Opinion
Civil Action Number 01-12351-RGS
July 9, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A CHANGE OF VENUE
The motion to dismiss will be DENIED. Under the usual prima facie test "a district court does not act as a fact-finder . . . it ascertains only whether the facts duly proffered, fully credited, support the exercise of personal jurisdiction." Rodriguez v. Fullerton Tires Corp., 115 F.3d 81, 84 (1st Cir. 1997). The supported facts establish that the defendant Austine School for the Deaf (Austine): (1) recruits hearing-impaired students from Massachusetts; (2) finalizes the students' Individualized Education Plans with Massachusetts school officials; (3) accepts reimbursement from special education funds appropriated by the Commonwealth of Massachusetts and the Town in which the student resides; and (4) solicits additional funds from the students' parents. These facts alone satisfy the purposeful presence prong of the transacting business test of the Longarm Statute, M.G.L. c. 223A, § 3(a). See Johnson v. Witkowski, 30 Mass. App. Ct. 697, 713 (1991) (the test is to be broadly construed and is not limited to commercial activity). See also Hahn v. Vermont Law School, 698 F.2d 48, 50 (1st Cir. 1983) (school's mailing of an application and acceptance letter to a Massachusetts resident was sufficient to satisfy the test). While the alleged harm must also "arise" from the defendant's activity in the forum state, the Massachusetts test is not one of proximate cause, but a more liberal "but for" standard. Tatro v. Manor Care, Inc., 416 Mass. 763, 770-772 (1994). Here, but for the recruitment of the plaintiff by Austine in Massachusetts, the alleged harm would not have occurred. (Indeed, this is a far more compelling association between the harm and the forum than in Tatro where "but for" responding to a solicitation from a hotel in Anaheim, California, a Massachusetts resident would not have suffered an injury in the hotel's bathroom).
Plaintiff's tuition for the 1998-1999 academic year amounted to $58,937. The reimbursement to Austine was divided equally between the Commonwealth and the Town of Norwood. In addition, the Commonwealth paid plaintiff's transportation costs to and from Austine in Brattleboro, Vermont.
It is also true that the assertion of jurisdiction must be consistent with the basic requirements of due process. Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). In this regard, the "assertion of jurisdiction must be tested for its reasonableness, taking into account such factors as the burden on the defendant of litigating in the plaintiff's chosen forum, the forum State's interest in adjudicating the dispute, and the plaintiff's interest in obtaining relief." Tatro, 416 Mass. at 773. These factors weigh in plaintiff's favor. Austine's pockets are deeper and its distance from plaintiff's chosen forum is not great. See Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994). The interest of Massachusetts in protecting its citizens from sexual molestation, particularly a minor whom it has placed in a defendant's care at its own expense, is substantial. See Foster-Miller, Inc. v. Babcock Wilcox Canada, 46 F.3d 138, 151 (1st Cir. 1995). And the plaintiff's interest in obtaining relief in her preferred forum is undoubted. See Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 211 (1st Cir. 1994).
The so-called "Gestalt" factors also include the judicial system's interest in obtaining an effective resolution of the controversy and the common interests of all sovereigns involved in promoting substantive social policies. United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1088 (1st Cir. 1992). These factors also weigh in plaintiff's favor.
Because the specific jurisdiction test is fully satisfied, there is no reason to consider the parties' arguments regarding general jurisdiction.
Venue properly lies in the District of Massachusetts. Austine, as a corporate entity, is "deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action of commenced." 28 U.S.C. § 1391(c). There is no suggestion of serious unfairness, such as undue expense or litigating inconvenience, that would warrant a transfer for reasons of forum non conveniens. 28 U.S.C. § 1404(a). While some witnesses may reside outside the subpoena range of the District of Massachusetts, it is presumed that plaintiff weighed this fact in choosing a forum. Foster-Miller, 46 F.3d at 151 (strong presumption favors plaintiff's choice of forum.) See also Coady v. Ashcraft Gerel, 223 F.3d 1, 11 (1st Cir. 2000).
Plaintiff states that Austine is within a 100-mile radius of the federal district court in Boston, and that its employees may therefore be reached by a Massachusetts subpoena.
ORDER
For the foregoing reasons, defendant's motion to dismiss for want of personal jurisdiction is DENIED. The motion to transfer venue is also DENIED.
SO ORDERED.