Vysedskiy v. OnShift, Inc.
1:16-cv-12161
D. Mass.Sep 29, 2017Background
- Plaintiff Andre Vysedskiy (Massachusetts resident) sued Ohio software company OnShift under the TCPA for unsolicited prerecorded calls to his Massachusetts cellphone.
- OnShift sells staffing/notification software to healthcare employers; customers upload employee contact data and initiate automated calls/messages through the software.
- OnShift is incorporated and headquartered in Ohio; ~5% of its customers are in Massachusetts; it has no offices, property, or employees in Massachusetts.
- OnShift submitted an affidavit explaining (1) customers, not OnShift, select recipients and command calls, and (2) OnShift does not itself initiate calls except in response to customer commands.
- Plaintiff alleged the recording identified the call as "from OnShift;" plaintiff also sued several unnamed OnShift customers ("Does").
- OnShift moved to dismiss for lack of personal jurisdiction (Rule 12(b)(2)) or, alternatively, to transfer; court denied dismissal without prejudice and ordered limited jurisdictional discovery focused on specific personal jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| General personal jurisdiction | OnShift does sufficient business with MA (customers and revenue) to be "at home" | OnShift not incorporated/PPB in MA; no offices, property, or employees there | No prima facie showing of general jurisdiction; denied discovery on general jurisdiction |
| Specific personal jurisdiction — purposeful availment/relatedness | Calls received in MA; OnShift branding on recording suggests OnShift's role and links claim to MA contacts | Calls were initiated by independent customers; OnShift did not itself target MA; customers' unilateral acts cannot establish contacts | Plaintiff made a colorable showing of specific jurisdiction; facts ambiguous; limited discovery permitted on whether OnShift targeted MA and whether calls originated from MA customers |
| Jurisdictional discovery | Discovery necessary to learn volume/circumstances of MA sales and whether calls originated from MA customers | Opposes broad discovery; submitted affidavit showing limited MA contacts | Court ordered limited discovery by set deadlines on sales, revenue, customer locations, and call origination; denial of 12(b)(2) without prejudice pending renewed motion |
Key Cases Cited
- International Shoe Co. v. Washington, 326 U.S. 310 (established minimum contacts test)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (forum contacts must be voluntary; purposeful availment and foreseeability)
- World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (unilateral actions of third parties cannot establish defendant's forum contacts)
- Daimler AG v. Bauman, 134 S. Ct. 746 (general jurisdiction requires affiliations so continuous and systematic as to be "at home")
- J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (plurality and concurrence on product distribution and forum targeting)
- United States v. Swiss Am. Bank, Ltd., 274 F.3d 610 (First Circuit on entitlement to jurisdictional discovery)