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Russell v. 29 Prime, Inc.

United States District Court, D. Massachusetts

July 10, 2014

ADAM RUSSELL, Plaintiff,
v.
29 PRIME, INC., Defendant.

MEMORANDUM & ORDER

NATHANIEL M. GORTON, District Judge.

This case involves a class action brought by plaintiff Adam Russell against defendant 29 PRIME, Inc. pursuant to the Telephone Consumer Protection Act. Pending before this Court is defendant's motion to dismiss for lack of personal jurisdiction and for improper venue.

I. Background

Plaintiff Adam Russell ("Russell") is a Massachusetts resident invoking federal question jurisdiction under 28 U.S.C. § 1331. Defendant 29 PRIME, Inc. ("29 PRIME") is a technology company incorporated in Nevada with its principal place of business in California. 29 PRIME licenses its search engine optimization and placement services to various corporations, known as "authorized sales partners" or "resellers".

All resellers sign the Resellers Agreement ("the Agreement"). It stipulates that resellers represent 29 PRIME at the point of sale and that all customers are acquired on its behalf. The Agreement also stipulates that resellers sell 29 PRIME's products and services "only under the names or branding provided by [29 PRIME]". Under the Agreement, resellers' compensation is calculated as a percentage of payments made by customers to 29 PRIME.

29 PRIME does not directly engage in sales to prospective customers. However, all customers sign a Terms & Conditions sheet in which they agree to be serviced by 29 PRIME throughout the business relationship. Customers consent to recurring monthly payments to 29 PRIME and to phone calls from 29 PRIME and its affiliates using automated dialing systems ("autodialers"). The Terms & Conditions sheet also contains forum selection, choice of law, and arbitration clauses that require relevant actions occur in Orange County, California. 29 PRIME has 857 current and former Massachusetts customers.

In November, 2013, Russell filed a complaint individually and on behalf of all others similarly situated against 29 PRIME. The complaint alleges that 29 PRIME made mass solicitations to plaintiff and other putative class members using autodialers without their consent, in violation of the Telephone Consumer Protection Act ("TCPA"). Specifically, the complaint alleges that 29 PRIME negligently (Count I) and willfully or knowingly (Count II) violated the TCPA.

In January, 2014, 29 PRIME filed a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2) and for improper venue to transfer this case to the Central District of California under Fed.R.Civ.P. 12(b)(3).[1]

For the reasons that follow, the Court will deny defendant's motion to dismiss for lack of personal jurisdiction and for improper venue.

II. Analysis

A. Personal Jurisdiction in Massachusetts

1. Legal Standard

The Court must find personal jurisdiction over the parties in order to hear cases and issue judgments. United States v. Swiss Am. Bank, Ltd. , 191 F.3d 30, 35 (1st Cir. 1999). The plaintiff bears the burden of proving personal jurisdiction and must present specific facts to support its claim. Foster-Miller, Inc. v. Babcock & Wilcox Canada , 46 F.3d 138, 145 (1st Cir. 1995). A plaintiff's "properly supported proffers of evidence" and allegations are taken as true. Boit v. Gar-Tec Products, Inc. , 967 F.2d 671, 675 (1st Cir. 1992). Therefore, the Court takes as true Russell's allegations that 29 PRIME or its resellers placed phone calls to him and other members of the putative class using autodialers without their consent.

To establish personal jurisdiction, a plaintiff must show that jurisdiction is 1) statutorily authorized and 2) consistent with the Due Process Clause of the United States Constitution. Astro-Med, Inc. v. Nihon Kohden Am., Inc. , 591 F.3d 1, 8 (1st Cir. 2009). Because the Massachusetts long-arm statute, M.G.L. c. 223A, § 3, reaches to the full extent that the Constitution allows, the Court ...


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