Marianne Ajemian v. Yahoo!, Inc.

• Citation: 987 N.E.2d 604,83 Mass.App.Ct. 565
• Decision Date: 07 May 2013
• Docket Number: No. 12–P–178.,12–P–178.
• Court: Appeals Court of Massachusetts
• Parties: MARIANNE AJEMIAN, coadministrator, & another v. YAHOO!, INC.

83 Mass.App.Ct. 565

987 N.E.2d 604

MARIANNE AJEMIAN, coadministrator,¹ & another ²

v.YAHOO!, INC.

No. 12–P–178.

Appeals Court of Massachusetts, Norfolk.

Argued Oct. 1, 2012.

Decided May 7, 2013.

Robert L. Kirby, Jr., Boston, for the plaintiffs.

Marc J. Zwillinger, of the District of Columbia (Hanson S. Reynolds with him) for the defendant.

Present: WOLOHOJIAN, BROWN, & CARHART, JJ.

WOLOHOJIAN, J.

The plaintiffs, who are coadministrators of their brother John's estate, brought the underlying declaratory judgment action in the Probate and Family Court, seeking a declaration that electronic mail messages (e-mails) John sent and received using a Yahoo!, Inc. (Yahoo!), e-mail account are property of his estate.³ A probate judge dismissed the complaint, concluding that a forum selection clause required that suit be brought in California. The judge also concluded that res judicata barred the administrators from bringing their claim in a Massachusetts court, but did not bar them from asserting the same claim in California. In light of those conclusions, the judge dismissed the suit (apparently without prejudice), stating that the parties' substantive arguments should be considered by the California courts. We reverse.

Background. The parties briefed and argued the motion to dismiss as though it were a motion for summary judgment, submitting multiple documents and affidavits in support of their respective positions and liberally referring to information outside the four corners of the complaint. The judge considered and relied upon those extrinsic materials when ruling on the motion. In these circumstances, although never expressly converted, Yahoo!'s motion to dismiss was in effect a motion for summary judgment, and we accordingly review the judge's dismissal order under our familiar summary judgment standard. See Mass. R. Civ. P. 12(b), 365 Mass. 754 (1974); Cousineau v. Laramee, 388 Mass. 859, 860 n. 2, 448 N.E.2d 756 (1983); Casavant v. Norwegian Cruise Line, Ltd., 63 Mass.App.Ct. 785, 791, 829 N.E.2d 1171 (2005), cert. denied, 546 U.S. 1173, 126 S.Ct. 1337, 164 L.Ed.2d 52 (2006); Rawan v. Massad, 80 Mass.App.Ct. 826, 828, 957 N.E.2d 248 (2011). Viewed through that lens, we recite the relevant factual and procedural background.

Around August or September, 2002, Robert opened a Yahoo! e-mail account for John. Although Robert opened the account to be used primarily by John, Robert was to have access to and share the account as a co-user. Robert provided the information requested by Yahoo! to open the account, and he also set up a password to access the account.

According to Yahoo!, “[p]rospective users are given an opportunity to review the Terms of Service and Privacy Policy [TOS] prior to submitting their registration data to Yahoo!.” Robert does not dispute this, but avers that he has no affirmative memory of accepting the TOS or of seeing or reading it when he opened the account. The printed version of the TOS in effect in 2002 when Robert opened the account (2002 TOS) is ten single-spaced pages long and consists of twenty-five numbered sections. Of those, the following sections are particularly pertinent to this appeal.

“1. ACCEPTANCE OF TERMS[.] “Welcome to Yahoo!. Yahoo provides its service to you, subject to the following Terms of Service (‘TOS'), which may be updated by us from time to time without notice to you.... ⁴

“...

“6. MEMBER CONDUCT[.] ... You acknowledge and agree that Yahoo may preserve Content ⁵ and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; [or] (b) enforce the TOS....

“...

“8. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE [.] Yahoo does not claim ownership of Content you submit or make available for inclusion on the Service....

“...

“13. TERMINATION[.] You agree that Yahoo, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use....

“...

“16. YAHOO'S PROPRIETARY RIGHTS[.] ... Yahoo grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer....

“...

“24. GENERAL INFORMATION[.] ... The TOS and the relationship between you and Yahoo shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Yahoo agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.... You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.”

John was struck and killed by a motor vehicle on August 10, 2006. At that time, there was a new version of the TOS in effect. Most of the provisions set out above were materially unchanged; however, there were at least two new sections:

“22. NO THIRD–PARTY BENEFICIARIES. You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.

“...

“26. GENERAL INFORMATION[.] ... No Right of Survivorship and Non–Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.”

The record is silent on whether, how, or when the amendments to the TOS were communicated to, or accepted by, Robert (or John) or, for that matter, any other Yahoo! user. Based on Section 1 of the 2002 TOS (see note 4, supra ), it appears that Yahoo! may not have communicated this later TOS to users, or obtained their acceptance, but instead expected users on their own initiative to find out whether the terms of service had changed.

As noted above, Robert opened the account for John, who then became its primary user. However, Robert states that he was a coowner of the account and continued to access the account from time to time. That said, he had not accessed the account for some period before John's death and had forgotten the password.

Beginning shortly after John's death, the plaintiffs have repeatedly tried to gain access to the e-mail account. Initially, they sought access in order to obtain the e-mail addresses of John's friends to notify them of his death and memorial service. Subsequently, the plaintiffs (by then appointed as coadministrators of John's estate) sought the e-mails to help identify and locate assets and administer John's estate. Although Yahoo! initially agreed to turn over the information provided the family produced a copy of John's birth and death certificates and other documentation, it later refused them access to the account or its contents, relying on the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (2006), which Yahoo! interpreted to preclude disclosing John's e-mails even to the administrators of his estate.

Further negotiations led the parties to reach a partial resolution to the effect that if the plaintiffs obtained a valid court order requiring only production of basic subscriber and e-mail header information,⁶ and the order did not require Yahoo! to produce the contents of the e-mails, then Yahoo! would not oppose issuance of such an order and would comply with it. No agreement was reached regarding the contents of the e-mails, except that Yahoo! would continue to preserve them.

Consistent with this agreement, the plaintiffs filed a declaratory judgment action in the Probate and Family Court in September, 2007 (first action), seeking only “a binding declaration of right that the Administrators are entitled to access the subscriber records for the [e-mail] account,” and an order that Yahoo! produce the subscriber records for that account.⁷ The complaint did not seek the contents of the e-mails themselves. The complaint informed the court of the terms of the agreement between the plaintiffs and Yahoo! as set out above. Yahoo! did not appear in the first action, nor did it oppose the relief sought. Accordingly, the plaintiffs filed an unopposed motion for summary judgment, together with a proposed form of judgment, which a probate judge entered on January 3, 2008. That order provided:

“1. The Administrators of the estate of John Gerald Ajemian, Marianne Ajemian and Robert Ajemian, are entitled to receive subscriber records, as specified below, for Yahoo! e-mail account ‘jajemian_ 1@ yahoo. com.’

“2. Yahoo! Inc. shall provide all subscriber records and e-mail header information, not to include e-mail content, for Yahoo! e-mail account ‘jajemian_ 1@ yahoo. com’ to the Administrators....”

Yahoo! produced the subscriber information pursuant to the judgment.

Thereafter, the plaintiffs renewed their requests for the contents of the e-mail account. The parties engaged in further negotiations for several months but reached no agreement, and therefore, the plaintiffs filed a second declaratory judgment action in the Probate and Family Court on September 15, 2009 (second action), which is the suit underlying this appeal.

Unlike the first action, the second action is brought not only by Robert and Marianne as administrators of John's estate, but also by Robert individually, based on his allegation that he is a coowner of the e-mail account. The complaint seeks access to the contents of the e-mail account on two theories: (1) that the e-mails are property of John's estate and, therefore, Marianne and Robert (as the estate's administrators) are entitled to access to them; and (2) that as coowner of the account, Robert individually is entitled to its contents.

Yahoo! moved to dismiss the...