United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Andre Vysedskiy alleges that he received unsolicited
telephone calls from defendant OnShift, Inc.'s
("OnShift's") software, in violation of the
Telephone Consumer Protection Act, 476 U.S.C. §227, et
seq. (the "TCPA"). On October 25, 2016, he filed
this case against OnShift and ten unidentified
"Doe" defendants, OnShift's customers who
purchased the software and "may be responsible for the
calls placed to plaintiff." Compl. at ¶5. OnShift
moves to dismiss for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2) or, in the
alternative, to transfer the case to the Northern District of
Ohio pursuant to 28 U.S.C. §1404(a).
explained below, plaintiff has not established that OnShift
has the "minimum contacts" with Massachusetts
necessary to exercise personal jurisdiction over it. However,
plaintiff's allegations, coupled with the affidavits
submitted in connection with the motion to dismiss, support a
colorable claim that jurisdiction exists. Therefore, the
court is denying the motion without prejudice to a renewed
motion after limited discovery concerning the issue of
specific personal jurisdiction.
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
the court's personal jurisdiction over a defendant is
challenged, the plaintiff bears the burden to establish that
jurisdiction exists. See Adams v. Adams, 601 F.3d 1,
4 (1st Cir. 2010). Three methods exist for determining
whether the plaintiff has met its burden at the motion to
dismiss stage. See Foster-Miller, Inc. v. Babcock &
Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). The
"prima facie" method is most appropriate in cases
in which the parties have not presented conflicting versions
of the facts. See Nowak v. Tak How Investments,
Ltd., 94 F.3d 708, 712 (1st Cir. 1996).
a prima facie showing of jurisdiction, the plaintiff
"cannot rest upon the pleadings but is obliged to adduce
evidence of specific facts." Foster-Miller, 46
F.3d at 145; Boit v. Gar-Tec Products, Inc., 967
F.2d 671, 675 (1st Cir. 1992) (" [P]laintiffs may not
rely on unsupported allegations in their pleadings to make a
prima facie showing of personal jurisdiction."). The
court must "consider...whether the plaintiff has
proffered evidence that, if credited, is enough to support
findings of all facts essential to personal
jurisdiction." Foster-Miller, 46 F.3d at 145.
The court accepts the plaintiff's proffered and properly
documented facts as true "irrespective of whether the
defendant disputes them, and in so doing, construe[s] them in
the light most congenial to the plaintiff's
jurisdictional claim." Adelson v. Hananel, 510
F.3d 43, 48 (1st Cir. 2007). "Those facts put forward by
the defendant become part of the mix only to the extent that
they are uncontradicted." Id.
prima facie method "offers little assistance in closer,
harder-to-call cases, particularly those that feature
conflicting versions of the facts."
Foster-Miller, 46 F.3d at 145. Where it is
inappropriate to use the prima facie standard, courts may use
the "preponderance standard" or the
"likelihood standard." See Foster-Miller,
46 F.3d at 145-47. In using the preponderance standard, a
court conducts fact-finding "in the traditional way,
taking evidence and measuring the plaintiff's
jurisdictional showing against a
Foster-Miller, 46 F.3d at 145. The "likelihood
standard" is an intermediate standard. See
Boit, 967 F.2d at 677. In applying this standard, a
court conducts an evidentiary hearing and weighs the evidence
but makes findings limited to "whether the plaintiff has
shown a likelihood of the existence of each fact necessary to
support personal jurisdiction." Id.; see
Foster-Miller, 46 F.3d at 146. In contrast, when the
court "applies the prima facie standard and
denies the motion to dismiss, it is implicitly, if not
explicitly, ordering 'that hearing and determination [of
the motion to dismiss] be deferred until the trial.1"
Boit, 967 F.2d at 676.
diligent plaintiff who sues an out-of-state corporation and
who makes out a colorable case for the existence of in.
personam jurisdiction may...be entitled to a modicum
of jurisdictional discovery if the corporation interposes a
jurisdictional defense." United States v. Swiss Am.
Bank, Ltd., 274 F.3d 610, 625 (1st Cir. 2001). The
"diligence" prong "includes the obligation to
present facts to the court which show why jurisdiction would
be found if discovery were permitted." Id. at
626. The "colorable" standard requires some showing
that discovery is needed or likely to be useful. See
Dynamic Image Techs., Inc. v. United States, 221 F.3d
34, 38 (1st Cir.2000). However, "even when the plaintiff
has been diligent and has made a colorable claim for personal
jurisdiction, the district court still has broad discretion
to decide whether discovery is required." Swiss Am.
Bank, 274 F.3d at 625-26. Nevertheless, "courts
generally will grant jurisdictional discovery if the
plaintiff can show that the factual record is at least
ambiguous or unclear on the jurisdiction issue." In
re Testosterone Replacement Therapy Prod. Liab.
Litig. Coordinated Pretrial Proceedings, 136 F.Supp.3d
968, 973 (N.D. 111. 2015)
federal district court may exercise personal jurisdiction
over non-resident defendants to the same extent as a state
court in the state in which the district court is located.
See Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002).
Massachusetts courts have personal jurisdiction over
non-residents only if jurisdiction comports with Due Process
and is permitted by a Massachusetts statute, such as the
long-arm statute, Mass. Gen. Laws Chapter 223A, §3.
See Bulldog Investors Gen. P'ship v. Sec'y of the
Commonwealth, 457 Mass. 210, 215 (2010).
First Circuit recently stated that "the Massachusetts
long-arm statute might impose more restrictive limits on the
exercise of personal jurisdiction than does the Constitution,
" Copia Communications, LLC v. AMResorts, L.P.,
812 F.3d 1, 4 (1st Cir. 2016). Among other things, Mass. Gen.
Laws Chapter 223A, §3 authorizes personal jurisdiction
over "a person, who acts directly or by an agent, as to
a cause of action. • .arising from the
persons...transacting any business in [Massachusetts]."
For jurisdiction to exist under this portion of the
Massachusetts statute, "the facts must satisfy two
requirements-the defendant must have transacted business in
Massachusetts, and the plaintiff's claim must have arisen
from the transaction of business by the defendant."
Tatro v. Manor Care, Inc., 416 Mass. 763, 769-71
(1994); see also Evans Cabinet Corp. v. Kitchen
Int'l, Inc., 593 F.3d 135, 146 (1st Cir. 2010).
Due Process Clause of the Fourteenth Amendment requires that
a defendant have 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." Baskin-Robbins Franchising LLC v.
Alpenrose Dairy, Inc., 825 F.3d 28, 35 (1st Cir.
2016)(quoting International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)). This requirement "protects an
individual's liberty interest in not being subject to the
binding judgments of a forum with which he has established no
meaningful 'contacts, ties, or relations.'"
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72
(1985) (citing Int'l Shoe, 326 U.S. at 319).
"By requiring that individuals have 'fair warning
that a particular activity may subject [them] to the
jurisdiction of a foreign sovereign, ' the Due Process
Clause 'gives a degree of predictability to the legal
system that allows potential defendants to structure their
primary conduct with some minimum assurance as to where that
conduct will and will not render them liable to suit.1"
Id. (citing Shaffer v. Heitner, 433 U.S.
186, 218 (1977); World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 ...