United States District Court, D. Massachusetts
JAMES T. CASEY, JR., Plaintiff,
3M CORPORATION and APAX PARTNERS, Defendants.
MEMORANDUM AND ORDER
J. Casper United States District Judge
James T. Casey, Jr. (“Casey”), proceeding pro se,
has filed the instant lawsuit against Defendants 3M Company
(“3M”), which is incorrectly identified as 3M
Corporation in the operative complaint, and Apax Partners
(collectively, “Defendants”). D. 1-1 at 15-19.
Casey brings design defect and negligence claims against
Defendants in connection with a GPS monitoring bracelet that
allegedly malfunctioned while Casey wore the device, causing
Casey to breach a condition of his pre-trial probation.
Id. Although there has been some confusion around
the identity of named defendant Apax Partners, Casey has
since clarified in pending motion papers that he intended to
name Apax Partners LLP (“Apax”) as a defendant in
has moved to dismiss the action for lack of personal
jurisdiction and insufficient service of process pursuant to
Fed.R.Civ.P. 12(b)(2) and 12(b)(5), respectively. D. 13.
Casey now moves to amend the operative complaint to, among
other things, voluntarily dismiss 3M from this action, bring
new claims against Apax and to add claims against Alligator
Holdco Ltd. (“Alligator”) and the Commonwealth of
Massachusetts Office of the Commissioner of Probation
(“Probation Department”). D. 28. For the reasons
explained below, the Court ALLOWS Apax's motion to
dismiss. The Court DENIES IN PART Casey's motion to amend
the complaint as to the claims against Apax, the Probation
Department and Alligator. The Court ALLOWS IN PART the motion
to amend to the extent it seeks to dismiss 3M voluntarily.
Standard of Review
Motion to Dismiss for Lack of Personal Jurisdiction and
Court must apply the prima facie standard of review when
evaluating a motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2) without holding an
evidentiary hearing. United States v. Swiss Am. Bank,
Ltd., 274 F.3d 610, 618 (1st Cir. 2001). To meet his
burden of establishing the Court has personal jurisdiction
under the prima facie standard, Casey must “demonstrate
the existence of every fact required to satisfy both the
forum's long-arm statute and the Due Process Clause of
the Constitution.” Swiss Am. Bank, 274 F.3d at 618
(citing United Elec. Radio and Mach. Workers of Am. v.
163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir.
1993)). The Court considers the facts alleged in the
pleadings as well as the parties' supplemental filings.
See Sawtelle v. Farrell, 70 F.3d 1381, 1385 (1st
Cir. 1995). The Court will “take specific facts
affirmatively alleged by the plaintiff as true (whether or
not disputed) and construe them in the light most congenial
to the plaintiff s jurisdictional claim.” Mass.
Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142
F.3d 26, 34 (1st Cir. 1998). The Court will not “credit
conclusory allegations or draw farfetched inferences, ”
Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203
(1st Cir. 1994), and recognizes that it is the plaintiffs
burden to “verify the facts alleged through materials
of evidentiary quality.” Killion v. Commonwealth
Yachts, 421 F.Supp.2d 246, 252 (D. Mass. 2006) (quoting
Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir.
2001)). The Court is also required to “add to the mix
facts put forward by the defendants, to the extent that they
are uncontradicted.” Mass. Sch. of Law, 142
F.3d at 34.
Apax's Rule 12(b)(5) motion, “[a] district court
may dismiss a complaint for a plaintiffs failure to
effectively serve a defendant with process.” Sosa
Polanco v. United States, No. CV 17-1327 (JAG), 2017 WL
9772872, at *1 (D.P.R. Dec. 13, 2017). “The Court may
consider such matters outside of the pleadings when deciding
a motion to dismiss based upon lack of service of process
under Rule 12(b)(5).” Awadh v. Tourneau, No.
15-cv-13993-DJC, 2017 WL 1246326, at * 1 n.2 (D. Mass. Feb.
17, 2017). Where “[the defendant] challenges service of
process pursuant to Rule 12(b)(5), [the plaintiff] has the
burden of proving he effected proper service.”
Id. at *2.
Motion to Amend
considering Casey's motion to amend the complaint, the
Court recognizes that “leave to amend is to be
‘freely given when justice so requires' . . .
unless the amendment ‘would be futile, or reward,
inter alia, undue or intended delay.'”
Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
Cir. 2004) (quoting Fed.R.Civ.P. 15(a)(2) and Resolution
Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994)).
To evaluate futility, the Court determines if the amended
complaint fails to state a claim upon which relief could be
granted, which is the same standard used by the Court to
evaluate a motion to dismiss under Rule 12(b)(6). Hatch
v. Dep't for Children, Youth & Their Families,
274 F.3d 12, 19 (1st Cir. 2001).
15(a)'s “liberal amendment policy . . . does not
mean that leave will be granted in all cases.”
Acosta-Mestre v. Hilton Int'l of P.R., 156 F.3d
49, 51 (1st Cir. 1998) (quoting 6 Charles Alan Wright, Arthur
R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1487, at 611 (2d ed. 1990)).
following facts are as alleged in the operative complaint and
attachments thereto, D. 1-1 at 15-24, and uncontroverted
facts set forth by Apax for the purpose of the motion to
dismiss for lack of personal jurisdiction, D. 13. At some
point prior to May 18, 2015, Casey was ordered to wear a GPS
monitoring bracelet as a condition of “pre-trial
probation.” D. 1-1 at 16 ¶ 5. On May 18, 2015,
Casey received a call from an assistant coordinator of the
Probation Department's Electronic Monitoring Program
(“ELMO”), explaining that the monitoring bracelet
was no longer transmitting a signal with Casey's
location. Id. ¶¶ 5-6. After a failed
attempt at troubleshooting, the assistant coordinator
informed Casey that he should report to his probation officer
by the next morning. Id. ¶ 8. Casey alleges
that about one hour later, police officers arrived at his
home and arrested him because of the bracelet's purported
malfunction. Id. ¶ 9. After two days of
incarceration, Casey was released on May 20, 2015.
Id. ¶ 12. According to the operative complaint,
ELMO leases GPS monitoring bracelets from 3M and utilizes
3M's software to transmit data. Id. ¶ 10.
Casey alleges that 3M divested its electronic monitoring
business to an unidentified affiliate of Apax on or about
October 3, 2017. Id. ¶ 11.
March 12, 2018, Casey sent a letter addressed to “Apax
Partners” at “443 Park Avenue, New York, NY
10022” regarding his intent to file suit against the
company due to its purported ownership of 3M's divested
electronic monitoring business, including the allegedly
defective GPS monitoring bracelet at issue. D. 1-1 at 21. The
operative complaint likewise suggests that “Apax
Partners” is a business located at the same address on
Park Avenue in New York, New York. D. 1-1 at 16 ¶ 4. The
summons and complaint, however, were placed ...