Fister v. Massachusetts Institute of Technology et al
| David James Fister |
| Massachusetts Institute of Technology and EMERITUS Institute of Management Pte. Ltd. |
| 1:2020cv10789 |
| April 22, 2020 |
| US District Court for the District of Massachusetts |
| Richard G Stearns |
| Other Statutory Actions |
| 28 U.S.C. § 1331 |
| Plaintiff |
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| Filing 19 Judge Richard G. Stearns: ELECTRONIC ORDER entered denying #18 Motion to Appoint Special Process Server. As Singapore is not a signatory to the Hague Convention, the court advised plaintiff in its earlier Order that service on Emeritus, a corporation "not within any judicial district of the United States", see Fed. R. Civ. P. 4(h)(2), is governed by Fed. R. Civ. P. 4(f) (2). The court denied the motion for counsel's failure "to demonstrate that his proposed form of alternative service is prescribed by Singapore law." Fed. R. Civ. P. 4(f)(2)(A). This successive motion also fails to do so. Accordingly, Fister's motion (Dkt # 18) is DENIED. (Zierk, Marsha) |
| Filing 18 Second MOTION to Appoint Special Process Server by David James Fister. (Attachments: #1 Exhibit 1 -- Affidavit of Foss Baker, #2 Exhibit 2 -- Proposed Order)(Paronich, Anthony) |
| Filing 17 Judge Richard G. Stearns: ELECTRONIC ORDER entered denying #10 Motion to Dismiss for Failure to State a Claim without prejudice. The Telephone Consumer Protection Act TCPA permits the use of an automatic telephone dialing system (ATDS) to send telemarketing texts to a cellphone where they are "made by or on behalf of a tax-exempt nonprofit organization" with the "prior express consent" of the called party. Defendant Massachusetts Institute of Technology (MIT), a non-profit charitable corporation, moves to dismiss the Complaint contending that it had plaintiff David Fister's prior consent to send telemarket texts. In his Complaint, Fister alleges that he "did not provide EMERITUS or MIT his prior express written consent to receiving telemarketing text messages." Compl. at para. 24. As disputed consent or its revocation is not an issue for a motion to dismiss, the court will provide the parties with 90 days of discovery, until September 7, 2020, on whether the affirmative defense of consent applies here. Thereafter, if appropriate, MIT may move for summary judgment on the issue. As Fister has until July 22, 2020 to make service on defendant Emeritus Institute of Management Pte. Ltd., its motion to dismiss for insufficient service of process under Fed. R. Civ. P. 12(b)(5), is premature and therefore denied without prejudice. (Zierk, Marsha) |
| Filing 16 Judge Richard G. Stearns: ELECTRONIC ORDER entered denying #14 Motion to Appoint Special Process Server. Plaintiff David James Fister moves, "pursuant to Civil Procedure Rule 4(e)," for appointment of a special process server, Foss Baker of Ancillary Legal Corporation, to serve defendant Emeritus Institute of Management Pte. Ltd. (Emeritus), a Singapore corporation with no managing or general agent, or agent for service of process, located in Massachusetts. See Hock Heng Decl. para.s 3-4. As Singapore is not a signatory to the Hague Convention, service on Emeritus, a corporation "not within any judicial district of the United States", see Fed. R. Civ. P. 4(h)(2), is governed by Fed. R. Civ. P. 4(f) (2). Baker's affidavit proposes making service by "United States Post Office International Mail, Global Express Guaranteed," citing to Massachusetts procedural Rule 4(e) for "service in matrimonial actions." Baker Aff. para. 5. Moreover, of the "multitude of cases" cited by Baker in which his company was "appointed to serve by international mail", Singapore is glaringly absent. Having failed to demonstrate that his proposed form of alternative service is prescribed by Singapore law, Fister's motion (Dkt # 14) is DENIED. (Zierk, Marsha) |
| Filing 15 Opposition re #10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by David James Fister. (Paronich, Anthony) |
| Filing 14 MOTION to Appoint Special Process Server by David James Fister. (Attachments: #1 Exhibit 1 -- Signed Affidavit, #2 Exhibit 2 -- Proposed Order)(Paronich, Anthony) |
| Filing 13 CORPORATE DISCLOSURE STATEMENT by Emeritus Institute of Management Pte. Ltd.. (Blase, Gregory) |
| Filing 12 CORPORATE DISCLOSURE STATEMENT by Massachusetts Institute of Technology. (Blase, Gregory) |
| Filing 11 MEMORANDUM in Support re #10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Emeritus Institute of Management Pte. Ltd., Massachusetts Institute of Technology. (Attachments: #1 Affidavit)(Blase, Gregory) |
| Filing 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Emeritus Institute of Management Pte. Ltd., Massachusetts Institute of Technology.(Blase, Gregory) |
| Filing 9 NOTICE of Appearance by Hollee M. Boudreau on behalf of Emeritus Institute of Management Pte. Ltd., Massachusetts Institute of Technology (Boudreau, Hollee) |
| Filing 8 NOTICE of Appearance by Gregory N. Blase on behalf of Emeritus Institute of Management Pte. Ltd., Massachusetts Institute of Technology (Blase, Gregory) |
| Filing 7 NOTICE of Appearance by Andrew C. Glass on behalf of Emeritus Institute of Management Pte. Ltd., Massachusetts Institute of Technology (Glass, Andrew) |
| Filing 6 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #5 Motion for Leave to Appear Pro Hac Vice. Added Donald E. Petersen. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Pacho, Arnold) |
| Filing 5 MOTION for Leave to Appear Pro Hac Vice for admission of Donald E. Petersen Filing fee: $ 100, receipt number 0101-8227088 by David James Fister. (Attachments: #1 Affidavit in Support of Pro Hac Vice Motion)(Paronich, Anthony) |
| Filing 4 SUMMONS Returned Executed Emeritus Institute of Management Pte. Ltd. served on 4/24/2020, answer due 5/15/2020. (Paronich, Anthony) |
| Filing 3 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Currie, Haley) |
| Filing 2 ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Finn, Mary) |
| Filing 1 COMPLAINT against EMERITUS Institute of Management Pte. Ltd., Massachusetts Institute of Technology Filing fee: $ 400, receipt number 0101-8208870 (Fee Status: Filing Fee paid), filed by David James Fister. (Attachments: #1 Civil Cover Sheet, #2 Exhibit Civil Category Form)(Paronich, Anthony) |
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