STEARNS, D.J.
On January 10, 2010, BroadVoice, Inc.,
The case was filed originally in Middlesex Superior Court. On February 2, 2010, it was removed by defendants to this court. On February 17, 2010, Bednar moved to dismiss the action for lack of personal jurisdiction pursuant to Fed. R.Civ.P. 12(b)(2), or alternatively, on improper venue and forum non conveniens grounds.
BroadVoice is a Delaware corporation with a principal place of business in Billerica, Massachusetts. Gangi is an officer and
Bednar became a BroadVoice customer on September 23, 2008. He quickly became dissatisfied with BroadVoice's service, which he made known by posting complaints and derogatory remains on www.bewareofbroadvoice.com, a website that he had created for that purpose. The website featured an open letter to Broad-Voice (which Bednar named "The Internet Telephone Service From Hell") berating it for the alleged ill-treatment of its customers, and accusing it of engaging in illegal business practices in violation of state and federal laws, including the Racketeering Influenced and Corrupt Organizations Act (RICO).
Bednar urged disgruntled Broad-Voice subscribers to share their experiences with other readers on his website's "Public Forum" and to write directly to the company to vent their wrath. He also encouraged BroadVoice "victims" to file complaints with state Attorneys General offices, the Boston Better Business Bureau, the FBI Fraud Division, the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and various financial institutions. The site provided links to these agencies, as well as links to other websites containing customer complaints and information about lawsuits involving BroadVoice, its executives (including Gangi), and its affiliated companies. With respect to the individual plaintiffs, the website stated:
Compl.—Ex. A. The defamatory content was available on the website from January 2, 2010, through January 23, 2010.
At the time of the filing of the motion to dismiss, Bednar had been unemployed for over a year and was living on his parents' largesse. His counsel is appearing pro bono. At a March 20, 2010 scheduling conference, the court agreed to a limited period of discovery, mostly of a jurisdictional nature. On August 5, 2010, the parties filed a second status report in which plaintiffs indicated that they had received a "round of discovery dealing with defendants' financial condition" and that Broadvoice intended to settle its claims. BroadVoice settled with Bednar on August 10, 2010. It filed a stipulation of dismissal of its claims with prejudice on August 13, 2010.
On a Fed.R.Civ.P. 12(b)(2) motion to dismiss, a plaintiff bears the burden of persuading the court that jurisdiction exists. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir.1998), citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). The court, however, must take the jurisdictional facts affirmatively alleged by the plaintiff as true and construe all "disputed facts in the light most hospitable to [the] plaintiff." Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994).
This court has in personam jurisdiction over a defendant whose contacts with the forum in the aggregate satisfy the requirements of the Massachusetts Long-Arm Statute and the Due Process Clause of the Fourteenth Amendment. See Ticketmaster, 26 F.3d at 204, citing United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1086 (1st Cir.1992). Plaintiffs originally asserted personal jurisdiction over Bednar under subsections (a), (c), and (d) of the Long-Arm Statute.
As BroadVoice is no longer a party, the only arguably applicable provision of the Long-Arm Statute is subsection 3(c).
"In its simplest formulation, in personam jurisdiction relates to the power of a court over a defendant. It is of two varieties, general and specific." Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994). To establish specific jurisdiction (the only species of jurisdiction at issue), plaintiffs must demonstrate that Bednar has sufficient "minimum contacts" with Massachusetts. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Such contacts exist when: (1) the plaintiff's cause of action arises directly out of, or relates to, the defendant's forum-based contact; (2) the defendant purposefully availed himself of the privilege of conducting activities within the forum state; and (3) the finding of jurisdiction is consistent with traditional notions of "fair play and substantial justice." Id., quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940).
"The relatedness requirement. . . authorizes the court to take into account the strength (or weakness) of the plaintiff's relatedness showing in passing upon the fundamental fairness of allowing
The core question—one that the First Circuit has not addressed—is whether an active, interactive, or passive website located outside of Massachusetts and which Massachusetts residents can access over the Internet satisfies the purposeful availment test.
In Venture Tape Corp. v. McGills Glass Warehouse, 292 F.Supp.2d 230 (D.Mass. 2003), McGills, a California-based company, was sued in Massachusetts by Massachusetts-based Venture Tape Corporation for trademark infringement. Venture accused McGills, a supplier of stained glass window products, of embedding Venture's proprietary marks within its HTML code. Consequently, McGills appeared prominently in the hits generated when potential customers searched the Internet for Venture products. McGills moved to dismiss the lawsuit alleging that personal jurisdiction could not be based merely on the fact that its website was available on the Internet. McGills' argument was not frivolous. See id. at 232 ("Most courts confronting this question have required `something more' than simply making an interactive website available."). Judge Lasker, however, denied the motion to dismiss, finding the "something more." "While the mere existence of an interactive website might not be enough to establish personal jurisdiction over McGills in a randomly chosen East Coast state, McGills' alleged misuse of trademarks belonging to a Massachusetts company is enough to constitute minimum contacts for the purposes of establishing personal jurisdiction." Id. at 233.
Id. at 455 (internal citations omitted).
Although Judge Lasker found that there was no evidence that McGills (like Step Two) had targeted Massachusetts residents specifically or had knowingly made any sales to Massachusetts residents, he found that the infringing use by McGills of trademarks belonging to Venture, a Massachusetts company, was reason enough to alert McGills to the prospect of being "haled into court in Massachusetts."
Bednar's website was neither of a commercial nature nor directed specifically to a Massachusetts audience. While it may be true, as plaintiffs argue, that a Massachusetts resident who happened on the site might have been more likely to complain about BroadVoice to the Boston Better Business Bureau, there is no evidence that any such complaint was ever filed. The website was in existence for only twenty-one days and plaintiffs have presented no proof that it was ever accessed by anyone other than themselves. See Oasis Corp. v. Judd, 132 F.Supp.2d 612, 621 (S.D.Ohio 2001) (rejecting personal jurisdiction over a non-Ohio resident where the Ohio plaintiff "do[es] not allege that the purportedly defamatory remarks have been communicated to any third person in Ohio; they likewise have adduced no evidence to support such a finding."). Compare Kauffman Racing Equip., LLC v. Roberts, 126 Ohio St.3d 81, 930 N.E.2d 784, 795-796 (2010) (plaintiff produced evidence that at least five Ohio residents had read defendant's "rancorous criticisms" on various websites devoted to automobile racing equipment, thus establishing a defamatory "effect" in Ohio).
In Calder, a case that plaintiffs identify as "directly analogous" to this one, an editor and a writer for the National Enquirer, both of whom were residents of Florida, were sued in California for libeling Shirley Jones, a California actress. 465 U.S. at 789-790, 104 S.Ct. 1482. The offending article involved Jones's California activities. It impugned the professionalism of an entertainer whose television career was centered in California. The story was drawn from California sources, and the brunt of the harm, in terms of emotional distress and injury to professional reputation, was felt in California. In upholding the exercise of personal jurisdiction over the two defendants, the Supreme Court pointed to the fact that the National Enquirer had its largest circulation—over 600,000 copies—in California. Id. at 789, 104 S.Ct. 1482. Id. at 790, 104 S.Ct. 1482. "[J]urisdiction properly could be asserted over the reporters because the defendants had aimed an act at the forum state, knew the act would likely have a devastating effect, and knew the injury would be felt in the forum state, where Jones lived and worked `and in which the National Enquirer ha[d] its largest circulation.'" Calder 465 U.S. at 790, 104 S.Ct. 1482. See also Noonan v. Winston, 135 F.3d 85, 90 (1st Cir.1998).
In addressing claims of jurisdiction based on the Internet, Courts of Appeals have generally adopted the "Zippo test." See Zippo, 952 F.Supp. at 1124. The Zippo test examines a website's relative degree of interactivity. Under Zippo's "sliding scale," the likelihood of personal jurisdiction being found is directly proportional to the amount of Internet activity purposefully generated by a defendant.
Id.
The Sixth Circuit, following Zippo, classified a website soliciting support for a negative campaign against a business entity as "semi-interactive" in Cadle Co. v. Schlichtmann, 123 Fed.Appx. 675, 678-679 (6th Cir.2005). The facts of Cadle Co. are very similar to those here. Schlichtmann, a lawyer, sought to retaliate against Cadle for successfully suing him in Massachusetts. Schlichtmann created a website, www.truthaboutcadle.com, on which he posted what he claimed were examples of Cadle's illegal business practices. He also solicited other "victims" to join in a class action lawsuit against Cadle. Cadle sued Schlichtmann in Ohio for defamation. The Sixth Circuit found Schlichtmann's website to fall between "being interactive and passive, particularly because the website provides contact information and arguably solicits support for the campaign against
As the purposeful availment element is not met, the so-called "Gestalt factors," which are used to test due process considerations of fairness, need not be discussed, although on balance they slightly favor a finding of lack of jurisdiction, particularly on the first and fourth grounds (the burden on Bednar, who for all practical purposes is an indigent in appearing in a Massachusetts forum and the inability of the court to award meaningful compensation to plaintiffs, particularly when weighed against the costs of protracted litigation).
For the foregoing reasons, defendants' motion to dismiss for lack of personal jurisdiction is ALLOWED. The Clerk may now close the case.
SO ORDERED.
Mass. Gen. Laws ch. 223A, § 3.
