United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION TO DISMISS OR, IN THE
ALTERNATIVE, TO TRANSFER
Dennis Saylor IV United States District Judge
a contract action. Plaintiff Chris Theophile has brought suit
against his former clients for allegedly failing to
compensate him for procuring a loan approval to finance the
construction of a sports and events center in New Jersey. The
complaint alleges four counts arising under state law for
breach of contract, breach of warranty, unjust enrichment,
and unfair and deceptive practices in violation of Mass. Gen.
Laws ch. 93A.
have moved to dismiss the action on the bases that this Court
lacks personal jurisdiction under Fed.R.Civ.P. 12(b)(2) and
that the complaint fails to state a claim upon which relief
can be granted under Fed.R.Civ.P. 12(b)(6). In the
alternative, defendants seek a transfer of this action to New
Jersey under 28 U.S.C. § 1404(a). For the following
reasons, defendants' motion will be denied.
otherwise noted, the facts are set forth as alleged in the
Theophile is an individual doing business as CDP Services of
MA. He is a Massachusetts resident. Defendants David Conklin
and John Wolkstein are New Jersey residents. Defendants 70-76
Passaic Avenue, LLC and Florham Park Sports Dome and Event
Center, LLC are limited liability companies organized in New
Jersey. Conklin and Wolkstein are members of, and hold a
majority interest in, Passaic and Florham.
September 5, 2014, Wolkstein, Conklin, and Florham entered
into an exclusive brokerage agreement with CDP under which
CDP would seek to obtain approximately $4.7 million in loan
financing to build a sports and events center in New Jersey.
(Compl. Ex. A). The agreement provided that it “shall
be governed and construed in accordance with the laws of The
Commonwealth of Massachusetts.” (Id.).
April 21, 2016, allegedly through the efforts of CDP, Passaic
and Florham were approved for financing by Crown Bank for a
loan in the amount of approximately $9.9 million. (Compl. Ex.
B). Conklin and Wolkstein were named as guarantors on the
approval letter. (Id.). On May 25, 2016, Conklin
sent Theophile an e-mail informing him that he was rejecting
the terms of the Crown Bank loan and purporting to terminate
the brokerage agreement. Despite that representation,
defendants allegedly closed on financing under the loan
approval obtained by CDP and have begun receiving loan
to sworn affidavits submitted by defendants, Wolkstein and
Conklin conducted all business with CDP by telephone, e-mail,
and fax, and neither defendant ever traveled to Massachusetts
to meet with Theophile. (Wolkstein Aff.; Conklin Aff.).
Conklin contends that he works full-time and participates
extensively in his children's extracurricular activities,
and therefore being subject to litigation in Massachusetts
would impose a burden on him. (Conklin Aff.). Wolkstein
contends that he is self-employed and assists in the care of
his elderly father who resides in a nursing home, and
therefore litigation in Massachusetts would likewise impose a
burden on him. (Wolkstein Aff.).
April 20, 2017, Theophile filed the complaint in this action
in Massachusetts state court. On May 15, 2017, defendants
removed the action to this Court. The complaint alleges four
counts under state law for (1) breach of contract, (2) breach
of warranty, (3) unjust enrichment, and (4) unfair and
deceptive practices in violation of Mass. Gen. Laws ch. 93A.
have moved to dismiss the action under Fed.R.Civ.P. 12(b)(2)
and Fed.R.Civ.P. 12(b)(6). In the alternative, defendants
have requested that the Court transfer the action to New
Jersey under 28 U.S.C. § 1404(a).
Rule 12(b)(2) Motion to Dismiss for Lack of Personal
plaintiff bears the burden of establishing that the court has
personal jurisdiction over the defendants. See Daynard v.
Ness, Motley, Loadholt, Richardson & Poole, P.A.,
290 F.3d 42, 50 (1st Cir. 2002). To establish personal
jurisdiction in Massachusetts, a plaintiff must show that
that the requirements of the Massachusetts long-arm statute
are met and that the exercise of jurisdiction is consistent
with constitutional due process. Id. at 52;
Intech, Inc. v. Triple “C” Marine Salvage,
Inc.,444 Mass. ...