Salem Shift LLC v. Buffalo Pedal Tours, LLC
| Docket Number | 21-cv-11418-DJC |
| Decision Date | 18 September 2023 |
| Parties | SALEM SHIFT LLC and KAYLA PAIGE BESSE, Plaintiffs, v. BUFFALO PEDAL TOURS, LLC, KEN SZAL, and BAVISTA LLC, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiffs Salem Shift LLC (“Salem Shift”) and Kayla Paige Besse (“Besse”), the managing member of Salem Shift, have sued Defendants Bavista LLC (“Bavista”), Buffalo Pedal Tours, LLC (“Buffalo Pedal”), and the companies' managing member, Ken Szal (“Szal”) (collectively “Defendants”), concerning the sale of a multi-person bicycle. D. 1. Plaintiffs assert claims for breach of contract (Count I), unfair and deceptive practices in violation of Mass. Gen. L. c. 93A (Count II) and negligence (Count III). Id. Defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. D. 10. For the reasons stated below, the Court DENIES the motion.
The Court draws the following factual allegations from Plaintiffs' complaint, D. 1, as well as from the affidavits and exhibits filed in connection with the motion to dismiss. See D. 11; D. 16; D. 23.[1]
Salem Shift is a limited liability company organized under the laws of Massachusetts with its place of business in Massachusetts as well. D. 1 ¶ 2. Besse, the managing member of Salem Shift, is domiciled in Massachusetts. Id. ¶ 3. Bavista is a New York limited liability company organized under the laws of New York with its headquarters in Buffalo, New York, doing business under the name Buffalo Pedal. D. 11-4 ¶ 4, 33 (); but see D. 1 ¶¶ 4-6 ().[2] Szal, the managing member of Bavista and Buffalo Pedal, is domiciled in New York. D. 1 ¶ 5.
In late 2020, Besse decided to start a business in Salem, Massachusetts offering group pedal bike tours, which allow for a dozen or more people to ride a “group bicycle” around the city. Id. ¶ 10-11. In November 2020, she started discussions with officials for the City of Salem and Commonwealth of Massachusetts about the permissions she would need to operate this business. Id. ¶ 15. She applied to Salem for a pedicab license and registered “Salem Shift LLC” with the Massachusetts Secretary of State. Id. ¶¶ 15-17.
On November 20, 2020, Besse contacted Buffalo Pedal about the company's custom-made fifteen-passenger bikes, using an order form available on the company's website. D. 11-1; D. 16 ¶ 13. She became interested in the company after searching online for companies that manufacture group bikes and encountering the Buffalo Pedal website in the Google Search results. D. 16 ¶¶ 6, 13; D. 16-1. Szal emailed Besse on November 24, 2020, to confirm her interest. D. 16 ¶ 14.
Over several months in early 2021, Besse and Szal discussed her potential purchase. On February 23, 2021, the two exchanged emails to schedule a phone call to discuss purchasing a pedal bike. D. 16 ¶¶ 15-16. Szal called her at her residence in Salem that day and she told him she was considering several companies. Id. On March 3, 2021, at his direction, Besse called him to compare features of Buffalo Pedal's product with those produced by CyclePub in Bend, Oregon, another supplier she was considering. Id. ¶ 16. Around April 17, 2021, Szal called Besse and invited her to visit Buffalo to learn more about his business. Id. ¶ 17. He had emailed a similar invitation on March 3, 2021. Id. On April 22, 2021, Besse traveled to Buffalo to meet with Szal and learn about his tour business and group pedal bike. D. 1 ¶ 18; D. 16 ¶ 18. Besse explained her plans to him, and he represented “the high quality of the 15-person pedal bike,” “how it was well suited for the bike tours she was planning,” and “how well the Buffalo Pedal bike operated and its reliability.” D. 1 ¶ 19. Although Szal attempted to sell Besse a bike during that trip, she did not buy one at that time. D. 16 ¶ 18.
In May 2021, Besse decided to buy a bike from Buffalo Pedal and notified Szal of this decision by email on May 6, 2021. D. 16 ¶ 20. Around this time, he called her in Salem promising to send a list of tools needed for bike maintenance, although he never did so. Id. ¶ 22. On May 18, 2021, Besse paid Bavista a $10,000 deposit toward the total purchase price of $57,900. D. 1 ¶ 20; D. 16 ¶ 23. In exchange, Szal warranted that he would manufacture a pedal bike that was reliable and suited for its intended purpose. D. 1 ¶ 20. Two days later, Besse made a formal presentation to the Ordinance, Licenses and Legal Affairs Committee of the Salem City Council, which referred the matter of approval to the full city council. Id. ¶ 21.
On June 22, 2021, Besse paid Szal, Buffalo Pedal, and Bavista the balance owed for the pedal bike, an amount of $47,900. Id. ¶ 22. The next day, Salem granted permission for Salem Shift to commence operations on a trial basis. Id. ¶ 23. For delivery, Szal called Besse in Salem and offered to connect her with a traditional third-party carrier or to have his friend, Mike Pulk (“Pulk”), deliver the bike for roughly half the price, if the fee was paid in cash. D. 16 ¶ 26. He also made this offer via email and text message to Besse. Id. ¶ 26. She accepted this offer and, on June 24, 2021, the bike was delivered to Salem Shift in Salem. Id. ¶¶ 26-27. The day before delivery, Szal stated that he would send Besse a video with instructions on the operation of the bike, but never did so. Id. ¶ 28.
Having received the bike, Besse prepared to launch her business. She hired employees and obtained positive press on the front page of The Salem News. D. 1 ¶ 25. On July 17, 2021, she began to receive online bookings for pedal tours. Id. ¶ 28. Based upon these initial bookings and early enthusiasm, Salem Shift estimates its first year of net profits would have been around $150,000. Id. ¶ 29. Besse held a test drive of the new group bike with friends and family as passengers on July 17, 2021. D. 1 ¶ 30. When passengers began to pedal, the pedals “froze” and the bike would not move. Id. ¶ 31. The resistance of the bike was so strong that it was difficult to push it back into the storage area. Id.
Salem Shift immediately contacted Szal, who promised to have a technician contact Besse and to troubleshoot the problem over the phone with her himself, but neither occurred. Id. ¶ 31; D. 16 ¶¶ 30-31. Over the next few days, Besse contacted people with expertise to fix the bike, but Szal emailed her not to allow anyone other than a Buffalo Pedal employee to work on the bike, otherwise any warranties would be voided. D. 1 ¶ 32; D. 16 ¶ 32. On July 20, 2021, Szal told Besse by email that it would take him 90 days to acquire a replacement motor. D. 1 ¶ 33; D. 16 ¶ 33. On July 22, 2021, following further conversation between Szal and Salem Shift, Pulk came to Salem to retrieve the bike and Buffalo Pedal refunded $58,100, comprising the purchase price of the bike and a replacement horn, to Salem Shift. D. 16 ¶¶ 35-36; D. 16-3 at 5.
Salem Shift and Besse initiated this lawsuit against Defendants on August 30, 2021. D. 1. Defendants have now moved to dismiss for lack of personal jurisdiction under Rule 12(b)(2). D. 10. This matter was recently transferred to this session of the Court. D. 28; D. 29. Having reviewed Defendants' motion papers, D. 10-11, Plaintiffs' opposition to same, D. 15-16, the transcript of the July 13, 2022 motion hearings, D. 22, and the parties' supplemental, post-hearing filings, D. 23-D. 24,[3] the Court has considered the motion and explains its ruling regarding same in this Memorandum and Order.
When ruling on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, a district court applies the prima facie standard of review. Swiss Am. Bank, 274 F.3d at 618 (citation omitted). “Under this standard, it is plaintiff's burden to demonstrate the existence of every fact required to satisfy both the forum's long-arm statute and the Due Process Clause of the Constitution.” Id. (citation omitted). The Court considers the facts alleged in the pleadings as well as the parties' supplemental filings, including affidavits. Sawtelle, 70 F.3d at 1385 (citing cases); Ticketmaster-N.Y. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994). 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 L. at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998) (citation omitted). But it will “not credit conclusory allegations or draw farfetched inferences.” Ticketmaster, 26 F.3d at 203. The plaintiff needs to “do more than simply surmise the existence of a favorable factual scenario; he must verify the facts alleged through materials of evidentiary quality.” Killion v. Commonwealth Yachts, 421 F.Supp.2d 246, 252 (D. Mass. 2006) (citation omitted). The Court also “add[s] to the mix facts put forward by the defendants, to the extent that they are uncontradicted.” Mass. Sch. Of L., 142 F.3d at 34.
To determine whether personal jurisdiction is proper, the Court considers the application of the Massachusetts long-arm statute and due process analysis. Kuan Chen v. United States Sports Academy, Inc., 956 F.3d 45, 54 (1st Cir. 2020).
Salem Shift relies upon three sections of the Massachusetts long-arm statute, Mass. Gen. L. c. 223A, §3(a), § 3(b) and § 3(c).
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