United States District Court, D. Massachusetts
MEMORANDUM DECISION AND ORDER ON DEFENDANTS'
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
GAIL DEIN UNITED STATES MAGISTRATE JUDGE
Sara Crowe (“Ms. Crowe”), is a resident of
Massachusetts and has brought this action against her former
employer, Harvey Klinger, Inc. (the “Agency”),
and its principal and CEO, Harvey Klinger. This action arises
out of an employment dispute. Ms. Crowe, a literary agent,
contends that her employment contract required the Agency to
pay her commissions on deals related to authors she had
brought to the Agency, regardless of whether she continued to
be employed by the Agency. Ms. Crowe alleges that in
violation of her employment contract, the defendants stopped
paying her commissions upon her resignation from the Agency.
By her First Amended Complaint (“FAC”) (Docket
No. 4), Ms. Crowe has asserted claims against the defendants
for violation of New York Labor Law § 198 (The New York
Wage Theft Prevention Act (“WTPA”)) (Count I),
violation of New York Labor Law § 195(1) (Count II),
violation of the anti-retaliation provisions of the WTPA
(Count III), violation of Mass. Gen. Laws ch. 149 § 148
(The Massachusetts Wage Act) (Count IV), violation of Mass.
Gen. Laws ch. 149 § 150 (Count V), and relief pursuant
to 28 U.S.C. § 2201 (the Declaratory Judgment Act)
(Count VI). (See FAC ¶¶ 35-68).
matter is before the court on “Defendants' Motion
to Dismiss for Lack of Personal Jurisdiction, Improper Venue
and Forum Non Conveniens.” (Docket No. 9). By their
motion, the defendants contend that all of Ms. Crowe's
claims must be dismissed pursuant to Fed.R.Civ.P. 12(b)(2)
because the defendants lack sufficient contacts with
Massachusetts to support this court's exercise of
personal jurisdiction over them. The defendants also contend
that if this court determines that it has jurisdiction, it
should nevertheless transfer this action to the federal
district court for the Southern District of New York pursuant
to 28 U.S.C. § 1404 on the basis of forum non
reasons detailed herein, this court finds that the defendants
are subject to this court's jurisdiction and that
transfer is not warranted. Accordingly, the defendants'
motion is DENIED.
STATEMENT OF FACTS
of Review of Record
a motion to dismiss for want of personal jurisdiction, the
plaintiff ultimately bears the burden of persuading the court
that jurisdiction exists.” Astro-Med, Inc. v. Nihon
Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009), and
cases cited. “When a district court rules on a motion
to dismiss for lack of personal jurisdiction without holding
an evidentiary hearing, as in this case, the ‘prima
facie' standard governs its determination.”
United States v. Swiss Am. Bank, Ltd., 274
F.3d 610, 618 (1st Cir. 2001). Under this standard, the
plaintiff must “demonstrate the existence of every fact
required to satisfy both the forum's long-arm statute and
the Due Process Clause of the Constitution.”
Id. (quotations and citation omitted). Thus, to meet
her burden in this case, Ms. Crowe must “proffer
evidence which, taken at face value, suffices to show all
facts essential to personal jurisdiction.”
Baskin-Robbins Franchising LLC v. Alpenrose Dairy,
Inc., 825 F.3d 28, 34 (1st Cir. 2016). The court will
“take the facts from the pleadings and whatever
supplemental filings (such as affidavits) are contained in
the record, giving credence to the plaintiff's version of
genuinely contested facts.” Id. It will
“then add to the mix facts put forward by the
defendants, to the extent that they are
uncontradicted.” N. Laminate Sales, Inc. v.
Davis, 403 F.3d 14, 24 (1st Cir. 2005) (quoting
Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002))
(additional quotations and citation omitted).
this standard to the instant case, the relevant facts are as
Crowe, a literary agent by profession, is currently domiciled
in Milton, Massachusetts. (FAC ¶ 1). Harvey Klinger,
Inc. is a literary agency incorporated under the laws of New
York with its principle place of business in New York, New
York. (Id. ¶ 2). Harvey Klinger is the sole
owner of the Agency (Klinger Decl. ¶ 1) and is the
principal and CEO. (FAC ¶ 9). He is also a literary
agent for the Agency. (Klinger Decl. ¶ 4; Crowe Aff.
¶ 18). In his capacity as a literary agent, Mr. Klinger
has done business in Massachusetts “for a writer if a
publishing house in Massachusetts is offering a publishing
contract.” (Klinger Decl. ¶ 4). Ms. Crowe asserts,
and Mr. Klinger does not dispute, that he resides and votes
in Pennsylvania. (Crowe Aff. ¶ 27). Mr. Klinger owns a
half interest in a “vacation - long weekend”
house in Provincetown, Massachusetts, which is “half
rented summers only.” (Klinger Decl. ¶ 3).
Crowe was employed as a literary agent by the Agency from
February 1, 2005 to September 8, 2016. (Crowe Aff. ¶ 1;
FAC ¶ 9). She was hired by and worked for Mr. Klinger.
(Id.). As a literary agent for the Agency, Ms. Crowe
represented children's, young adult, and adult fiction
writers and eventually specialized in representing
children's authors. (Crowe Aff. ¶¶ 2-3). She
represented her authors' written work to publishers,
assisted in the sale and deal negotiation of those
authors' works in domestic and foreign markets, and was
responsible for initiating and maintaining relationships with
authors. (FAC ¶ 10-11). During her employment with the
Agency, Ms. Crowe developed a number of agent relationships
with authors of children's books and became one of the
top selling children's books agents. (Crowe Aff. ¶
3). By the end of her employment with the Agency, Ms. Crowe
personally represented a “significant number” of
the authors signed with the Agency, including New York Times
bestselling and award winning authors and titles.
(Id. ¶ 28; FAC ¶ 10-11).
2014, Ms. Crowe and Mr. Klinger agreed that Ms. Crowe's
wages would be paid exclusively by commission in an amount
equal to 70% of the commission that the Agency received on
authors Ms. Crowe sourced. (Crowe Aff. ¶ 4). This
agreement was oral and was never reduced to writing. (Klinger
Reply Decl. ¶ 23). Ms. Crowe alleges that the agreement
did not include a requirement that Ms. Crowe remain employed
by the Agency to receive these funds (Crowe Aff. ¶ 4).
She also alleges that she repeatedly requested that Mr.
Klinger reduce the commission agreement to writing, but that
he refused to do so. (Crowe Aff. ¶ 5). Nevertheless, the
Agency paid Ms. Crowe 70% of the commissions it received from
Ms. Crowe's authors. (FAC ¶ 19).
Crowe's Move to Massachusetts
mid-2015, Ms. Crowe's husband was transferred to
Massachusetts, and Ms. Crowe subsequently informed Mr.
Klinger that she needed to move to and work from
Massachusetts. (Crowe Aff. ¶ 7). Mr. Klinger agreed to
allow Ms. Crowe to work from home in Massachusetts, and Ms.
Crowe moved here in June 2015. (Id.). Ms. Crowe
states that if Mr. Klinger had not agreed to the move, she
“would have been forced to leave Harvey Klinger, Inc.
at the time.” (Id.). In fact, it is apparently
undisputed that either party could have terminated the
employment relationship, and that the Agency was not
obligated to permit Ms. Crowe to work in Massachusetts.
(See Klinger Reply Decl. ¶ 30 (plaintiff's
“employment had no term and either party could
terminate at will”)).
Crowe asserts that it was not intended that she commute to
the Agency in New York after she moved to Massachusetts, and
she was not given a travel budget to do so. (Crowe Aff.
¶ 8). During the remainder of 2015, she spent a total of
six days in the New York office, and she spent fewer days
there in 2016. (Id. ¶ 11). It is undisputed,
however, that she maintained an office at the Agency in New
York (Klinger Decl. ¶ 6) and kept some personal items
there. (Crowe Aff. ¶ 16).
June 2015 until her resignation on September 8, 2016, Ms.
Crowe worked on a full-time basis for the Agency from
Massachusetts, communicating with her authors and with Mr.
Klinger by mail, email, and phone. (Id. ¶ 10).
Mr. Klinger himself attests that he had numerous telephone
calls and email communications with Ms. Crowe about
manuscripts, contracts, and “all the details of [their]
work” while she resided in and worked from
Massachusetts. (Klinger Reply Decl. ¶ 4). At the time of
those communications, Mr. Klinger assumed that Ms. Crowe was
at home. (Klinger Decl. ¶ 4).
Crowe estimates that she brought approximately ten new
authors to the Agency, while she was working in
Massachusetts. (Crowe Aff. ¶ 12). She claims, although
the Agency disputes, that one of those new authors resided in
Massachusetts. (Id.; see Klinger Reply
Decl. ¶ 7). Two of the publishers of her clients'
books were located in Massachusetts. (Crowe Aff. ¶ 13).
It is undisputed that Ms. Crowe engaged in various networking
activities in Massachusetts, including having lunch with
authors who lived in Massachusetts and attending readings in
libraries and bookstores in the Boston area. (Id.).
She also attended a number of conferences on behalf of the
Agency, including an American Library Association Conference
in Boston, Massachusetts, a New England Society of
Children's Books Writers and Illustrators conference in
Springfield, Massachusetts, a South by Southwest Conference
in Austin, Texas, and The Bologna Book Fair in Bologna,
Italy. (Id. ¶11). According to Ms. Crowe, at
the time she left the Agency she had over 50 author/clients
across the United States, including three from Massachusetts
and one who resides internationally. (Crowe Aff. Ex. B).
Crowe asserts that during the course of her employment in
Massachusetts, she represented a “significant
number” of authors signed with the Agency and that, for
the year 2015, the revenues generated from her authors were
more than half of the Agency's total revenues that year.
(Crowe Aff. ¶ 28). The parties disagree as to whether
Ms. Crowe ...