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Ferrara v. Voyport II, LLC

United States District Court, D. Massachusetts

October 29, 2018

JOHN FERRARA, Plaintiff,
VOYPORT II, LLC, et al., Defendants.


          Leo T. Sorokin United States District Judge.

         Pending before the Court are a motion for default judgment against Defendant Voyport II, LLC (“Voyport”) and a motion for summary judgment against both Voyport and Defendant Adam Conyers.

         I. BACKGROUND

         In August 2014, Ferrara was hired by Voyport. Doc. No. 67 ¶ 1. He was initially hired by Elizabeth Davenport, who held the title of Vice President of Sales. Id. Conyers, the Chief Financial Officer (“CFO”) of Voyport, completed and signed a “Contractor-Consulting Agreement” (“the Contract”)[1] on behalf of Voyport. Id. ¶¶ 2-4. The Contract describes Voyport's business as “provid[ing] business customers with a full-featured, cost-efficient international mobile voice roaming communications service (‘Product'), using a combination of dedicated, intelligent international data routing, existing smartphone capabilities, and simplified business integration.” Doc. No. 60-2 at 1. It further describes Ferrara's role as “act[ing] as a direct business to business sales representative” for Voyport. Id. It is undisputed that during his work for Voyport, Ferrara “reported directly to Elizabeth Davenport, ” the Vice President of Sales. Doc. No. 67 ¶ 14.

         In a paragraph titled “Independent Contractor, ” the Contract states that Ferrara was “not an employee of [Voyport], and that the relationship [was] that of an independent contractor.” Doc. No. 60-2 at 2. The Contract gave Ferrara the “right to promote the sale of the Product and related services . . . through tactics deemed appropriate by the Company, including but not limited to personal and professional networks, referrals and recommendations.” Id. at 3. It also included a non-compete clause, which required Ferrara to “discuss with [Voyport], in advance, any undertakings that are contemplated, or in existence, to work for other companies that could be considered competitors” to Voyport, including a warning that the “failure to raise these matters and obtain prior written consent from [Voyport] shall constitute an automatic breach of this Agreement and [Voyport] may immediately terminate this Agreement without further notice.” Id. at 4. The Contract also contained a provision which permitted Voyport to terminate Ferrara without cause if it gave him 90 days written notice or “90 days paid settlement in lieu of notice.” Id. at 3.

         By late 2014, Voyport “had essentially run out of money.” Doc. No. 63 ¶ 30. In October of that year, Ferrara began sending periodic emails to Conyers noting that he had not yet received any money for his services and asking when he should expect to be paid. See Docs. No. 60-13 at 1-5, 60-7 at 1, 60-18 at 1. The first of these email inquiries is dated October 1, 2014, Doc. No. 60-13 at 1, and the last is dated March 26, 2015, Doc. No. 60-18 at 3. Ferrara asserts that he was not paid for the services rendered from November 2014 through March 2015, his last five months with Voyport. Doc. No. 67 ¶ 27. In April 2015, Conyers sent Ferrara a proposed release for approximately $30, 000, reflecting “the amount of consulting fees and other amounts due [] for the months of November 2014 through to March 2015, ” Doc. No. 60-16, which Ferrara declined, Doc. No. 60-15 at 1. Ferrara claims the following unpaid wages:

$5, 500 in base salary x 5 months = $27, 500
$250 in health insurance reimbursement x 5 months = $1, 250
$250 in commission bonuses x 4 months = $1, 000
$29.22 for business cards
$959.78 in late fees accrued by Ferrara
$5, 500 in base salary x 3 months = $16, 500 (payment-in-lieu-of-notice)
$250 in health ins. reimbursement x 3 months = $750 (payment-in-lieu-of-notice)

Doc. No. 58 at 9-11. Ferrara further argues that each of the items listed above is subject to mandatory trebling by statute. Id.

         Ferrara has brought five claims: (1) violation of the Massachusetts Wage Act; (2) violation of the Massachusetts Minimum Wage Law; (3) retaliation; (4) breach of contract; and (5) unjust enrichment. Doc. No. 1 at 13-14. The Court lacked personal jurisdiction over VGH and two individual defendants, and therefore dismissed all claims against those three defendants. Doc. No. 30. In addition, the Court found that it lacked personal jurisdiction over, and thus dismissed, the breach of contract and unjust enrichment claims against Conyers. Id. At this time, all five claims remain against Voyport, and Counts I - III remain against Conyers.

         In February 2018, the Court allowed defense counsel's motion to withdraw, and ordered Voyport to obtain successor counsel. Doc. No. 53 at 1. The Court instructed Voyport that failure to obtain a successor counsel might result in default judgment. Id. To date, Voyport has not obtained counsel. Accordingly, Ferrara has filed a motion for default judgment against Voyport, in addition to a motion for summary judgment against both Voyport and Conyers.


         The Court applies the familiar summary judgment standard. Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court is “obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court must ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).


         Ferrara moved for summary judgment on all remaining counts. Conyers filed an opposition to the motion for summary judgment. Voyport, unrepresented, has not opposed. The Court addresses the issues presented separately as to each defendant. Though Voyport has not opposed the motion for summary judgment, the Court considers the merits of the motion against Voyport. In doing so, the Court considers Conyers's arguments presented in his opposition briefs because the issues presented overlap between the two defendants.

         A. Count I ...

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