Superior Court of Massachusetts, Suffolk, Business Litigation Session
Neffie LOCKLEY, On Behalf of Herself and All Others Similarly Situated
STUDENTCITY.COM, INC. dba Student City et al.
Date: December 5, 2018
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTSâ
MOTION TO DISMISS AMENDED CLASS ACTION COMPLAINT
L. Sanders Justice
a putative class action alleging that Studentcity.com, Inc.
(Student City) has violated the Massachusetts Wage Act,
G.L.c. 149, §§ 148 150, and the Massachusetts
independent contractor statute, G.L.c. 149 148B,
as well as the Fair Labor Standards Act, 29 U.S.C.
§§ 201 et seq. (the FLSA). The case is now before
this Court on the defendantsâ Motion to Dismiss pursuant to
Mass.R.Civ.P. 12(b)(6). Specifically, defendants contend that
the FLSA by its terms applies only to employment in the
United States and thus cannot apply here, where all members
of the putative class worked abroad. The defendants also
argue that the Wage Act cannot, as a matter of law, apply
extraterritorially to govern the terms of services rendered
by plaintiffs and others similarly situated. After careful
review of the partiesâ submissions, this Court concludes that
the defendantsâ Motion must be Allowed.
First Amended Class Action Complaint (the Complaint) contains
the following allegations, assumed as true for purposes of
this motion. Student City is a "foreign
corporation" with a principal place of business in
Peabody, Massachusetts. Defendant Sam Cox is, "on
information and belief," a resident of Massachusetts and
is the President of Student City. Defendant Alison Skoglund
is also, "on information and belief," a
Massachusetts resident and is Treasurer of Student City.
City targets college students throughout the United States,
offering them spring break travel packages whereby they
travel to and stay in resorts outside of the country. For
some of these students, Student City offers to pay all of
their expenses in return for their agreement to work as
Student City "on site" staff members at these
resort locations. These students also receive a daily
stipend. Students taking advantage of these packages sign an
"On-Site Representative Agreement" with Student
City that describes them as independent contractors. Student
City nevertheless retains considerable control over the
students, supporting the Complaintâs assertion that they have
been misclassified in violation of the Wage Act. Complaint, Â¶
25. However, none of the indicia of control set forth in the
Complaint require that the students come to Massachusetts.
The On-Site Representative Agreement also has a choice of law
provision which states that the "interpretation and
application of the terms of this Agreement shall be governed
and constructed [sic] in accordance with the laws of the
Complaint contains no specific allegations about the
individual plaintiff Neffie Lockley other than to state that
she resides in Colorado and that she worked as a Student City
"on site staff" representative for its 2018 spring
break trip to the Bahamas. However, based on other materials
submitted by the parties (including exhibits attached to
plaintiffâs opposition), plaintiff does not dispute the
following. Before Lockley went to the Bahamas, all
communications between Student City and Lockley occurred
while Lockley was outside of Massachusetts. She signed an
On-Site Representative Agreement with Student City after
exchanging emails with Student City representatives located
in Massachusetts. Student City provided her, via email, with
an airlines ticket from Fort Lauderdale, Florida to Nassau,
arriving February 28, 2018. In the Bahamas, Lockley performed
services as an "on-site representative" of Student
City at a resort there for approximately three weeks, with a
return trip scheduled for March 19, 2018. Her round trip
ticket was paid for by Student City; her room, meals, and
beverages at the "Superclub Breezes Resort and Spa"
were also included. Lockley received a stipend from Student
City totaling $200 a week, but otherwise was not paid minimum
wage or overtime payments which would be due to her as an
employee. At no time did she ever come to Massachusetts.
Lockley brings this lawsuit on behalf of herself and
"all other similarly situated
individuals"-presumably a nationwide class.
essentially concedes that her claim under the FLSA must be
dismissed. By its terms, the FLSA cannot be applied to
services performed abroad. 29 U.S.C. § 213(f). Thus, the
issue before the Court is whether the Wage Act can be applied
to regulate the terms of work wholly performed in a foreign
country. This Court concludes that, under the circumstances
presented here, the Wage Act does not apply.
defendants make a number of arguments in support of their
motion. These arguments include their contention that, if
this Court were to construe the Wage Act to apply to
employment in a foreign country, this would violate the
United States Constitution. Where possible, however, a court
should avoid reaching the constitutional issue unless it has
to in order to resolve the matter. SCVNGR, Inc. v. Punch,
Inc., 478 Mass. 324, 330 (2017); Commonwealth v.
Guzman, 469 Mass. 492, 500 (2014); Beeler v.
Downey, 387 Mass. 609, 613 n.4 (1982). More persuasive
is the defendantâs position that the Wage Act must be
construed in light of the general presumption against the
international extraterritorial application of domestic laws
where there is no clearly expressed legislative intent to
regulate conduct abroad.
presumption has been applied repeatedly by federal courts in
construing federal statutes. See, e.g., Carnero v. Boston
Scientific Corp., 433 F.3d 1, 7 (1st Cir. 2006)
(recognizing that where a statute is silent as to its
territorial reach, and no contrary congressional intent
clearly appears, there is a general presumption against its
extraterritorial application); Foley Bros., Inc. v.
Filardo, 336 U.S. 281, 285 (1949) (same); Small v.
United States, 544 U.S. 385, 388-89 (2005) (discussing
presumption). This presumption is grounded on the assumption
that, if Congress wished for a federal statute to apply
extraterritorially, it would say so explicitly, since such an
application would intrude on the "delicate field of
international relations." McCulloch v. Sociedad
Nacional de Marineros de Honduras, 372 U.S. 10, 21-22
(1963), quoting Benz v. Compania Naviera Hidalgo,
353 U.S. 138, 147 (1957). See Equal Employment
Opportunity Commân v. Arabian Am. Oil Co., 499 U.S. 244,
248 (1991) (presumption "serves to protect against
unintended clashes between our laws and those of other
nations which could result in international discord").
Wage Act does not expressly state that it applies
extraterritorially, so under the reasoning and presumption
applied in these federal cases, it would not apply to work in
the Bahamas. However, it is not entirely clear that this
presumption against the international extraterritorial
application of federal law applies to a state
statute like the Wage Act. At least one Superior Court judge
has applied the presumption and concluded that, with
no express statement from the legislature to rebut that
presumption, the Wage Act could not apply to govern the
plaintiffâs terms of employment because the plaintiff worked
in Africa. Hadfield v. A.W. Chesterson Co.,
MICV2008-04382, 26 Mass.L.Rptr. 101, 2009 WL 3085921, *2
(Sept. 15, 2009) (Fremont-Smith, J.) (Hadfield).
Nevertheless, because it is a Superior Court decision,
Hadfield has no precedential value, nor is there any
Massachusetts appellate court decision directly on point. But
see May v. Breed, 61 Mass. 15, 16 (1851) ("It
is admitted, that foreign laws have no authority, as laws,
out of the jurisdiction which enacts them"); compare
OâConnell v. Chasdi, 400 Mass. 686, 689 n.3 (1987)
(applying state Civil Rights Act to conduct that occurred in
South America but noting that no party had raised the issue
of whether statute should be applied extraterritorially); cf.
Taylor v. Eastern Connection Operating, Inc., 465
Mass. 191, 198 & n.9 (2013) (assuming that presumption would
prevent Massachusetts independent contractor statute from
applying outside United States but not deciding the issue,
since employment at issue was within the country).
absence of state appellate court cases deciding this issue,
this Court does not feel comfortable with relying entirely on
this presumption. Moreover, when faced with the question of
whether the Massachusetts independent contractor statute or
the Wage Act applies to employment in another state
within the United States (that is, in an interstate context),
both the Supreme Judicial Court and Appeals Court have made
it clear that there is no such presumption. See Taylor v.
Eastern Connection Operating, Inc., 465 Mass. at 198;
Dow v. Casale, 83 Mass.App.Ct. 751, 755 (2013). In
other words, that the employee performs work outside of
Massachusetts is not determinative. Dow v. Casale,
83 Mass.App.Ct. at 755-56. Rather, the question is whether,
under choice of law principles, there is a sufficient
relationship between the parties, the conduct at issue, and
Massachusetts such that Massachusetts law applies. Using a
choice of law analysis, this Court concludes that
Massachusetts has an insufficient connection with either
party or the conduct at issue to warrant the application of
the Wage Act.
there is no choice of law provision in the On-Site
Representative Agreement that directs this Court to apply
Massachusetts law. Instead, the Agreement states only
that it shall be construed "in accordance with the laws
of the United States." To the extent that this could be
read to refer to federal law, the FLSA by its terms cannot
apply to this case. In the absence of a choice of law
provision that directs this Court to apply the law of any
particular state, this Court applies the conflict of laws
rules of Massachusetts, ...