Vysedskiy v. OnShift, Inc. et al

Filing 14

Judge Mark L. Wolf: "...[i]t is hereby ORDERED that: 1. The Motion to Dismiss for Lack of Jurisdiction (Docket No. 8) is DENIED without prejudice. 2. The parties shall, by December 15, 2017, conduct discovery limited to the issue of whether the court may exercise specific personal jurisdiction over OnShift. 3. Defendant shall, by January 15, 2018, file any renewed motion to dismiss for lack of personal jurisdiction. 4. The plaintiff shall respond by February 15, 2018. 5. Defendant shall file any reply by March 2, 2018. 6. If necessary, a hearing on a renewed motion to dismiss will be held on March 29, 2018." MEMORANDUM AND ORDER entered denying 8 Motion to Dismiss for Lack of Jurisdiction (Bono, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANDRE VYSEDSKIY,

Plaintiff,
V.

ONSHIFT, INC, ET AL

C.A. No. 16-12161-MLW

Defendants.

MEMORANDUM AND ORDER

September 29, 2017

WOLF, D.J.
I.

INTRODUCTION

Plaintiff

unsolicited

Andre

Vysedskiy

telephone

calls

alleges

from

that

defendant

he

OnShift,

received

Inc.'s

("OnShift's") software, in violation of the Telephone Consumer
Protection Act, 476 U.S.C. §227, et seq. (the "TCPA")• On October

25, 2016, he filed this case against OnShift and ten unidentified
"Doe" defendants, OnShift's customers who purchased the software

and "may be responsible for the calls placed to plaintiff." Compl.
at S15. OnShift moves to dismiss for lack of personal jurisdiction
under

Federal

Rule

of

Civil

Procedure

12(b)(2)

or,

in

the

alternative, to transfer the case to the Northern District of Ohio

pursuant to 28 U.S.C. §1404(a).

As

explained

below,

plaintiff

has

not

established

that

OnShift has the "minimum contacts" with Massachusetts necessary to

exercise

personal

jurisdiction

over

it.

However,

plaintiff's

allegations, coupled with the affidavits submitted in connection

with

the

motion

to

dismiss,

support

a

colorable

claim

that

jurisdiction exists. Therefore, the court is denying the motion
without prejudice to a renewed motion after limited discovery
concerning the issue of specific personal jurisdiction.
II.

LEGAL STANDARDS

A. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

When the court's personal jurisdiction over a defendant is
challenged,

the

plaintiff

bears

the

burden

to

establish

that

jurisdiction exists. See Adams v. Adams, 601 F.3d 1, 4 {1st Cir.
2010). Three methods exist for determining whether the plaintiff

has met its burden at the motion to dismiss stage. See FosterMiller, Inc. V. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st

Cir. 1995). The "prima facie" method is most appropriate in cases
in which the parties have not presented conflicting versions of
the facts. See Nowak v. Tak How Investments, Ltd., 94 F.3d 708,
712 (1st Cir. 1996).

To make a prima facie showing of jurisdiction, the plaintiff
"cannot rest upon the pleadings but is obliged to adduce evidence

of specific facts." Foster-Miller, 46 F. 3d at 145; Bolt v. GarTec Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992)("[P]laintiffs

may not rely on unsupported allegations in their pleadings to make
a prima facie showing of personal jurisdiction."). The court must

"consider...whether the plaintiff has proffered evidence that, if
credited, is enough to support findings of all facts essential to

personal jurisdiction." Foster-Miller, 46 F.3d at 145. The court
accepts the plaintiff's proffered and properly documented facts as
true "irrespective of whether the defendant disputes them, and in
so doing, construe[s] them in the light most congenial to the
plaintiff's jurisdictional claim." Adelson v. Hananel, 510 F.3d
43, 48 (1st Cir. 2007). "Those facts put forward by the defendant

become

part

of

the

mix

only

to

the

extent

that

they

are

uncontradicted." Id.

The prima facie method "offers little assistance in closer,
harder-to-call cases, particularly those that feature conflicting
versions of the facts."

Foster-Miller, 46 F.3d at 145.

Where it

is inappropriate to use the prima facie standard, courts may use

the "preponderance standard" or the "likelihood standard." See
Foster-Miller,

46

F.3d

at

145-47.

In

using

the

preponderance

standard, a court conducts fact-finding "in the traditional way,

taking

evidence

and

measuring

the

plaintiff's

jurisdictional

showing against a preponderance-of-the-evidence standard." FosterMiller,

46

F.3d

at

145.

The

"likelihood

standard"

is

an

intermediate standard. See Boit, 967 F.2d at 677. In applying this

standard, a court conducts an evidentiary hearing and weighs the
evidence but makes findings limited to "whether the plaintiff has
shown a

likelihood of the existence

of each fact necessary to

support personal jurisdiction." Id.; see Foster-Miller, 46 F.3d at
146. In contrast, when the court "applies the prima facie standard

and

denies

the

explicitly,

motion

ordering

to

'that

dismiss,

it

hearing

is

and

implicitly,

determination

if

not

[of

the

motion to dismiss] be deferred until the trial.'" Boit, 967 F. 2d
at 676.
B. JURISDICTIONAL DISCOVERY

"A diligent plaintiff who sues an out-of-state corporation
and who makes out a colorable case for the existence of

jurisdiction

may...be

entitled

to a

personam

modicum of jurisdictional

discovery if the corporation interposes a jurisdictional defense."
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 625 {1st Cir.

2001). The "diligence" prong "includes the obligation to present
facts to the court which show why jurisdiction would be found if
discovery were permitted." Id. at 626. The "colorable" standard

requires some showing that discovery is needed or likely to be
useful. See Dynamic Image Techs., Inc. v. United States, 221 F.3d

34, 38 (1st Cir.2000). However, "even when the plaintiff has been

diligent and has made a colorable claim for personal jurisdiction,
the district court still has broad discretion to decide whether

discovery

is

Nevertheless,

required." Swiss
"courts

Am.

generally

Bank,
will

274
grant

F.3d

at

625-26.

jurisdictional

discovery if the plaintiff can show that the factual record is at
least ambiguous or unclear on the jurisdiction issue." In re

Testosterone Replacement Therapy Prod. Liab. Litiq. Coordinated

Pretrial Proceedings, 136 F. Supp. Sd 968, 973 (N.D. 111. 2015)
C. PERSONAL JURISDICTION

A federal district court may exercise personal jurisdiction
over non-resident defendants to the same extent as a state court

in the state in which the district court is located.

See Daynard

V. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F. 3d 42,

51

{1st

Cir.

2002).

Massachusetts

courts

have

personal

jurisdiction over non-residents only if jurisdiction comports with

Due Process and is permitted by a Massachusetts statute, such as
the long-arm statute. Mass. Gen. Laws Chapter 223A, §3. See Bulldog
Investors Gen. P'ship v. Sec'y of the Commonwealth, 457 Mass. 210,
215 (2010).

The

long-arm

First Circuit recently stated that "the Massachusetts

statute

might impose

more

restrictive limits on

the

exercise of personal jurisdiction than does the Constitution,"
Copia Communications, LLC v. AMResorts, L.P., 812 F. 3d 1, 4 (1st

Cir. 2016).^ Among other things, Mass. Gen. Laws Chapter 223A, §3
authorizes personal jurisdiction over "a person, who acts directly

^ The First Circuit has not reconciled this suggestion with the

Supreme Judicial Court's statement that the statute is "an
assertion of jurisdiction over the person to the limits allowed by
the Constitution of the United States." Daynard, 290 F. 3d at 52

(quoting Automatic Sprinkler Corp. of am. V. Seneca Foods Corp.,
361 Mass. 441 (1972)).

or

by

an

agent,

as

to

persons...transacting

a

any

cause

of

business

action...arising

in

from

the

[Massachusetts]."

For

jurisdiction to exist under this portion of the Massachusetts
statute, "the facts must satisfy two requirements—the defendant
must

have

transacted

business

in

Massachusetts,

and

the

plaintiff's claim must have arisen from the transaction of business
by the defendant." Tatro v. Manor Care, Inc., 416 Mass. 763, 76971 (1994); see also Evans Cabinet Corp. v. Kitchen Int'l, Inc.,

593 F.3d 135, 146 (1st Cir. 2010).
"The Due Process Clause of the Fourteenth Amendment requires
that a

defendant have certain minimum contacts

state] such

that the

with [the forum

maintenance of the suit does not offend

traditional notions of fair play and substantial justice." BaskinRobbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F. 3d 28, 35

(1st Cir. 2016)(quoting International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)). This requirement "protects an individual's

liberty interest in not being subject to the binding judgments of
a forum with which he has established no meaningful 'contacts,

ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S.

462,

471-72 (1985)(citing

Int'l Shoe,

326

U.S.

at 319). "By

requiring that individuals have 'fair warning that a particular

activity may subject [them] to the jurisdiction of a foreign
sovereign,
'

the

predictability

to

Due
the

Process
legal

Clause
system

'gives
that

a

allows

degree

of

potential

defendants to structure their primary conduct with some minimum
assurance as to where that conduct will and will not render them

liable to suit. *" Id. (citing Shaffer v. Heitner, 433 U.S. 186,
218 (1977); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

297 (1980)). Consistent with these principles, a court may only
exercise

jurisdiction

over

a

defendant

whose

"conduct

and

connection with the forum State" are "such that [the defendant]

should reasonably anticipate being haled into court there." WorldWide Volkswagen, 444 U.S. at 297.

"
[A] federal district court may exercise either general or

specific jurisdiction over a defendant." Baskin-Robbins, 825 F. 3d
at 35. A court has general, or "all-purpose," personal jurisdiction
over an out-of-state defendant whose "affiliations with the forum

state are so continuous and systematic as to render [the defendant]

essentially at home" in that state, such that it may reasonably

expect to be required to answer any claim in that forum. Daimler
AG V. Bauman, 134 S. Ct. 746, 761 (2014); see also Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

Specific jurisdiction, on the other hand, depends on the
connection between the defendant, the forum, and the underlying

controversy. It may be exercised only when three conditions are
satisfied:

First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant's forum-state
activities. Second, the defendant's in-state contacts

must represent a purposeful availment of the privilege
of conducting activities in the forum state, thereby
invoking the benefits and protections of that state's
laws and making the defendant's involuntary presence
before the state's courts foreseeable. Third,
exercise of jurisdiction must...be reasonable.

the

Copia, 812 F. 3d at 4 (quoting Phillips v. Prairie Eye Ctr., 530
F.3d 22, 27 (1st Cir.2008)).

The "purposeful availment" requirement "represents a rough
quid pro quo; when a defendant deliberately targets its behavior
toward the society or economy of a particular forum, the forum

should

have

the

power

to

subject

the

defendant

to

judgment

regarding that behavior." Carreras v. PMG Collins, LLC, 660 F.3d
549, 555 (1st Cir.2011). "The cornerstones of this inquiry are
voluntariness and foreseeability." C.W. Downer & Co. v. Bioriginal
Food & Sci. Corp., 771 F.3d 59, 66 (1st Cir. 2014). The court must

determine whether the defendant "'deliberately' has engaged in

significant activities within a state...or has created 'continuing
obligations' between himself and residents of the forum," such
that "he manifestly has availed himself of the privilege of

conducting business" in the state and "shielded" himself with the
"benefits and protections of the forum's laws." Burger King, 471
U.S. at 474-75. His interactions with in-state residents "must be

voluntary and not based on the unilateral actions of another

party." Adelson, 510 F.3d at 50; see also World-Wide Volkswagen,
444

U.S.

at

298.

Moreover,

they

8

cannot

be

so

"'[rjandom,
'

'fortuitous,
' or

'attenuated'"

that

the

defendant

could

not

foresee litigation in the forum. Burger King, 471 U.S. at 475.
To satisfy the "relatedness" prong, "there must be more than
just an attenuated connection between the contacts and the claim;
the defendant's in-state conduct must form an important, or [at
least]

material,

element

of

proof

in

the

plaintiff's

case."

Phillips, 530 F. 3d at 27. This means that the defendant's inforum conduct must be at least the but-for cause of the plaintiff's

injury, and the conduct's connection to the plaintiff's claim may
not be too "attenuated or indirect." Harlow v. Children's Hospital,

432 F. 3d 50, 60-61 (1st Cir. 2005).
III. FACTS

OnShift, an Ohio corporation with its principle place of
business

in

Clevehand,

Ohio,

produces

and

sells

software

to

hospitals, nursing homes, and other healthcare providers to assist
in hiring employees and scheduling shifts. See Decl. of Mark Woodka
at Slf4, 12. OnShift submitted an affidavit from its Chief Executive
Officer, Mark Woodka, describing how the software works. Customers

upload employees data, including preferred dates and times for
working open shifts. Id. at 513. The software then matches open
shifts

with

employees

who

have

expressed

preferences

for

particular dates and times. Id. at 514. The customer can contact
employees directly through the software with a text message or
telephone call. Id. at 515. To send a message, the customer must

select a list of employees from the database and input a command
that sends the text message or initiates the telephone call to
that list of employees. Id. at SI16. Customers can send pre-recorded
messages through the software that state that the call is "from
OnShift." Decl. of Andrey Vyshedskiy ("Vyshedskiy Decl.") at 3.

However, OnShift does not initiate messages or calls except in
response to a selection and command from the customer, through its
automated software. Woodka Decl. at SISI16-17.

Approximately five percent of OnShift's customers are based
in Massachusetts. Id. at SI21. However, there is no evidence that

OnShift has any other connection to the state. OnShift does not
have any offices or stores in Massachusetts, id. at SI6, does not
own

or lease

property in

Massachusetts, id.

at

SI8,

does

not

maintain any telephone lines in Massachusetts, i^. at SI9, and does

not have an agent for service of process in the state, id. at SI7.
OnShift's employees do not travel to Massachusetts to sell the
software. Id. at SIIO. Moreover, OnShift does not send solicitations
to

Massachusetts

Massachusetts.

potential

Id.

residents

at

Ull.

customers "when

or

otherwise

OnShift

those

collects

potential

advertise

in

information

on

customers

provide

OnShift with their email addresses, phone numbers, and/or contact

information: (i) in-person at tradeshows or events; (ii) via
webinars; and/or (iii) by submitting said information on OnShift's

10

website." Id. at 522. However, there is no evidence concerning how
OnShift's Massachusetts customers purchased the software.
The

court

may

rely

on

OnShift's

affidavit

because

the

plaintiff has not offered evidence to contradict it. See Adelson,
510 F.3d at 48 ("Those facts put forward by the defendant become

part of the mix ...to the extent that they are uncontradicted.");
see also Foster-Miller, 46 F. 3d at 145 (stating that to make a

prima facie showing of jurisdiction, the plaintiff "cannot rest

upon the pleadings but is obliged to adduce evidence of specific
facts"). Plaintiff's statement that the voice

recording stated

that the calls were "from OnShift," "Vyshedskiy Decl." at 3, which
is also the name of the software, is consistent with OnShift's
statement that the software, operated by customers, called the

plaintiff. It is also consistent with the complaint, which alleges
that "OnShift at all times acted by and through" the "customers

who purchas[ed] and/or licensed OnShift's software." Compl. at 556.2

2 The complaint refers to the customers as OnShift's "agents," but
plaintiff has not argued in connection with the motion to dismiss
that the customers share an agency relationship with OnShift, or
that the customer's actions in Massachusetts may be attributed to

OnShift for jurisdictional purposes under Daynard, 290 F. 3d at
53-60.

Such

issues

"adverted

to

in

a

perfunctory

manner,

unaccompanied by some effort at developed argumentation, are
deemed waived." See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).

11

Plaintiff, a Massachusetts resident, alleges receiving pre
recorded voice calls from defendant on his cellular telephone, in
violation of the TCPA, 47 U.S.C. §227(b)(1). Vyshedskiy Decl. 5SI12.

Plaintiff

received

these

calls

while

located

within

Massachusetts, at his telephone number beginning with the numbers
"617," a Massachusetts area code. Vyshedskiy Decl. SISI4-5, 8-10.
As indicated earlier, OnShift has moved to dismiss.
IV.

ANALYSIS

Plaintiff has not presented a prima facie case for personal

jurisdiction over OnShift. However, as explained below, the court
finds that limited discovery on the issue is justified.
As an initial matter, plaintiff has not presented a colorable

claim

that

OnShift

is

subject

to

general

jurisdiction

in

Massachusetts. See Swiss Am. Bank, 274 F.3d at 626-27. OnShift is

not incorporated in Massachusetts and has no offices or employees
here. See Woodka Decl. at SIS14-6. Plaintiff has not alleged facts

suggesting that discovery would produce evidence sufficient to
show that OnShift's "affiliations with [Massachusetts] [that] are

so continuous and systematic as to render [it] essentially at home"
in the state. Daimler, 134 S. Ct. at 761. The fact that five

percent of OnShift customers are in Massachusetts does not suffice.
Id., at 761. "Even regularly occurring sales of a product in a
State do not justify the exercise of jurisdiction over a claim
unrelated to those sales." Goodyear, 131 S. Ct. at 2850, 2857 n.6.
12

Therefore, the court is denying plaintiff's request for discovery
on the issue of general jurisdiction.
However, the facts support a colorable claim that the court

has

specific

jurisdiction

over

OnShift.

Therefore,

it

is

appropriate to permit limited discovery to develop that claim.
See Swiss Am. Bank, 274 F.3d at 625.

This

case

is

distinguishable

from

those

cited

by

the

plaintiff, in which the defendants or their agents intentionally
called telephone lines located in Massachusetts. See Jones v.
Revenue

Assistance

Program,

2016

WL

3919843,

at

*6

(D.

Mass.

2016)(Gorton, D.J.)("Plaintiff presents supported allegations that
his

claims

arise

from

the

commercial

calls

that

[defendant]

intentionally made to him in Massachusetts.")(emphasis added);
Russel V. 29 Prime, Inc., 2014

2014)(Gorton,

D.J.)(finding

WL 3510291, at *2-3 (D. Mass.

personal

jurisdiction

based

on

defendants' calls to Massachusetts residents, which were placed

through a corporate agent and solicited Massachusetts residents to
purchase defendant's products). In this case, OnShift's customers,
who are not OnShift's agents, made the decisions to call recipients
such as plaintiff. See Woodka Decl. at SISI16-17. A customer's
decision to use defendant's product in the forum state—even if
foreseeable—does not,

in

itself, subject the

manufacturer to

personal jurisdiction in the state. See World-Wide Volkswagen, 444
U.S. at 298 ("[T]he mere unilateral activity of those who claim
13

some relationship with a nonresident defendant cannot satisfy the
requirement of contact with the forum State.").
Nevertheless, OnShift's conduct—in particular, the sales of
its

software

to

Massachusetts

residents—^may

constitute

a

"purposeful availment" of Massachusetts' economy or the protection
of its laws, such that the exercise of jurisdiction would be
fundamentally fair.

When a product reaches the forum state through "the efforts
of

the

manufacturer

or

distributor

to

serve,

directly

or

indirectly, the market for its product" in that state, personal

jurisdiction is proper when its product "has [] been the source of

injury to its owner or to others." World-Wide Volkswagen, 444 U.S.
at 297. In J. Mclntyre Mach., Ltd. v. Nicastro, the Supreme Court

held that the New Jersey state courts lacked personal jurisdiction
over the foreign manufacturer of a metal-shearing machine that

injured the plaintiff while he was using it in New Jersey even

though the defendant could have foreseen that customers would use
some of its machines in New Jersey. See 564 U.S. 873, 886 (2011).

The plurality, focusing on the defendant's intent, held that "the
defendant's

transmission

of

goods

permits

the

exercise

of

jurisdiction only where the defendant can be said to have targeted
the forum; as a general rule, it is not enough that the defendant

might have predicted that its goods will reach the forum State."
Id. at 882. It reasoned that because the "defendant d[id] not have
14

a single contact with New Jersey short of the machine in question

ending up in this state," it did not purposefully "target" the New

Jersey market in a way that "manifest[ed] an intention to submit"
to New Jersey's authority. See id. at 882, 886.
Justices

Stephen

Breyer

and

Samuel

Alito

rejected

the

plurality's strict focus on the defendant's intent in favor of a
more expansive "notion of defendant-focused fairness." Id. at 89091.

Nevertheless,

they

concurred

because

there

was

"no

regular...flow or regular course of sales in New Jersey; and there
[was] no something more, such as special state-related design,
advertising, advice, marketing," or any other "specific effort by
the

British

However,

manufacturer

they

agreed

to

that

sell in

"a

New

producer

Jersey." Id. at 889.

is

[not]

subject

to

jurisdiction for a products-liability action" merely because it
"knows or reasonably should know that its products are distributed
through a nationwide distribution system that might lead to those

products being sold in any of the fifty states." Id. at 891.
Justice Breyer's opinion, which found the district court's
decicion to be correct on the narrowest grounds, constitutes the

holding of J. Mclntyre. See Marks v. United States, 430 U.S. 188,
193, 97 S. Ct. 990, 993, 51 L. Ed. 2d 260 (1977)("When a fragmented
Court decides a case and no single rationale explaining the result

enjoys the assent of five Justices, the holding of the Court may

15

be viewed as that position taken by those Members who concurred in
the judgments on the narrowest grounds.").

In this case, there is no direct evidence of any "specific
effort" by OnShift to sell its product in Massachusetts, such as
advertising or solicitations directed to Massachusetts residents.
See J. Mclntyre, 564 U.S. at 889 (Breyer, J. concurring). OnShift's

declaration states that five percent of OnShift's customers reside

in

Massachusetts,

generating

3.5

percent

of

OnShift's

total

revenue in 2015. See Woodka Decl. at SI21. However, there is no

evidence of how OnShift's Massachusetts customers purchased the
software

or

whether

OnShift

knew

that

the

customers

lived

in

Massachusetts when it sold them the product. There is also no
evidence

of

Massachusetts

the
or

total
the

number

total

of

revenue

customers
OnShift

who

derives

reside
from

in

those

customers.

Without

OnShift

has

this

information,

"deliberately

the

court

target[ed]

its

cannot

conclude

behavior

toward

that

the

society or economy of [Massachusetts]" in a way that "purposefully
availed" itself of the protection of its laws. Carreras, 660 F.Sd
at 555; see also In re Testosterone Replacement Therapy, 136 F.

Supp. 3d at 975 (holding that determining whether [defendant] can

be properly haled into this Court would require more information
about, for example, the volume of [defendant's product's] sales or

revenue derived in particular states, or the underlying basis for
16

[defendant]'s expectations about the consequences its acts would
have in those states").

However, in view of the facts that one in every twenty OnShift
customers lives in Massachusetts, that OnShift obtains information

about its customers in various ways, see Woodka Decl. at 522, and

that some customers contact OnShift with questions after buying
the

software,

see

id.

at

523,

the

court

finds

that

limited

discovery may reveal that OnShift knew that a substantial number
of those customers lived in Massachusetts when it sold them the

software. There is also a "colorable" showing that there was a

"regular...flow

or regular course of sales" to the state.

J.

Mclntyre, 564 U.S. at 889. At a minimum, plaintiffs have shown
that the factual record on the jurisdiction issue "is at least

ambiguous or unclear" as to whether specific personal jurisdiction
exists. In re Testosterone Replacement Therapy, 136 F. Supp. 3d at

976. In addition, "plaintiffs cannot be expected to possess this
information without conducting discovery." Id.

Moreover, OnShift's software is used by healthcare companies

to contact their employees, many of whom are likely to reside in
the same state as the employer. See Woodka at 554, 12. As a result,

it plausible to conclude that many of OnShift's customers initiate
calls to Massachusetts numbers. If, as discovery may reveal, there

are a substantial number of employers based on Massachusetts who

use OnShift's software, it is plausible that the calls plaintiff
17

received originated from Massachusetts customers and, therefore,

that plaintiff's injuries "arise out of" sales to those customers.
Copia, 812 F. 3d at 4.

Accordingly, plaintiff has stated a colorable claim that the

court has specific personal jurisdiction over OnShift. Therefore,
the court is ordering the parties to conduct discovery on the
limited issue of whether OnShift has the "minimum contacts" with

Massachusetts

required

to

establish

specific

personal

jurisdiction. The plaintiff may seek, for example, information
concerning the circumstances surrounding OnShift's sales of its
software to Massachusetts residents, the volume of such sales, and

the revenue derived from those sales.^ He may, in addition, seek

information concerning the mechanism by which OnShift's software
made the calls that plaintiff allegedly received, and whether any
such

calls

were

initiated

by

OnShift's

Massachusetts-based

customers, by OnShift's employees, or from parties located in other
states.

3 If discovery reveals that OnShift sells its software over the
internet, the parties should address, in the memoranda filed in
connection with any renewed motion to dismiss, whether such sales
provide a basis for exercising personal jurisdiction under the

principles discussed in McBee v. Delica Co., 417 F.3d 107, 124
(1st Cir.2005), Jennings v. AC Hydraulic A/S, 383 F.3d 546, 549
(7th Cir. 2004), Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.
Supp. 1119, 1124-26 (W.D. Pa. 1997), and Toytrackerz LLC v.
Koehler, 2009 WL 1505705, at *7-8 (D. Kan. May 28, 2009), for
example.
18

V.

ORDER

In view of the foregoing, it is hereby ORDERED that:
1.

The Motion to Dismiss for Lack of Jurisdiction (Docket

No. 8) is DENIED without prejudice.
2.

The

parties

shall,

by

December

15,

2017,

conduct

discovery limited to the issue of whether the court may exercise

specific personal jurisdiction over OnShift.
3.

Defendant shall, by January 15, 2018, file any renewed

motion to dismiss for lack of personal jurisdiction.

4.

The plaintiff shall respond by February 15, 2018.

5.

Defendant shall file any reply by March 2, 2018.

6.

If necessary, a hearing on a renewed motion to dismiss

will be held on March 29, 2018.

UNITED STATES DISTRICT JUDG

19