United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
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.
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.
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.
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.
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.
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
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.
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.
"[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.
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.
of the foregoing, it is hereby ORDERED that:
attached Magistrate Judge's Report and Recommendation
(Docket No. 29) is ADOPTED and INCORPORATED pursuant to 28
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.
case is DISMISSED for lack of personal jurisdiction.
AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS FOR
LACK OF PERSONAL JURISDICTION OR. ALTERNATIVELY, FAILURE TO
STATE A CLAIM
Gail Dein United States Magistrate Judge.
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.
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.