Access Now, Inc. et al v. Otter Products, LLC

Filing 38

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. The Court ALLOWS without prejudice the motion to dismiss for lack of personal jurisdiction with respect to Plaintiffs Access Now and David New. The Court DENIES the motion to dismiss for lack of personal jurisdiction with respect to Plaintiff Thberge. (Docket No. #5 ). The Court DENIES the motion to dismiss for improper venue and DENIES the motion for transfer. (Docket No. #5 ). (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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ACCESS NOW, INC., R. DAVID NEW,
and STEPHEN THÉBERGE
Plaintiffs,

v.
OTTER PRODUCTS, LLC,

Defendant.
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Civil Action
No. 17-10967-PBS
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MEMORANDUM AND ORDER
December 4, 2017
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

1

Initially, there were three plaintiffs: Théberge, Access Now,
and R. David New. At the hearing, plaintiffs acknowledged that
the two out-of-state plaintiffs (Access Now and New) do not have
a basis for asserting personal jurisdiction over Otter. They
will be dismissed without prejudice. See BristolMyers Squibb Co. v. Superior Ct.
of Calif., 137 S. Ct. 1773, 1780-81 (2017) (holding that
nonresident plaintiffs could not survive the personal
jurisdiction inquiry by bootstrapping their claims to those of
resident plaintiffs).

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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
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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.

Otter submitted the Declaration of Michael Soderholm, its Vice
President of Marketing, which contained the facts relevant to
personal jurisdiction and venue. Docket No. 5-1.
2

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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

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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., 137 S.
Ct. 1773, 1780 (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 longarm 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
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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., 85 N.E.3d 50, 52 (Mass. 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., 998
N.E.2d 1018, 1022 (Mass. 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).

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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., 625 N.E.2d 549, 553 (Mass.
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 longarm 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
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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 access to a disabled
individual.”); Pickern v. Holiday Quality Foods Inc., 293 F.3d
1133, 1136–37 (9th Cir. 2002) (“Thus, under the ADA, once a
plaintiff has actually become aware of discriminatory conditions
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existing at a public accommodation, and is thereby deterred from
visiting or patronizing that accommodation, the plaintiff has
suffered an injury.”).
Because the harm—the denial of access to the website—
occurred in the Commonwealth, the injury arises from Otter’s
transaction of business via its website in the Commonwealth.
Otter argues that Section 3(a) is inapplicable because
Plaintiff accessed the website to test it, not to actually
“transact” business by buying an Otter product. In other words,
in Defendant’s view, testing a website for accessibility is not
a “transaction” under the long-arm statute. The Defendant cites
no caselaw to support its contention that a disabled plaintiff
seeking access to a site as a tester rather than a prospective
purchaser is not injured in the context of a disability case. In
any event, Plaintiff does not even have to attempt a purchase if
the attempt would be a “futile gesture.” 42 U.S.C. § 12188
(“Nothing in this section shall require a person with a
disability to engage in a futile gesture if such person has
actual notice that a person or organization covered by this
subchapter does not intend to comply with its provisions.”)
Therefore, this prong is met and jurisdiction can be found under
Mass. Gen. Laws ch. 223A, § 3(a).3

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Because there is jurisdiction under Section 3(a), the Court does not
address Section 3(d).

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2.

Due Process

The First Circuit employs a three-part analysis to
determine whether there are sufficient contacts between the
defendant and the forum state to exercise specific personal
jurisdiction over a defendant:
In determining whether the exercise of specific
jurisdiction over an out-of-state defendant conforms
to the constitutional limits established by the Due
Process Clause, we evaluate (1) whether the claim
directly arises out of, or relates to, the defendant's
forum state activities; (2) whether the defendant's
in-state contacts 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; and (3) whether the exercise of
jurisdiction is reasonable.
Cossart, 804 F.3d at 20 (internal citation omitted). A claim
that arises out of the forum activities is one in which there is
“‘an affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that
takes place in the forum State and is therefore subject to the
State's regulation.’” Bristol-Myers Squibb Co., 137 S. Ct. at
1780 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown,
564 U.S. 915, 919 (2017)).
Determining whether a defendant purposefully availed itself
of the forum state’s economic activities is based on whether a
defendant has “‘deliberately target[ed] its behavior toward the
society or economy of a particular forum [such that] the forum
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should have the power to subject the defendant to judgment
regarding that behavior.’” Baskin–Robbins Franchising LLC, 825
F.3d at 36 (quoting Carreras v. PMG Collins, LLC, 660 F.3d 549,
555 (1st Cir. 2011)). The “‘key focal points’ are the
voluntariness of the defendants' relevant Massachusetts contacts
and the foreseeability of the defendants falling subject to
Massachusetts's jurisdiction.” Copia Commc'ns, LLC v. AMResorts,
L.P., 812 F.3d 1, 5 (1st Cir. 2016) (quoting Adelson v. Hananel,
510 F.3d 43, 48 (1st Cir. 2007)).
Finally, the reasonableness of exercising jurisdiction is
assessed in light of the “Gestalt” factors which include “(1)
the defendant's burden of appearing [in the forum state], (2)
the forum state's interest in adjudicating the dispute, (3) the
plaintiff's interest in obtaining convenient and effective
relief, (4) the judicial system's interest in obtaining the most
effective resolution of the controversy, and (5) the common
interests of all sovereigns in promoting substantive social
policies.” Baskin–Robbins, 825 F.3d at 40.
Here, the long-arm statute analysis addresses the due
process challenge under the relatedness and purposeful availment
prongs. There is little question that Otter “deliberately
target[ed] its behavior toward the society or economy of
[Massachusetts such that] the forum should have the power to
subject the defendant to judgment regarding that behavior.”
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Carreras v. PMG Collins, LLC, 660 F.3d 549, 555 (1st Cir. 2011).
Moreover, the harm –- the barred access to the website -occurred here.4
The reasonableness factors are of great consequence in
cases involving the Internet, which has allowed commercial
transactions to occur at the click of a button. For example, in
Photographic Illustrators Corp. v. A.W. Graham Lumber, LLC, a
copyright case, this Court held that the exercise of personal
jurisdiction would not be reasonable under the “Gestalt”
factors. 196 F. Supp. 3d 123, 131 (D. Mass. 2016). That case is
easily distinguishable. There, the defendant was a small,
family-owned hardware store in Kentucky, which sold lighting
fixtures advertised with a picture on the website. The defendant
had made one sale of a shovel to Massachusetts in the preceding
eleven years, which occurred two weeks after the complaint was
filed. Moreover, the defendant had a brick-and-mortar store in
Kentucky, where it was registered to do business and conducted
most of its consumer transactions. Under those circumstances,

4

Several courts have held that a website can be treated as a
public accommodation under Title III of the ADA. See Carparts
Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England,
Inc., 37 F.3d 12, 19 (1st Cir. 1994) (concluding public
accommodations need not have physical structures); Nat'l Fed'n
of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 574–75 (D. Vt.
2015); National Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp.
2d 196, 201 (D. Mass. 2012) (holding that company’s website was
a place of public accommodation).
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the Court held it was unreasonable for Massachusetts to exercise
jurisdiction over the Kentucky defendant.
In this instance, though, exercising jurisdiction over
Otter would be fair and reasonable under the “Gestalt” factors.
First, Defendant's burden of appearing in Massachusetts is
slight. To meet this requirement, Otter would have to
demonstrate a special or unusual burden, and cross-country
travel for a multi-billion dollar company such as Otter hardly
qualifies. Baskin–Robbins, 825 F.3d at 40 (“Where . . . parties
of substantial means are involved, cross-country travel
ordinarily does not qualify as a special or unusual burden.”).
Second, Massachusetts has a strong and historic interest in
adjudicating this dispute involving its blind residents. It is
the home of the Perkins School for the Blind, which was
America’s first school for the blind. Helen Keller was taught
there. Third, Théberge has an interest in obtaining convenient
and effective relief. He is a resident of the state and “courts
regularly cede some deference to the plaintiff's choice of
forum.” Id. The fourth factor—the judicial system's interest in
obtaining the most effective resolution of the controversy—is
neutral. Finally, the Defendant argues that Plaintiff’s attempt
at forum shopping should direct the courts to find the fifth
factor—the common interests of all sovereigns in promoting
substantive social policies—in the Defendant’s favor. However,
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Plaintiff is a Massachusetts resident and in his home forum, so
exercising jurisdiction in this instance would be fair,
reasonable, and consistent with the requirements of Due Process
under the United States Constitution.
In sum, the Court concludes it has personal jurisdiction
over Otter under both the long-arm statute and the Due Process
clause.
B. IMPROPER VENUE
The Defendant seeks to dismiss or transfer this action to
Colorado pursuant to Fed. R. Civ. P. 12(b)(3). Venue is proper
when a case is filed in a “judicial district in which a
substantial part of the events or omissions giving rise to the
claim occurred.” 28 U.S.C. § 1391. The Court looks to the
“entire sequence of events underlying the claim,” not just the
“single triggering event.” Astro-Med, Inc. v. Nihon Kohden Am.,
Inc., 591 F.3d 1, 12 (1st Cir. 2009) (quoting Uffner v. La
Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001)).
Although the website may have been created and operated outside
of the district, the attempts to access the website in
Massachusetts are part of the sequence of events underlying the
claim. Therefore, venue is proper in this District. See Siegel
v. Homestore, Inc., 255 F. Supp. 2d 451, 456 (E.D. Pa. 2003)
(finding venue proper when all defendant’s business was
conducted entirely over the Internet).
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C. TRANSFER OF VENUE
Alternatively, Defendant asks the Court, in its discretion,
to transfer the case to the District of Colorado. “For the
convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any
other district or division where it might have been brought or
to any district or division to which all parties have
consented.” 28 U.S.C. § 1404(a). However, there is a strong
presumption in favor of the plaintiff’s choice of forum. Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (stating “a
plaintiff's choice of forum should rarely be disturbed”).
Otter makes three arguments as to why its motion for
transfer should be granted: (1) the burden or inconvenience
posed by litigating the case in Massachusetts; (2) the location
of the witnesses, with most being located in Colorado; and (3)
the forum shopping of the Plaintiffs which is meant to promote a
national agenda. As for the burden of litigating the case in
Massachusetts, “[t]ransfer of venue is inappropriate . . . where
its effect merely shifts the inconvenience from one party to
another.” See, e.g., Holmes Grp., Inc. v. Hamilton Beach/Proctor
Silex, Inc., 249 F. Supp. 2d 12, 18 (D. Mass. 2002). Although
many of the witnesses may be out of state, transfer of venue in
this instance would merely shift the burden to a blind
individual plaintiff. Finally, the concern over forum shopping
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in this case is limited by the fact that the remaining Plaintiff
is a forum resident alleging an in-state injury. Therefore
transfer is not appropriate in this instance.
ORDER
1. The Court ALLOWS without prejudice the motion to dismiss
for lack of personal jurisdiction with respect to
Plaintiffs Access Now and David New. The Court DENIES the
motion to dismiss for lack of personal jurisdiction with
respect to Plaintiff Théberge. (Docket No. 5)
2. The Court DENIES the motion to dismiss for improper venue
and DENIES the motion for transfer. (Docket No. 5)

SO ORDERED.

/s/ PATTI B. SARIS
Patti B. Saris
Chief U.S. District Judge

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