United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO
DISMISS PLAINTIFFS' COMPLAINT FOR LACK OF PERSONAL
JURISDICTION (DOCKET ENTRY # 6)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE
before this court is a motion to dismiss for lack of personal
jurisdiction filed by defendants VSP North America, LLC
(“VSP”) and John Von Stach (“Von
Stach”) pursuant to Fed.R.Civ.P. 12(b)(2) (“Rule
12(b)(2)”). (Docket Entry # 6). Plaintiffs Jeffrey
Filmore (“Filmore”) and Barracuda Investments,
Inc. (“Barracuda”) oppose the
motion. (Docket Entry # 13). After conducting a
hearing, this court took the motion (Docket Entry # 6) under
initiated this action on February 8, 2018 by filing a
complaint seeking damages against defendants as well as VSP
Florida, LLC (“VSP-FL”) and Ryan Walker
(“Walker”). (Docket Entry # 1). The complaint
sets out the following claims: (1) breach of contract (Count
I); (2) unjust enrichment (Count II); (3) common law fraud
(Count III); and (4) unfair and deceptive trade practices in
violation of Massachusetts General Laws chapter 93A, sections
2 and 11 (“chapter 93A”) (Count IV). (Docket
Entry # 1). Counts I and II raise claims only against VSP and
VSP-FL. (Docket Entry # 1).
seek a dismissal under Rule 12(b)(2) for lack of personal
jurisdiction, as defendants are not residents of
Massachusetts. Furthermore, defendants argue that
Massachusetts General Laws chapter 223A, section three
(“chapter 223A, § 3”), does not authorize
the exercise of personal jurisdiction over defendants.
circuit entertains different standards for reviewing a motion
to dismiss for want of personal jurisdiction under Rule
12(b)(2). As suggested by both plaintiffs and defendants,
“‘[t]he most conventional'” and more
frequently employed method is the “‘prima
facie' method.” Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51
(1st Cir. 2002) (internal citation omitted). This method
allows a court to “‘consider . . . whether the
plaintiff has proffered evidence that, if credited, is enough
to support findings of all facts essential to personal
jurisdiction.'” Adelson v. Hananel, 510
F.3d 43, 48 (1st Cir. 2007) (quoting Boit v. Gar-Tec
Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992)). A
plaintiff has the burden of demonstrating
“‘evidence of specific facts'” with
properly documented evidentiary proffers. Vysedskiy v.
OnShift, Inc., Civil Action No. 16-12161-MLW, 2017 WL
4391725 at *1 (D. Mass. Sept. 29, 2017) (quoting
Foster-Miller, Inc. v. Babcock & Wilcox Canada,
46 F.3d 138, 145 (1st Cir. 1995)). Such evidence includes the
affidavits in the record. See Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d at 45.
A plaintiff's properly documented proffers must be taken
as true for the purpose “of determining the adequacy of
the prima facie jurisdictional showing.” Id.
at 51 (citing Foster-Miller, Inc. v. Babcock & Wilcox
Canada, 46 F.3d at 145). More specifically, this court
“take[s] these facts ‘as true (whether or not
disputed) and construe[s] them in the light most congenial to
the plaintiff[s'] jurisdictional claim.'”
Id. at 51 (citing Mass. Sch. of Law at Andover,
Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir.
standard of review requires more than a prima facie showing.
This standard is appropriate “‘when the proffered
evidence is conflicting and the record is rife with
contradictions, or when a plaintiff's affidavits are
“patently incredible.”'” Rooney v.
Walt Disney World Co., No. CA 02-12433-GAO, 2003 WL
22937728 (D. Mass. Nov. 25, 2003) (quoting Boit v.
Gar-Tec Products, Inc., 967 F.2d at 676). The
evidentiary record in the case at bar does not suggest that
plaintiffs' evidence is “rife with
contradictions” or “patently incredible.”
The prima facie standard therefore applies.
maintains a principal place of business in Beverly,
Massachusetts. (Docket Entry # 1, ¶ 1). At all times
relevant to the case at bar, Filmore was a principle of
Barracuda, a Massachusetts corporation with a “usual
place of business” in Beverly,
Massachusetts. (Docket Entry # 1, ¶¶ 2, 3).
a “Michigan limited liability company” with a
principal place of business in Grand Rapids, Michigan.
(Docket Entry # 1, ¶ 4). VSP sells generators to dealers
“located in approximately 15 states throughout the
United States and in Africa.” (Docket Entry # 7-1,
¶ 6). Massachusetts is not one of the 15 states in which
VSP's dealers are located, nor has VSP ever “sold
any of its generators or other products in Massachusetts or
to Massachusetts residents.” (Docket Entry # 7-1,
¶ 7). Furthermore, VSP “does not have any offices
in Massachusetts, ” nor does it “employ any sales
people in Massachusetts.” (Docket Entry # 7-1, ¶
8). VSP's sales totaled $1, 000, 000 in 2017. (Docket
Entry # 7-1, ¶ 6). According to the complaint, Von Stach
is the “sole member of VSP.” (Docket Entry # 1,
¶ 7). He is a Canadian citizen who resides in Ontario,
Canada and has never traveled to or visited Massachusetts.
(Docket Entry # 1, ¶ 6) (Docket Entry # 7-1, ¶ 2).
is a “Florida limited liability company” that
maintained a principal place of business in Clearwater,
Florida prior to September 11, 2015, when it was
“involuntarily dissolved . . . for failure to file its
annual report.” (Docket Entry # 1, ¶ 5). Walker, a
Canadian citizen who maintains an office in Grand Rapids,
Michigan, was the sole member of VSP-FL and is the
“National Accounts Manager for VSP.” (Docket
Entry # 1, ¶¶ 8, 9).
“designs, manufactures and sells environmentally
friendly generators that run on renewable energy.”
(Docket Entry # 7-1, ¶ 5). Typically, dealers
“order generators from VSP on behalf of third
parties” or for their showroom. (Docket Entry # 7-1,
¶ 9). Dealers often cannot pay VSP for the generators
until they have received payment from the third-party.
(Docket Entry # 7-1, ¶ 9). Accordingly, it is standard
practice for VSP to invoice dealers for payment within 90
days of receipt. (Docket Entry # 7-1, ¶ 9).
order to maintain this arrangement with dealers, “VSP
has a program where it sells its [dealer] invoices . . . to
outside parties at a (20%) discount from the face value of
the invoice.” (Docket Entry # 7-1, ¶ 10). To reach
outside parties, VSP advertises in national newspapers
through “an advertising broker who finds suitable
locations for VSP's [advertisements] based on the most
cost-effective advertising rates.” (Docket Entry # 7-1,
¶ 11). These national newspapers include USA
Today, the Wall Street Journal, and the New
York Times. (Docket Entry # 7-1, ¶ 11).
2015, “VSP has run approximately twenty (20)
advertising campaigns” in six different newspapers,
each typically running for one week. (Docket Entry # 7-1,
¶ 12). During this time, VSP sold approximately $1, 500,
000 of invoices and receivables to parties in different
states. (Docket Entry # 7-1, ¶ 12).
September 2015, “VSP's advertising broker
recommended that VSP run a national advertising campaign in
the New York Times, the Boston Globe, and the Los Angeles
Times, ” as these newspapers would “provide
national coverage” at the lowest advertising rates due
to a discount for advertisements placed in all three
newspapers. (Docket Entry # 7-1, ¶ 13). VSP did not have
a preference as to which newspapers it advertised in as long
as it could “obtain maximum national coverage” at
“the most cost-effective rate.” (Docket Entry #
7-1, ¶ 13). Although VSP had previously advertised in
the New York Times and the Los Angeles
Times, this was the “first and only time that VSP
had advertised in the Boston Globe.” (Docket Entry #
7-1, ¶ 14). The advertisement was placed in each of the
aforementioned newspapers for one week, ...