Access Now, Inc. v. Sportswear, Inc.

United States District Court

District of Massachusetts

)

ACCESS NOW, INC., R. DAVID NEW, )

and STEPHEN THEBERGE, )

)

Plaintiffs, )

)

v. ) Civil Action No.

) 17-11211-NMG

SPORTSWEAR, INC., )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

Plaintiffs Access Now, Inc. (“Access Now”), R. David New

(“New”) and Stephen Théberge (“Théberge”) (collectively

“plaintiffs”) bring this action against Sportswear, Inc.

(“Sportswear”), an e-commerce retailer, alleging that

Sportswear’s website violated Title III of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. Plaintiffs

claim that they, individually, and Access Now’s members have

been unable to access Sportswear’s website because it is

incompatible with screen reader programs that assist individuals

suffering from visual impairments.

Pending before the Court is Sportswear’s motion to dismiss

the complaint for lack of personal jurisdiction (Docket No. 12).

For the following reasons, the motion to dismiss will be

allowed, in part, and denied, in part.

I. Background

Plaintiff Access Now is a non-profit organization which

provides advocacy services on behalf of blind and other disabled

individuals. Access Now has members in 47 states, including

residents of Massachusetts. Plaintiff R. David New is a

resident of Florida and the President of Access Now. Plaintiff

Stephen Théberge is a resident of Massachusetts. Both

individual plaintiffs are legally blind.

Sportswear, Inc. is headquartered in Seattle, Washington

where it maintains its corporate office. Sportswear also owns a

manufacturing plant in Louisville, Kentucky. Sportswear does

not maintain property in Massachusetts and employs no

individuals in Massachusetts. Sportswear derives 3.78% of its

revenue from sales in Massachusetts.

The individual plaintiffs attempted to access Sportswear’s

website but found it unusable in light of certain barriers to

access. The plaintiffs allege that the website is incompatible

with screen readers which are programs that convert text to

audio to allow individuals suffering from visual impairments to

access the content and services of websites. Plaintiffs submit,

for example, that the buttons on Sportswear’s website lack

labels that would describe their purpose to a screen reader user

and error messages on the website do not provide sufficient

information to such a user. Plaintiffs state that they would

like to, and intend to attempt accessing Sportswear’s website in

the future.

II. Defendant’s Motion to Dismiss

A. Legal Standard

On a motion to dismiss for want of personal jurisdiction,

plaintiff bears the burden of showing that the Court has

authority to exercise jurisdiction over defendants. See Mass.

Sch. of Law at Andover, Inc. v. ABA, 142 F.3d 26, 33-34 (1st

Cir. 1998). The Court must take facts alleged by plaintiff as

true and construe disputed facts favorably towards plaintiff.

See Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st

Cir. 1994).

In a diversity suit, this Court acts as “the functional

equivalent of a state court sitting in the forum state.” See

Astro-Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8

(lst Cir. 2009). As such, this Court must determine whether (1)

jurisdiction is permitted by the Massachusetts long-arm statute

and (2) the exercise of jurisdiction coheres with the Due

Process Clause of the United States Constitution. Id.

Due process demands a showing of general or specific

personal jurisdiction by plaintiff. See Negron-Torres v. Verizon

Comme’n, Inc., 478 F.3d 19, 24 (1st Cir. 2007). Plaintiffs must

demonstrate that defendants have made sufficient contacts with

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the forum state to justify the exercise of that jurisdiction.

Id.

B. Analysis

Plaintiffs do not dispute Sportswear’s contention that it

is not subject to the general jurisdiction of this Court.

Plaintiffs contend that this Court has specific jurisdiction

over Sportswear because Sportswear purposely availed itself of

the privilege of conducting activities in Massachusetts and

plaintiffs’ ADA claim arises out of Sportswear’s contact with

the forum.

1. Plaintiffs Access Now and David New

Plaintiffs Access Now and New are not Massachusetts

residents and have not demonstrated that this Court has specific

jurisdiction over Sportswear with respect to their claims.

Although Access Now states that it has members in Massachusetts,

it has not identified any individual members, other than

Théberge, who have attempted to access Sportswear’s website or

who have been injured by an inability to access it. In their

opposition memorandum, plaintiffs rest their specific

jurisdiction argument on Théberge’s ADA claims, stating that

“plaintiff Théberge’s claims relate to defendant’s Website,

which defendant makes available in Massachusetts”, without

reference to Access Now or New’s claims.

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The plaintiff bears the burden of proving that the court

has personal jurisdiction over a defendant. Daynard v. Ness,

Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50-51

(1st Cir. 2002). In order for a court to exercise personal

jurisdiction, “the suit must arise out of or relate to the

defendant’s contacts with the forum”. Bristol-Myers Squibb Co.

v. Superior Ct. of Calif., 137 S. Ct. 1773, 1780 (2017). Where

there is no connection between the underlying controversy and

the forum, the court does not have specific jurisdiction over a

claim. Id. at 1781 (citing Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 919 (2011)).

In Bristol-Myers, the Supreme Court made clear that

nonresident plaintiffs cannot demonstrate that a court has

personal jurisdiction over a defendant by bootstrapping their

claims to those of resident plaintiffs. Id. at 1781. In that

case, the nonresident plaintiffs claimed that they were injured

by a prescription drug that was not prescribed, purchased or

ingested in the forum, California. Id. The Court held that

[t]he mere fact that other plaintiffs were prescribed,

obtained, and ingested [the drug] in California—and

allegedly sustained the same injuries as did the

nonresidents—d[id] not allow the State to assert specific

jurisdiction over the nonresidents’ claims.

Id.; see also Access Now, Inc. v. Otter Prods., Inc., 280 F.3d

287 (D. Mass. 2017) (noting that the same two out-of-state

plaintiffs who bring claims in this case, Access Now and New,

did not have a basis for asserting personal jurisdiction over

the defendant); McDonnell v. Nature’s Way Prods., LLC, No. 16-

ev-5011, 2017 WL 4864910, at *4 (E.D. Ill. Oct. 26, 2017)

(holding that a state “may not assert specific jurisdiction over

a nonresident’s claim where the connection to the state is based

on the defendant’s conduct in relation to a resident plaintiff,

and not the nonresident plaintiff”).

Plaintiffs New and Access Now have not demonstrated that

there is a connection between the forum and the specific claims

at issue other than through Théberge. The plaintiffs appear to

concede that nonresident plaintiffs New and Access Now have no

connection to the forum in their opposition memorandum,

referencing only Théberge’s ADA claims as giving rise to

jurisdiction. Accordingly, plaintiffs New and Access Now have

not met their burden and the Court finds that it does not have

specific jurisdiction with respect to their claims.

Sportswear’s motion to dismiss will be allowed, with respect to

plaintiffs Access Now and New.

2. Plaintiff Stephen Théberge

a. Massachusetts Long-Arm Statute

Théberge contends that the Massachusetts long-arm statute

authorizes this Court’s exercise of personal jurisdiction over

Sportswear because Sportswear’s business transactions give rise

to the ADA claims, M.G.L. c. 223A 8 3(a), and Sportswear caused

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a tortious injury, § 3(b). Sportswear responds that the

Massachusetts long-arm statute may impose more restrictive

limits than the Constitution. It contends that Théberge’s claim

arises from the creation and maintenance of the website, which

occurred in Washington, rather than the products offered for

sale in Massachusetts.

The Massachusetts long-arm statute provides, in relevant

part, that a court may exercise personal jurisdiction

over a person [] as to a cause of action in law or equity

arising from the person’s (a) transacting any business in

this commonwealth.

M.G.L. c. 223A § 3. The definition of “transacting any

business” is interpreted broadly under Massachusetts law. United

Elec., Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp.,

960 F.2d 1080, 1087 (1st Cir. 1992) (collecting federal and

state cases interpreting the long-arm statute and determining

that the phrase “transacting any business” is “regularly

construed . . . in a generous manner”). To determine whether a

claim arises from a defendant’s “transacting business”, a court

looks to whether the transacted business was a but for cause of

the harm alleged in the claim. Cossart v. United Excel Corp.,

804 F.3d 1, 18 (1st Cir. 2015).

Théberge has presented sufficient evidence to support a

finding that Sportswear transacted business within the meaning

of the long-arm statute. Sportswear generates 3.78% of its

annual revenue from online sales in the Commonwealth and

features products bearing the names of Massachusetts schools,

universities and athletic teams. Those actions are sufficient

under the long-arm statute to support a conclusion that

Sportswear transacted business in the forum. See United Elec.,

Radio & Mach. Workers of Am., 960 F.2d at 1087 (holding that a

defendant need not have a physical presence in the forum and

stating that the test “focuses instead upon whether the

defendant attempted to participate in the commonwealth’s

economic life”).

Having found that Sportswear transacts business in the

forum, within the meaning of the Massachusetts long-arm statute,

the Court must next determine whether the claim “arises from”

that activity. The complaint alleges that Sportswear’s website

limits accessibility to consumers who suffer from visual

impairments seeking to purchase products from the website.

Théberge documents his attempt to access the website, with the

use of his screen reader, from Attleboro, Massachusetts.

Because Théberge’s denial of access to Sportswear’s website

occurred in the forum, the injury arises from Sportswear’s

transaction of business through its website in Massachusetts.

See Otter Prods., 280 F.3d at 292.

b. Due Process

This Court may assert specific jurisdiction when defendants

have certain minimum contacts with Massachusetts such that the

maintenance of the suit does not offend “traditional notions of

fair play and substantial justice.” Int'l Shoe Co. v. State of

Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310,

316 (1945)(internal quotation marks omitted). When assessing

whether the exercise of jurisdiction comports with due process,

the court evaluates

(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).

i. Relatedness

The relatedness factor depends upon “whether the claim

underlying the litigation . . . directly arise[s] out of or

relate[s] to, the defendant’s forum-state activities.” Astro-

Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 10 (1st

Cir. 2009) (internal quotation marks omitted). The relationship

between the claim and the forum-state conduct cannot be remote.

See Harlow v. Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005).

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The relatedness inquiry is, however, a “flexible, relaxed

standard.” Pritzker v. Yari, 42 F.3d 53, 60-61 (lst Cir. 1994).

Sportswear contends that because Théberge’s claim alleges

that the development and coding of the website is insufficient

under the ADA, the claim is not related to its Massachusetts

activities, but rather the website development that occurs in

Washington. As discussed above in the Court’s analysis of the

Massachusetts long-arm statute, Théberge’s ADA claim relates to

Sportswear’s activities in the forum. Théberge attempted to and

intends to access Sportswear’s website from within the forum and

therefore there is a sufficient “affiliation between the forum

and the underlying controversy”. Bristol-Myers Squibb, 137 S.

Ct. at 1780 (citing Goodyear, 564 U.S. at 919).

ii. Purposeful Availment

As the next step in the inquiry, the Court must determine

whether

defendant’s in-state contacts [identified in the

relatedness inquiry] 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.

Cossart, 804 F.3d at 21 (citing C.W. Downer & Co. v. Bioriginal

Food & Sci. Corp., 771 F.3d 59, 66 (1st Cir. 2014)) (internal

alterations omitted). The inquiry places its emphasis on the

defendant’s intentions and precludes an exercise of jurisdiction

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based solely on “random, fortuitious or attenuated contacts”.

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citing

Keeton v. Hustler Magazine, Inec., 465 U.S. 770, 774 (1984)).

The record here indicates that Sportswear availed itself of

the forum state’s economic activities by targeting the residents

of the Commonwealth with products featuring Massachusetts

universities, schools and athletic teams. Such targeting

evinces a voluntary attempt to appeal to the customer base in

the forum. See Copia Commc’ns, LLC v. AMResorts, L.P., 812 F.3d

1, 5 (1st Cir. 2016) (internal citation omitted) (emphasizing

that the key points of the inquiry are “the voluntariness of

defendants’ relevant Massachusetts contacts and the

foreseeability of the defendants falling subject to

Massachusetts’s jurisdiction”). Sportswear’s product line

decisions manifest an intent to “deliberately target its

behavior toward the society or economy of a particular forum”.

Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825

F.3d 28, 36 (lst Cir. 2016).

iii. Reasonableness

Finally, this Court must consider a number of “Gestalt

factors,” including (1) defendant’s burden of appearing, (2) the

forum state’s interest in adjudicating the dispute, (3)

plaintiff's interest in convenient and effective relief, (4) the

judicial system’s interest in obtaining efficient resolution of

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controversies and (5) the common interest of all sovereigns in

promoting substantive social policies. Burger King Corp., 471

U.S. at 477.

Sportswear contends that exercising jurisdiction here would

be unreasonable because Sportswear’s center of gravity is

located a great distance from Massachusetts, Massachusetts has

little interest in the dispute and there is no advantage to the

judicial system in adjudicating the dispute in Massachusetts.

Another session of this Court has cautioned that the

reasonableness factors play a large role in cases involving the

Internet where commercial transactions can occur across the

nation quickly and with the click of a button. Photographic

Illustrators Corp. v. A.W. Graham Lumber, LLC, 196 F. Supp. 3d

123, 131 (D. Mass. 2016). In that case, however, the defendant

was a small hardware store in Kentucky which made one sale to

Massachusetts in eleven years and the sale of that shovel

occurred just two weeks before the filing of the complaint. Id.

Here, the Gestalt factors indicate that exercising

jurisdiction over Sportswear would be fair and reasonable.

First, Sportswear is a large company, with over $15 million in

annual revenue. Sportswear does not identify any unique burden

and appeals only to the convenience of a different forum. See

Baskin—Robbins, 825 F.3d at 40 (making clear that the first

factor is only determinative where the party can demonstrate a

special burden more significant than cross-country travel)

(internal citations omitted). Massachusetts has a clear

interest in protecting the interests of its visually-impaired

residents. Burger King, 471 U.S. at 473 (holding that a state

“generally has a manifest interest in providing its resident

with a convenient form for redressing injuries inflicted by out—

of-state actors”) (internal citation omitted).

The third factor involves the convenience of the forum for

the plaintiff. Courts generally accord the plaintiff’s choice

of forum a degree of deference. Sawtelle v. Farrell, 70 F.3d

1381, 1395 (1st Cir. 1995). The last two factors are neutral

here. Given that Théberge is a Massachusetts resident and the

forum has a clear interest in adjudicating the grievances of its

disabled residents, exercising jurisdiction in this instance

would be fair, reasonable and consistent with the requirements

of due process.

ORDER

For the foregoing reasons, defendant’s motion to dismiss

(Docket No. 12) is, with respect to plaintiffs New and Access

Now, ALLOWED, but with respect to plaintiff Théberge, DENIED.

So ordered.

/s/ Nathaniel M. Gorton_____

Nathaniel M. Gorton

United States District Judge

Dated March 22, 2018