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Access Now, Inc. v. Sportswear, Inc.

United States District Court, D. Massachusetts

March 22, 2018

ACCESS NOW, INC., R. DAVID NEW, and STEPHEN THEBERGE, Plaintiffs,
v.
SPORTSWEAR, INC., Defendant.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE

         Plaintiffs Access Now, Inc. (“Access Now”), R. David New (“New”) and Stephen Théberge (“Théberge”) (collectively “plaintiffs”) bring this action against Sportswear, Inc. (“Sportswear”), an e-commerce retailer, alleging that Sportswear's website violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. Plaintiffs claim that they, individually, and Access Now's members have been unable to access Sportswear's website because it is incompatible with screen reader programs that assist individuals suffering from visual impairments.

         Pending before the Court is Sportswear's motion to dismiss the complaint for lack of personal jurisdiction (Docket No. 12). For the following reasons, the motion to dismiss will be allowed, in part, and denied, in part.

         I. Background

         Plaintiff Access Now is a non-profit organization which provides advocacy services on behalf of blind and other disabled individuals. Access Now has members in 47 states, including residents of Massachusetts. Plaintiff R. David New is a resident of Florida and the President of Access Now. Plaintiff Stephen Théberge is a resident of Massachusetts. Both individual plaintiffs are legally blind.

         Sportswear, Inc. is headquartered in Seattle, Washington where it maintains its corporate office. Sportswear also owns a manufacturing plant in Louisville, Kentucky. Sportswear does not maintain property in Massachusetts and employs no individuals in Massachusetts. Sportswear derives 3.78% of its revenue from sales in Massachusetts.

         The individual plaintiffs attempted to access Sportswear's website but found it unusable in light of certain barriers to access. The plaintiffs allege that the website is incompatible with screen readers which are programs that convert text to audio to allow individuals suffering from visual impairments to access the content and services of websites. Plaintiffs submit, for example, that the buttons on Sportswear's website lack labels that would describe their purpose to a screen reader user and error messages on the website do not provide sufficient information to such a user. Plaintiffs state that they would like to, and intend to attempt accessing Sportswear's website in the future.

         II. Defendant's Motion to Dismiss

         A. Legal Standard

         On a motion to dismiss for want of personal jurisdiction, plaintiff bears the burden of showing that the Court has authority to exercise jurisdiction over defendants. See Mass. Sch. of Law at Andover, Inc. v. ABA, 142 F.3d 26, 33-34 (1st Cir. 1998). The Court must take facts alleged by plaintiff as true and construe disputed facts favorably towards plaintiff. See Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994).

         In a diversity suit, this Court acts as “the functional equivalent of a state court sitting in the forum state.” See Astro-Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8 (1st Cir. 2009). As such, this Court must determine whether (1) jurisdiction is permitted by the Massachusetts long-arm statute and (2) the exercise of jurisdiction coheres with the Due Process Clause of the United States Constitution. Id.

         Due process demands a showing of general or specific personal jurisdiction by plaintiff. See Negron-Torres v. Verizon Commc'n, Inc., 478 F.3d 19, 24 (1st Cir. 2007). Plaintiffs must demonstrate that defendants have made sufficient contacts with the forum state to justify the exercise of that jurisdiction. Id.

         B. Analysis

         Plaintiffs do not dispute Sportswear's contention that it is not subject to the general jurisdiction of this Court. Plaintiffs contend that this Court has specific jurisdiction over Sportswear because Sportswear purposely availed itself of the privilege of conducting activities in Massachusetts and plaintiffs' ADA claim arises out of Sportswear's contact with the forum.

         1. Plaintiffs Access ...


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