Ferris v. Pound Hounds Res-Q et al
Filing
75
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered finding as moot 37 Motion for Hearing; finding as moot 39 Motion for Summary Judgment; finding as moot 50 Motion to Compel; finding as moot 59 Motion for Hearing; finding as moot [71 ] Motion to Compel; granting in part and denying in part 22 Motion to Dismiss for Lack of Jurisdiction to the extent of directing the Clerk to transfer the entire case to the United States District Court for the Southern District of New York for adjudication; granting 25 Motion to Amend; finding as moot 32 Motion to Dismiss for Lack of Jurisdiction (Woodlock, Douglas)
Case 1:18-cv-10204-DPW Document 75 Filed 07/31/20 Page 1 of 28
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SHARA FERRIS, individually,
and as mother and next of [sic]
friend to Olivia Ferris,
Plaintiffs [sic],1
v.
DONNA DARRELL and
POUND HOUNDS Res-Q, and
ANIMAL CARE CENTERS OF
NEW YORK CITY,
Defendants.
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CIVIL ACTION NO.
18-10204-DPW
MEMORANDUM AND ORDER
July 31, 2020
In this diversity case, a Massachusetts resident, Shara
Ferris, tenaciously seeks to pursue claims jointly against three
New York defendants only in this court, where I have concluded
that personal jurisdiction against at least one Defendant is
lacking.
Despite the passage of time to reconsider her adamant
position, she evidences no willingness to seek or accept either
transfer of the entire case, or severance of a party as to which
jurisdiction is lacking.
In the face of this unwillingness to
pursue the obvious alternative venue, I will, in the interests
1
The identification of multiple “Plaintiffs” in this caption is
copied verbatim directly from “Plaintiff’s 2nd Amended
Complaint” which I treat as the operative pleading before me.
See infra note 3. Since Shara Ferris is a single person who
appears in two separate capacities, I refer to her as the
singular “Plaintiff” in the body of this Memorandum and Order,
as the actual title used by Plaintiff to denominate her Second
Amended Complaint does.
Case 1:18-cv-10204-DPW Document 75 Filed 07/31/20 Page 2 of 28
of justice, transfer the case in its entirety, thereby avoiding
the statute of limitations issues that dismissal might create
for Ms. Ferris’s continued pursuit of this litigation through
new complaints after dismissal.
Ms. Ferris proceeds individually and as next friend to her
daughter, Olivia.
The three New York defendants are Pound
Hounds Res-Q (“Pound Hounds”); the executive director of Pound
Hounds, Donna Darrell; and Animal Care Centers of New York City
(“ACCNYC”).
Ms. Ferris alleges that Pound Hounds and Ms.
Darrell violated the Massachusetts dog bite statute and acted
negligently in matching a dangerous dog with Ms. Ferris’s
family.
She additionally alleges that Pound Hounds breached its
foster agreement with respect to the dog and that Ms. Darrell
committed defamation by referring to Ms. Ferris as a “con
artist.”
As to ACCNYC, Ms. Ferris asserts claims of violation
of the Massachusetts dog bite statute, negligence, and breach of
contract.
The parties have engaged in fragmented motion practice and
discovery.
motions.
Now pending before me is a collection of those
I will deal in this Memorandum directly with
foundational matters of jurisdiction and indirectly with the
substance of the claims.
Those matters are presented in various
of the motions, including: a motion to dismiss for lack of
personal jurisdiction or, in the alternative, transfer, by
2
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ACCNYC [Dkt. No. 22]; a second motion to amend the complaint by
Ms. Ferris, [Dkt. No. 25]; a motion to dismiss for lack of
personal jurisdiction by Pound Hounds and Ms. Darrell, [Dkt. No.
32]; a motion for partial summary judgment by Ms. Ferris, [Dkt.
No. 39]; and an opposition to Ms. Ferris’s partial summary
judgment motion, which contains a cross motion for summary
judgment by Pound Hounds and Ms. Darrell, [Dkt. No. 47].2
For the reasons stated below, after allowing Ms. Ferris’s
motion to amend the complaint, I will grant ACCNYC’s motion to
dismiss or transfer to the extent of directing the Clerk to
transfer the entire case to the United States District Court for
the Southern District of New York for adjudication.
In the
interest of providing the New York transferee judge with a clean
slate on which to set out an appropriate scheduling order in
that Court, I will deny the remaining motions without prejudice
to reformulation before the presiding judge in the Southern
District who will be in a position to exercise personal
jurisdiction over all Defendants Ms. Ferris seems determined to
pursue in a single proceeding, albeit at the present time in the
wrong venue.
2
Also pending are a motion to compel production of documents
from ACCNYC by Ms. Ferris, [Dkt. No. 50]; a motion for a status
conference by Pound Hounds and Ms. Darrell, [Dkt. No. 59], and a
motion to compel the deposition of Plaintiff by Pound Hounds and
Ms. Darrel [Dkt. No. 71].
3
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I. BACKGROUND
As alleged in the proposed Second Amended Complaint3
[“SAC”], the pleadings show the following:
A.
The Parties
Plaintiff Shara Ferris and Plaintiff’s daughter Olivia
Ferris are residents of Gloucester, Massachusetts. [SAC at ¶¶ 1
& 2].4
Defendant Donna Darrell is the executive director of Pound
Hounds and resides within the state of New York, [id. at ¶ 3],
apparently in New York County and thus within the area
constituting the Southern District of New York.
28 U.S.C.
§ 112(b).5
3
As I have indicated, I will grant Plaintiff’s second motion to
amend her complaint [Dkt. No. 25]. For the purposes of deciding
the motions pending before me, I rely on Plaintiff’s Second
Amended Complaint, (“SAC”) [Dkt. No. 26-1]. In that connection,
in ruling on ACCYNYC’s motion to dismiss, I take the allegations
from the SAC, which was filed after Ms. Ferris had an
opportunity to conduct discovery to develop her allegations, as
the core of the prima facie record relied upon for determining
personal jurisdiction.
4 The characterization of Shara Ferris as “next of friend to” her
daughter in the caption to the SAC, which is used verbatim as
the caption for this Memorandum and Order, appears to have been
the result of a typographical error that eluded correction in
proof reading of the successive iterations of the complaint.
That error, however, is not evident in ¶ 2 of the successive
complaints.
5 In order to assure myself that the inattentiveness of
Plaintiff’s counsel to jurisdictional and other details has not
resulted in an improvident failure to challenge the asserted
principal place of business or residence in New York County of
the several Defendants during all relevant times, I have cross
checked third party internet sources, which, while not formally
the subject of judicial notice, appear reliable enough to
4
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Defendant Pound Hounds is an animal rescue and adoption
facility doing business in New York City, New York.
¶ 4].
[Id. at
In the absence of further particularization in the
pleadings, I take judicial notice that a New York City address
designates New York County, a location within the area
constituting the Southern District of New York.
See supra note
5.
Defendant Animal Care Centers of New York City, ACCNYC, is
an animal rescue and adoption facility doing business in New
York City, New York [id. at ¶ 5] and thus within the area
constituting the Southern District of New York.
See supra note
5.6
B.
Factual Background
1.
The Dog, Brock, is surrendered to ACCNYC
In October 2015, the New York Police Department picked up
the dog, “Brock,” a stray pit bull mix, in Brooklyn, New York,
and surrendered him to ACCNYC. [SAC at ¶¶ 8-12].
After
provide assurance against inadvertent waiver or forfeiture of a
colorable objection by Plaintiff. Westlaw databases containing
public records of people and business entities, respectively,
confirm that Defendants maintain resident or business addresses,
as applicable, in New York County and have done so throughout
all times pertinent to this litigation. See generally WESTLAW
People Finder and WESTLAW Business Profile, accessed through
WESTLAW Public Records searches.
6 I note further that Plaintiff does not dispute ACCNYC’s
assertion that it is not authorized to do business outside of
the state of New York. See Affidavit of Jennifer Piibe, filed as
Exhibit C to ACCNYC’s Memorandum in support of its motion to
dismiss or transfer. [Dkt. No. 23-3 at ¶¶ 1, 7].
5
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conducting medical and behavioral assessments of Brock, ACCNYC
diagnosed Brock with “Kennel Cough,” and gave him a rating of
“average,” meaning he was “safe” as a family pet and “safe”
around children. [Id. at ¶¶ 13-17].
Because of Brock’s medical condition, ACCNYC placed him on
its website’s euthanasia list. [Id. at ¶ 20]. At least two
unaffiliated Facebook groups, including one called “Must Love
Dogs,” took the information provided about Brock from ACCNYC’s
website and advertised him on their own Facebook pages as a dog
that needed to be saved from euthanasia. [Id. at ¶ 21].
2.
Ms. Ferris applies to foster Brock
Ms. Ferris saw the advertisement on the Facebook page of
“Must Love Dogs,” and she reached out to the administrators of
that group to express her interest in fostering one of the dogs
set to be euthanized.7
[Id. at ¶ 23]. The administrators then
forwarded information regarding Ms. Ferris to Pound Hounds and
Ms. Darrell. [Id. at ¶ 24].
In turn, Ms. Darrell notified
ACCNYC that she wanted to “pull” Brock from the euthanasia list
and legally adopt him.
ACCNYC then pulled Brock from the
euthanasia list. [Id. at ¶¶ 25-26].
There is no apparent connection between “Must Love Dogs”
7
According to the Application Ms. Ferris ultimately submitted, a
dog named “Queen” was her first choice, and Brock was her second
choice. [Ferris Application for Dog Foster (the “Foster
Application”) at DARRELL_000130, filed as Exh. B to SAC].
6
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and ACCNYC; however, I observe that the Facebook page for “Must
Love Dogs” includes step-by-step instructions explaining how to
save a dog.
These directions contain a link to ACCNYC’s “At-
Risk Animals” page (Step 1) and a notice that payment to ACCNYC
will be required (Step 7).8
Thereafter, Ms. Darrell, on October 24, 2015, signed a New
Hope Adoption Agreement between Pound Hounds and ACCNYC.
[SAC
at ¶ 28; New Hope Adoption Agreement, the “Adoption Agreement,”
filed as Exh. A to SAC].
The Adoption Agreement contains a
choice of law provision stipulating that the “agreement shall be
governed by the laws of the State of New York.”
[Adoption
Agreement at Bullet Point 6].
Once Pound Hounds signed Brock’s Adoption Agreement with
ACCNYC, Ms. Ferris filled out and e-signed a Foster Application
through Pound Hound’s website. [SAC at ¶ 30; Ferris Application
for Dog Foster, (the “Foster Application”) at DARRELL_000130,
filed as Exh. B to SAC]. She stated in the Foster Application
that she had three minor children under the age of eight9 and
another dog and cat living in her apartment.
at DARRELL_000131, 000133].
[Foster Agreement
She also stated that she had a yard
8
https://www.facebook.com/mldsavingnycdogs/ (last visited July
29, 2020).
9 The SAC alleges that there were “3 minor children under the age
of seven . . .” at ¶ 35; however, the application itself
actually indicates the children’s ages were 7, 6, and 4 years
old. [Foster Agreement at DARRELL_000130].
7
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without a fence, that she had fostered more than 25 dogs, that
she had experience handling a pitbull or other large breed dog,
and that she would do “whatever it takes I do not give up” in
response to a question about what she would do if the new dog
did not get along with the dog she had.
000134].
[Id. at DARRELL_000132,
Pound Hounds did not conduct an in-person home visit
and evaluation, although that was its usual practice. [SAC at ¶
37].
During the application process, Pound Hounds staff inquired
of Ms. Ferris about an allegation that she started a fraudulent
“Go-Fund-Me” page to raise money to pay veterinary bills for her
dog.
In response to the staff inquiry, Ms. Ferris provided
Pound Hounds with the relevant veterinary records and denied
involvement with the purported scam.
Pound Hounds thereafter
continued with the application process.
[Id. at ¶¶ 39-44].
Ultimately, Pound Hounds emailed a series of documents to
Ms. Ferris, including an unexecuted foster agreement contract.
[Id. at ¶ 46].
The documentary record material before me does
not indicate whether the foster agreement contract had ever been
signed.10
[Id. at ¶ 47; see also Foster Contract, Exh. C to
Plaintiff’s Initial Disclosures, Dkt No. 23-2 at 42-43].
10
I note, however, that some of the allegations in the SAC cite
to provisions of the seemingly unexecuted Foster Contract
between Ms. Ferris and Pound Hounds as though Pound Hounds was
bound by these terms. Although beyond the scope of the instant
motion(s), I note it is inconsistent to rely on some of the
8
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3.
Brock Attacks Olivia Ferris
Pound Hounds and ACCNYC arranged to have an independent11
entity known as “Mayor’s Alliance” drive Brock from ACCNYC, in
New York City, to a pre-determined pick up location in
Arlington, Massachusetts. [Id. at ¶ 51].
Ms. Ferris
communicated directly with Mayor’s Alliance to coordinate the
details. [Mayor’s Alliance – Ferris Emails, Exh. E to
Plaintiff’s Initial Disclosures, Dkt No. 23-2 at 48-49].
ACCNYC
contends, and Plaintiff does not dispute, that it does not
transport dogs out of state itself; rather, if an adoption
application is approved for one of its animals, that animal
generally must be picked up from the shelter. [ACCNYC Memorandum
in support of motion to dismiss or transfer at 1, Dkt No. 23].
On or about October 23, 2015, Ms. Ferris picked Brock up
at the pre-determined Arlington location to take him home to
Gloucester.
[Id. at ¶ 51-52].
After transporting Brock in a
crate and taking him on a short walk (on a leash), Ms. Ferris
brought Brock to her home and unhooked his leash from his
terms of an unexecuted agreement, while ignoring other, less
convenient provisions. In her opposition to the pending motions
to dismiss, Ms. Ferris merely maintains that she and Pound
Hounds “entered into an agreement for the foster care of a dog.”
Ferris Opposition to Motions to Dismiss at ¶ 8 [Dkt No. 24].
11 I note that Plaintiff does not dispute that Mayor’s Alliance
does not conduct transports on behalf of ACCNYC, as stated in
the deposition of Ms. Jessica Vaccaro, Corporate Representative
for ACCNYC. See Exh. C to ACCNYC’s Memorandum of Law in further
support of its Motion to Dismiss. [Dkt. No. 35-3 at Dep. Trans.
Pages 60-62].
9
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collar.
[Id. at ¶¶ 53-56].
Brock “got loose and immediately
attacked” Ms. Ferris’s then-four-year-old daughter, Olivia.
Brock “clamped onto” Olivia’s right arm for over a minute,
“creating a crush-type injury and leaving nine permanent scars
going from her upper arm and chest down to her lower arm and
wrist.”
[Id. at ¶¶ 56-57; see also Photos of Bite, Exh. A to
Plaintiff’s Initial Disclosures, Dkt No. 23-2 at 6-33].
Ms.
Ferris managed to get Brock away from Olivia and put him back in
the crate.
[Id.].
[Id. at ¶ 58].
She then called animal control.
Ms. Ferris took Olivia to the emergency room while
animal control quarantined Brock.
[Id. at ¶¶ 59-60].
Ms. Ferris sent a notice of claim to Pound Hounds on or
about December 28, 2015. [Id. at ¶ 61].
not met with any response.
[Id.].
This communication was
In July 2017, Ms. Ferris
sent a settlement demand package to Pound Hounds.
62].
[Id. at ¶
Pound Hounds responded, but denied liability completely.
[Id.].
With respect to both communications, Pound Hounds
refused to forward Ms. Ferris’s letters to its insurer.
[Id. at
¶ 63].
That same month, Ms. Darrell, as executive director of
Pound Hounds, sent a letter to Ms. Ferris’s counsel, stating
that Pound Hounds has been “advised by members of the public
that Ms. Ferris is a suspected scam artist in her community” and
she is “accused of starting fraudulent gofundme pages as well as
10
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‘flipping’ dogs for profit.”
[Id. at ¶ 64; see also July 17,
2017 Letter, filed as Exh. D to Plaintiff’s Initial Disclosures,
Dkt No. 23-2 at 45-46].
C.
Procedural Background
On February 2, 2018, Ms. Ferris filed suit in this court
against Pound Hounds and Ms. Darrell.
In her original
complaint, Ms. Ferris raised claims for violation of the
Massachusetts dog bite statute (MASS. GEN. LAWS. c. 140, § 155) and
for negligence against Pound Hounds and Ms. Darrell, a claim of
breach of contract against Pound Hounds, and a claim of
defamation against Ms. Darrell.
Over six months later, on July 24, 2018, Ms. Ferris
submitted an amended complaint, adding ACCNYC as a defendant.
The basic factual allegations and claims against Pound Hounds
and Ms. Darrell in this first amended complaint remained the
same as those in the original complaint.
As to the new
defendant, ACCNYC, Ms. Ferris asserted claims of violation of
Massachusetts dog bite statute, negligence, and breach of
contract.
Pound Hounds and Ms. Darrell filed an answer on September
4, 2018, and raised two counterclaims, respectively for
contributory negligence and common law indemnity, against Ms.
Ferris.
Ms. Ferris filed an answer to the counterclaims on
11
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September 19, 2018, together with a motion to dismiss them for
failure to state a claim.
I denied Ms. Ferris’s motion to
dismiss the counterclaims on October 2, 2018.
Thereafter, ACCNYC filed its own motion to dismiss for lack
of jurisdiction or, in the alternative, for transfer of the case
to the United States District Court for the Southern District of
New York.
Ms. Ferris responded with her motion to amend her complaint
again.
In her second amended complaint (“SAC”), Ms. Ferris does
not raise additional claims against Defendants, but
substantially supplements the factual allegations based on
information learned through the course of discovery.
I held a status conference on March 13, 2019 to discuss the
outstanding motions.
In its wake, Pound Hounds and Ms. Darrell
filed a motion to dismiss the SAC one week later.
Ms. Ferris
has made no further effort to develop her complaint.
In April 2019, Ms. Ferris began to pursue another avenue of
motion practice when she filed a motion for partial summary
judgment on Count I (violation of the Massachusetts dog bite
statute) against Pound Hounds and Ms. Darrell.
Pound Hounds and Ms. Darrel, in their opposition to that
motion, incorporated a cross-motion for summary judgment as to
Count I of Ms. Ferris’s complaint, and as to their own
counterclaims.
12
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Ms. Ferris and her counsel have at all points resisted
severance of the claims against the several defendants and have
offered no alternative, apart from continuing in this court, to
the Southern District of New York for the maintenance of this
litigation in its entirety in a single federal judicial
district.
The judicial district they demand – the District of
Massachusetts – as will appear, is not available to provide a
forum in a case such as this, in which Massachusetts
jurisdiction is properly contested by at least one Defendant.
Thus, the only alternative to dismissal is transfer of the case
to the Southern District of New York, where there is
jurisdiction over all parties, since Ms. Ferris is intent on
continuing to pursue the litigation jointly against all
Defendants.
II. ANALYSIS
ACCNYC seeks to dismiss the complaint under Rule 12(b)(2)
of the Federal Rules of Civil Procedure, for lack of personal
jurisdiction or, in the alternative, for transfer of the case to
the United States District Court for the Southern District of
New York.
A.
Method for Deciding Motion to Dismiss for Lack of Personal
Jurisdiction
In order to adjudicate a case properly, a court must have,
in addition to subject matter jurisdiction, personal
13
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jurisdiction over the parties, “that is, the power to require
the parties to obey its decrees,” United States v. Swiss Am.
Bank, Ltd., 191 F.3d 30, 35 (1st Cir. 1999).
A plaintiff bears
the burden of demonstrating that the court has personal
jurisdiction over each of the defendants.
Daynard v. Ness,
Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st
Cir. 2002).
When adjudicating a motion to dismiss for lack of personal
jurisdiction, a court “may choose from among several methods for
determining whether the plaintiff has met [its] burden.”
Daynard, 290 F.3d at 50-51 (citations omitted).
The First
Circuit has recognized three methods in particular for
adjudicating a motion to dismiss for lack of personal
jurisdiction, the “least taxing” and “most commonly employed” of
which is the prima facie standard.
Rodriguez v. Fullerton Tires
Corp., 115 F.3d 81, 83-84 (1st Cir. 1997).
Under the prima facie standard, a court must “restrict its
inquiry to whether the plaintiff has proffered evidence which,
if credited, suffices to support a finding of personal
jurisdiction.”
2001).12
Barrett v. Lombardi, 239 F.3d 23, 26 (1st Cir.
The court need not “credit conclusory allegations or
12
The other two methods recognized by the First Circuit are the
“preponderance-of-the-evidence standard” and the “likelihood”
standard. Boit v. Gar-Tec Products, Inc., 967 F. 2d 671 675-78
(1st Cir. 1992). If a court determines that “it is unfair to
force an out-of-state defendant to incur the expense and burden
14
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draw farfetched inferences,” Ticketmaster-New York, Inc. v.
Alioto, 26 F.3d 201, 203 (1st Cir. 1994), but must credit
specific facts supported by competent evidence.
239 F.3d at 26.
See Barrett,
In addition, the court should consider all
uncontradicted facts advanced by the defendant.
Massachusetts
Sch. of Law at Andover, Inc. v. Am. Bar Assoc., 142 F.3d 26, 34
(1st Cir. 1998) (internal citation omitted).
I find the prima facie standard sufficient here.
United
States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir.,
2001).
ACCNYC apparently acquiesces to the prima facie standard
because it has not requested an evidentiary hearing, so there is
no reason for me to employ either of the more demanding methods
for determining personal jurisdiction.
A motion to dismiss for lack of personal jurisdiction must
be “decided before trial unless the court orders a deferral
until trial.”
Fed. R. Civ. P. 12(i); see generally Boit v. Gar-
Tec Products, Inc., 967 F. 2d 671, 676 (1st Cir. 1992).
A
district court’s allowance of a motion to dismiss for lack of
personal jurisdiction pursuant to the prima facie standard
before trial is a permissible way to proceed.
Id.
If, however,
a district court applies the prima facie standard and denies the
of a trial on the merits in the local forum without first
requiring more of the plaintiff than a prima facie showing” of
jurisdiction (for example where the “proffered evidence is
conflicting and the record is rife with contradictions”), one of
the other two methods may be employed. Id. at 676.
15
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motion to dismiss, it “is implicitly, if not explicitly,
ordering that hearing and determination of the motion to dismiss
be deferred until the trial.”
Id. (internal quotations
omitted).
B.
Right to a Jury Trial on the Issue of Personal Jurisdiction
In Ms. Ferris’s opposition to ACCNYC’s motion to dismiss,
she urges that I not dismiss this current action because “[w]hen
relying upon the Long Arm Statute, the Plaintiff is entitled to
a jury.”13
Ms. Ferris additionally argues that “[w]hen personal
jurisdiction under the long-arm statute depends on establishing
elements of the tort claim, plaintiff may, and probably does,
have a right to a trial before a jury.”14
13
In support of her contention, Ms. Ferris cites to Workgroup
Tech. Corp. v. MGM Grand Hotel, 246 F. Supp. 2d 102 (D. Mass.
2003). Nowhere does Workgroup support the contention or even
separately mention the issue of the right to a jury trial for
personal jurisdiction issues. In Workgroup, Magistrate Judge
Collings applied the prima facie standard – and in doing so
considered “specific facts affirmatively alleged by the
plaintiff as true.” Id. at 108. He found that the defendant’s
conduct constituted transacting business in Massachusetts, thus
satisfying Massachusetts’ long-arm statute. Id. at 109.
Workgroup did not, however, deny the defendant’s motion to
dismiss because personal jurisdiction issues needed to be heard
before a jury.
14
Ms. Ferris additionally cites two opinions issued by Judge
Keeton over the years. N. Am. Video Corp. v. Leon, 480 F. Supp.
213, 216 (D. Mass. 1979) and Am. Home Assurance Co. v. Sport
Maska, Inc., 808 F. Supp. 67, 77 (D. Mass. 1992). Neither case
supports her contention regarding the necessity for a jury trial
before a motion to dismiss may be granted. In Leon, Judge
Keeton made explicit his view that the determination of personal
jurisdiction at trial occurs “after finding a prima facie
showing of jurisdiction” — therefore after the defendant’s
motion to dismiss has already been denied. 480 F. Supp. at 216.
16
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Ms. Ferris wholly misconstrues the law in this regard.
To
be sure, a motion to dismiss for lack of personal jurisdiction
should be decided before trial, unless a court decides to defer
the adjudication of the personal jurisdiction issue until trial
itself.
FED. R. CIV. P. 12(i).
The mere fact a court may deny a
motion to dismiss and leave the issue of personal jurisdiction
until trial, does not mean that the plaintiff has the right to
present the personal jurisdiction issues to a jury in some sort
of pre-trial proceeding.
Ms. Ferris’s argument that she is
entitled to a jury trial on the issue of personal jurisdiction
before the trial on the merits, where it may properly — and
would ordinarily in this procedural posture — be contested, is
misplaced.
C.
Whether This Court Has Personal Jurisdiction over ACCNYC
There are two routes to establish personal jurisdiction:
the general jurisdiction avenue and the specific jurisdiction
avenue.
Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d
138, 144 (1st Cir. 1995).
“General jurisdiction exists when the
litigation is not directly founded on the defendant’s forumbased contacts, but the defendant has nevertheless engaged in
continuous and systematic activity, unrelated to the suit, in
the forum state.”
United Elec., Radio & Mach. Workers of Am. v.
In denying the defendant’s motion to dismiss in Sport Maska,
Judge Keeton applied the prima facie standard but did “not
decide any fact question.” 808 F. Supp. at 77.
17
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163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir. 1992)
(citation omitted).
It is uncontested that ACCNYC is a not-for-
profit corporation incorporated in New York where it has its
principal place of business and is exclusively licensed to
operate.
There is no basis to conclude its contacts with
Massachusetts are “so continuous and systematic as to render
[it] essentially at home in [Massachusetts].”
Consequently,
this court does not have general jurisdiction over ACCNYC.
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011).
Turning to whether this court nevertheless has specific
jurisdiction, I find a similar lack of basis to support that
contention.
Recognizing I may assert specific jurisdiction over
ACCNYC if permissible under both the Massachusetts long-arm
statute and the Due Process Clause of the United States
Constitution, Carreras v. PMG Collins, LLC, 660 F.3d 549, 552
(1st Cir. 2011), I take up each branch of the inquiry in turn.
1.
The Massachusetts Long-Arm Statute
The Massachusetts long-arm statute in pertinent part allows
a court of the Commonwealth 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
(a)
(b)
(c)
transacting any business in this commonwealth;
contracting to supply services or things in this
commonwealth;
causing tortious injury by an act or omission in
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(d)
this commonwealth;
causing tortious injury in this commonwealth by
an act or omission outside this commonwealth if
he regularly does or solicits business, or
engages in any other persistent course of
conduct, or derives substantial revenue from
goods used or consumed or services rendered, in
this commonwealth;
MASS. GEN. LAWS c. 223A, § 3.
As to subsections (a) and (b), ACCNYC did not itself
transact any business or make any contracts connected to
Massachusetts.
The only agreement involving ACCNYC was the
agreement it entered into for Pound Hounds to adopt Brock.
Pound Hounds and ACCNYC completed the adoption transaction in
New York and the agreement is explicitly governed by the laws of
New York.
Regarding subsections (c) and (d), Ms. Ferris fails to make
any allegations related to causation by ACCNYC.
Assuming,
arguendo, as to subsection (c), that a tort occurred in
Massachusetts, she has not provided factual assertions regarding
causation by ACCNYC beyond the contention that Brock was the dog
that bit her daughter, and that he was once under ACCNYC’s
custody and control before Pound Hounds adopted him.
As to
subsection (d), specifically, I further note that nowhere in the
record is there a suggestion that ACCNYC regularly “engages in
[any] persistent course of conduct” in Massachusetts.
The
absence of support for such a contention is the principal basis
for my finding that I lack general jurisdiction over ACCNYC.
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Ms. Ferris makes no attempt to allege facts establishing any
conduct by ACCNYC in Massachusetts, let alone conduct that
caused a tort.
See generally LaForest v. Ameriquest Mortg. Co.,
383 F. Supp. 2d 278, 285 (D. Mass. 2005) (no jurisdiction under
section 3(c) of Massachusetts’ long arm statute where defendant
is an out of state defendant who does not visit or solicit
business in Massachusetts); Roberts v. Legendary Marine Sales,
857 N.E.2d 1089, 1092 (Mass. 2006) (no jurisdiction under
section 3(d) of long arm statute in “absence of any specific
showing that the [defendants] web site did anything beyond
providing information,” and there was no “persistent course of
conduct” by the defendant in Massachusetts).
Ms. Ferris has
failed to show how subsections (c) and (d) of the long-arm
statute apply to ACCNYC.
As a result, the only conceivable way for jurisdiction over
ACCNYC to be proper under the Massachusetts long-arm statute is
if, as alleged by Ms. Ferris, Pound Hounds was ACCNYC’s agent
and Pound Hounds itself is subject to the Massachusetts long
arm-statute. See MASS. GEN. LAWS c. 223A § 3(a).
For this part of
the analysis I will assume, arguendo,15 that Pound Hounds is
subject to the Massachusetts long-arm statute in order to
15
As observed, supra, Pound Hounds and Ms. Darrell also have
filed a motion to dismiss for lack of jurisdiction, [Dkt. No.
32], but I do not resolve that motion on the merits for present
purposes.
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address whether Pound Hounds was ACCNYC’s agent and therefore
its contacts can be imputed to ACCNYC.
Under New York law,16 to create an agency relationship, “the
agent must consent to act subject to the principal’s direction
and control, and the principal must consent to exercising
control over the agent.”
Old Republic Ins. Co., v. Hansa World
Cargo Service, Inc., 51 F. Supp. 2d 457, 471 (S.D.N.Y. 1999).
Control is the key element.
382 (N.Y. App. Div. 1981).
Abbate v. Abbate, 82 A.D.2d 368,
Control cannot be shown “upon
conclusory allegations that the defendant controls the
corporation.” Karabu Corp. v. Gitner, 16 F. Supp. 2d 319, 324
(S.D.N.Y. 1998) (citations omitted).
Rather, the “plaintiff’s
allegations must sufficiently detail the defendant’s conduct” to
support a prima facie showing establishing control.
Id.
However, direct manifestations from the principal to the
agent are not required to form an agency relationship.
Republic, 51 F. Supp. 2d at 472.
Old
Even where there is no actual
authority, an agent may bind the principal where “the words or
16
New York law is appropriate to govern the question of whether
Pound Hounds was an agent of ACCNYC. See Lambert v. Kysar, 983
F.2d 1110, 1118 (1st Cir. 1993) (Massachusetts “courts routinely
enforce choice-of-law provisions unless the law chosen violates
established public policy or bears no reasonable relationship to
the contractual transaction between the parties.”). Both Pound
Hounds and ACCNYC are based in New York. The only written
agreement between Pound Hounds and ACCNYC before me is the
Adoption Agreement which is “governed by the laws of the State
of New York.” [Adoption Agreement, filed as Exh. A to SAC, at
Bullet Point 6].
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conduct of the principal, communicated to a third party, . . .
give rise to the appearance and belief that the agent possesses
authority . . . ”
marks omitted).
Id. at 475 (citation and internal quotation
Under such circumstances, it is essential to
show that “the third person, accepting the appearance of
authority as true, has relied upon it” to reach the principal
liable based on conduct by the apparent agent.
Greene v.
Hellman, 51 N.Y.2d 197, 204 (N.Y. 1980).
Ms. Ferris has not alleged any facts in support of an
actual or apparent agency relationship between Pound Hounds and
ACCNYC.
With respect to actual authority, Ms. Ferris has made
no allegation that ACCNYC exercised control over Pound Hounds or
that both parties consented to it.
In her SAC, Ms. Ferris fails
to allege a single fact relating to any formal relationship or
interaction between ACCNYC and Pound Hounds beyond Brock’s
Adoption Agreement.17
Additionally, the mere fact that Pound
17
I note, in this connection, ACCNYC’s uncontradicted affidavit
supporting the conclusion that Pound Hounds was not acting as
ACCNYC’s agent. See Affidavit of Jennifer Piibe, filed as
Exhibit C to ACCNYC’s Memorandum in support of its motion to
dismiss or transfer, [Dkt. No. 23-3 at ¶ 4]. (“There is no
financial support for the animal from ACCNYC after it is adopted
by the entity. There is no control over who the dog is brought
to for treatment and care. There is no control over who the
foster agency places the dog with after it is adopted. In fact,
as a part of the program, if the adopting entity subsequently
places the animal with a family as part of a foster arrangement
made by the adopting entity, that entities’ [sic] foster family
is not able to contact ACCNYC with regard to the animal. Such
communication must be made through the adopting entity.”).
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Hounds was listed on ACCNYC’s website as a “New Hope Partner”
does not justify a conclusion that Pound Hounds was an agent of
ACCNYC.
Ms. Ferris only alleges that the partnership “allows
[Pound Hounds] to pull dogs owned and/or in the possession of
[ACCNYC] for foster placement,” but makes no claim that ACCNYC
exercised control over Pound Hounds.18
In addition to the lack of showing of an actual agency
relationship on the facts alleged, it is clear that ACCNYC did
not hold Pound Hounds out as its apparent agent in such a way
that would induce reasonable reliance by Ms. Ferris (or any
potential adopter).
In fact, as conceded in Ms. Ferris’s first
motion to amend her complaint, Ms. Ferris did not know about
ACCNYC until after she initiated the current lawsuit.
Necessarily, Ms. Ferris could not have believed that Pound
Hounds was acting as ACCNYC’s agent.
Because the SAC does not allege sufficient facts to support
the contention that Pound Hounds was ACCNYC’s agent, I do not
need to assess whether Pound Hounds is bound by the long-arm
statute for the purposes of ACCNYC’s motion to dismiss.
18
Additionally, I reject the argument that this made Pound
Hounds and ACCNYC partners in some broader legal sense. Ms.
Ferris has not alleged that Pound Hounds and ACCNYC shared
profits, losses, or management or that there were other relevant
indicia of a partnership between the two organizations. See
Brodsky v. Stadlen, 526 N.Y.S.2d 478, 479 (N.Y. App. Div. 1988)
(stating the factors to be considered in determining
partnership).
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2.
The Due Process Clause
Given my conclusion that this court does not have personal
jurisdiction over ACCNYC pursuant to the Massachusetts long-arm
statute, I need not proceed to determine whether exercising
personal jurisdiction over ACCNYC would comport with due
process.19
D.
Transfer of the Entire Case is Appropriate
Having found that this court lacks personal jurisdiction
over ACCNYC, the only remaining issue is whether I can or should
transfer, rather than dismiss, the case.
Even though this court
does not have jurisdiction to hear and adjudicate the claims
against ACCNYC, I may still order the case to be transferred, if
19
As courts applying Massachusetts personal jurisdiction
analysis have developed the proper protocol, they have directed
that “[b]ecause 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.” SCVNGR, Inc. v.
Punchh, Inc., 85 N.E.3d 50, 52 (Mass. 2017) (remanding to
Superior Court to conduct the long-arm statutory analysis). I
have observed that “[h]istorically, both the First Circuit and
the Supreme Judicial Court have interpreted the Commonwealth’s
long-arm statute as coextensive with the outer limits of the
Constitution. However, recently, both courts have moved away
from this interpretation. . .” TargetSmart Holdings, LLC v. GHP
Advisors, LLC, 366 F.Supp.3d 195, 207 (D. Mass. 2019) (emphasis
added) (internal quotations and citations omitted); see also,
SCVNGR, Inc., 85 N.E.3d at 55-56 (“In contrast to the long-arm
statutes of some States, the Massachusetts statute does not
purport to extend jurisdiction as far as due process would
allow.” . . . “The requirements of G.L. c. 223A, § 3, may not be
circumvented by restricting the jurisdictional inquiry to due
process considerations.”).
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it could properly have been brought in the putative transferee
court, the United States District Court for the Southern
District of New York.
Where there is no jurisdiction, if it is in the “interest
of justice”, a court may transfer the case “to any other such
court in which the action . . . could have been brought at the
time it was filed or noticed.”
28 U.S.C § 1631.20
I have
observed that “[t]he First Circuit has interpreted this
provision to establish a presumption in favor of transfer —
rather than dismissal — when the forum court lacks personal
jurisdiction over one of the defendants.”
TargetSmart Holdings,
LLC v. GHP Advisors, LLC, 366 F. Supp. 3d 195, 214 (D. Mass.
2019) (citations omitted).
The presumption, however, can be
rebutted if a transfer is not “in the interest of justice.”
Britell v. United States, 318 F.3d 70, 74 (1st Cir. 2003).
As to subject matter jurisdiction, the United States
District Court for the Southern District of New York has
20
I note that ACCNYC, as an alternative to dismissal, sought
transfer of this case under 28 U.S.C. § 1404(a). Section 1404(a)
permits a federal court “[f]or the convenience of parties and
witnesses, in the interest of justice” to transfer a civil
action “to any other district or division where it might have
been brought.” 28 U.S.C. § 1404(a). I interpret 28 U.S.C. §
1404(a) to allow transfer of a case only if the District of
Massachusetts has jurisdiction over the case in the first
instance. TargetSmart 366 F. Supp. 3d at 217. Because I
conclude this court lacks personal jurisdiction over ACCNYC,
transfer under § 1404(a) is not available. As a result, I look
to 28 U.S.C § 1631.
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diversity jurisdiction over all the claims.
Additionally, given
that Ms. Darrell is a resident of New York County, and both
ACCNYC and Pound Hounds have their principal places of business
in New York County, the Southern District of New York also has
personal jurisdiction (by way of general jurisdiction) over all
defendants in this suit.
See Goodyear, 564 U.S. at 919.
Based on the record before me, there is no indication that
dismissal would be in the interests of justice.
To the
contrary, although Ms. Ferris and her attorneys appear oblivious
to the danger their adamant and unshaken position that only the
District of Massachusetts should be the venue for the action,
dismissal would raise the potential for a dispositive statute of
limitations defense against new complaints.
In any event,
irrespective of whether Plaintiff’s strategy is in her own long
term interests, a transfer to the Southern District of New York
would serve the interests of justice by allowing the claims to
move forward through a single proceeding in a venue with proper
jurisdiction over all defendants.
Moreover, in light of the
substantial, if incomplete, fact discovery that has been
undertaken to date, even assuming a statute of limitations
defense would not be successful, dismissal at this stage
(thereby forcing the parties to start ab initio as to the
dismissed party), would not advance my obligation and the
obligation of the federal courts generally to ensure a “just,
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speedy, and inexpensive determination” of the action. FED. R. CIV.
P. 1.
Finding nothing on the record to rebut the presumption in
favor of transfer,21 and because I find that the Southern
District of New York has both subject matter and personal
jurisdiction over the pending matter and all Defendants, I will
transfer, rather than dismiss, the case to the Southern District
of New York pursuant to my authority under 28 U.S.C.
§ 1631.
III. CONCLUSION
As a threshold matter, I GRANT Plaintiff’s motion to amend
her complaint again [Dkt No. 25] and decide the remaining
motions in light of the uncontested facts found in the record to
date.
I conclude, on a prima facie basis, that this Court does
not have personal jurisdiction over ACCNYC.
In the interest of
justice, under 28 U.S.C. § 1631 I GRANT ACCNYC’s motion [Dkt.
No. 22] to dismiss or transfer to the extent of directing the
Clerk to transfer the entire case to the United States District
Court for the Southern District of New York for adjudication.
The motion [Dkt. No. 32] of Pound Hounds and Ms. Darrell to
dismiss for lack of personal jurisdiction is rendered MOOT,
21
I note that one welcome consequence of the adaption of the
courts to the challenges of the current pandemic is an increased
willingness and competence in conducting virtual hearings.
Thus, the difficulties attendant upon inconvenient pre-trial
travel outside of Massachusetts can be minimized.
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based on my decision to transfer the case.
I similarly find to
be MOOT in this Court, given the transfer, the cross-motions for
partial summary judgment on Count 1 of the second amended
complaint [Dkt Nos. 39 and 47].
Structuring further dispositive
motion practice should be left to the transferee judge.
In light of the transfer, I also treat as MOOT and decline
to address the other pending motions related to discovery and
case-scheduling status [Dkt Nos. 37, 50, 59, and 71] which, to
the degree they are to be reasserted, should be addressed by the
United States District Court for the Southern District of New
York which is — unlike this court — authorized to exercise
jurisdiction over all parties in this litigation.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
28
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