United States District Court, D. Massachusetts
ACCESS NOW, INC., R. DAVID NEW, and STEPHEN THEBERGE, Plaintiffs,
SPORTSWEAR, INC., Defendant.
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE
Access Now, Inc. (“Access Now”), R. David New
(“New”) and Stephen Théberge
“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
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.
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.
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.
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.
Defendant's Motion to Dismiss
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).
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.
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.
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.
Plaintiffs Access ...