EMPIRE LOAN OF STOUGHTON, INC.
STANLEY CONVERGENT SECURITY SOLUTIONS, INC.
Heard: November 8, 2018.
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.
motion to dismiss the appeal was heard in the Appeals Court
by Rubin, J.
E. Casher for the plaintiff.
Christopher A. Duggan (Nicole B. Cordeiro also present) for
Present: Sullivan, Kinder, & Shin, JJ.
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.
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. 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.
is a Massachusetts company that operates five Massachusetts
pawn shops, including one in Stoughton. 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."
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."
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.