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Access Now, Inc. v. Otter Products, LLC

United States District Court, D. Massachusetts

December 4, 2017

ACCESS NOW, INC., R. DAVID NEW, and STEPHEN THÉBERGE Plaintiffs,
v.
OTTER PRODUCTS, LLC, Defendant.

          MEMORANDUM AND ORDER

          PATTI B. SARIS, CHIEF U.S. DISTRICT JUDGE

         Plaintiff, [1] 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.

         I. FACTUAL BACKGROUND

         When all reasonable inferences are drawn in favor of the non-moving party, Plaintiff alleges the following facts in his complaint and declaration.

         A. Stephen Théberge

         Stephen 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.

         B. Otter[2]

         Otter 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.

         Otter's 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 residents.

         II. STANDARD OF REVIEW

         When a 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 uncontradicted.

         III. DISCUSSION

         A. Personal Jurisdiction

         Théberge, 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 ...


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