Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Theophile v. Conklin

United States District Court, D. Massachusetts

July 24, 2017

CHRIS THEOPHILE d/b/a CDP SERVICES OF MA, Plaintiff,
v.
DAVID A. CONKLIN, JOHN N. WOLKSTEIN, 70-76 PASSAIC AVENUE, LLC, and FLORHAM PARK SPORTS DOME AND EVENT CENTER, LLC, Defendants.

          MEMORANDUM AND ORDER ON MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER

          F. Dennis Saylor IV United States District Judge

         This is 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.

         Defendants 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.

         I. Background

         Unless otherwise noted, the facts are set forth as alleged in the complaint.

         Chris 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.

         On 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.).

         On 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 disbursements.

         According 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.).

         On 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.

         Defendants 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).

         I. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

         A 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).[1] 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.