 (1977)(Stevens, J., concurring in judgment))
(alteration in original). When a defendant intentionally directs
activities at the forum state which relate to the alleged claims,
there is such fair warning. See id. (quoting Keeton, 465 U.S. at
774, 104 S.Ct. at 1478, and Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed.2d
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 13 of 15

404 (1984)).
Here, there is nothing in the Amended Complaint which
demonstrates that Defendant Connecticut engaged in any conduct
with reference to the forum state, Rhode Island, which qualifies
as "invoking the benefits and protections of [the forum state's]
laws," Buraer Kina Cor~., 471 U.S. at 475, 105 S.Ct. at 2183.
Nor has Plaintiff alleged any contact which would have given
Connecticut "fair warning that a particular activity may subject
[it] to the jurisdiction of a foreign sovereign." Id. at 472,
105 S.Ct. at 2182. Accordingly, the court concludes that
Plaintiff has not met her burden of demonstrating that this
court's exercise of personal jurisdiction over Connecticut would
be appropriate. See Brian Jackson & Co., 248 F.Supp.2d at 34.
c . Gestalt Factors
The third prong of the personal jurisdiction analysis, the
Gestalt factors, arises after the establishment of minimum
contacts and centers on whether the exercise of jurisdiction is
reasonable. See Buraer Kina Corp., 471 U.S. at 476-77, 105 S.Ct.
at 2184. Reasonableness equates with "fair play and substantial
justice." Id. (citing Intf 1 Shoe Co., 326 U.S. at 320, 66 S.Ct.
at 160). As the court has concluded that the elements of
relatedness and purposeful availment of the test for specific
jurisdiction have not been satisfied, discussion of the Gestalt
factors is unnecessary. See Sawtelle, 70 F.3d at 1394 ("[A]
failure to demonstrate the necessary minimum contacts eliminates
the need even to reach the issue of reasonableness . . . . I 1 ) ;
United
Elec., Radio & Mach. Workers of Am., 960 F.2d at 1091 n.11 ("The
Gestalt factors come into play only if the first two segments of
the test for specific jurisdiction have been fulfilled.").
111. Summary
Because the court has concluded that it lacks jurisdiction
over the subject matter and Defendant, the court need go no
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 14 of 15

further. See Mills v. Brown, 372 F.Supp.2d 683, 691 (D.R.I.
2005)("Here, this Court having concluded that Plaintiff has
simply failed to assert subject matter jurisdiction in its most
basic form, need not and may not go further."); see also Davnard
v. Ness, Motlev, Loadholt, Richardson & Poole, P.A., 290 F.3d 42,
50 (lst Cir. 2002) ("To hear a case, a court must have personal
jurisdiction over the parties, that is, the power to require the
parties to obey its decrees.") (citation and internal quotation
marks omitted). Accordingly, the court declines to address
Defendant's other grounds for dismissal and recommends dismissal
based on the lack of subject matter and personal jurisdiction.
IV. Conclusion
For the reasons stated above, I recommend that Defendant's
Motion to Dismiss be granted and that Plaintiff's Motion to
Dismiss be denied. Any objections to this Report and
Recommendation must be specific and must be filed with the Clerk
within ten (10) days of its receipt. See Fed. R. Civ. P. 72(b);
D.R.I. Local R. 32. Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the
district court and of the right to appeal the district court's
decision. See United States v. Valencia-Co~ete, 792 F.2d 4, 6
(Ist Cir. 1986) ; Park Motor Mart, Inc. v. Ford Motor Co., 616
F.2d 603, 605 (ISt Cir. 1980).
DAVID L. MARTIN
United States Magistrate Judge
January 12, 2006
Case 1:05-cv-00328-T-DLM Document 28 Filed 01/12/2006 Page 15 of 15

.