United States District Court, D. Massachusetts
ACCESS NOW, INC., R. DAVID NEW, and STEPHEN THÉBERGE Plaintiffs,
OTTER PRODUCTS, LLC, Defendant.
MEMORANDUM AND ORDER
B. SARIS, CHIEF U.S. DISTRICT JUDGE
Stephen Théberge, who is blind, brings this action
against Otter Products, LLC (“Otter”), a producer
of consumer electronics accessories, alleging its websites
violate Title III of the Americans with Disabilities Act, 42
U.S.C. § 12181 et seq. Théberge has
attempted to use Defendant's website to no avail due to
the incompatibility of the websites with his screen reader.
The Defendant filed a motion to dismiss for lack of personal
jurisdiction or, in the alternative, for improper venue.
(Document No. 5). Alternatively, Otter requests that the case
be transferred to the District of Colorado. After hearing,
this Court DENIES the motion to
dismiss for lack of personal jurisdiction with respect to
Plaintiff Stephen Théberge, and
DENIES the motion to dismiss or
transfer based on improper venue.
all reasonable inferences are drawn in favor of the
non-moving party, Plaintiff alleges the following facts in
his complaint and declaration.
Théberge is a blind Massachusetts resident who suffers
from glaucoma and cataracts. He relies on screen-reader
programs which convert website text to audio. Screen-reader
software provides the primary method by which a blind person
may independently use the Internet and without these
programs, blind and visually impaired individuals cannot
access the Internet. Théberge attempted to access
Otter's websites from Massachusetts but found them
unusable in light of many barriers to access. For example, he
alleges that many of the buttons on the websites are
improperly labeled or not labeled at all, making them
incompatible with the screen-reader programs and unusable to
him. Plaintiff would like to, and intends to, attempt to
access Otter Products' website in the future from the
comfort of his home.
is a consumer electronics accessory company and makes sales
through two websites, www.otterbox.com and
www.lifeproof.com. Through different brands, it
produces water resistant, shock resistant, and drop resistant
cases for mobile devices. It is headquartered in Fort
Collins, Colorado but has one employee in Massachusetts.
direct sales to consumers are made through its websites,
which are managed from its headquarters in Fort Collins,
Colorado, and its satellite office in San Diego, California.
Most of Otter's employees are in one of these two
offices, but it has a field marketing representative in
Massachusetts who visits retail outlets in the region. Two
percent of Otter's online sales were made in
Massachusetts in 2017; however, Otter does not engage in
targeted marketing campaigns directed at Massachusetts
STANDARD OF REVIEW
district court rules on a motion to dismiss for lack of
personal jurisdiction without holding an evidentiary hearing,
the prima facie standard governs its determination.
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618
(1st Cir. 2001). The prima facie standard requires the
plaintiff to “proffer evidence which, if credited, is
sufficient to support findings of all facts essential to
personal jurisdiction.” A Corp. v. All Am.
Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016)
(internal citations omitted). Moreover, the burden of
persuasion is on the plaintiff. The Court “must accept
the plaintiff's (properly documented) evidentiary
proffers as true” and “construe them in the light
most congenial to the plaintiff's jurisdictional
claim.” Adelson v. Hananel, 510 F.3d 43, 48
(1st Cir. 2007) (internal quotation marks and citations
omitted). The facts put forward by the defendant become
“part of the mix only to the extent that they are
uncontradicted.” Id.The Court will consider
the facts in the defendant's declarations, which are
who lives in Attleboro, Massachusetts, asserts that this
Court has “specific jurisdiction” over Otter
because he was injured in Massachusetts when he could not
access its websites to purchase goods. For
“specific” or “case-linked
jurisdiction” to apply, the suit must arise out of or
relate “to the defendant's contacts with the
forum.” Bristol-Myers Squibb Co. v.
Superior Court of California, San Francisco Cty., 137
S.Ct. 1773, 1780 (2017). When exercising specific
jurisdiction over a defendant, the court must “find
sufficient contacts between the defendant and the forum ...