MerlinOne, Inc. v. Shoom, Inc.

20 Mass. L. Rptr. 12
CourtMassachusetts Superior Court
DecidedJuly 1, 2005
DocketNo. 0402022
StatusPublished

This text of 20 Mass. L. Rptr. 12 (MerlinOne, Inc. v. Shoom, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MerlinOne, Inc. v. Shoom, Inc., 20 Mass. L. Rptr. 12 (Mass. Ct. App. 2005).

Opinion

Dortch-Okara, Barbara A., J.

This is an action by the plaintiff, MerlinOne, Inc., for declaratory and injunctive relief against the defendant, Shoom, Inc. Now before the court is the defendant’s motion to dismiss for lack of personal jurisdiction pursuant to [13]*13Mass.R.Civ.P. 12(b)(2). In support of its motion, the defendant argues that as a nonresident defendant, it lacks the requisite contacts with Massachusetts to satisfy the statutory and constitutional requirements for the exercise of personal jurisdiction. In opposition, the plaintiff asserts that the defendant sends daily electronic mail to Massachusetts businesses and solicited various companies located in the Massachusetts such that the exercise of jurisdiction over the defendant is permissible.

For the following reasons stated herein, the defendant’s motion to dismiss is ALLOWED.

BACKGROUND

The plaintiff is a Delaware corporation with a principal place of business in Quincy, Massachusetts. The defendant is a Delaware corporation with a principal place of business in California. The plaintiff and the defendant are direct competitors, engaged in a business generally known as electronic tearsheets.

Electronic tearsheet businesses, including the plaintiff and the defendant, electronically verify the publication of advertisements. The businesses compile digitized versions of advertisements and make such versions available to the publishers, advertisers, and advertising agencies via the Internet. Electronic tearsheet businesses, rather than the publication itself, send electronic mail messages (emails) to advertisers and advertising agencies containing electronic versions of the tearsheets. The defendant became involved in the electronic tearsheet business in 2000 and was one of the first entities to enter the market. The plaintiff followed the defendant into the electronic tearsheet market in 2001. Both the plaintiff and the defendant service thousands of advertisers throughout the United States. The defendant also has customers in Canada.

In conducting its business, the defendant contracts only with the publishers. Its interaction with advertisers is limited to sending emails to verify that the advertisers’ ads have been published. The defendant receives compensation for its services from the publications, not the advertisers. The defendant is engaged in business with no publisher or other client located in Massachusetts. In the past, it unsuccessfully solicited the business of The Cape Cod Times, The Nantucket Inquirer and Mirror, The Standard Times, and the International Data Group magazines in Framing-ham. The defendant does, however, send electronic tearsheets to businesses in Massachusetts which advertise in publications with which the defendant contracts. These businesses include, T.J. Maxx, Home Goods, Filene’s, Bob’s Stores, and Grossman’s Bargain Outlets. In addition to notifying advertisers of the publication of their advertisements, the defendant provides advertisers with billing information for the placement of advertisements or identifies where to find this information in its database. The defendant does not lease or own real property in Massachusetts, nor does it have a place of business in Massachusetts. Moreover, the defendant maintains no bank accounts in Massachusetts. The defendant does, however, maintain an Internet website which is accessible to residents of Massachusetts.

The plaintiff alleges that the defendant intentionally disseminated false information about the plaintiff to numerous publishers between April 2003 and August 2004, and published false and misleading statements on its Internet website and in other advertising materials. Specifically, the defendant allegedly made statements to newspapers in Colorado, Illinois, Arizona, and Louisiana that: (1) the plaintiffs electronic tearsheet system for The Boston Globe would not be fully operational until July 1, 2003; (2) all advertisers and agencies preferred the defendant’s system to other vendors of electronic tearsheets; (3) Time, Inc. was the defendant’s client; and (4) the plaintiff was owned in part by The Tribune Company, a large publisher of newspapers, and NSA, a national advertising agency. With respect to ownership of the plaintiff, the plaintiff alleges that this statement was particularly damaging because newspapers and other publishers are hesitant to furnish a company owned by another newspaper with their advertising information for fear that their proprietary information will become public. According to the complaint, these statements were made to newspapers when the newspapers were contemplating or negotiating to do business with the plaintiff.

DISCUSSION

I. Standard of Review

The plaintiff bears the burden of establishing sufficient facts upon which to predicate jurisdiction over a defendant when facing a motion to dismiss under Mass.R.Civ.P. 12(b)(2). Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 (1978). In ruling on a motion to dismiss for lack of personal jurisdiction, the court must consider all relevant evidence proffered by the parties, including facts controverted by the defendant, and then “determine whether the plaintiff has met its burden of proof by a preponderance of the evidence.” Cepeda v. Kass, 62 Mass.App.Ct. 732, 739-40 (2004) (overturning trial court decision to dismiss claim for want of personal jurisdiction on the grounds that insufficient uncontroverted facts were presented upon which to base a determination of personal jurisdiction).

II. Massachusetts Longarm Statute

In order for the court to properly exercise jurisdiction over a nonresident defendant, two questions must be answered affirmatively; “(1) is the assertion of jurisdiction authorized by statute, and (2) if authorized, is the exercise of jurisdiction under State law consistent with basic due process requirements mandated by the United States Constitution?” Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). The Massachusetts longarm statute is codified in G.L.c. 223A, §3(a) - (g). Courts generally distinguish [14]*14between specific and general jurisdiction. Claire Tatro Manor Care, Inc., 416 Mass. 763, 772 n.6; see also Connecticut Nat’l Bank v. Hoover Treated Wood Prod., Mass.App.Ct. 231, 233 n.6 (1994). “Specific jurisdiction may be asserted where the cause of action arises directly out of, or relates to, the defendant’s forum-based contacts.” United Elec. Radio & Mach. Workers of America v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088-89 (1st Cir. 1992). General Laws c. 223A, §3(a) is grounded on specific jurisdiction. Tatro, 416 Mass, at 767. General jurisdiction, on the other hand, “exists when the litigation is not directly founded on the defendant’s forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state.’’ Connecticut Nat’l Bank, 37 Mass.App.Ct. at 233, quoting United Elec. Radio & Mach. Workers of America 960 F.2d. at 1088. General Laws c. 223A, §3(d) is predicated on general jurisdiction.

The only section of the Massachusetts longarm statute applicable to the plaintiffs complaint against the defendant is G.L.c. 223A, §3(d).1 General Laws c.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

International Shoe Co. v. Washington
326 U.S. 310 (Supreme Court, 1945)
The Keds Corp. v. Renee International Trading Corp.
888 F.2d 215 (First Circuit, 1989)
Droukas v. Divers Training Academy, Inc.
376 N.E.2d 548 (Massachusetts Supreme Judicial Court, 1978)
Good Hope Industries, Inc. v. Ryder Scott Co.
389 N.E.2d 76 (Massachusetts Supreme Judicial Court, 1979)
Gunner v. Elmwood Dodge, Inc.
506 N.E.2d 175 (Massachusetts Appeals Court, 1987)
Tatro v. Manor Care, Inc.
625 N.E.2d 549 (Massachusetts Supreme Judicial Court, 1994)
Heins v. Wilhelm Loh Wetzlar Optical Machinery GmbH & Co. KG.
522 N.E.2d 989 (Massachusetts Appeals Court, 1988)
Cunningham v. Ardrox, Inc.
663 N.E.2d 577 (Massachusetts Appeals Court, 1996)
Darcy v. Hankle
768 N.E.2d 583 (Massachusetts Appeals Court, 2002)
Cepeda v. Kass
819 N.E.2d 979 (Massachusetts Appeals Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
20 Mass. L. Rptr. 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merlinone-inc-v-shoom-inc-masssuperct-2005.