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Empire Loan of Stoughton, Inc. v. Stanley Convergent Security Solutions, Inc.

Appeals Court of Massachusetts, Norfolk

January 24, 2019

EMPIRE LOAN OF STOUGHTON, INC.
v.
STANLEY CONVERGENT SECURITY SOLUTIONS, INC.

          Heard: November 8, 2018.

         Civil action commenced in the Superior Court Department on July 24, 2015. A motion to dismiss was heard by Beverly J. Cannone, J., and a motion for reconsideration was considered by her.

         A motion to dismiss the appeal was heard in the Appeals Court by Rubin, J.

          Dana E. Casher for the plaintiff.

          Christopher A. Duggan (Nicole B. Cordeiro also present) for the defendant.

          Present: Sullivan, Kinder, & Shin, JJ.

          KINDER, J.

         Pawn shop operator Empire Loan of Stoughton, Inc. (Empire), filed a complaint in Superior Court against Stanley Convergent Security Solutions, Inc. (Stanley), a supplier and servicer of security systems, alleging, among other things, that Stanley breached a contract with Empire by failing to properly monitor and maintain a security system it sold to Empire. A Superior Court judge allowed Stanley's motion to dismiss because the contract contained a forum selection clause that provided that any action against Stanley must be brought in Hartford, Connecticut. On appeal, Empire claims error in the order of dismissal, arguing that the forum selection clause is unenforceable. In a consolidated appeal, Stanley argues that its motion to dismiss Empire's appeal for lack of jurisdiction should have been allowed by the single justice. We affirm the order of the single justice and the judgment dismissing Empire's claims.

         Background.

         Stanley filed its motion to dismiss the complaint under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), which, in the normal course, "is the correct vehicle to employ when the ground for dismissal is alleged to be that the court lacks jurisdiction as a result of an enforceable forum selection clause." Boland v. George S. May Int'l Co., 81 Mass.App.Ct. 817, 818 n.2 (2012). However, when "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Mass. R. Civ. P. 56, 365 Mass. 824 (1974)]." Mass. R. Civ. P. 12 (b). Because both parties submitted affidavits in connection with the motion to dismiss and the record does not show that the judge excluded them, we treat the motion as one for summary judgment.[1] See Baby Furniture Warehouse Store, Inc. v. Meubles D&F Ltee, 7 5 Mass.App.Ct. 27, 29 n.3 (2009). Our review of the record in the light most favorable to Empire, the nonmoving party, Id., reveals the following material facts.

         Empire is a Massachusetts company that operates five Massachusetts pawn shops, including one in Stoughton.[2] Stanley is a Delaware corporation doing business in Massachusetts with an office in Woburn. Beginning in 2011, Empire and Stanley entered into eight contracts in which Stanley agreed to install and monitor security systems in Empire's pawn shops in exchange for monthly payments. As relevant here, the contracts stated that they were entered into in Connecticut, that they "shall be interpreted, enforced and governed under the laws of the State of Connecticut without regard to application of conflicts of laws principals [sic] that would require the application of any other law," and that "[a]ny action regarding this agreement or otherwise brought against [Stanley] by or on behalf of any party to this agreement . . . shall be maintained in a court in Hartford, Connecticut."

         Stanley's Massachusetts salesperson Robert Corrieri negotiated the contracts with Empire's general manager, Steven Duva, and its president, Michael Goldstein. Viewing the evidence in the light most favorable to Empire, the negotiations actually occurred in Massachusetts. The parties negotiated prices, and Duva inserted handwritten terms into the agreement relating to Empire's pawn shop in Lynn. Each page of every contract bears the signature or initials of Duva or Goldstein, neither of whom objected to the forum selection clause. In executing each contract, Duva and Goldstein agreed that they had "read th[e] entire [a]greement" and would "be bound by all its terms and conditions."

         Business between Empire and Stanley proceeded without incident until December 25, 2014, when two unidentified burglars disabled the telephone wire to the Stoughton pawn shop, tore wiring from the security system, broke in, and damaged or stole property. Neither Stanley nor the security system alerted Empire or the police. As a result of the burglary, Empire sustained losses that were not covered by insurance.

         D ...


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