MEMORANDUM

TAURO, District Judge.

I. Introduction

An Egyptian corporation, Stars for Art Production FZ LLC ("Plaintiff"), owns a music channel, originally entitled "Zoom" and later replaced with "Mazzika." Plaintiff entered into a contract with a New Jersey corporation, Dandana, LLC ("Dandana"). The contract provided Dandana a license to broadcast that music channel and the channel was transmitted into Massachusetts through the services of Dish DBS Corporation ("Dish DBS"), Dish Network Corporation ("Dish Network"), and Dish Network LLC ("Dish LLC") (collectively "Dish" or "the Dish Defendants"), which are all predominately based in Colorado.

Plaintiff sued both Dandana and Dish (collectively "Defendants"), primarily alleging that Dandana failed to pay certain fees owed under Plaintiff's and Dandana's contract.1 Defendants, however, contend that this court lacks personal jurisdiction over Defendants and that venue is improper. Presently at issue are Defendants' Motion to Dismiss Amended Complaint [# 25] and Plaintiff's Motion for Leave to Conduct Jurisdictional Discovery with Statement of Reasons [# 30]. For the following reasons, Defendants' Motion to Dismiss is ALLOWED IN PART and DENIED IN PART, and Plaintiff's Motion for Leave to Conduct Jurisdictional Discovery is DENIED WITHOUT PREJUDICE.

II. Background2

Plaintiff, a United Arab Emirates LLC with its principal place of business there,3 owns the music television channels "Zoom" and "Mazzika."4 Dish Network, a Nevada corporation with a principal place of business in Colorado,5 provides, via satellite transmission, television channels to its subscribers.6 Dish Network is the parent company of Dish DBS, which is the parent company of Dish LLC.7 Dish DBS and Dish LLC are both organized under the laws of Colorado and have their principal places of business in Colorado.8 The other Defendant, Dandana, provides Dish Network with certain television channels for Dish Network to broadcast to Dish Network's subscribers.9 Dandana owns or has the licensing rights to broadcast those channels on the Dish Network.10

A. The Parties' Agreement and License

Around March 9, 2005, Plaintiff entered into a written agreement with Dandana ("2005 Agreement").11 In the 2005 Agreement, Dandana acquired the exclusive licensing rights to broadcast the "Zoom" channel in the United States (the "License").12 In consideration for the License, Dandana promised and agreed to pay Plaintiff $180,000 per year, in quarterly installments.13

Based on the 2005 Agreement, Dandana negotiated with Dish Network to have Dish Network broadcast the "Zoom" channel.14 In exchange, Dish Network agreed to pay Dandana an amount of money based on the number of subscribers that paid Dish Network for the right to view the "Zoom" channel.15

B. The Alleged Breach and Modification of the Agreement

Dandana subsequently failed to honor the 2005 Agreement by not paying Plaintiff the money that Dandana owed.16 Around August 7, 2007, because of Dandana's failure to pay, Plaintiff sought to terminate the 2005 Agreement.17

On August 29, 2007, Dandana and Plaintiff instead modified the 2005 Agreement with an Addendum Agreement ("2007 Agreement").18 As part of the 2007 Agreement, Dandana and Plaintiff agreed that either party "shall have the right to refer any dispute ... to the federal courts of the United States...."19

Around January 19, 2009, Dandana and Plaintiff again amended the 2005 Agreement by substituting the "Mazzika" channel for the "Zoom" channel.20

Dandana refused to pay Plaintiff money owed ($428,000) under the License.21

On March 8, 2010, Plaintiff notified Dish Network of Dandana's breach and requested that Dish Network cease broadcasting the "Mazzika" channel or withhold payment to Dandana pending a resolution of the dispute between Plaintiff and Dandana.22 Dish Network did not comply with this request.23

C. This Litigation

Plaintiff brings six counts against Defendants here: (I) breach of contract against Dandana; (II) breach of implied covenant of good faith and fair dealing against Dandana; (III) unjust enrichment against Dandana; (IV) quantum meruit against Dandana; (V) fraud and misrepresentation against Dandana; and (VI) quantum meruit against Dish Network.24

D. Allegations that Allegedly Form the Basis of Personal Jurisdiction over Defendants

In addition to the facts above, Plaintiff alleges the following facts to support the exercise of personal jurisdiction over Defendants:

Dish DBS is registered to do business in Massachusetts and all the Dish Defendants do business in the Commonwealth.25 Dish LLC provides satellite programming to residents of Massachusetts.26 Dish Network is the exclusive broadcaster of the "Mazzika" channel in Massachusetts.27

Dish maintains a website that reaches into Massachusetts. Specifically, people in Massachusetts can order Dish's products through Dish's website.28 People also can communicate with Dish's representatives through a "realtime interactive chat."29

Defendants promote, market, and sell to Massachusetts subscribers the right to view television programs that are transmitted to Dish Network by Dandana.30 Dish airs television advertisements in Massachusetts that direct people to its website and advertise Dish's services.31 Dish solicits customers in Massachusetts through its website and customer representatives.32 Dish, on its website, also solicits employment applications for positions in Massachusetts.33 Dish Network has at least four locations in Massachusetts.34 Dish employs various individuals at these locations, including perhaps individuals engaged in servicing subscribers.35

Dish also has over 70,000 customers in Massachusetts.36 As of December 2009, Dish had a total of 14 million customers.37

Dandana, as part of the 2007 Agreement, agreed to a general forum selection clause allowing any dispute to be submitted to the federal courts in the United States.38

III. Discussion

A. Personal Jurisdiction Standard

A plaintiff "`bears the burden of persuading [a] court that jurisdiction exists.'"39 A plaintiff "`may not rely on unsupported allegations in [the] pleadings, but [is] obliged to adduce evidence of specific facts' sufficient to justify the exercise of jurisdiction over the named defendants, including evidence outside the complaint."40 The court will also "`add to the mix facts put forward by the defendants, to the extent that they are uncontradicted.'"41

Personal jurisdiction exists if a federal court may exercise authority over a defendant on the basis of either specific or general jurisdiction.42 To establish specific jurisdiction, a plaintiff must show both that the Massachusetts long-arm statute43 grants jurisdiction over the defendant and that "`the exercise of jurisdiction under the statute is consistent with the [United States Constitution.'"44 Specific jurisdiction exists only if "`the cause of action arises directly out of, or relates to, the defendant's forum-based contracts.'"45 To establish specific personal jurisdiction, a plaintiff must establish three elements: "relatedness," "purposeful availment," and "reasonableness."46

General jurisdiction, by contrast, "`may be asserted in connection with suits not directly founded'" on a defendant's forum-based conduct.47 General jurisdiction exists if three requirements are met. First, a defendant must have sufficient contacts with the forum state.48 That is, the defendant must have engaged "in the `continuous and systematic' pursuit of general business activities in the forum state."49 The standard for establishing general jurisdiction is also "`considerably more stringent'" than the standard for specific jurisdiction.50 Second, these contacts must be purposeful.51 Third, "the exercise of jurisdiction must be `reasonable under the circumstances.'"52 The reasonableness inquiry, the third test, is not a primary focus and involves consideration of the so-called "Gestalt factors."53 In assessing a claim for general jurisdiction, a court looks to factors such as instate ownership of property, "a license to do business within the state, the payment of state taxes, the instate presence of corporate offices, officers, and employees, contracts signed with states residents, and the volume of business regularly transacted and solicited in the forum state."54

B. The Dish Defendants

1. Specific Jurisdiction

The Dish Defendants contend that this court lacks specific personal jurisdiction over them.55 Plaintiff does not disagree with Dish's argument. Plaintiff only argues that this court has general jurisdiction over Dish.56 This court therefore moves to the question of general jurisdiction.57

2. General Jurisdiction

Plaintiff relies on various facts for this court to exercise general jurisdiction over Dish. First, Plaintiff points to Dish's solicitation of customers through its interactive web site and ongoing local television campaign.58 Second, Dish has sought the protection of Massachusetts' courts by bringing suit here. Third, Dish has four locations here and has listed employment positions at those locations.59 Finally, Dish is registered to do business in Massachusetts and has over 70,000 customers in Massachusetts.60

The First Circuit has instructed that, for the purposes of the general jurisdiction analysis, courts "`consider all of a defendant's contacts with the forum state prior to the filing of the lawsuit.'"61 This court will not play fast and loose with the First Circuit's teaching. This court will follow the doctrine literally.

Even though this court construes specific facts affirmatively alleged in Plaintiff's favor,62 Plaintiff has failed to provide a prima facie showing that the Dish Defendants have sufficient purposeful contacts with Massachusetts. Nearly every alleged critical contact of Dish's either occurred after the filing of Plaintiff's lawsuit or Plaintiff has failed to clarify when the contacts took place.63 All of Plaintiff's allegations regarding (a) Dish's allegedly interactive website as well as (b) Dish's extensive advertising both for subscribers and employment positions in the Commonwealth occurred on or after October 25, 2010,64 about half a year after Plaintiff filed suit.65 Similarly, both the First Amended Complaint's vague allegations regarding Dish's advertising and marketing, as well as Dish's alleged employment of individuals in the Commonwealth (at Dish's offices),66 lack any specifics as to when those contacts occurred. Because these allegations were added after Plaintiff's original Complaint and the First Circuit has instructed that the prima facie showing "must be based upon evidence of specific facts set forth in the record,"67 this court is not at liberty to assume that the above alleged contacts occurred before Plaintiff filed suit. This court therefore does not consider those contacts in its general jurisdiction analysis.

The only three contacts that are alleged to have occurred prior to the filing of Plaintiff's suit are, even in the aggregate,68 insufficient to confer personal jurisdiction over the Dish Defendants. First, Dish DBS's registration in Massachusetts adds, at most, only modest weight to the jurisdictional analysis.69 But this fact alone is woefully inadequate to deem Dish as having purposeful contacts with Massachusetts. Second, Dish's involvement in an unrelated lawsuit in Massachusetts is, at most, a featherweight in this court's consideration of whether to exercise general jurisdiction over the Dish Defendants.70 Third, although Dish Network may have 70,000 customers in Massachusetts, this figure constitutes only about .5% of Dish's total amount of customers. Dish Network's resulting amount of Massachusetts-based revenue is inadequate for this court to declare that Dish Network has sufficient contacts with Massachusetts.71 Considered together, these factors constitute far less than the contacts that the First Circuit has deemed insufficient to confer general jurisdiction.72 This court therefore holds that Plaintiff has failed to establish that the Dish Defendants maintained purposeful, continuous and systematic contacts with Massachusetts such that Dish should reasonably anticipate being subject to suit in Massachusetts.73

C. Dandana

Defendants argue that this court should not exercise personal jurisdiction over Dandana because it has not engaged advertising, solicitation, or most importantly, business activity, in Massachusetts.74 Plaintiff replies that Dandana is subject to general jurisdiction because Dandana entered into a forum-selection clause in a freely-negotiated international commercial transaction, which this court can view as unfair or unreasonable only if the trial would be so gravely difficult and inconvenient that the subject party would be deprived of its day in court.

The First Circuit has determined that forum-selection clauses in diversity actions present an Erie question that has not yet been resolved by the Supreme Court.75 Under federal law, contractual forum-selection clauses are "`prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances.'"76 Massachusetts courts, when determining whether to enforce a forum-selection clause, apply the Bremen reasonableness (or fairness) standard.77 Because there is no material discrepancy between Massachusetts's state law and federal law, this court "need confront neither the choice-of-law issue nor the daunting question whether forum selection clauses are to be treated as substantive or procedural for Erie purposes."78

Under the Bremen inquiry, "the threshold question in interpreting a forum selection clause is whether the clause is permissive or mandatory."79 A permissive forum-selection clause, often described as a "consent to jurisdiction" clause, authorizes "jurisdiction and venue in a designated forum, but do[es] not prohibit litigation elsewhere . . . In contrast, [a] mandatory forum selection clause[] contain[s] clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum."80

The forum-selection clause here actually presents two forum-selection clauses. The first clause selects "the courts of Cairo," whereas the second clause selects all "federal courts of the United States of America with the competent U.S. law being applicable."81 Because the language of the first clause provides that "the courts of Cairo shall have exclusive jurisdiction,"82 it appears to be mandatory,83 at least when read in isolation. The second clause, in contrast, is ambiguous. It merely affords the Licensee or Licensor the "right to refer" disputes to "federal courts of the United States of America."84 The second clauses's language, including the broad reference to "any dispute," could perhaps be considered mandatory.85 Most importantly, however, the second clause begins with the words "[n]otwithstanding the former."86 These words indicate that the second clause, whether it be permissive or mandatory (or purposely ambiguous), is meant to override the first clause.87 This court concludes, therefore, that the first forum-selection clause favoring Egypt is of no effect once the Licensee or Licensor invokes the second clause, as Plaintiff has done here.88

This court notes that Dandana has not presented any argument that the forum selection clause should not be enforced for being unfair or unreasonable.89

Because of Dandana's valid agreement to a forum-selection clause, this court need not consider whether Dandana has engaged in constitutionally sufficient contacts with Massachusetts. Other federal district courts, including courts in this district, have held that "contractual stipulation to a particular forum implies consent to personal jurisdiction in that forum."90 Dandana provides no reason to depart from this holding. Although these cases all appear to address forum-selection clauses that specify particular judicial districts, there is no sound rationale (and Dandana presents none) why this rule of consent cannot apply to a forum-selection clause that adverts to all of the judicial districts in the United States. Dandana signed a clause agreeing to personal jurisdiction in any federal district court, and as such waived its objections both to venue and personal jurisdiction.

D. Venue

Defendants argue that venue has not been properly conferred in this case. Plaintiff argues that Dish resides in Massachusetts because this court may exercise personal jurisdiction over Dish.

Where there are multiple defendants, venue must be proper as to every defendant.91 All well-pleaded "allegations in the complaint bearing on the venue question are taken as true, unless contradicted by the defendant's affidavits. A district court may examine facts outside the complaint to determine whether venue is proper."92 In the First Circuit, at the least, the burden is on the plaintiff to establish that the chosen district is proper.93

Plaintiff has failed to meet its burden of establishing that venue is proper in the chosen district. A case based on diversity of jurisdiction, such as this one, is governed by 28 U.S.C. § 1391(a).94 None of the three subsections of section 1391(a) are pertinent here. Subsection (a)(1) does not establish proper venue because the Dish Defendants have not been deemed to reside in Massachusetts or been subject to personal jurisdiction here.95 Subsection (a)(2) does not apply because the events or omissions giving rise to Plaintiff's claim occurred outside of Massachusetts. Insofar as the contract was negotiated, executed, and allegedly not paid for outside of Massachusetts, the "entire sequence of events underlying the claim" occurred elsewhere.96 The lone exception is Dish's broadcast of the music channel signal into states all across the country, including Massachusetts. This exception, however, is a mere outgrowth and tangential to the sequence of events underlying Plaintiff's claims and therefore does not approach the requirement of being a "substantial" event.97 Subsection (a)(3), lastly, is inapplicable here because Plaintiff has not pled any facts to establish that no other district has jurisdiction over this case.98

E. Dismissal or Transfer99

Where venue is improper, a court must dismiss or transfer the case.100 Courts have held that "transfer is generally preferable to dismissal."101 Transfer is also preferred where a plaintiff will face a loss of his cause of action due to the "operation of the applicable statute of limitations."102

This court chooses to transfer the case to the District of Colorado. Neither Party has suggested whether Plaintiff will lose a cause action due to any applicable statute of limitations. But Defendants conceded and Plaintiff did not dispute that the District of Colorado would have personal jurisdiction over all Defendants and be an appropriate venue.103 Defendants, in fact, request transfer to Colorado or, alternatively, New Jersey.104 Defendants therefore "certainly do not object" to this outcome.105 Moreover, as far as this court can discern, Plaintiff's case should not be subject to outright dismissal because there is no appearance that Plaintiff failed to exercise "proper diligence" or act in good faith in filing suit in Massachusetts.106

Plaintiff's contentions against transfer are to no avail. Plaintiff exclusively argues against transfer under 28 U.S.C. § 1404(a) and the doctrine of forum non conveniens,107 but does not argue against transfer in this different situation where this court's decision is between transferring and dismissing the case. Many of Plaintiff's arguments, therefore, are inapplicable.

Insofar as any of Plaintiff's arguments may apply to the decision about where to transfer,108 none are overwhelming so as to outweigh transfer to the District of Colorado. First, the combination of the forum-selection clause and convenience to the Parties in fact militates in favor of the District of Colorado. Because Plaintiff is based in Egypt, Plaintiff would face nearly the same amount of inconvenience in having to file in New Jersey or Colorado. Colorado is more convenient for the Dish Defendants, whereas New Jersey is more convenient for Dandana. But Plaintiff and Dandana—not Dish—agreed to suit in any federal district court. Therefore, by extension of Plaintiff's own argument regarding the forum-selection clause,109 the inconvenience to the Dish Defendants should receive greater weight than the inconvenience to the other Parties. Second, the other factors, including (a) the apparent absence of "non-employee witnesses" who will need to testify or be unwilling to appear of their own accord110 and (b) that access to proof is equal in all forums and the First Amended Complaint contains all "known agreements,"111 weighs in favor of neither Colorado nor New Jersey. Third, despite Plaintiff's counsel's presence in Massachusetts, the presence of counsel has "little bearing on the analysis."112 Finally, given that Colorado is more clearly a proper venue for Defendants than New Jersey, this court chooses to transfer this case to the District of Colorado.

F. Jurisdictional Discovery

Plaintiff has requested the opportunity to conduct jurisdictional discovery if this court finds that the existing evidence is inadequate to exercise personal jurisdiction over the Dish Defendants.113

A diligent plaintiff "`who sues an out-of-state corporation and who makes out a colorable case for the existence of in personam jurisdiction may well be entitled to a modicum of jurisdictional discovery if the corporation interposes a jurisdictional defense.'"114 This entitlement, however, is not absolute.115 Even if a plaintiff is diligent and makes a colorable claim for personal jurisdiction, a district court has "broad discretion to decide whether discovery is required."116

Plaintiff's request for jurisdictional discovery is denied for a few reasons.

First, Plaintiff has not made a colorable claim for personal jurisdiction. Plaintiff's allegations resoundingly fail to show that the Dish Defendants have purposeful contacts with Massachusetts such that they could be subject to general jurisdiction. Further, the Parties agree that specific jurisdiction does not apply. Indeed, none of the underlying acts comprising the alleged breach of contract, fraud, and related actions occurred in Massachusetts. The contract at issue was executed entirely outside of Massachusetts and between corporations based in Egypt and New Jersey.117 The only connection is Dish's alleged broadcast in Massachusetts, which not only seemingly occurred across all of the United States, but is also a mere appendage of the events or omissions giving rise to Plaintiff's Complaint.

Second, Plaintiff's additional pertinent avenues of inquiry are insufficiently detailed to justify allowing the Motion. Plaintiff, beyond saying that its proposed lines of inquiry will yield "additional evidence to submit in amended opposition,"118 fails to explain or cite case law as to how these proposed lines of inquiry would be directly relevant to its personal jurisdiction argument.119 Similarly, Plaintiff has failed to allege the "specific contacts" that are relevant to establishing personal jurisdiction.120 In particular, Plaintiff seeks information that is either seemingly broad121 or irrelevant to the personal jurisdiction inquiry,122 therefore providing further grounds to deny Plaintiff's request.123

Third, discovery is not required here because of the adequacy and convenience of an alternate forum, as discussed above.

IV. Conclusion

For the foregoing reasons, Defendants' Motion to Dismiss Amended Complaint [# 25] is ALLOWED IN PART and DENIED IN PART. Plaintiff's Motion for Leave to Conduct Jurisdictional Discovery with Statement of Reasons [# 30] is DENIED WITHOUT PREJUDICE. AN ORDER HAS ISSUED.

ORDER

After a Motion Hearing held on June 21, 2011, this court hereby orders that, for the reasons set forth in the accompanying Memorandum:

IT IS SO ORDERED.