Access Now, Inc. v. Otter Prods., LLC

• Decision Date: 04 December 2017
• Docket Number: Civil Action No. 17–10967–PBS
• Citation: 280 F.Supp.3d 287
• Parties: ACCESS NOW, INC., R. David New, and Stephen Théberge, Plaintiffs, v. OTTER PRODUCTS, LLC, Defendant.
• Court: U.S. District Court — District of Massachusetts

280 F.Supp.3d 287

ACCESS NOW, INC., R. David New, and Stephen Théberge, Plaintiffs,

v.OTTER PRODUCTS, LLC, Defendant.

Civil Action No. 17–10967–PBS

United States District Court, D. Massachusetts.

Signed December 4, 2017

Benjamin J. Sweet, Pro Hac Vice, Edwin J. Kilpela, Jr., Pro Hac Vice, Kevin W. Tucker, Pro Hac Vice, Carlson Lynch Sweet Kilpela & Carpenter, LLP, Pittsburgh, PA, Jason M. Leviton, Block & Leviton LLP, Boston, MA, for Plaintiffs.

David McDowell, Pro Hac Vice, Morrison & Foerster LLP, Los Angeles, CA, Julie G. O'Neill, Morrison & Foerster, LLP, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

SARIS, Chief U.S.D.J.

Plaintiff,¹ Stephen Théberge, who is blind, brings this action against Otter Products, LLC ("Otter"), a producer of consumer electronics accessories, alleging its websites violate Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. Théberge has attempted to use Defendant's website to no avail due to the incompatibility of the websites with his screen reader. The Defendant filed a motion to dismiss for lack of personal jurisdiction or, in the alternative, for improper venue. (Document No. 5). Alternatively, Otter requests that the case be transferred to the District of Colorado. After hearing, this Court DENIES the motion to dismiss for lack of personal jurisdiction with respect to Plaintiff Stephen Théberge, and DENIES the motion to dismiss or transfer based on improper venue.

I. FACTUAL BACKGROUND

When all reasonable inferences are drawn in favor of the non-moving party, Plaintiff alleges the following facts in his complaint and declaration.

A. Stephen Théberge

Stephen Théberge is a blind Massachusetts resident who suffers from glaucoma

and cataracts. He relies on screen-reader programs which convert website text to audio. Screen-reader software provides the primary method by which a blind person may independently use the Internet and without these programs, blind and visually impaired individuals cannot access the Internet. Théberge attempted to access Otter's websites from Massachusetts but found them unusable in light of many barriers to access. For example, he alleges that many of the buttons on the websites are improperly labeled or not labeled at all, making them incompatible with the screen-reader programs and unusable to him. Plaintiff would like to, and intends to, attempt to access Otter Products' website in the future from the comfort of his home.

B. Otter²

Otter is a consumer electronics accessory company and makes sales through two websites, www.otterbox.com and www.lifeproof.com. Through different brands, it produces water resistant, shock resistant, and drop resistant cases for mobile devices. It is headquartered in Fort Collins, Colorado but has one employee in Massachusetts.

Otter's direct sales to consumers are made through its websites, which are managed from its headquarters in Fort Collins, Colorado, and its satellite office in San Diego, California. Most of Otter's employees are in one of these two offices, but it has a field marketing representative in Massachusetts who visits retail outlets in the region. Two percent of Otter's online sales were made in Massachusetts in 2017; however, Otter does not engage in targeted marketing campaigns directed at Massachusetts residents.

II. STANDARD OF REVIEW

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). The prima facie standard requires the plaintiff to "proffer[ ] evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction." A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir. 2016) (internal citations omitted). Moreover, the burden of persuasion is on the plaintiff. The Court "must accept the plaintiff's (properly documented) evidentiary proffers as true" and "construe them in the light most congenial to the plaintiff's jurisdictional claim." Adelson v. Hananel, 510 F.3d 43, 48 (1st Cir. 2007) (internal quotation marks and citations omitted). The facts put forward by the defendant become "part of the mix only to the extent that they are uncontradicted." Id. The Court will consider the facts in the defendant's declarations, which are uncontradicted.

III. DISCUSSION

A. Personal Jurisdiction

Théberge, who lives in Attleboro, Massachusetts, asserts that this Court has "specific jurisdiction" over Otter because he was injured in Massachusetts when he could not access its websites to purchase goods. For "specific" or "case-linked jurisdiction" to apply, the suit must arise out of or relate "to the defendant's contacts with the forum. " Bristol–Myers Squibb Co. v. Superior Court of California, San Francisco Cty., ––– U.S. ––––, 137 S.Ct. 1773, 1780, 198 L.Ed.2d 395 (2017). When exercising specific jurisdiction over a defendant, the court must "find sufficient contacts between the defendant and the forum to satisfy both that state's long-arm statute and the Fourteenth Amendment's Due Process clause." Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995).

1. The Massachusetts Long–Arm Statute

Plaintiff contends the long-arm statute is coextensive with the Due Process clause of Fourteenth Amendment of the United States Constitution and therefore the Court should move directly to the Due Process analysis. The Defendant argues the state long-arm statute does not reach as far as the Constitution permits and asks the Court to assess whether the jurisdiction meets the statutory requirements. The Defendant has the better of the argument. The Supreme Judicial Court recently addressed this issue: "Because the long-arm statute imposes specific constraints on the exercise of personal jurisdiction that are not coextensive with the parameters of due process, and in order to avoid unnecessary consideration of constitutional questions, a determination under the long-arm statute is to precede consideration of the constitutional question." See SCVNGR, Inc. v. Punchh, Inc., 478 Mass. 324, 85 N.E.3d 50, 52 (2017).

The long-arm statute, Mass. Gen. Laws ch. 223A, § 3(a), permits a court to "exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's ... transacting any business in this commonwealth." The definition of "transacting" is construed broadly under Massachusetts law. United Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1087 (1st Cir. 1992) ("Both federal and state courts have regularly construed the ‘transacting any business’ language of the statute in a generous manner."); Diamond Grp., Inc. v. Selective Distribution Int'l, Inc., 84 Mass.App.Ct. 545, 998 N.E.2d 1018, 1022 (2013) ("We interpret ["any" in the statute] to be expansive, or to mean that the volume of business need not be substantial but merely definite and perceptible."). The test for this determination is whether the defendant attempted to participate in the Commonwealth's economic life and whether the transacted business was a "but for" cause of the harm. See Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015).

Under Section 3(a), the "arising from" requirement must also be met. "[A] claim arises from a defendant's transaction of business in the forum State if the claim was made possible by, or lies in the wake of, the transaction of business in the forum State." Tatro v. Manor Care, Inc., 416 Mass. 763, 625 N.E.2d 549, 553 (1994). The inquiry ultimately boils down to a "but for" causation test which asks "[d]id the defendant's contacts with the Commonwealth constitute ‘the first step in a train of events that result[ed] in the personal injury.’ " Lyle Richards Int'l, Ltd. v. Ashworth, Inc., 132 F.3d 111, 114 (1st Cir. 1997) (quoting Tatro, 625 N.E.2d at 553 ). The standard is not rigorous. See Baskin–Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 n.3 (1st Cir. 2016).

Plaintiff has presented sufficient evidence to support a finding that Otter transacted business under the long-arm statute. While the percentage of total sales in Massachusetts is small (two percent), this represents about $20 million in sales. Otter has a field marketing representative in Massachusetts. It has also been registered to do business in the state since December 2013. In similar situations, the Court has found the "transacting of business" element met for purposes of the long-arm statute. Cossart, 804 F.3d at 18(finding jurisdiction when defendant recruited and hired a Massachusetts resident as an employee; registered a sales office with the Commonwealth in order to facilitate work for the company; and retained plaintiff as a Massachusetts-based employee for a period of years); Edwards v. Radventures, Inc., 164 F.Supp.2d 190, 194 (D. Mass. 2001) (finding that $12,000 in sales to state citizens, a website through which Massachusetts sales were solicited, and a Massachusetts sales location was sufficient to establish the "transacting business" prong).

The next step is to determine whether the "arises from" requirement is met. The complaint alleges that the websites limit accessibility to consumers who are visually impaired and can only purchase products through the website. Decl. of Michael Soderholm ¶ 5. In other contexts, courts have held that under the ADA, a disabled individual suffers harm when she encounters a barrier that denies her access. Cf. Chapman v. Pier I Imports (U.S) Inc., 631 F.3d 939, 950–51 (9th Cir. 2011) (en banc) (holding a disabled plaintiff who is deterred by a barrier from "patronizing" a store suffers an injury-in-fact); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir. 2003) ("Under Title III of the ADA, courts typically have gauged the discriminatory effect of a policy or practice by the degree to which that policy or practice denies...