United States District Court, D. Massachusetts
MEMORANDUM AND ORDER DENYING DEFENDANTS' MOTION
ALLISON D. BURROUGHS ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Andrew Scott Conning (“Conning”) brings claims
against Defendants Jack Halpern (“Halpern”) and
CJK Dictionary Institute (“CJKI”) for defamation
(Count I), tortious interference with a business relationship
(Count II), violation of Massachusetts General Laws Chapter
93A (“Chapter 93A”) (Count III), and enforcement
of an arbitration award obtained through proceedings before
the Japan Commercial Arbitration Association
(“JCAA”) (Count IV). The parties have had a
lengthy and less than fully amicable business relationship.
The most recent chapter began in 2014 when Conning agreed to
help CJKI develop applications to teach customers Chinese and
Sino-Japanese characters. [ECF No. 1-2 at 14-37
(“Complaint” or “Compl.”)
¶¶ 16-17]. The relationship deteriorated, and
Conning pursued arbitration against CJKI, which concluded on
February 13, 2017 in an award of $50, 000 plus costs and
interest to Conning. Compl. ¶¶ 18, 24-27. Conning
claims that, after paying only part of the arbitration award,
Halpern and CJKI engaged in coercive, defamatory, and unfair
and deceptive conduct to damage his business relationships
and dissuade him from pursuing the full amount due. Compl.
¶¶ 26, 43, 54-61.
September 28, 2018, Conning filed this lawsuit in Middlesex
Superior Court. See Compl. at 23. Defendants removed
the action, entered a special appearance, and now move to
dismiss for lack of personal jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(2). [ECF Nos. 1, 7, 8]. For the
reasons explained below, the motion to dismiss is
summary draws from allegations in the Complaint and from
attestations in the affidavits proffered by the parties.
See A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54,
58 (1st Cir. 2016) (stating that plaintiffs bear the burden
of establishing specific jurisdiction and it is “not
enough . . . to ‘rely on unsupported allegations in
[its] pleadings'” (citation omitted)).
plaintiff, Andrew Scott Conning is domiciled in
Massachusetts, although he now temporarily resides in
California. Compl. ¶ 1. Defendant CJKI is a Japanese
corporation, and Defendant Jack Halpern resides in Japan.
Compl. ¶¶ 2, 4; [ECF No. 8-1 (“Halpern
Aff.”) ¶ 3]. CJKI specializes in Chinese,
Japanese, and Korean lexicology (hence “CJK”) and
develops dictionaries and associated applications that are
hosted by third parties and may be downloaded from almost
anywhere. Halpern Aff. ¶ 2.
April 10, 2014, Conning and CJKI entered into a consulting
agreement (the “Consulting Agreement”). [ECF No.
17-1 (“Conning Aff.”) ¶ 7]. Conning agreed to
help edit CJKI's Chinese Learner's Dictionary, and
CJKI agreed to collaborate on the development of an
application to teach a course that Conning had developed on
Chinese and Sino-Japanese characters. Compl. ¶ 17.
Defendants initiated and conducted the negotiations that led
to the Consulting Agreement through email and Skype
communication with Conning, who they knew lived and would
work from Massachusetts. Conning Aff. ¶¶ 6, 9. The
Consulting Agreement provided that any dispute arising out of
the agreement would be subject to binding arbitration before
the JCAA. Compl. ¶¶ 18-19.
with the parties' expectations, Conning performed his
obligations under the Consulting Agreement in Massachusetts,
and CJKI sent payment to Conning in Massachusetts. Conning
Aff. ¶¶ 10-12. Defendants also sent hundreds of
emails to Conning in Massachusetts, but neither Halpern nor
any other representative for CJKI visited Massachusetts in
connection with the parties' relationship, except for
attorneys seeking to resolve the ensuing dispute.
See Conning Aff. ¶¶ 19, 23.
did not hold up its end of the Consulting Agreement, and on
December 21, 2015, Conning requested arbitration before the
JCAA. Compl. ¶ 18. On March 1, 2016, the arbitrator
ruled that CJKI had violated its explicit and implicit
obligations to Conning and had inappropriately withheld
compensation from Conning to force him to amend the
Consulting Agreement. Compl. ¶¶ 20-21. Conning was
awarded $50, 000 and the costs of arbitration. Compl.
¶¶ 24-25. Although CJKI paid a substantial portion
of the award and costs in 2017, CJKI still owes a balance of
more than $30, 000. Compl. ¶¶ 26-29.
the arbitral award, Defendants pressured Conning to abandon
his right to the full amount due by making false statements
to Kodansha International and Kodansha USA, Inc. (together
“Kodansha”), who were to publish and distribute
his book: The Kodansha Kanji Learner's Course: A
Step-by-Step Guide to Mastering 2300 Characters. Compl.
¶ 31; Conning Aff. ¶ 25. Specifically, Halpern told
Kodansha that Conning's book made unauthorized use of
CJKI's proprietary data and that Conning no longer had
permission to use a foreword that Halpern had written for the
book. Compl. ¶¶ 31-42. Conning maintains that he
did not misuse any proprietary data and that Halpern had
willingly provided the foreword. Compl. ¶¶ 35-36.
The Kodansha employees who received these statements included
Kodansha Marketing Director Laura Shatzkin, who Conning
attests has visited Massachusetts. Conning Aff. ¶ 28.
The statements harmed Conning's reputation in
Massachusetts and caused Kodansha to forgo the opportunity to
publish and distribute his book, resulting in a loss of
royalties. Conning Aff. ¶¶ 25, 27-29.
referenced their purported sway over Kodansha in emails to
Conning in Massachusetts that were intended to pressure him
to settle for less than the arbitral award. For example,
Halpern wrote in one May 2018 email that if Conning accepted
his proposal to resolve their dispute, he would tell the
Kodansha officials who were “very unhappy with the
copyright issue.” Conning Aff. Ex. 12. Conning has not
identified any communications sent to Massachusetts that were
themselves defamatory or that damaged Plaintiff's
relationship with Kodansha or any other potential business
from its relationship with Conning, Defendants' contacts
with Massachusetts have been limited. CJKI licensed certain
of its works (i.e. foreign language dictionaries) to
Massachusetts persons other than Conning on two occasions,
Halpern has traveled to Massachusetts twice. Halpern Aff.
¶ 9. In addition to these targeted contacts, CJKI
uploads products to third-party venders, who may then sell
the products in Massachusetts. Halpern Aff. ¶ 2. CJKI
and Halpern make no efforts to specifically market their
products in Massachusetts, and they do not own property in
the Commonwealth. Halpern Aff. ¶¶ 2, 4.
STANDARD OF REVIEW
bear the burden of establishing that specific jurisdiction
exists over each Defendant. A Corp., 812 F.3d at 58
(citing Phillips v. Prairie Eye Ctr., 530 F.3d 22,
26 (1st Cir. 2008)). When a district court rules on a motion
to dismiss for lack of personal jurisdiction without holding
an evidentiary hearing, the “prima facie”
standard governs its determination. United States v.
Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).
Under the prima facie standard, plaintiffs must proffer
“evidence which, if credited, is sufficient to support
findings of all facts essential to personal
jurisdiction.” A Corp., 812 F.3d at 58
(quoting Prairie Eye Ctr., 530 F.3d at 26).
“[P]laintiffs may not rely on unsupported allegations
in their pleadings, ” and are instead “obliged to
adduce evidence of specific facts.” Platten v. HG
Bermuda Exempted Ltd., 437 F.3d 118, 134 (1st Cir. 2006)
(first quoting Boit v. Gar-Tec Prods., Inc., 967
F.2d 671, 675 (1st Cir. 1992), then quoting
Foster-Miller, Inc. v. Babcock & Wilcox Can., 46
F.3d 138, 145 (1st Cir. 1995)). The Court takes as true
whatever properly documented facts a plaintiff proffers,
construes those facts in the light most favorable to the
plaintiff, and considers facts put forward by the defendants
to the extent they are uncontradicted. See Prairie Eye
Ctr., 530 F.3d at 26; Platten, 437 F.3d at 134.
Process Clause of the Fourteenth Amendment allows state
courts to exercise jurisdiction over a nonresident only where
the exercise of jurisdiction “does not offend
‘traditional notions of fair play and substantial
justice.'” Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (citations
omitted). “To establish personal jurisdiction in a
diversity case, a plaintiff must satisfy both the forum
state's long-arm statute and the Due Process Clause of
the Fourteenth Amendment.” C.W. Downer & Co. v.