Alves v. Goodyear Tire & Rubber Co.

683 F.Supp.3d 111

Joe ALVES, individually andon behalf of all others similarly situated, Plaintiffs, v. GOODYEAR TIRE AND RUBBER COMPANY, Defendant.

CIVIL ACTION NO. 22-11820-WGY

United States District Court, D. Massachusetts

Signed July 24, 2023

Brian C. Gudmundson, Michael J. Laird, Rachel Kristine Tack, Zimmerman Reed, LLP, Minneapolis, MN, Carey Alexander, Pro Hac Vice, Ethan Samuel Binder, Pro Hac Vice, Joseph P. Guglielmo, Scott & Scott, Attorneys at Law, LLP, New York, NY, for Plaintiffs.

Mark Melodia, Sophie Kletzien, Holland & Knight LLP, New York, NY, Michael T. Maroney, Holland & Knight, LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge¹

I. INTRODUCTION

The Plaintiff, Joe Alves ("Alves") brings this putative class action against the Defendant Goodyear Tire and Rubber Company ("Goodyear"), alleging that Goodyear's use of Session Replay Code technology on its website www.goodyear.com ("the website") violates Massachusetts privacy laws. Kris Olson, Massachusetts seeing wave of 'session replay' suits, Mass Lawyers Weekly July 13, 2023 at 1. See e.g. Alves v. BJ's Wholesale Club, Inc., Suffolk Superior Ct., 22-2509-BLSI, 2023 WL 4456956 (Mass. Super. Ct. June 21, 2023) (Krupp, J.). According to Alves, Goodyear procures Session Replay Code technology through third parties unlawfully to record users' interactions with its website.

Goodyear moves to dismiss for lack of personal jurisdiction, arguing that Alves has not shown that (1) his claims "arise out of" or "relate to" Massachusetts and (2) Goodyear "purposefully availed" itself of the privilege of conducting activities in the Commonwealth. In the alternative, Alves asks this Court to transfer the action to the Northern District of Ohio pursuant to the forum selection clause contained in the website's Terms of Use.

After careful consideration, this Court grants Goodyear's motion to dismiss for lack of personal jurisdiction. Alves grounds his personal jurisdiction case on the notion that the tortious injury occurred and was felt in-State. That focus, however, is misplaced. It is well established that "[t]he proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way." A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 60 (1st Cir. 2016) (quoting Walden v. Fiore, 571 U.S. 277, 290, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014)). Goodyear's intentional activities that gave rise to the present dispute -- including the operation of www.goodyear.com, the licensing and procurement of Session Replay Code technology, and the gathering and usage of user data -- undisputedly all took place outside Massachusetts. Indeed, the only intentional contact between Goodyear and Massachusetts that is relevant to the claims at issue is the accessibility of www.goodyear.com in the Bay State. Yet as matter of law that is not enough to subject Goodyear to this Court's personal jurisdiction. Plixer Int'l, Inc. v. Scrutinizer GmbH, 905 F.3d 1, 8 (1st Cir. 2018) ("One baseline principle has emerged: a website operator does not necessarily purposefully avail itself of the benefits and protections of every state in which its website is accessible."). Therefore, dismissal is warranted.

II. PROCEDURAL HISTORY

On October 24, 2022, Alves filed a putative class action complaint ("complaint") pursuant to Federal Rule of Civil Procedure 23 against Goodyear. Class Action Compl. ("Compl."), ECF No. 1, ¶ 55. Alves brought the action individually and on behalf of a class comprising of "[a]ll natural persons in Massachusetts whose Website Communications were captured in Massachusetts through the use of Session Replay Code embedded in www.goodyear.com." Compl. ¶ 55. The complaint alleges one count for violation of the Massachusetts General Laws chapter 272, section 99 ("Massachusetts Wiretap Statute"), Compl. ¶¶ 64-83, and one count for violation of Massachusetts General Laws chapter 214, section 1(B) ("Invasion of Privacy"). Compl. ¶¶ 84-97.

On December 16, 2022, Goodyear filed a motion to dismiss the complaint for lack of personal jurisdiction or, in the alternative, transfer venue. Def.'s Mot. Dismiss the Compl. or, in the Alternative, Transfer Venue ("Def.'s Mot."), ECF No. 32. The parties have fully briefed the issue. Mem. Law Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 33; Pl.'s Opp'n to Def.'s Mot. ("Pl.'s Opp'n"), ECF No. 38; Reply in Supp. of Def.'s Mot. ("Def.'s Reply"), ECF No. 39.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2)(A) because the "aggregate claims of all members of the proposed class are in excess of $5,000,000.00, exclusive of interest and costs, there are 100 or more members of the proposed class, and at least one member of the proposed class, including [Alves], is a citizen of a state different than [Goodyear]." Compl. ¶ 7.

Alves devotes two paragraphs of the complaint to his assertion of personal jurisdiction. Specifically, Alves maintains that:

[t]his Court has personal jurisdiction over Defendant because a substantial part of the events and conduct giving rise to Plaintiff's claims occurred in Massachusetts. The privacy violations complained of herein resulted from Defendant's purposeful and tortious acts directed towards citizens of Massachusetts while they were located within Massachusetts. At all relevant times, Defendant knew that its practices would directly result in collection of information from Massachusetts citizens while those citizens browsed www.goodyear.com. Defendant chose to avail itself of the business opportunities of marketing and selling its goods and services in Massachusetts and collecting real-time data from website visit sessions initiated by citizens of Massachusetts while located in Massachusetts, and the claims alleged herein arise from those activities. Goodyear also knows that many users visit and interact with Goodyear's websites while they are physically present in Massachusetts. Both desktop and mobile versions of Goodyear's website allow a user to search for nearby stores by providing the user's "current location," as furnished by the location-determining tools of the device the user is using or by the user's IP address (i.e., without requiring the user to manually input an address). Users' employment of automatic location services in this way means that Goodyear is continuously made aware that its website is being visited by people located in Massachusetts, and that such website visitors are being wiretapped in violation of Massachusetts statutory and common law.

Compl. ¶¶ 8-9.

III. FACTS ALLEGED

In a nutshell, Alves submits that Goodyear's use of Session Replay Code technology violates Massachusetts privacy laws. Pl.'s Opp'n 1. Specifically, "Goodyear procures and directs third-party vendors [("Session Replay Providers")], such as Microsoft Corporation ("Microsoft"), to embed snippets of JavaScript computer code ("Session Replay Code") on Goodyear's website." Compl. ¶ 1. When a user visits www.goodyear.com, the Session Replay Code causes "event data" -- meaning the data pertaining to the user's use of the website, including their mouse movements, clicks, and keystrokes -- to be transmitted to a "designated third-party server," which is typically controlled by the Session Replay Providers. Compl. 55 23-24, 47-48. Using the data gathered, "[t]he Session Replay Providers create a video replay of the user's behavior on the website and provide[ ] it to Goodyear for analysis." Compl. ¶ 2, 46. Alves alleges this happened unbeknownst to him while he visited Goodyear's website in late 2021 and early 2022 to shop for tires. Compl. 55 43-46.

Moreover, according to Alves, Goodyear is aware that Session Replay Code technology collects data from Massachusetts residents. Compl. 55 8-9. Indeed, "[b]oth desktop and mobile versions of Goodyear's website allow Plaintiff and other users to search for nearby stores by providing [their] 'current location,' as furnished by the location-determining tools of the device the user is using or by the user's IP address." Id.

As to the parties' domicile, Alves is a Massachusetts resident, Compl. ¶ 5, while Goodyear is an Ohio corporation with a principal place of business in Ohio. Id. ¶ 6; Decl. of Johnny McIntosh ("McIntosh Decl."), ECF 34, ¶ 4. Goodyear's marketing team -- which operates Goodyear's website and receives and utilizes session replay recordings -- is based in Ohio. McIntosh Decl. ¶ 6. www.goodyear.com is accessible anywhere in the United States and the world. Def.'s Reply 1; McIntosh Decl. ¶ 5. The only Session Replay Provider identified in the complaint is Microsoft, a Washington corporation that utilizes Session Replay Code technology licensed outside of Massachusetts. Def.'s Mem. 7, 9.

IV. ANALYSIS

Alves asks this Court to assert specific personal jurisdiction over Goodyear, a corporation that is concededly not "at home" in Massachusetts. Compl. ¶¶ 8-9; Pl.'s Opp'n 1. Goodyear moves to dismiss, arguing that Alves has not shown that (1) his claims "arise out of" or "relate to" Massachusetts, and (2) Goodyear "purposefully availed" itself of the privilege of conducting activities in the Bay State. Def.'s Mem. 1.

A "plaintiff bears the burden of showing that the Court has authority to exercise jurisdiction over defendants." Heng Ren Invs. LP v. Sinovac Biotech Ltd., 542 F. Supp. 3d 59, 64 (D. Mass. 2021) (Gorton, J.), citing Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015). To meet that burden, Alves must show that exercising personal jurisdiction over Goodyear comports with the Due Process Clause of the Fourteenth Amendment. Motus, LLC v. CarData Consultants Inc., 520 F. Supp. 3d 87, 90 (D. Mass. 2021) (Gorton, J.). Specifically, the First Circuit employs a three-pronged test to determine whether the exercise of specific jurisdiction is constitutional:

(1) whether the claim directly arises out of, or relates to, the

...