Targetsmart Holdings, LLC v. Ghp Advisors, LLC

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TARGETSMART HOLDINGS, LLC, )
and TARGETSMART COMMUNICATIONS, )
LLC, )
)
Plaintiffs, ) CIVIL ACTION NO.
) 18-11365-DPW
v. )
)
GHP ADVISORS, LLC, d/b/a GOOD )
HARBOR PARTNERS, and CATALIST LLC, )
)
Defendants. )

MEMORANDUM AND ORDER
February 6, 2019

This case arises out of an agreement between the

Plaintiffs, TargetSmart Holdings, LLC and TargetSmart

Communications, LLC (together, “TargetSmart”), and the

Defendant, GHP Advisors, LLC, doing business as Good Harbor

Partners (“GHP”), to explore opportunities for TargetSmart to

partner or merge with other companies engaged in similar

business. The arrangement with GHP, TargetSmart alleges, was a

scheme to induce TargetSmart to disclose confidential and

proprietary information to benefit its competitor, the

Defendant, Catalist, LLC (“Catalist”).

TargetSmart brought this action against GHP and Catalist

under both federal and state law for misappropriation of trade

secrets, unjust enrichment, and breach of contract.
 Remaining before me following the filing of an amended

complaint is the motion [Dkt. No. 38] by Catalist to dismiss the

complaint for lack of personal jurisdiction, or in the

alternative, to transfer the case to the District of Columbia,

and to dismiss for failure to state a claim.

I. BACKGROUND

A. The Parties.

TargetSmart Holdings, LLC is a technology and consulting

company that specializes in providing campaigns, candidates, and

organizations with data and software to expand their audience

base. [Dkt. No. 36 at ¶ 11]. It is a Delaware Limited

Liability Company with its principle place of business in

Washington, DC. [Id. at ¶ 1]. TargetSmart Communications, LLC,

is a wholly owned subsidiary of TargetSmart Holdings and is also

a Delaware Limited Liability Company with its headquarters in

Washington, DC. [Id. at ¶ 2].

GHP is a Massachusetts Limited Liability Company

headquartered in Boston. [Id. at ¶ 3].

Catalist, LLC is a Delaware Limited Liability Company

headquartered in Washington, DC. [Id. at ¶ 4]. Like

TargetSmart, Catalist specializes in helping Democratic and

progressive candidates reach wider audiences. [See id. at 1,

Introduction Statement, ¶¶ 18, 35].

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 This case can be said to have been brought pursuant to this

court’s federal question jurisdiction, 28 U.S.C. § 1331, because

TargetSmart’s claim of violation of the Federal Defend Trade

Secrets Act appears to predominate. [Dkt. No. 36 at ¶ 82].

Since the state law claims arise out of the same set of factual

circumstances, I may exercise supplemental jurisdiction to hear

those claims, even in the absence of complete diversity of the

parties. See generally 28 U.S.C. § 1367.

B. Factual Background

As reflected in the operative pleading, the Second Amended

Complaint, the facts are as follows.

1. The Agreement Between GHP and Catalist

On November 3, 2017, GHP entered into an agreement with

Catalist to advise the company “in connection with the potential

acquisition of a specified, pre-identified target company.”

[Dkt. No. 36 at ¶ 13; Dkt. No. 39-1, Exhibit 1, GHP Engagement

Letter (hereinafter “Letter Agreement”), at 2]. The “target

company” was TargetSmart, [Dkt. No. 36 at ¶ 14], and the

agreement provided that GHP would conduct due diligence of the

target company as “mutually determined to be appropriate.”

[Dkt. No. 39-1, Letter Agreement at 2, § 2(a)]. It also

required GHP to keep Catalist “informed of the activities

undertaken by GHP . . . and all performances of Services

required of GHP” under the terms of the Agreement. [Id. at 4,

3

§ 6].

The Letter Agreement stated that GHP was not an employee or

agent of Catalist, and instead was working as an “independent

contractor.” [Id. at 4, § 6]. TargetSmart alleges that

Catalist entered into the agreement with GHP in order to acquire

its confidential business information, [Dkt. No. 36 at ¶ 18],

and that it directed, ratified, or otherwise had a right to

control GHP’s interactions with TargetSmart. [Id. at ¶ 20].

2. GHP Approaches TargetSmart

In December 2017, GHP approached TargetSmart about a

potential “business opportunity.” [Id. at ¶¶ 21-24]. During

the initial call on December 13, 2017, GHP represented to

TargetSmart that it had been retained by individual political

donors who wanted to combine TargetSmart and other companies to

improve and streamline the data infrastructure available to

Democratic and progressive candidates. [Id. at ¶ 24]. As a

result of the conversation, TargetSmart and GHP entered into a

Mutual Nondisclosure Agreement (“Mutual NDA”) to allow the

parties to exchange non-public, confidential, and proprietary

information. [Id. at ¶¶ 27-28; see also Dkt. No. 39-2, Exhibit

2, Form Nondisclosure Agreement from TargetSmart]. The Mutual

NDA prevented both parties from using or disclosing confidential

information without the other’s prior written consent. [Id. at

¶¶ 29-30]. In its amended motion to dismiss, Catalist provided

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this court with a copy of a form Nondisclosure agreement listing

TargetSmart as one of the parties. [Dkt. No. 39-2, Exhibit 2].

However, I observe this copy of the NDA does not include the

name or signature of the other party to the agreement.

At GHP’s request, and in anticipation of a meeting on

December 21, 2017 in Boston, TargetSmart sent GHP a memorandum

which included confidential and proprietary information about

its data, products, services, platforms, and software, as well

as information about its finances and possible growth

opportunities. [Dkt. No. 36 at ¶¶ 31-32]. The memorandum

stated that the information was protected by the Mutual NDA.

[Id. at ¶ 32].

At the December 21st meeting, GHP again told TargetSmart

that it represented wealthy donors, and indicated that its

clients were interested in combining TargetSmart and Catalist,

its competitor. [Id. at ¶¶ 33-35]. TargetSmart informed GHP

that it would only consider a merger if the funders acquired

both companies, if TargetSmart remained in control, and if the

Catalist leadership team was not part of the management of the

combined entity. [Id. at ¶ 35]. GHP then indicated that it

would like to proceed with the necessary due diligence for such

a transaction and sought more information from TargetSmart about

its book of business, its relationships with third parties, its

vendor agreements, and its financial information. [Id. at 36].

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 On January 3, 2018, TargetSmart told GHP that it was

uncomfortable with the request and asked for GHP to provide a

rough approximation of the proposed purchase price for its

“political business” in exchange for access to TargetSmart’s

financials. [Id. at ¶¶ 37-39]. For its part, TargetSmart

ultimately provided further information to GHP, including

information about its financials. [Id. at ¶ 40].

3. Information Is Acquired by Third Parties

On February 8, 2018, TargetSmart learned that a writer with

ties to the CEO of Catalist was contacting TargetSmart’s

employees and asking for information about its relationships

with particular clients. [Dkt. No. 36 at ¶ 41]. TargetSmart

contacted GHP about the inquiries, and GHP represented that the

inquires were not part of its due diligence and that “they would

be ‘shocked’ if Catalist was behind the writer’s inquiries.”

[Id. at ¶ 44]. TargetSmart also contacted a member of the Board

of Directors for Catalist, who promised that the inquiries would

stop. [Id. at ¶ 45].

On February 21, 2018, TargetSmart discovered that a third-

party source had told its client that “Catalist was in the

process of buying TargetSmart.” [Id. at ¶ 46]. It reported the

leak to GHP, which reassured TargetSmart that it took the

confidentiality of its clients very seriously. [Id. at ¶ 47].

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 4. The Transaction Falls Through

On March 14, 2018, TargetSmart met with GHP and Catalist

in the District of Columbia to discuss the proposed transaction.

[Dkt. No. 36 at ¶¶ 49-51]. During the meeting, Catalist

indicated that it was not under an NDA and offered to leave the

room while TargetSmart discussed the NDA with GHP. [Id. at

¶ 51]. At that meeting, GHP told TargetSmart that it had not

raised enough money to fund the acquisition, but also indicated

that GHP had shared information about TargetSmart with at least

two representatives of Catalist and that one of Catalist’s

funders had broken the Mutual NDA. [Id. at ¶¶ 52-56].

On April 10, 2018, TargetSmart, taking the position that

GHP had violated the Mutual NDA, sought several assurances from

GHP. [Id. at ¶ 59]. GHP responded on April 13, denying that it

had breached the NDA but admitting that it had shared

information with two individuals at Catalist. [Id. at ¶ 60].

GHP also attached a letter that purported to show that Catalist

was under an NDA with TargetSmart. [Id. at ¶ 61].

TargetSmart alleges that GHP altered the Mutual NDA by

including signatures from individuals at Catalist, though

Catalist itself never signed or received copies of the NDA.

[Id. at ¶ 61]. TargetSmart further alleges ”Catalist knew or

should have known that TargetSmart did not request that Catalist

or any of its representatives sign an NDA.” [Dkt. No. 28; Dkt.

7

No. 36 at ¶ 61].

On April 13, 2018, TargetSmart contacted Catalist to assert

that Catalist was using TargetSmart’s proprietary information

without consent. [Id. at ¶ 65]. Catalist responded on April

19, 2018, certifying that it received proprietary information

from GHP, that GHP never shared or distributed the information

to other investors, and that it had destroyed the information.

[Id. at ¶ 67-71]. It did not make the same representations

about its CEO. [Id. at ¶ 68]. Despite this denial, TargetSmart

alleges that Catalist continues to use TargetSmart’s proprietary

information to take clients away from it. [Id. at ¶¶ 79-81].

C. Procedural Background

TargetSmart filed suit against both GHP and Catalist on

June 28, 2018. [Dkt. No. 1]. In its original complaint,

TargetSmart alleged that the agreement between GHP and Catalist,

and their subsequent negotiations with TargetSmart, violated the

Federal Defend Trade Secrets Act, 18 U.S.C. § 1836. [Dkt. No. 1

at ¶ 67]. It also alleged that the Defendants had

misappropriated trade secrets, violating both the Massachusetts

Trade Secrets Act, the Massachusetts Unfair and Deceptive

Practices Act, and Massachusetts common law, [Id. at ¶¶ 77-91,

128-133], and were liable for damages for unjust enrichment

under Massachusetts common law. [Id. at ¶¶ 115-121].

TargetSmart raised claims for breach of contract, breach of the

8

covenant of good faith and fair dealing, and fraudulent

misrepresentation by GHP, [Id. at ¶¶ 92-107, 122-27], and for

tortious interference with contract by Catalist. [Id. at

¶¶ 108-114].

On September 11, 2018, GHP filed an Answer, [Dkt. No. 12],

and Catalist filed its motion to dismiss for lack of

jurisdiction for failure to state a claim and on forum non

conveniens grounds. [Dkt. No. 15]. The same day, Catalist

filed a motion asking this court to admit its counsel, Attorneys

Adam S. Caldwell and Patrick J. Curran of Davis Wright Tremaine

LLP, pro hac vice. [Dkt. No. 14]. On September 17, 2018,

TargetSmart filed an opposition to the admission of Attorneys

Caldwell and Curran pro hac vice on the grounds that the law

firm had a conflict of interest and could not represent Catalist

consistent with its obligations under the Massachusetts Rules of

Professional Conduct. [Dkt. No. 19]. After a hearing, I

rejected TargetSmart’s opposition to the proposed Catalist

counsel, and admitted Attorneys Caldwell and Curran pro hac vice

on December 10, 2018. [Dkt. No. 34].

Meanwhile, on October 2, 2018, TargetSmart filed its First

Amended Complaint. [Dkt. No. 22]. Though the factual

allegations in the two complaints were substantially identical,

in the First Amended Complaint, TargetSmart dropped its claim

for tortious interference of contract against Catalist and

9

instead added a claim for defamation. [Dkt. No. 22 at

¶¶ 142-147].

On October 16, 2018, GHP again submitted an Answer to the

First Amended Complaint, [Dkt. No. 26], and Catalist again

submitted a motion to dismiss for lack of jurisdiction and

failure to state a claim and a memorandum in support thereof.

[Dkt. No. 24; Dkt. No. 25]. On October 30, 2018, TargetSmart

filed its opposition to the motion to dismiss. [Dkt. No. 29].

On October 25, 2018, a few days prior to filing its

opposition, TargetSmart filed another motion to amend its

complaint, in this instance to correct what was characterized as

a scrivener’s error. [Dkt. No. 28]. The motion indicated that

Paragraph 61 of the First Amended Complaint mistakenly referred

to GHP, instead of Catalist, and sought to correct that one

word. [Id.]. Catalist filed an opposition to this motion to

amend on November 6, 2018. [Dkt. No. 31]. I granted the motion

on December 10, 2018, [Dkt. No. 34], and TargetSmart filed the

Second Amended Complaint on December 13, 2018. [Dkt. No. 36].

Catalist thereafter again responded with a motion to

dismiss or, in the alternative, to transfer, [Dkt. No. 38] on

December 20, 2018. The memorandum in support of Catalist’s

suggested transfer of the case to the District of Columbia, but

otherwise presented the same arguments regarding personal

jurisdiction and failure to state a claim as the motion filed in

10

October 2018. [See generally Dkt. No. 25; Dkt. No. 39]. On

January 4, 2019, GHP filed its opposition to Catalist’s motion

to transfer, but took no position with regard to personal

jurisdiction or failure to state a claim. [Dkt. No. 40].

TargetSmart submitted its opposition to the motion to dismiss on

January 11, 2019. [Dkt. No. 41].

On January 23, 2019, I held a hearing on the present

motion, during which GHP for the first time indicated that it

would object to personal jurisdiction in the District of

Columbia if the case were to be transferred there in its

entirety. It had not raised this objection or argued that it

would not be subject to the jurisdiction of the District of

Columbia in its original opposition to the motion to transfer.

[Dkt. No. 40]. TargetSmart indicated during the hearing that it

would not oppose a transfer of the case to the District of

Columbia if I found that personal jurisdiction over Catalist was

unavailable in the District of Massachusetts.

On January 30, 2019, GHP filed a supplemental opposition,

with leave of the court, to Catalist’s motion to dismiss. This

opposition indicated only that GHP “did not waive its defenses

under F.R.C.P. 12(b)(1), (2) and (6),” but offered nothing by

way of factual assertion or legal argument about personal

jurisdiction in the District of Columbia. [Dkt. No. 46 at 2].

On February 4, 2019, Catalist filed a letter with the court

11

indicating that its position had been adequately briefed in its

original memorandum, and that it had nothing further to add.

[Dkt. No. 48]. That same day, TargetSmart also filed a response

to GHP’s Supplemental Opposition, arguing that its case against

GHP should not be transferred to the District of Columbia

because such a transfer would further delay TargetSmart’s

ability to adjudicate the merits of its underlying claim. [Dkt.

No. 49 at 2]. Instead, TargetSmart argued that some kind of

coordination between the District of Massachusetts and the

District of Columbia should be fashioned for separate cases

against GHP (in Massachusetts) and Catalist (in the District of

Columbia).

II. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

A. Specific Jurisdiction Over Catalist

Catalist seeks to dismiss TargetSmart’s complaint for lack

of personal jurisdiction over it in the District of

Massachusetts. [Dkt. No. 38]. Because Catalist is incorporated

in Delaware and has its principal place of business in the

District of Columbia, its contacts with Massachusetts are not

“so continuous and systematic as to render [it] essentially at

home in [Massachusetts],” and allow this court to exercise

general jurisdiction over it. Goodyear Dunlop Tires Operations

S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011).

Consequently, I may only exercise personal jurisdiction

12

over Catalist if its contacts with Massachusetts gave rise to

the present claims and are sufficient to say that Catalist was

“present” in the state such that “the maintained of [this] suit

does not offend traditional notions of fair play and substantial

justice.” International Shoe Co. v. Washington Office of

Unemployment Compensation, 326 U.S. 310, 316 (1945). In making

this determination, “the plaintiff has the burden of showing

that jurisdiction exists.” Ealing Corp. v. Harrods Ltd., 790

F.2d 978, 979 (1st Cir. 1986). In the absence of an evidentiary

hearing, TargetSmart must “make[ ] a prima facie showing of

jurisdiction supported by specific facts alleged in the

pleadings, affidavits, and exhibits.” Id.

To meet this burden, TargetSmart must allege specific facts

to “satisfy two conditions: first, that the forum in which the

federal district court sits has a long-arm statute that purports

to grant jurisdiction over the defendant; and second, that the

exercise of jurisdiction pursuant to that statute comports with

the structure of the Constitution.” Foster-Miller, Inc. v.

Babcock & Wilcox Canada, 46 F.3d 138, 144 (1st Cir. 1995); see

also Knox v. MetalForming, Inc., --F.3d--, 2019 WL 364021 at *3

(1st Cir. Jan. 30, 2019) (“[T]he plaintiffs’ burden is to

proffer evidence sufficient to support findings of all facts

essential to personal jurisdiction without relying on

unsupported allegations.”) (internal quotations omitted).

13

 I will address each of these two requirements in turn.

1. The Massachusetts Long-Arm Statute

First, I consider whether Massachusetts state law would

permit the exercise of jurisdiction over Catalist. The

Massachusetts long-arm statute allows a court of the

Commonwealth to

exercise personal jurisdiction over a person, who acts
directly or by an agent, as to a cause of action in law or
equity arising from the person’s: (a) transacting any
business in this commonwealth . . . (c) causing tortious
injury by act or omission in this commonwealth; [or]
(d) causing tortious injury in this commonwealth by act or
omission outside this commonwealth if he regularly does or
solicits business . . . in this commonwealth.
M.G.L. c. 223A § 3.

Historically, both the First Circuit and the Supreme

Judicial Court have interpreted “the Commonwealth’s long-arm

statute as coextensive with the outer limits of the

Constitution.” A Corp. v. All American Plumbing, Inc., 812 F.3d

54, 59 (1st Cir. 2016); see also Good Hope Industries v. Ryder

Scott Co., 389 N.E.2d 76, 79 (Mass. 1979). However, recently,

both courts have moved away from this interpretation and instead

have suggested that “the Massachusetts statute does not purport

to extend jurisdiction as far as due process would allow.”

SCVNGR, Inc. v. Punchh, Inc., 85 N.E.3d 50, 55 (Mass. 2017); see

also A. Corp, 812 F.3d at 59.

Consequently, the exercise of jurisdiction is only proper

if it is consistent with one of the “enumerated eight specific
14

grounds on which a nonresident defendant may be subjected to

personal jurisdiction by a court of the Commonwealth.” SCVNGR,

Inc., 85 N.E.2d at 55. Under the statute, there are two

possible avenues through which this court may exercise

jurisdiction over Catalist. First, since GHP’s transactions

with TargetSmart took place, at least in part, in the

Commonwealth and gave rise to this cause of action, I may

exercise jurisdiction over Catalist if GHP is an agent of

Catalist under Massachusetts law. See M.G.L. c. 223A § 3(a).

Second, I may exercise jurisdiction if Catalist’s transactions

with TargetSmart fall within the scope of the “transacting any

business” prong of the long-arm statute. M.G.L. c. 223A § 3.

a. GHP as an agent of Catalist

As a preliminary matter, GHP has not objected to the

court’s exercise of personal jurisdiction, beyond a blanket

denial to TargetSmart’s assertion of jurisdiction. [Dkt. No. 26

at ¶ 6]. Because it is headquartered in Boston, GHP certainly

transacts business within the Commonwealth, [Dkt. No. 36 at

¶ 3], and at least some part of TargetSmart’s claims arise out

of its transactions and meetings with GHP in the Commonwealth.

[See e.g., id. at ¶¶ 31-40]. As a result, jurisdiction over

Catalist under the long-arm statute is proper if GHP was acting

15

as Catalist’s agent when transacting business with TargetSmart.1

Under Massachusetts law, “[a]n agency relationship is

created when there is mutual consent, express or implied, that

the agent is to act on behalf and for the benefit of the

principal, and subject to the principal’s control.” Theos &

Sons, Inc. v. Mack Trucks, Inc., 729 N.E.2d 1113, 1119 (Mass.

2000). “The essence of the principal-agent relationship is the

right of power or control by the alleged principal over the

conduct of the alleged agent.” Commonwealth Aluminum Corp. v.

Baldwin Corp., 980 F. Supp. 598, 611 (D. Mass. 1997).

Though an agency relationship may be formed by express

consent of the parties, evidenced by a writing, it need not be.

It may also be implied from “conduct by the principal which

causes a third person reasonably to believe that a particular

person has authority to enter into negotiations or to make

representations as his agent.” DeVaux v. American Home

Assurance Co., 444 N.E.2d 355, 358 (Mass. 1983)(internal

quotations and citations omitted); see also Hudson v.

Massachusetts Property Insurance Underwriting Ass’n, 436 N.E.2d

1 The Letter Agreement between GHP and Catalist forms the basis
of the relationship between these two parties. [Dkt. No. 39-1,
Exhibit 1, GHP Engagement Letter (hereinafter “Letter
Agreement”)]. This agreement specifies that it “shall be
governed by, and construed and enforced in accordance with, the
laws of the Commonwealth of Massachusetts.” [Id. at 6]. The
question of whether GHP is an agent of Catalist will therefore
also be governed by Massachusetts law.
16

155, 159 (Mass. 1982). Importantly, an implied agency

relationship can only be formed because of “some direct

intervention by the principal.” Commonwealth Aluminum Corp.,

980 F. Supp. at 611. It is not enough for the agent to make

representations to a third party in the absence of the

principal.

Here, there is no indication that the Letter Agreement

between GHP and Catalyst that formed the basis of their

contractual relationship empowered GHP to act as Catalyst’s

agent. [See Dkt. No. 39-1, Exhibit 1, GHP Engagement Letter

(hereinafter “Letter Agreement”)]. Though the agreement stated

that GHP would provide Catalist “with financial advice and

assistance” and gave Catalist the authority to determine the

objectives and strategies used to approach TargetSmart, [Id. at

p. 2, § 2], the agreement specifically characterized GHP as an

“independent contractor” and not an “employee or agent” of

Catalist. [Id. at p. 4, § 6]. It also does not subject GHP to

control by Catalist, [See id. at p. 2, § 2 (“In connection with

this engagement, GHP will provide [Catalist] with financial

advice and assistance . . . including, as mutually determined to

be appropriate . . .” (emphasis added))], even if GHP is

obligated to “keep [Catalist] informed of the activities

undertaken by GHP” in connection with the Letter Agreement.

[Id. at p. 4, § 6]. The Letter Agreement, therefore, does not

17

evidence an intent by either Catalist or GHP to form an agency

relationship.

There is also no allegation in the complaint that Catalist

made any representations to TargetSmart that GHP was acting as

its agent. Indeed, though TargetSmart knew that GHP was acting

to further the interests of another party, [Dkt. No. 36 at

¶ 24], it did not discover that GHP was, in fact, working with

Catalist until March, 2018, when the transaction fell through.

[Id. at ¶¶ 52-53]. Thus, there is nothing in the complaint to

indicate Catalist took any action to cause TargetSmart to

believe that GHP was acting on its behalf. Consequently, I

cannot imply an agency relationship between GHP and Catalist,

and Catalist is not otherwise “estopped from denying the agency

is authorized.” Hudson, 436 N.E.2d at 159.

Since the record before me does not support the proposition

GHP is an agent of Catalist under Massachusetts law, GHP’s

contacts with Massachusetts cannot form the basis for the

exercise of jurisdiction as to Catalist under the Massachusetts

long-arm statute.

b. “Transacting any business in this Commonwealth”

Catalist may alternatively be held to have submitted to

jurisdiction in this Court under the Long Arm Statute if the

cause of action arose from its “transacting business in this

commonwealth.” M.G.L. c. 223A § 3(a). “Both federal and state

18

courts have regularly construed the ‘transacting any business’

language of the statute in a generous manner.” United

Electrical, Radio, and Machine Workers of America v. 163

Pleasant Street Corp., 960 F.2d 1080, 1087 (1st Cir. 1992). The

relevant inquiry is not whether the defendant has a physical

presence in Massachusetts, but whether “the defendant attempted

to participate in the commonwealth’s economic life.” Id.; see

also Diamond Group, Inc. v. Selective Distribution Int’l Inc.,

998 N.E.2d 1018, 1022 (Mass. App. Ct. 2013) (“The section uses

the word ‘any’ before the word ‘business.’ We interpret that

term to be expansive, or to mean that the volume of business

need not be substantial but merely definite and perceptible.”).

Even mailing letters to the Commonwealth to solicit business may

be sufficient to satisfy this threshold standard. Id. (citing

Hahn v. Vermont Law School, 698 F.2d 48 (1st Cir. 1983); Nova

Biomedical Corp. v. Moller, 629 F.2d 190 (1st Cir. 1980)).

Here, at least a part of TargetSmart’s claims against

Catalist were based on, and arose as a result of, Catalist’s

relationship with GHP, embodied in the Letter Agreement. [See

generally, Dkt. No. 36 at ¶¶ 82-122; Dkt. No. 39-1, Letter

Agreement]. Since the Letter Agreement is governed by the laws

of Massachusetts, [Dkt. No. 39-1, Letter Agreement at p. 6,

§ 15] and was at least partly negotiated and signed in

Massachusetts, it evidences Catalist’s intent to “participate in

19

the commonwealth’s economic life,” United Electrical, 960 F.2d

1087, and is sufficient to constitute business transactions in

the Commonwealth within the scope of the long-arm statute. See

Carlson Corp. v. University of Vermont, 402 N.E.2d 483, 485

(Mass. 1980).

Consequently, the Massachusetts long-arm statute permits

this Court’s exercise of personal jurisdiction over Catalist.

2. Constitutional Limits on Personal Jurisdiction

Though necessary, compliance with the long-arm statute is

not sufficient in itself to render personal jurisdiction proper

in this court. TargetSmart must still show that “the exercise

of jurisdiction pursuant to that statute comports with the

structure of the Constitution.” Foster-Miller, Inc., 46 F.3d at

144. In other words, it must show that Catalist has sufficient

minimum contacts with the state to allow for the exercise of

personal jurisdiction consistent with due process.

International Shoe, 326 U.S. at 316. TargetSmart has two

avenues through which to satisfy this constitutional standard.

First, it may show that GHP has sufficient contacts with the

forum state, and that GHP’s contacts may be imputed to Catalist

by virtue of the contractual relationship between the parties.

Alternatively, it may show that Catalist itself independently

satisfies the minimum contacts test.

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 a. Imputing GHP’s Contacts

The First Circuit has consistently recognized that a

plaintiff “may rely in whole or in part on actions imputed to

[the defendant] through its agents.” Jet Wine & Spirits, Inc v.

Bacardi & Co., Ltd., 298 F.3d 1, 7 (1st Cir. 2002); see also

Weinberger v. Grand Circle Travel, LLC, 891 F. Supp. 2d 228, 240

(D. Mass. 2012) (“For purposes of personal jurisdiction, the

actions of an agent may be attributed to the principal.”).

Indeed, the First Circuit has indicated that it is generally

unconcerned with “[t]he exact type of agency relationship used

to impute contacts,” or with “technical differences between the

states’ different rules of agency.” Jet Wine, 298 F.3d at 7-8.

Instead, the touchstone has been the question of control:

the First Circuit has primarily been concerned with whether the

relationship was “sufficient” to attribute the contacts of the

agent to the principal “for the purpose of reaching the

[principal] under the Massachusetts long-arm statute as cabined

by the Due Process Clause of the Fourteenth Amendment.” Daynard

v. Ness, Motley, Loadholt, Richardson & Poole, PA, 290 F.3d 42,

53 (1st Cir. 2002). “If the plaintiff cannot show that the

association [or agency relationship] substantially influenced

the decisionmaking leading to the [defendant’s] in-forum

activities, then there can be no attribution.” Donatelli v.

National Hockey League, 893 F.2d 459, 469 (1st Cir. 1990).

21

 Courts in this circuit have been willing to impute contacts

from one defendant to the other when there was a formal, written

agreement between the parties that, at most, “[fell] slightly

outside of the confines of a partnership, joint venture, or

other agency relationship,” but was similar enough “under the

Due Process Clause to permit the exercise of jurisdiction.”

Weinberg, 891 F. Supp. 2d at 241-44 (declining to impute

contacts to a foreign defendant from a domestic one, which

served as a travel agent and sold tickets on behalf of the

foreign defendant on the basis that there was not a sufficiently

close relationship for imputation to be consistent with Due

Process); see also Daynard, 290 F.3d at 53 (allowing contacts to

be imputed because the plaintiff understood the two defendants

to be involved in a joint venture, and because the defendants

consistently held themselves out as joint venturers);

Donatelli¸893 F.2d at 469 (allowing contacts to be imputed to

the nonresident defendant, an unincorporated association, from

the resident defendant, a member of the association, if the

plaintiff could show that the association had a substantial

influence on its member’s decisionmaking); Jet Wine, 298 F.3d at

8 (allowing contacts to be imputed because the non-resident

defendant assumed the contractual obligations of the resident

defendant, including all liabilities arising out of a

transferred business at issue in this case).

22

 In the absence of a formal agreement establishing an agency

relationship between Catalist and GHP or some other contractual

agreement establishing a similar formal association between the

two, I conclude I cannot impute GHP’s contacts with

Massachusetts to Catalist. A review of the Letter Agreement

does not demonstrate that the two defendants contemplated

Catalist exercising the kind of formal control or influence that

would be needed to render their relationship akin to a joint

venture, partnership, or other agency relationship. See supra;

[Dkt. No. 39-1, Letter Agreement].

TargetSmart cannot, therefore, rely on GHP’s contacts with

Massachusetts to show that Massachusetts has personal

jurisdiction over Catalist.

b. Minimum Contacts

This court may only exercise personal jurisdiction over

Catalist, then, if Catalist has sufficient contacts with

Massachusetts to render the exercise of jurisdiction reasonable.

To determine whether it is, I must consider three factors:

First, the claim underlying the litigation must directly
arise out of, or relate to the defendant’s forum-state
activities. Second, the defendant’s in-state contacts must
represent a purposeful availment of the privilege of
conducting activities in the forum state, thereby invoking
the benefits and protections of that state’s laws and
making the defendant’s involuntary presence before the
state’s courts foreseeable. Third, the exercise of
jurisdiction must, in light of the Gestalt factors, be
reasonable.

23

Foster-Miller, Inc., 46 F.3d at 144; see also Knox, --F.3d--,

2019 WL 364021 at *4 (outlining the three factors of

relatedness, purposeful availment, and reasonableness).

i. Relatedness

For the exercise of jurisdiction to be consistent with Due

Process, the “claim underlying the litigation must directly

arise out of, or relate to, the defendant’s forum-state

activities.” Daynard, 290 F.3d at 61 (citing Foster-Miller,

Inc., 46 F.3d at 144). To show relatedness, the plaintiff “must

show a demonstrable nexus between the plaintiff’s claims and the

forum-based activities such that the litigation itself is

founded directly on those activities.” Weinberg, 891 F. Supp.

2d at 244.

TargetSmart’s assertion that this court has personal

jurisdiction over Catalist runs into trouble at the threshold.

It is difficult to see what actions of significance, if any,

Catalist took in the Commonwealth of Massachusetts. Its meeting

with TargetSmart and GHP took place in Washington, D.C., [Dkt.

No. 36 at ¶ 50], and any further contact with TargetSmart, as

well as its alleged misuse of confidential information, appear

also to have taken place in the District of Columbia, in light

of the fact that it is headquartered there. [Id. at ¶¶ 65-74].

It is unclear where the reporters and clients who inquired about

potential transactions were located, or where any alleged

24

misrepresentations or defamatory statements by Catalist were

made. [Id. at ¶¶ 41-48, 75-80]. Importantly, Catalist was not

present at, or involved in GHP’s initial meeting with

TargetSmart in Boston in December 2017. [Id. at ¶¶ 31-33].

The only contact that Catalist clearly had with the

Commonwealth of Massachusetts was its relationship with GHP.

[Dkt. No. 39-1, Letter Agreement]. But it is difficult to say

that this litigation is “founded directly on” that relationship

and the Letter Agreement, even if they together provide context

and explanation for how Catalist was able to access

TargetSmart’s trade secrets. See Weinberg, 891 F. Supp. 2d at

244. This is especially true since GHP is not an agent of

Catalist, and Catalist did not retain enough control over GHP

for this contractual relationship to support Catalist’s

relationship to the forum state.

The litigation is therefore not sufficiently related to

Catalist’s contacts with the Commonwealth of Massachusetts,

exercise of personal jurisdiction in this court is inappropriate

on lack of relatedness grounds.

ii. Purposeful Availment

Even if the litigation was “founded directly on” the Letter

Agreement and the relationship between Catalist and GHP, the

record does not demonstrate that Catalist purposefully availed

itself “of the privilege of doing business” in Massachusetts.

25

Jet Wines, 298 F.3d at 11. “The purposeful availment

requirement ensures that the exercise of jurisdiction [by the

forum] is essentially voluntary and foreseeable, . . . and is

not premised on a defendant’s random, fortuitous, or attenuated

contacts” with the forum state.” Knox, --F.3d--, 2019 WL 364021

at *4 (internal citations and quotations omitted). To satisfy

this aspect of minimum contacts, the defendant’s conduct must

evidence “something more” than the “regular flow [of commerce]

or regular course of sales” into the forum state. Id. at *5.

There must be some action taken by the defendant that is

specifically directed to, or establishes a direct link with, the

Commonwealth of Massachusetts. See Id. at *6.

This condition also is not met here. Catalist certainly

could reasonably foresee being hailed into court in Boston to

defend against litigation with GHP over a breach of the Letter

Agreement. [See generally, Dkt. No. 39-1, Letter Agreement].

However, Catalist’s relationship with TargetSmart was centered

in the District of Columbia. Even though it voluntarily engaged

GHP, Catalist did not engage in a “voluntary act” in the

Commonwealth of Massachusetts from which it was liable to suit

by TargetSmart in Massachusetts; nor did its conduct vis a viv

TargetSmart establish a direct link with Massachusetts. This is

especially true since GHP was not Catalist’s agent and GHP was

not involved in a joint venture, partnership, or similar

26

relationship with Catalist. See supra. It served only as an

independent advisor and consultant. [Dkt. No. 39-1, Letter

Agreement at 4, § 6].

TargetSmart does not allege any other action that would

directly tie Catalist to Massachusetts, and instead rests its

argument entirely on the fact that Catalist hired GHP as an

agent. [Dkt. No. 29 at 10]. As I have already rejected this

argument, I do not see how else Catalist has purposefully

availed itself of the laws of Massachusetts.

iii. Reasonableness

Finally, the First Circuit directs me to consider the

Gestalt factors, which include:

(1) the defendant’s burden of appearing, (2) the forum
state’s interest in adjudicating the dispute, (3) the
plaintiff’s interest in obtaining convenient and effective
relief, (4) the judicial system’s interest in obtaining the
most effective resolution of the controversy, and (5) the
common interests of all sovereigns in promoting substantive
social policies.

Foster-Miller, Inc., 46 F.3d at 150.

I consider these factors briefly. First, Catalist is based

in Washington, D.C., and though GHP is headquartered in Boston,

allowing the case to go forward in Boston as opposed to the

District of Columbia places a greater burden on Catalist and

similarly on TargetSmart, which seems indifferent to this

burden, having initially chosen the District of Massachusetts as

27

the forum for resolving this dispute. [Dkt. No. 36 at ¶¶ 3-4;

Dkt. No. 39 at 16-17].

Second, Massachusetts has an interest in adjudicating

disputes relating to its citizens, [Dkt. No. 36 at ¶ 3], and

arising under its laws. [Id. at ¶¶ 100-106, 136-141]. It does

not, however, necessarily have a strong interest in adjudicating

disputes between foreign parties, [Id. at ¶¶ 1, 2, 4]. Nor does

its interest in adjudicating disputes relating to its citizens

outweigh the fact that the majority of the events of

significance underlying the dispute took place in the District

of Columbia and outside the borders of the Commonwealth of

Massachusetts. [See generally Dkt. 22 at ¶¶ 41-80]. For the

same reason, the fifth factor counsels against exercising

personal jurisdiction in Massachusetts, especially since

Massachusetts law would not apply to TargetSmart’s pendent

state-law claims under the Commonwealth’s own choice of law

analysis.2

2 The question of which law applies to TargetSmart’s pendent
state-law claims against Catalist has three distinct dimensions
here, because TargetSmart has brought three kinds of state law
claims against Catalist – claims under the common law of torts,
claims under the common law of contracts, and claims under
Massachusetts statutory law.
Massachusetts choice-of-law principles provide that the
“[d]isposition of the substantive choice of law issues in tort
‘turns on the law of the jurisdiction which has the strongest
interest in the resolution of the particular issue presented.’”
Graham v. Malone Freight Lines, Inc., 948 F. Supp. 1124, 1131
(D. Mass. 1996) (citing Pevoski v. Pevoski, 358 N.E.2d 416
28

(Mass. 1976)). Though the law of the place where the injury
occurred presumptively applies, this presumption may be overcome
if another state has a more significant relationship to the
case. See Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d 832,
835 (Mass. 1994); Dagi v. Delta Air Lines, Inc., --F. Supp. 3d--
, 2018 WL 6506074 at *7 n. 6 (D. Mass. Dec. 11, 2018). Here,
the wrong alleged likely took place in the District of Columbia,
where Catalist is headquartered. TargetSmart has not indicated
why Massachusetts would have a stronger interest than the
District of Columbia in the resolution of the dispute.
TargetSmart also has brought a claim for unjust enrichment
against Catalist, a claim which in Massachusetts sounds in
contract rather than in tort. Salamon v. Terra, 477 N.E.2d
1029, 1031 (Mass. 1985); see also Massachusetts Eye and Ear
Infirmary v. QLT Phototherapy, 552 F.3d 47, 57 (1st Cir. 2009).
Massachusetts choice-of-law principles for contract govern,
requiring a forum court to look to the “law of the place of the
making,” but also to “various choice-influencing considerations”
to determine which state has the strongest interest in the
underlying dispute. Graham, 948 F. Supp. at 1131 (citing
Bushkin Associates, Inc. v. Raytheon Co., 473 N.E.2d 662, 668-69
(Mass. 1985)). These considerations include “(a) the place of
contracting, (b) the place of negotiation of the contract,
(c) the place of performance, (d) the location of the subject
matter of the contract, and (e) the domicil[sic], residence,
nationality, place of incorporation, and place of business of
the parties.” Bushkin Associates, Inc., 473 N.E.2d at 669. All
of these considerations point to the District of Columbia,
rather than Massachusetts, as the forum with the greatest
interest in adjudicating the dispute between TargetSmart and
Catalist sounding in contract.
Finally, TargetSmart asserts two statutory claims – under
M.G.L. c. 93 §§ 42 and 42A, and under M.G.L. c. 93A §§ 2 and 11
- against Catalist under Massachusetts law. However, both
statutes are limited in scope and apply only to “any course of
conduct, pattern of activity, or activities [that] occur and
have their competitive impact primarily and predominantly within
the commonwealth.” M.G.L. c. 93 § 3; see also M.G.L. c. 93A
§ 11 (requiring that “the actions and transactions constituting
the alleged unfair method of competition or the unfair or
deceptive act or practice [that] occurred primarily and
substantially within the commonwealth.”). Since TargetSmart has
not alleged that Catalist’s violations of the two statutes took
place in Massachusetts, Massachusetts statutory law does not
appear to apply.
29

 The third and fourth factors both weigh in favor of having

the claims against GHP and the claims against Catalist heard

together. Both sets of claims arise out of the same factual

circumstances and rest on the same allegations. However, these

factors do not suggest that Boston is a more appropriate place

to hear the case than Washington, D.C., and instead counsel in

favor of transferring the dispute to the District of Columbia,

if personal jurisdiction against Catalist does not otherwise lie

in Massachusetts.

c. Conclusion

The three factors set forth in Foster-Miller, Inc. v.

Babcock & Wilcox Canada, 46 F.3d 138 (1st Cir. 1995), all

indicate that the exercise of personal jurisdiction as to

Catalist by this court would be improper under the Due Process

Clause.

Lacking personal jurisdiction over the entire dispute, but

bearing in mind the need for judicial efficiency and seeking the

prompt resolution of the matter in its entirety, I turn to

consider the question whether to transfer the case to the

District of Columbia, rather than dismiss it.

B. Transfer under Section 1631 or Section 1406(a)

Even though this court does not have jurisdiction to hear

and adjudicate the claims at issue in this case against

Catalist, I may still order the case to be transferred, rather

30

than dismissed outright, if the case could properly have been

brought in the putative transferee court – here, the District of

Columbia. Because I find that the District of Columbia has both

subject matter and personal jurisdiction over the pending matter

and all the parties, I will transfer the case to the District of

Columbia, rather than dismissing it.

Federal law allows a court “that finds that there is a want

of jurisdiction . . . if it is in the interest of justice, [to]

transfer [the case] to any other such court in which the action

. . . could have been brought at the time it was filed or

noticed.” 28 U.S.C § 1631. The First Circuit has interpreted

this provision to establish a presumption in favor of transfer –

rather than dismissal – when the forum court lacks personal

jurisdiction over one of the defendants. See Federal Home Loan

Bank of Boston v. Moody’s Corp., 821 F.3d 102, 119 (1st Cir.

2016), abrogated on other grounds, Lightfoot v. Cendant Mortgage

Corp., 137 S. Ct. 553 (2017). The statutory text, the First

Circuit held, “does not further delineate whether ‘jurisdiction’

is meant to refer to subject matter jurisdiction, personal

jurisdiction, or both.” Federal Home Loan Bank, 821 F.3d at

114. There is therefore no reason to restrict the statute’s

scope only to subject matter jurisdiction, as courts in the

circuit appear, with the benefit of hindsight, erroneously to

have done in the past. See, e.g., Pedzewick v. Foe, 963 F.

31

Supp. 48, 50 (D. Mass. 1997) (“This Court agrees with the line

of cases limiting section 1631 to transfer for lack of subject

matter jurisdiction only.”).

Similarly, 28 U.S.C. § 1406(a) allows me to “transfer [a]

case to any district or division in which it could have been

brought” if it “lay[s] venue in the wrong division or district”

and transfer is “in the interest of justice.” 28 U.S.C.

§ 1406(a). Though this provision does not explicitly mention

jurisdiction, the Supreme Court has interpreted its mandate to

“authorize transfer of cases, however wrong the plaintiff may

have been in filing his case as to venue, whether the court in

which it was filed has personal jurisdiction over the defendants

or not.” Goodlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962);

see also Pedzewick, 963 F. Supp. at 50 (“Section 1406(a) applies

in cases where venue improper [sic]. It has also been

interpreted to permit transfer for lack of personal

jurisdiction.”).

Consequently, since this court lacks personal jurisdiction

over Catalist, I may transfer this case under either 28 U.S.C.

§ 1631 or under 28 U.S.C. § 1406(a) if it is in the “interest of

justice.” As a general matter, the First Circuit has held that

the phrase “in the interest of justice” establishes “a

presumption – albeit a rebuttable one – in favor of transfer.”

Britell v. United States, 318 F.3d 70, 73 (1st Cir. 2003). The

32

presumption may be rebutted if the record, taken as a whole,

indicates that “the administration of justice would be better

served by dismissal.” Id. at 74.

Based on the record before me, there is no indication that

dismissal, rather than transfer, would facilitate the speedy and

efficient resolution of this case. The core of TargetSmart’s

claims against Catalist and GHP is not “fanciful or frivolous”

such that “it is in the interest of justice to dismiss [the

entire case] rather than keep it on life support (with the

inevitable result that the transferee court will pull the

plug).” Id. at 75. A transfer to the District of Columbia

would allow the claims to move forward in a location with proper

jurisdiction over all parties. Finding nothing on the record to

rebut the presumption in favor of transfer, I am prepared to

transfer the case to the District of Columbia pursuant to my

authority under both 28 U.S.C. § 1631 and 28 U.S.C. § 1406(a).

C. TargetSmart’s Request for Limited Discovery

Finally, I will briefly address an argument made by

TargetSmart in its opposition to the Catalist motion to dismiss.

[Dkt. No. 41 at 12-13]. There, TargetSmart argues that, if

there is ambiguity regarding the relationship between Catalist

and GHP, “the Court should . . . allow TargetSmart to take

limited jurisdictional discovery.” [Id.]. This argument is

ultimately meritless.

33

 The First Circuit has held that “a diligent plaintiff who

sues an out-of-state corporation and who makes out a colorable

case for the existence of in personam jurisdiction may well be

entitled to a modicum of jurisdictional discovery if the

corporation interposes a jurisdictional defense.” United States

v. Swiss American Bank, Ltd., 274 F.3d 610, 625 (1st Cir. 2001).

However, the decision to allow jurisdictional discovery requires

that the plaintiff does, in fact, “present[ ] a colorable case

for personal jurisdiction by proferring evidence that has a

strong bearing on the question of jurisdiction” and show that

“additional clarity is needed.” Mullaly v. Sunrise Senior

Living Management, Inc., 224 F. Supp. 3d 117, 123 (D. Mass.

2016). Ultimately, the decision about whether to grant

jurisdictional discovery falls within my discretion. Swiss

America Bank, Ltd., 274 F.3d at 626.

Given the state of the record, I will not allow

jurisdictional discovery here. There is no ambiguity that GHP

was not acting as an agent of Catalist; TargetSmart has not made

a colorable argument that it was. TargetSmart has also given no

clear indication of what it expects, or even hopes, to uncover

through this process that would shed further light on the claims

in its complaint.

Therefore, I will not authorize further discovery on the

question of personal jurisdiction. I note that, at this stage,

34

TargetSmart says it wants to move forward to the merits of the

case as soon as possible, [Dkt. No. 49 at 2], and seems to have

abandoned any interest in engaging in further preliminary

skirmishes such as jurisdictional discovery.

III. TRANSFER OF VENUE TO THE DISTRICT OF COLUMBIA

Catalist has in fact moved, as an alternative to dismissal,

to transfer this case, either in its entirety or simply with

respect to TargetSmart’s claims against it, to the District of

Columbia under 28 U.S.C. § 1404(a). [See Dkt. No. 38].

TargetSmart, [Dkt. No. 41 at 13-15], and GHP, [Dkt. No. 40],

both initially objected to the transfer, arguing that the

District of Massachusetts is the appropriate forum for this

case: GHP is headquartered in Boston, [Dkt. No. 36 at ¶ 6], and

its conduct largely took place in Boston. Consequently, they

have argued, the center of gravity for the case is in the

District of Massachusetts, meaning the case is properly before

this court. However, TargetSmart has also indicated that it

would consent to a transfer if I found that I lacked

jurisdiction to hear its claims against Catalist, as I have done

here.

In seeking a transfer, Catalist specifically invokes my

authority under 28 U.S.C. § 1404(a), which presumes that I have

jurisdiction to hear the case, but nevertheless allows me to

transfer the case to another district “[f]or the convenience of

35

the parties and witnesses, in the interest of justice.” 28

U.S.C. § 1404(a). Consequently, I may exercise my authority

under 28 U.S.C. § 1404(a) to transfer the case against GHP to

the District of Columbia based on a determination that

jurisdiction in the District of Columbia is appropriate and that

it is in the interest of justice to have TargetSmart’s claims

against both GHP and Catalist heard together. I will use the

obligation to address Catalist’s section 1404(a) contention to

discuss the similar approach I find appropriate to support

transfer under either § 1631 or § 1406(b).

A. Jurisdiction is Proper in the District of Columbia

As with 28 U.S.C. § 1631 and 28 U.S.C. § 1406(a), transfer

under section 1404(a) is only appropriate if the District of

Columbia has both subject matter and personal jurisdiction over

the pending matter and the parties. Both these conditions are

met here. The United States District Court for the District of

Columbia, like this court, has federal question jurisdiction

under 28 U.S.C. § 1331 over the federal claim, see 18 U.S.C.

§ 1836 (providing a private right of action for violations of

the Federal Defense of Trade Secrets Act), and can therefore

exercise supplemental jurisdiction over any pendent state-law

claims.3

3 Under 28 U.S.C. § 1367(a), a district court may exercise
“supplemental jurisdiction over all other claims that are so
36

 The District of Columbia also has personal jurisdiction

over all the parties in this suit. Both TargetSmart and

Catalist are headquartered in the District of Columbia; as a

consequence, the District of Columbia may exercise general

jurisdiction over both parties. See Goodyear Dunlop, 564 U.S.

at 919; [Dkt. No. 36 at ¶¶ 1, 4].

Though headquartered in Boston, GHP is also subject to

personal jurisdiction in the District of Columbia. To be sure,

during the most recent hearing on January 23, 2019, GHP

indicated that it would contest personal jurisdiction in the

District of Columbia. However, GHP did not raise any reasoned

argument relating to personal jurisdiction in its January 30,

2019 opposition to the motion to transfer. [See generally, Dkt.

No. 40; Dkt. No. 46]. Instead, its opposition has focused on

both the location of its documentary record, [Dkt. No. 40 at 3],

and on the fitness of the federal court in the District of

Columbia to decide questions of Massachusetts state law. [Dkt.

related to claims in the action within [the district court’s]
original jurisdiction that they form part of the same case or
controversy under Article III.” 28 U.S.C. § 1367(a). In cases,
like this, where the court’s original jurisdiction is based on
28 U.S.C. § 1331, “[p]endent jurisdiction, in the sense of
judicial power, exists whenever there is a claim arising under”
the laws of the United States “and the relationship between that
claim and the state claim permits the conclusion that the entire
action before the court compromises one case.” United Mine
Workers of America v. Gibbs, 383 U.S. 715, 725 (1966); see also
Exxon Mobile Corp. v. Allapattah Services, Inc., 545 U.S. 546,
558 (2005).
37

No. 46 at 2]. Both issues are addressed below. Moreover, since

GHP has raised a bare objection, even if it has offered nothing

to substantiate it, I will briefly address the question whether

the District of Columbia has personal jurisdiction over GHP

based on the record before me.

The District of Columbia long-arm statute closely tracks

the Massachusetts long-arm statute and authorizes the exercise

of personal jurisdiction over any person “transacting any

business in the District of Columbia.” D.C. CODE § 13-423. “The

‘transacting business’ provision ‘of the long-arm statute has

been interpreted to be coextensive with the Constitution’s due

process limit.’” Pierce v. Mattis, 256 F. Supp. 3d. 7, 11 n. 3

(D.D.C. 2017) (citing First Chicago Int’l v. United Exchange

Co., Ltd, 836 F.2d 1375, 1377 (D.C. Cir. 1988)).

GHP has sufficient “minimum contacts” with the District of

Columbia for exercise of personal jurisdiction to be consistent

with “traditional notions of fair play and substantial justice.”

International Shoe, 326 U.S. at 316. GHP intentionally

initiated contact with TargetSmart, a corporation headquartered

in the District of Columbia, [Dkt. No. 36 at ¶ 24], and

participated in several conversations and meetings with both

TargetSmart and Catalist, both of which were headquartered in

Washington, D.C. [See generally, id.]. In particular, the March

14, 2018 meeting, where TargetSmart learned that one of

38

Catalist’s funders had broken the NDA, took place in Washington,

D.C. [Id. at ¶¶ 49-53]. Consequently, GHP could reasonably

foresee being called into court in the District of Columbia to

respond to claims arising out of its transactions with Catalist

and TargetSmart. Cf. World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980).

The case therefore as a matter of personal jurisdiction

could have been brought against GHP in the District of Columbia,

and I will allow a transfer if the conditions set forth by

section 1404(a) are met.

B. Transfer under Section 1404(a)

28 U.S.C. § 1404(a) permits a federal court “[f]or the

convenience of parties and witnesses, in the interest of

justice” to transfer a civil action “to any other district or

division where it might have been brought.” 28 U.S.C.

§ 1404(a). This provision gives district courts discretion to

transfer cases that are properly before them when “trial in the

chosen forum would establish oppressiveness and vexation to a

defendant out of all proportion to the plaintiff’s convenience

or when the chosen forum is inappropriate because of

considerations affecting the courts own administrative and legal

problems.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241

(1981). Because the statute presumes that the transferor court

is competent to hear the case, transfer under § 1404(a) does not

39

result in a change in the substantive law governing the case.

Id. at 253-54. I note, however, that Massachusetts choice-of-

law principles would appear to anticipate application of

District of Columbia substantive law. See supra note 2.

In recent years, the Court has refined its approach by

holding that § 1404(a) is designed to codify the common-law

doctrine of forum non conveniens, and so can be invoked before a

court has resolved “whether it has authority to adjudicate the

cause (subject-matter jurisdiction) or personal jurisdiction

over the defendant if [the court] determines that, in any event,

a foreign tribunal is plainly the more suitable arbiter of the

merits of the case.” Sinochem Int’l v. Malaysia Int’l Shipping,

549 U.S. 422, 425 (2007); see also Atlantic Marine Construction

Co., Inc. v. United States District Court for the Western

District of Texas, 571 U.S. 49, 60, 134 S. Ct. 568, 580 (2013).

However, the Court has not withdrawn from the approach of

treating § 1404 transfer as discretionary. Indeed, the Court

has held that, in the context of transfer under § 1404(a) – as

contrasted with dismissal for forum non conveniens - “[t]he

doctrine leaves much to the discretion of the court to which the

plaintiff resorts,” although “unless the balance is strongly in

favor of the defendant, the plaintiff’s choice of forum should

rarely be disturbed.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501,

508 (1947).

40

 Consequently, even with the Court’s recent doctrinal

evolution, I read 28 U.S.C. § 1404(a) to allow transfer of a

case only if the District of Massachusetts has jurisdiction over

the case in the first instance. Since it is undisputed that the

District of Massachusetts has both subject-matter and personal

jurisdiction over the case against GHP, and since transfer of

the case against Catalist is otherwise authorized, I will allow

a transfer of the entire case brought by TargetSmart to the

United States District Court for the District of Columbia.

In evaluating whether transfer is appropriate under

§ 1404(a), I consider the following factors:

(1) the convenience of the parties, (2) the convenience of
the witnesses, (3) the relative ease of access to sources
of proof, (4) the availability of process to compel
attendance of unwilling witnesses, (5) cost of obtaining
willing witnesses, and (6) any practical problems
associated with trying the case most expeditiously and
inexpensively.

F.A.I. Electronics Corp. v. Chambers, 944 F. Supp. 77, 81 (D.

Mass. 1996) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508

(1947)). Though ordinarily there is a presumption against

transfer, “[w]hen the plaintiff’s choice [of forum] is not its

home forum . . . the presumption in the plaintiff’s favor

applies with less force, for the assumption that the chosen

forum is appropriate is in such cases less reasonable.”

Sinochem Int’l, 549 U.S. at 430 (citing Piper Aircraft, 454 U.S.

at 255-56) (internal quotations omitted).

41

 Here, because TargetSmart is headquartered in Washington,

D.C., and essentially conducts its business in the District of

Columbia, the presumption in favor of keeping the matter in

Boston applies with less force. GHP encourages me to find that

the other factors here counsel against transfer. [See Dkt. No.

40; Dkt. No. 41 at 13-15].4 GHP contends that it would be

inconvenienced by a transfer, since it is headquartered in

Boston, many of the relevant documents and materials are

physically present in the District of Massachusetts. [Dkt. No.

40 at 3]. GHP also adds that Massachusetts law would govern

pendent state law claims and, consequently, should be heard in

Massachusetts. GHP argues in its supplemental opposition that

4 During the January 25, 2019 hearing, TargetSmart suggested that
it would not oppose transfer of its claims against Catalist to
the District of Columbia if I found that the District of
Massachusetts lacked personal jurisdiction over Catalist. It
has since restated this position in its response to GHP’s
supplemental opposition to transfer. [Dkt. No. 49]. In that
filing, TargetSmart stated that its position “was and continues
to be that this case should move forward to the merits as soon
as possible,” even if it means that its claims against GHP and
Catalist proceed separately in two different fora. [Dkt. No. 49
at 2]. TargetSmart’s current opposition to the transfer of its
claims against GHP rests on GHP’s representation that it intends
to challenge the personal jurisdiction in the District of
Columbia, and TargetSmart’s desire to avoid further motion to
dismiss practice on the question of jurisdiction. As is
apparent, I do not find GHP’s undeveloped contention that the
District of Columbia would lack personal jurisdiction over it to
be colorable. Thus, TargetSmart’s anxious apprehensions about
further meaningful motion to dismiss practice in the District of
Columbia seem less than truly threatening to the orderly travel
of the entire case to conclusion in that District.
42

this court, because of its familiarity with the laws of the

Commonwealth, is “far better suited to preside over

TargetSmart’s claims brought specifically under Massachusetts

law” than the courts of the District of Columbia. [Dkt. No. 46

at 2].

These arguments are unpersuasive. While the District of

Massachusetts may be marginally more convenient for GHP,

wholesale transfer of the entire matter would hardly

inconvenience it. GHP may have relevant documents at its

headquarters in Boston, rather than in the District of Columbia,

but it is unclear that a transfer would materially raise the

cost of production. [Dkt. No. 40 at 3]. With the exception of

the former President of Catalist, Laura Quinn, [Dkt. No. 41 at

14], none of the parties identify witnesses who may be in one

city or another, or make any allegations regarding convenience

or cost to the witnesses or the availability of process to

compel their presence in a court in the District of Columbia.

Instead, opposition to transfer seems to center on the

background presumption in favor of a plaintiff’s choice of forum

imposed by section 1404(a). However, that presumption does not

apply with as great a force here, because TargetSmart is not a

Massachusetts citizen. See Sinochem Int’l, 549 U.S. at 430.

This fact, combined with my determination that this court lacks

personal jurisdiction over Catalist and the fact that the

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majority of interactions between the parties, at least as pled,

took place in the District of Columbia [Dkt. No. 36 at ¶¶ 24,

49-53], counsel in favor of transfer. Most fundamentally,

concern about judicial efficiency powerfully supports transfer

in order for the entire case to be adjudicated in one proceeding

in a single forum.

GHP’s opposition based on this court’s familiarity with the

laws of Massachusetts is essentially a make-weight. While this

circumstance may caution against transfer – for example, if the

case arises out of some particularly complex or intricate area

of state law or state regulatory structure – it is not, in and

of itself, a reason to deny transfer. See Island View

Residential Treatment Center, Inc. v. BlueCross BlueShield of

Mass., Inc., 2007 WL 4589335 at *8 (D. Mass. Dec. 28, 2007)

(citing, among others Salve Regina College v. Russell, 499 U.S.

225 (1991) and Lynch v. Nat’l Prescription Administrators, 2004

WL 385156 (S.D.N.Y. March 1, 2004)). Indeed, a federal judge is

presumed competent to make determinations of any state law, cf.

Salve Regina College, 499 U.S. at 238-39, and I have no reason

to question the capacity of my colleagues in the District of

Columbia to decide what are essentially garden-variety state law

claims presented here against GHP, which I again, see supra note

2, observe are likely to be resolved under the substantive law

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of the District of Columbia even when Massachusetts choice-of-

law principles are applied.

Consequently, applying the considerations governing

§ 1404(a), I will direct transfer of the entire case under 28

U.S.C. §§ 1631, 1406(a), and 1404(a) to the United States

District Court for the District of Columbia.

IV. CONCLUSION

For the foregoing reasons, I find that this court does not

have personal jurisdiction over the Defendant, Catalist. In the

interests of judicial economy, I GRANT Catalist’s motion [Dkt.

No. 38] to the extent of directing the Clerk to transfer the

entire case to the United States District Court for the District

of Columbia for adjudication. I decline to address that portion

in Catalist’s motion that seeks dismissal on grounds of failure

to state a claim, a matter which should be addressed, if

necessary, in further proceedings in the United States District

Court for the District of Columbia, which is — unlike this court

— authorized to exercise jurisdiction over all parties brought

into this litigation by TargetSmart’s operative complaint.

/s/ Douglas P. Woodlock_________
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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