The final and executed NDA included Acronis’ Massachusetts address and a Massachusetts choice of law provision, but not a Massachusetts forum selection clause. On March 30, 2010, Azeri sent Werelius the NDA executed by him on behalf of Acronis. Werelius then returned an executed copy of the NDA. Azeri coordinated review of the changes and emailed Werelius an updated copy of the NDA on March 29, 2010. Reply, Supplemental Affidavit of Troy Werelius ¶ 3). Werelius responded by requesting changes to the NDA, including the removal of a Massachusetts forum selection clause. Azeri’s email attached a proposed non-disclosure agreement (“NDA”). On March 25, 2010, Azeri emailed Werelius and indicated that he had spoken to Donahue and that Acronis was interested in exploring a business relationship. In one of those exchanges, Moruga told Werelius that Acronis needed to understand certain details about Lucid8's product to determine whether it would choose a partner or develop an “in-house solution.” (Pl. Werelius also exchanged emails with Azeri and Moruga of Acronis on Maindicating interest in establishing a business relationship.
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On the following day, March 24, 2010, as a result of Maxwell’s introduction, Werelius and Donahue spoke by phone and discussed the possibility of Acronis licensing software from Lucid8 to provide expanded granular recovery capability in the updated version of ARX. Maxwell responded by introducing Werelius and Donahue via email. The same day, Troy Werelius, Lucid8’s CEO, e-mailed Scott Maxwell, a prominent investor, member of Acronis’ board of directors and Massachusetts resident, to ask Maxwell to introduce him to the Acronis CEO, Jason Donahue, so Werelius and Donahue could have a discussion at a “higher level” about a potential relationship between Acronis and Lucid8. Azeri is a resident of Massachusetts and works at Acronis’ Massachusetts headquarters. Moruga added Ismail Azeri, Acronis’ Vice President of Business Development, to the email communications. Is a wholly owned subsidiary of Acronis, Inc. Reply”) and the transcript of motion hearing held on Aug(“Tr.”). Opp.”) Lucid8’s amended reply to Acronis’ opposition to Lucid8’s motion to dismiss (“Def. Memo”) Acronis’ opposition to Lucid8’s motion to dismiss (“Pl. Acronis employee Andrey Moruga responded to Dawson’s email, stating that Acronis was looking for third-party software to provide granular recovery and that buying a third-party engine was one of the possibilities the company was motion to dismiss (“Def.
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On March 23, 2010, Lucid8 employee Derek Dawson emailed Acronis employee Kirill Bobrovskikh to inquire about the latter’s recent download of Lucid8’s DigiScope product from Lucid8’s website. To this end, Acronis began considering licensing certain granular recovery technology from third parties, including Lucid8. In March 2010, Acronis decided to create an updated version of its ARX product with expanded granular recovery capability. 1, Declaration of Jason Donahue, Acronis CEO (“Donahue Decl.”) ¶ 3). Since 2009, ARX included granular recovery capability which Acronis developed internally prior to any interaction with Lucid8. This capability is known as “granular recovery.” (Compl. ARX users can recover a single email among many that may be included in the backup file without having to restore the entire backup file.
ARX permits computer users to create backup files of emails and other data using Microsoft Exchange, a third-party software product.
Since 2008, Acronis has marketed a software product known as “Acronis Recovery for Microsoft Exchange” (“ARX”). Its headquarters are located in Woburn, Massachusetts. Acronis2 is a provider of backup and recovery software. ¶ 10).1 Its 1 For the purposes of this Memorandum and Order, the parties’ filings shall be abbreviated as follows: Acronis’ complaint (“Compl.”) Lucid8’s memorandum of law in support of its 1 headquarters are located in Bellevue, Washington. Factual Background Lucid8 is a provider of disaster recovery software called DigiScope. For the reasons set forth below, Lucid8’s motion to dismiss is DENIED. Lucid8 now moves to dismiss the complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure (“Rule”) 12(b)(2) and for lack of subject matter jurisdiction under Rule 12(b)(1) claiming that no case or controversy exists. 93A and seeking a declaratory judgment that Acronis did not misappropriate purported confidential information allegedly provided by Lucid8 in connection with the development of Acronis’ new software product. (collectively, “Acronis”) brought this action against Defendant Lucid8, LLC (“Lucid8”) alleging defamation and violation of Mass. OctoIntroduction Plaintiff Acronis, Inc., Ltd. And ACRONIS, INC., ) ) Plaintiffs, ) ) v. 25 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _ ) ACRONIS, INC., LTD.
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