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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2008-899 THE STATE OF NEW HAMPSHIRE v. HESS CORPORATION & a. Argued: June 16, 2009 Opinion Issued: August 21, 2009 Kelly A. Ayotte, attorney general (Mary Maloney, assistant attorney general, on the brief), Sher Leff, LLP, of San Francisco, California (Victor M. Sher on the brief), and Law Offices of Matthew F. Pawa, P.C., of Newton Centre, Massachusetts (Matthew F. Pawa and Benjamin A. Krass on the brief, and Mr. Pawa orally), for the State. Hoefle, Phoenix, Gormley & Roberts, P.A., of Portsmouth (Stephen H. Roberts on the brief and orally), and Hunton & Williams LLP, of Richmond, Virginia (Joseph C. Kearfott on the brief), for defendant Flint Hills Resources, LP.

Maggiotto & Belobrow, PLLC, of Concord (Corey Belobrow on the brief and orally), for defendant Western Refining Yorktown, Inc. BRODERICK, C.J. This is an interlocutory appeal from an order of the Superior Court (Mangones, J.) granting the motion to dismiss filed by the defendants, Flint Hills Resources LP (Flint Hills) and Western Refining Yorktown, Inc. (Yorktown). See Sup. Ct. R. 8. We affirm in part, reverse in part and remand. We accept the statement of the case and facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary. See In the Matter of Berg & Berg, 152 N.H. 658, 659 (2005). The State brought this action against refiners and manufacturers that allegedly supplied New Hampshire with gasoline containing methyl tertiary butyl ether, commonly referred to as "MTBE," to recover damages purportedly caused by contamination of groundwater and surface waters in the state. The State originally brought this case in superior court. It was subsequently removed to federal court. After several judges recused themselves, the case was transferred to the United States District Court for the District of Rhode Island. Eventually, the case was transferred to the United States District Court for the Southern District of New York, where it became part of Multidistrict Litigation No. 1358. Thereafter, the State moved to remand the case to the New Hampshire Superior Court, contending that the federal court lacked subject matter jurisdiction. The motion was denied. See In re Methyl Tertiary Butyl Ether Litigation, 361 F. Supp. 2d 137 (S.D.N.Y. 2004), vacated, 488 F.3d 112 (2d Cir. 2007). The proceedings in the multidistrict litigation included a case management order that established dates by which plaintiffs with pending cases could amend their complaints, as of right, to add additional defendants. The State's amended complaint was due by late October 2004. After the district court denied its motion to remand, the State sought court approval to amend its complaint to add parties without waiving its objection to the district court's exercise of subject matter jurisdiction. The motion was granted, and the State timely filed its first amended complaint naming Flint Hills and Yorktown as defendants. In November, the State served Flint Hills and Yorktown with the amended complaint in accordance with the Federal Rules of Civil Procedure. The State served Flint Hills by personally serving its in-house counsel at its corporate headquarters in Kansas. See Fed. R. Civ. P. 4(h)(1)(B). Yorktown was served in a similar manner. See id. Subsequently, the State sought interlocutory review of the federal district court's denial of its motion to remand. After granting review, the Second Circuit Court of Appeals vacated the district court's order and remanded the

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matter to the superior court in New Hampshire. See In re Methyl Tertiary Butyl Ether ("MTBE"), 488 F.3d 112 (2d Cir. 2007). The State then notified the superior court of the remand order and the status of the federal court pleadings. Flint Hills and Yorktown moved to dismiss the claims against them on the basis that the superior court lacked personal jurisdiction over them because they were not served with the first amended complaint in accordance with New Hampshire statutes and, alternatively, that their contacts with the State were insufficient to support general or specific personal jurisdiction. The superior court granted their motions, ruling that the State's failure to effectuate proper service of process upon them in accordance with New Hampshire statutes deprived the court of personal jurisdiction. It did not, however, address their alternative argument that even if service of process was proper, their contacts in New Hampshire would not support either general or specific personal jurisdiction. I The superior court subsequently transferred the following questions for our consideration: 1. Did the Superior Court err in concluding that service of process upon Flint Hills and Yorktown in accordance with the Federal Rules of Civil Procedure, pursuant to order and process of a federal court that lacked subject matter jurisdiction, was improper service for purposes of New Hampshire law once the case was remanded to state court and requires their dismissal? 2. Did the Superior Court err in concluding that Flint Hills and Yorktown must be dismissed, notwithstanding their actual notice of the lawsuit? 3. Did the Superior Court err in concluding that the First Amended Complaint filed in federal court "remains viable" because leave to amend and to add additional parties likely would have been granted by the Superior Court had the case not been removed to federal court? We answer the first question in the affirmative, and hold that the trial court erred when it concluded that Flint Hills and Yorktown were not properly served. To the extent that the second question asks whether the superior court erred by dismissing Flint Hills and Yorktown solely on the ground that service was improper, it is a subsidiary question to the first question, and we answer it in the affirmative. Flint Hills and Yorktown should not have been dismissed on that ground because they were, in fact, properly served. To the extent that the second question asks whether Flint Hills and Yorktown should be dismissed,

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nonetheless, because they lack sufficient contacts with New Hampshire, it asks us to determine an issue the superior court has not yet addressed, and we decline to answer it. We answer the third question in the negative, and hold that the trial court did not err in concluding that the first amended complaint remains viable. We, thus, affirm the trial court's decision in part and reverse it in part. Although Flint Hills and Yorktown assert that the State is judicially estopped from arguing that the first amended complaint remains viable, they concede that the trial court did not certify judicial estoppel as an interlocutory appeal question. Because this issue is outside the scope of the interlocutory questions presented, we decline to address it. See Everitt v. Gen. Elec. Co., 156 N.H. 202, 208 (2007). II Flint Hills and Yorktown argue that the superior court lacked personal jurisdiction over them because they were never properly served with a valid writ. We first consider whether the first amended complaint was valid, and then consider whether Flint Hills and Yorktown were properly served with it. A Flint Hills and Yorktown contend that the first amended complaint was invalid because the federal district court that originally allowed the State to amend its complaint lacked subject matter jurisdiction. They assert that all of the orders issued by that court before it concluded that it lacked subject matter jurisdiction, including its order allowing the State to amend, are null and void. Because the federal district court had no jurisdiction to take any action at all, they contend, the first amended complaint, which the State filed with court permission, is of no effect. According to the facts presented in the interlocutory appeal statement, however, the State could have filed its first amended complaint as of right. The State sought a court order only to preserve its objection to the federal court's exercise of subject matter jurisdiction. Because the State could have filed the amended complaint as of right, the fact that the federal court "allowed" the State to file it is immaterial. See RMP Consulting Group, Inc. v. Datronic Rental Corp., No. 98-5062, 1999 WL 617690, at *4 (10th Cir. Aug. 16, 1999). Moreover, even if the court order were material, after a case has been remanded for lack of subject matter jurisdiction, the effect to be given federal court orders is a matter of state policy. See Ayres v. Wiswall, 112 U.S. 187, 190-91 (1884); Edward Hansen, Inc. v. Kearny P. O. Assoc., 399 A.2d 319, 321 (N.J. Super. Ct. Ch. Div. 1979); Tracy Loan & Trust Co. v. Mutual Life Ins. Co., 7 P.2d 279, 281 (Utah 1932). While federal court orders made before remand

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are not binding upon a state court, the state court nonetheless has discretion to give them effect. See Zacharias v. Whatman PLC, 784 A.2d 741, 746 (N.J. Super. Ct. App. Div. 2001), cert. denied, 794 A.2d 183 (N.J. 2002); 77 C.J.S. Removal of Cases

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