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SCVNGR, Inc. v. Punchh, Inc.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

May 31, 2018



          Mitchell H. Kaplan, Justice Superior Court

          On July 23, 2016 [33 Conn.L.Rptr. 518], this court dismissed this action for lack of personal jurisdiction because it found that the defendant, Punchh, Inc., had insufficient contacts with Massachusetts to meet the due process requirements of the Fourteenth Amendment to the U.S. Constitution. LevelUp appealed, and the Supreme Judicial Court took the appeal for Direct Review. The SJC held that this court should have considered whether Long-Arm jurisdiction existed under G.L.c. 223A, § 3, before going on to address the Constitutional issue and remanded the case for that purpose. The SJC did not otherwise address the Constitutional issue and did not reverse this court’s order of dismissal. See SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324, 330 (2017). Following remand, the court permitted LevelUp to conduct additional discovery addressing Long-Arm jurisdiction issues.

         In March 2018, LevelUp filed what it styled: "First Amended Complaint and Demand for Jury Trial." It is that Amended Complaint that Punchh moves to strike or dismiss. That motion is allowed for two reasons. First, under Mass.R.Civ.P. 15(a), even though a "responsive pleading" has not yet been filed, amendment as of right is only permitted "prior to the entry of an order of dismissal." This court entered an order of dismissal in July 2016, and that order was not reversed by the SJC.

         More significantly, the proposed Amended Complaint is actually a supplemental pleading within the meaning of Rule (15)(d), as the "amendment" alleges additional tortious conduct that occurred after the complaint was filed, i.e., "since the date of the pleading sought to be supplemented." Id. Such a pleading must be presented by a motion.

         In this case, as the court explained at the hearing on this motion, were the supplemental complaint submitted by motion, the court would deny that motion. The SJC has directed the court to determine whether the complaint that it considered in 2016 and dismissed based on due process grounds met at least one of the bases for Long-Arm jurisdiction. The defendant has responded to a number of discovery requests geared to that complaint over the last several months. Which party was responsible for the prolix nature of this supplemental jurisdictional discovery does not matter. The court has been informed that the process will be complete next week. Reopening jurisdictional discovery to address events that allegedly occurred during the two years since the complaint was filed seems most inappropriate. See Fletcher Fixed Income Alpha Fund, Ltd. v. Grant Thornton LLP, 89 Mass.App.Ct. 718, 725 (2016) (holding that the focus of the jurisdictional inquiry must be on the defendant’s contacts with the forum state at the time the cause of action arose).

         The court has set a schedule for supplemental filings on the Long-Arm jurisdiction issue based on the parties’ representation that jurisdictional discovery will be finished next week and will shortly fulfill the task that the SJC directed it to undertake.[2]

          LevelUp’s motion to amend the discovery order asked for leave to take jurisdictional discovery for events running from the date of the original complaint to the present. Because the court will not permit LevelUp to supplement its pending complaint, at this time that discovery is unnecessary.[3]


         For the foregoing reasons, Punchh’s motion to strike the pleading styled First Amended Complaint and Demand for Jury Trial is ALLOWED and LevelUp’s motion for additional jurisdictional discovery is DENIED. LevelUp shall file any additional pleadings or materials in support of Long-Arm jurisdiction by June 29, 2018, and Punchh shall file any papers in response by July 13, 2018. The court will then render its further decision on the personal jurisdiction issue without additional hearings.



[1] Doing business as LevelUp. The court will refer to the plaintiff as LevelUp hereafter.

[2] The court suggested that LevelUp file a new complaint and dismiss this action, as statute of limitation issues did not appear to be a concern-in effect start over. LevelUp would only do this if Punchh stipulated to various matters, which Punchh was unwilling to do. The court therefore advised that it would simply fulfill the mandate given it by the SJC as expeditiously as it could.

[3] If, in addressing the Long-Arm statute, the court reconsiders its position on the Constitutional issue, the question of whether to permit the complaint to be ...

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