Ajemian, et al. v. Yahoo!, Inc. (Lawyers Weekly No. 11-057-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑178 Appeals Court MARIANNE AJEMIAN, coadministrator,[1] & another[2] vs. YAHOO!, INC. No. 12‑P‑178. Norfolk. October 1, 2012. ‑ May 7, 2013. Present: Wolohojian, Brown, & Carhart, JJ. Internet. Res Judicata. Judgment, Preclusive effect. Contract, Choice of forum clause, Third party beneficiary. Jurisdiction, Forum non conveniens, Probate Court, In rem. Practice, Civil, Choice of forum. Limitations, Statute of. Probate Court, Jurisdiction. Complaint filed in the Norfolk Division of the Probate and Family Court Department on September 15, 2009. A motion to dismiss was heard by John D. Casey, J. Robert L. Kirby, Jr., for the plaintiffs. Marc J. Zwillinger, of the District of Columbia (Hanson S. Reynolds with him) for the defendant. WOLOHOJIAN, J. The plaintiffs, who are coadministrators of their brother John’s estate, brought the underlying declaratory judgment action in the Probate and Family Court, seeking a declaration that electronic mail messages (e-mails) John sent and received using a Yahoo!, Inc. (Yahoo!), e-mail account are property of his estate.[3] A probate judge dismissed the complaint, concluding that a forum selection clause required that suit be brought in California. The judge also concluded that res judicata barred the administrators from bringing their claim in a Massachusetts court, but did not bar them from asserting the same claim in California. In light of those conclusions, the judge dismissed the suit (apparently without prejudice), stating that the parties’ substantive arguments should be considered by the California courts. We reverse. Background. The parties briefed and argued the motion to dismiss as though it were a motion for summary judgment, submitting multiple documents and affidavits in support of their respective positions and liberally referring to information outside the four corners of the complaint. The judge considered and relied upon those extrinsic materials when ruling on the motion. In these circumstances, although never expressly converted, Yahoo’s motion to dismiss was in effect a motion for summary judgment, and we accordingly review the judge’s dismissal order under our familiar summary judgment standard. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974); Cousineau v. Laramee, 388 Mass. 859, 860 n.2 (1983); Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785, 791 (2005), cert. denied, 546 U.S. 1173 (2006); Rawan v. Massad, 80 Mass. App. Ct. 826, 828 (2011). Viewed through that lens, we recite […]