today's cases will be called as previously announced and the times will be as allotted to council the first case today is excuse me your honor let's try that again today's cases will be called as previously announced and the times will be as allotted to council the first case today is nineteen dash one three eight two chen versus united states the united states sports academy inc mr holinski yes good morning your honor your honor and the samantha lea court my name is stanley lenski i appear on behalf of mr chen the plaintiff in this action brought initially from the commonwealth of massachusetts superior court transferred here by diversity my biggest issue i mean i think the strongest issue here that clearly mr chen asked your honor to reverse the dismissal of this matter of the us district court return it to an active docket the best argument for that is the nature of the proceeding that we're going to note of here today that that this district court relied on who convert this to a summary judgment record even in the inadequate record that that this is the twelve b6 proceeding we're to rely on the pleadings as we all know very well council excuse me it's not a twelve b6 proceeding it's twelve b2 motion yes and in a twelve b2 motion the court is entitled to rely on a properly filed affidavit yes i'm also broke i'm sorry okay yes i've done enough of these that twelve b6 seems to come out very often but twelve b2 yes on an affidavit but to me that is the most problematic because we have not had a chance to explore the underpinnings of those facts but also you did have an opportunity to ask the district court for leave to do jurisdictional discovery before it ruled on the motion to dismiss and there was no such request made that's correct your honor that is in my view not a bar to this argument the argument that's before the court that being that being said well why why isn't it a bar well i don't think take availing yourself avail the party availing itself of of all you know it's not as like a an administrative proceeding of belling oneself of all administrative remedy issues that the the cake law is the case law the law is the law that we if we are to look at the facts that are before the record that is before this court and it was before the the district court the trial court it does not support the decision to dismiss this matter as it has been done why not i'm sorry why not oh what what evidence is there in the in the record of the requisite minimum contacts so the evidence i think is overwhelming you know we have as i've as i've argued we have you know this is a very poignant point in time because we have so much social media and we have so much you know internet activity for the first time in many many forever so these present very not believable legal arguments but well you know the difference between a passive and an interactive website the numbers of distinctions between those like as i mentioned a restaurant or what website or gym website versus an interactive website interactive websites going to touch everything especially where it's where you're talking about a medically licensed individual including the the licensure banks massachusetts banks is your argument essentially that the mere existence of an interactive website that is that can be accessed in any of the fifty states is enough to confer jurisdiction in any one of those states no you honor and i well what other context do we have here other than the mere fact that there was an interactive website well we we don't we don't have an interactive website such as westlaw you know we don't have a dat you know something that's a database where we can go online and just search and that's an interactive website we have this party reaching out to massachusetts and the world for that matter excuse me what evidence is there of reaching out or targeting other than the existence of the website itself well there's an admission in the affidavit that at the time of the pleading there were this this company had active students in massachusetts well on your theory then once there is a website which can be as interactive as this one in effect there is personal jurisdiction in every jurisdiction which the website reaches yes yes particularly in this case because you know you're talking about fees being i mean think about the implications of one you know somebody who is medically licensed and offers a medical degree you've got licensing authorities you've got regulatory authorities you've got endusers who are going to go to the website to check out the doctor that they're going to go to and to evaluate that doctor use the same website you've got retail industry where you have to go and buy a computer and you can't avail yourself with these services unless you buy a computer and buy internet service you've got massachusetts you've got servicing in case something goes down somebody has to come to your house and fix it in order to access this online system you've got email servers back and forth you've got if you're paying them you've got your bank in massachusetts that's dealing with this out of states enterprise now i'm not saying any one of these individual factors is enough to confirm minimum contacts that you would to establish jurisdiction taken together though this is more than westlaw what if someone accesses your website from california and you have some as many websites do now some interactive component is their jurisdiction to sue you in california well yeah sure when we look at i hate to bring up twitter but twitter or facebook you know these social media platforms that have jurisdiction throughout the fifty states how is this different i think this is even on a higher level so essentially you're saying if you assume that most companies and most individuals who learn to have a presence on the internet that can be accessed from anywhere in the world you seem to be pretty close to saying that any company for any transaction can be sued in any state in the united states so no then what would be the distinguishing factor once they have an interactive website that is accessed from that state by several people everything you say could be said that's the analysis of the sliding scale that is i agree with that analysis i think that this is so complex that i agree with your honor that you who has jurisdiction and who doesn't who are we going to bring to this state and who aren't we going to bring to the state and the sliding scale reaches that the sliding scale you know this is a totality of the circumstances situation this is what we need to look in and i argue to you that this is the very kind when a company is reaching out to massachusetts i don't understand what the company has gone to reach out what the company has done other than to establish the website what the company has done is not so much reach so i wouldn't suggest it's the reaching out portion well that's the phrase you just used so if i misspoke it's not the reaching out portion it's the complicity it's the once you reach out and somebody says somebody in korea somebody in you know in massachusetts says hey you know i see a website here i see that you offer degrees that will be recognized in massachusetts can i sit in my home in massachusetts and earn my degree from massachusetts the answer being yes is when jurisdiction should attach in this situation it's not the reaching out it's the acceptance the complicit well are you in effect saying that what is significant here is not so much from the establishment of the website it's not so much what happened before the individual came back and said you know i want to get going again on my degree and i now living in massachusetts are you saying that his his attempt in effect to reenroll after he had moved to massachusetts is what gives pers is what entails personal jurisdiction not what happened before that well you know what to answer your question first there are other students there there are other students that are admitted by the defendant in massachusetts and also i don't believe it's the subjective facts that relate simply to my client that matter to answer your question it is as soon as a company such as this says i know you're in massachusetts you can complete your degree in massachusetts without coming back to the state you have jurisdiction you just entered the state you've entered the commonwealth thank you counsel yes thank you your honor hi good morning you honor this may appease the court my name is bethany and minnick i'm here on behalf of the defendant i believe the united states sports academy inc touching on some of the issues that your honors have addressed here today while technology has certainly altered the landscape in terms of how the courts are required to look at jurisdiction the courts had also made it clear that jurisdiction cannot be obliterated and the states cannot simply come in and grab any after a business that has a website or an internet presence the fact that the united states sports academy has a interactive website to some degree does not confer general jurisdiction in this matter we've asked counsel on several occasions what is that the united states sports academy specifically did to draw in students or to reach into massachusetts and the facts are that they did nothing they had a website that is interactive and allows for people in all of the states to access it to gain information and while foreseeable that a student or participant might go on there and fill out an application or even enroll in the program is not sufficient to allow for this court to put general jurisdiction over the united states sports academy here in massachusetts what's at issue here is a contract claim and that contract arose of a relationship that occurred in alabama in two thousand and eight and in two thousand and ten we have a breach of contract claim the neuro presence of an internet website and massachusetts is not what gives rise to the contract claim the contract claim arises out of the enrollment file in alabama pursuant to the terms of the agreement the parties entered into at that time with respect to specific jurisdiction the test that my brother's speaks to this sliding scale that was identified in zippo while not specifically adopted by this court it certainly has an examinative length and that scale talks about the past events of it and also the more specific ends where there is further interactivity between the parties in different states and here we don't have a situation where there is a significant amount of interactivity between the parties we have a website that the plaintiff utilized while in alabama for a period of about two years and then he disappeared we didn't hear from him for a period of about six years at which time he made an isolated unilateral contact with massachusetts and if you look at the complaint there are suggestions of i think three different conversations that this individual had with the united states sports academy from massachusetts nowhere in the complaint does he identify that he said he was in massachusetts at the time that he informed them of his move to massachusetts from alabama or from some other state and the court has to look beyond the website so taking that passive scale all of the cases say that it is not just the presence of a website that could be accessed in another state but you have to look beyond that and look at purposeful availment and i suggest to you that the facts in this case demonstrate that there was no purposeful availment by the united states sports academy relative to mr chen or anyone else for that matter my brother has identified that there were two other students which we've put her in our affidavit who at the time of the filing were enrolled in a single course in massachusetts there's no evidence of these students were received any advertisements from the united states sports academy that the sports academy solicited their business certainly no evidence that the plaintiff's business was solicited or that the united states sports academy came to him and asked him to enroll in their institution the evidence is that he went to alabama he enrolled in the school he was in alabama for two years where they're located where they're incorporated where their offices are and then he took the courses all of the forty eight required credit he took in alabama and then at some point he left the jurisdiction didn't inform the united states sports academy of it didn't reenroll in some of the other cases talk about for example in the case of having to pronounce this incorrectly with td versus walden university there the individual left the state where they had originally enrolled and they then reenrolled in another state letting the institution know that they had reenrolled in that university the institution maintained contact with them knowing that they were in another state they had other students that were also enrolled in that state they targeted there students they advertise to them they had pre enrollment workshops there's sufficient evidence in that case not for general jurisdiction but the court found that there was sufficient evidence for specific jurisdiction because beyond having an interactive website there were other purposeful availment that allowed for the invocation of specific jurisdiction also in the case of peril versus grand canyon which my brother sites too they are again specific jurisdiction not because of the presence of an interactive website but because they actively recruited over a thousand students they contacted and spoke to a thousand students on a regular basis for the respect to their program studies they had had conversations directly with the plaintiff in that case about her course of study so again very different facts from the facts we have here today in our jurisdiction there was a case of chase versus jest and there there was no jurisdiction general or specific for very similar facts to what we have here today which is that the while there may have been a website and there was a website there was no advertising no solicitation business no pre enrollment screenings or fairs that they attended same facts here the united states sports academy does not come into massachusetts they don't hold school fairs or you know come in and try to post ads in schools to solicit business they don't advertise here they have no office here in massachusetts no telephone number they don't pay taxes here there's no evidence whatsoever that they solicited any business here in massachusetts purposely with respect to the email communications again those are general responses to inquiries made by the plaintiff they were unilateral the plaintiffs solicited that information from them regarding the course of study and his program which again goes back to two thousand and ten when you leave the complaint he says that he entered into this arrangement with them to change his course from a comprehensive examination to a portfolio again activity that took place in two thousand and ten in alabama not in massachusetts so for these reasons and the reasons that my brother waved and the underlying case his ability to conduct pre discovery or jurisdictional discovery relative to these facts that we've talked about here today there is no evidence of general or specific jurisdiction that would allow for this court to bring the united states sports academy into massachusetts for this litigation and for that reason i ask that you affirm the district court's decision thank you