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Crowe v. Harvey Klinger, Inc.

United States District Court, D. Massachusetts

September 30, 2017

SARA CROWE, Plaintiff,
v.
HARVEY KLINGER, INC. and HARVEY KLINGER, Defendants.

          MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

          JUDITH GAIL DEIN UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff, 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).

         This 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 conveniens.

         For the 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.

         II. STATEMENT OF FACTS

         Standard of Review of Record

         “On 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).

         Applying this standard to the instant case, the relevant facts are as follows.[1]

         The Parties

         Sara 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).

         The Employment Relationship

         Ms. 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).

         In 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).

         Ms. Crowe's Move to Massachusetts

         In 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”)).

         Ms. 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).

         From 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).

         Ms. 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).

         Ms. 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 ...


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