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Cestari v. Viaair, LLC

United States District Court, D. Massachusetts

September 15, 2016

MARK CESTARI, Plaintiff
v.
VIAAIR, LLC ET AL., Defendants

          MEMORANDUM AND ORDER

          WOLF, D.J.

         Plaintiff Mark Cestari sued defendants ViaAir, LLC, Mauiva AirExpress, LLC, Irit Vizer, and Amos Vizer in the Middlesex County Superior Court of the Commonwealth of Massachusetts. Defendants removed the case to this court. Cestari is a resident of Massachusetts. Defendants are residents of Florida. Cestari alleges that he had an employment contract with defendants under which he would be paid, among other things, a salary of $7, 000 per month. He further alleges that he worked under the contract for five months and defendants have not paid him for his services. Cestari asserts claims for: (1) unpaid wages under the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, §148; (2) breach of contract and breach of the implied covenant of good faith and fair dealing; (3) intentional misrepresentation; and (4) violation of Mass. Gen. Laws ch. 93A.

         Defendants moved to dismiss this case for lack of personal jurisdiction. Cestari opposed the motion. Magistrate Judge Judith Dein issued a Report and Recommendation recommending that defendants' motion to dismiss be allowed because Cestari had failed to offer the evidence necessary to make a prima facie showing that defendants had sufficient contacts with Massachusetts to permit the court to exercise personal jurisdiction over them.

         No objections to the Report and Recommendation have been filed. However, near the deadline for objections, Cestari filed an affidavit, unaccompanied by a memorandum explaining the implications for the motion to dismiss of the facts asserted in the affidavit or presenting any argument as to why the court should exercise its discretion under 28 U.S.C. §636(b)(1)(C) to consider additional evidence not presented to the Magistrate Judge.

         28 U.S.C. §636(b)(1)(C) states that:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. §636(b)(1)(C) (emphasis added). Federal Rule of Civil Procedure 72(b)(3) similarly states that:

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

         As indicated earlier, no objection has been made to any portion of the Magistrate Judge's report or to any specified proposed finding. Therefore, the court is not required to consider any issue de novo.

         To defeat the motion to dismiss for lack of personal jurisdiction, Cestari is required to "produce evidence to support [his] jurisdictional allegation because [he has] the burden of showing that the court may exercise in personam jurisdiction over [the defendants]." Boit v. Gar-Tec Prod., Inc., 967 F.2d 671, 680 (1st Cir. 1992). The Magistrate Judge permissibly used the prima facie standard to determine whether Cestari had satisfied his burden. See Report and Recommendation at 18 (citing id.). The Magistrate Judge correctly stated that Cestari "failed to provide an evidentiary basis for his assertion that the parties entered into an employment contract, much less a contract for work to be performed in [Massachusetts]." Id.

         The Cestari affidavit filed with this court is apparently an effort to cure this deficiency. The court recognizes that it has the discretion to consider the information in the affidavit. See 28 U.S.C. §636(b) (1) (C); F.R. Civ. P. 72(b)(3); Jasty v. Wright Medical Tech., Inc., 528 F.3d 28, 31 (1st Cir. 2008). It is, however, not appropriate to do so.

         The requirement that a plaintiff submit evidence to make a prima facie case of personal jurisdiction is well-established and familiar. There is no argument or evident reason why the information included in the Cestari affidavit was not presented to the Magistrate Judge.

         Generally, "[p]arties must take before the magistrate [judge] not only their best shots but all of their shots." Borden v. Sec'y of Health & Human Services, 836 F.2d 4, 6 (1st Cir. 1987) (internal quotation and citation omitted). The role of the magistrate judge is to "assume some of the burden imposed [on the district courts] by a burgeoning caseload." Patterson Leitch v. Massachusetts Electric, 840 F.2d 985, 991 (1st Cir. 1988). This effort to promote efficiency would be undermined if, absent compelling circumstances, a party were allowed to alter its arguments or evidence after failing to persuade the magistrate judge. Id. As indicated earlier, there is no apparent reason why the information in the Cestari affidavit could not have been presented to the Magistrate Judge. In addition, that information does not appear to this court to be material to the merits of the motion to dismiss. Therefore, the court is exercising its discretion to not consider the information in the Cestari affidavit.

         The court has carefully considered the submissions of the parties to the Magistrate Judge and her Report and Recommendation. The Report and Recommendation is thorough and persuasive. It is, therefore, being adopted.

         In view of the foregoing, it is hereby ORDERED that:

         1. The attached Magistrate Judge's Report and Recommendation (Docket No. 29) is ADOPTED and INCORPORATED pursuant to 28 U.S.C. §636.

         2. For the reasons stated in the Report and Recommendation, Defendants' Motion to Dismiss for Lack of Personal Jurisdiction, Or, In The Alternative, For Failure to State A Claim (Docket No. 12) is ALLOWED.

         3. This case is DISMISSED for lack of personal jurisdiction.

         August 30, 2016

         REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR. ALTERNATIVELY, FAILURE TO STATE A CLAIM

          Judith Gail Dein United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff Mark Cestari ("Cestari"), a resident of Massachusetts, has brought this action against two out-of-state limited liability companies, ViaAir, LLC ("ViaAir") and Mauiva AirExpress, LLC ("Mauiva AirExpress"), and the owners and operators of the two companies, Irit and Amos Vizer. Cestari claims that the defendants failed to compensate him for five months of work that he performed pursuant to the terms of an employment contract under which the plaintiff agreed to serve as the Executive Vice President of Mauiva AirExpress and the defendants agreed to pay him a salary of $7, 000 per month plus ten percent of the business's net profits. By his Amended Complaint, Cestari has asserted claims against each of the defendants for unpaid wages in violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, breach of contract and breach of the implied covenant of good faith and fair dealing, intentional misrepresentation and violation of Mass. Gen. Laws ch. 93A.

         The matter is before the court on the "Defendants' Motion to Dismiss for Lack of Personal Jurisdiction, or, in the Alternative, for Failure to State a Claim" (Docket No. 12). By their motion, the defendants contend that all of Cestari's claims against them must be dismissed pursuant to Fed.R.Civ.P. 12(b)(2) because they lack sufficient contacts with Massachusetts to support this court's exercise of personal jurisdiction over them. Alternatively, they contend that Cestari has failed to state a claim against them under any legal theory, and that his complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons described below, this court finds that the plaintiff has failed to make the showing necessary to subject the defendants to personal jurisdiction in Massachusetts. ...


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