United States District Court, D. Massachusetts
WILLIAM G. YOUNG DISTRICT JUDGE
24, 2019, Gigi Kai Zi Chan ("Chan") filed a
complaint in this Court against her alleged employer,
Wellington Management Company LLP ("Wellington"),
on five counts under both Massachusetts and Hong Kong law:
(1) discrimination based on gender; (2) discrimination based
on race or national origin; (3) discrimination based on
disability or pregnancy (against Wellington); (4) retaliation
(against Wellington); and (5) tortious interference. Compl.
¶¶ 61-76, ECF No. 1. Chan brings an additional
count of tortious interference against her supervisor,
Charles Argyle ("Argyle"), a Wellington partner.
Id. ¶¶ 77-80. Chan seeks monetary damages,
punitive damages, attorneys' fees and costs, and other
proper relief. Id. 14.
and Argyle jointly moved to dismiss Chan's complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6),
asserting that, due to choice of law principles and the
presumption against extraterritoriality, Chan's claims
are governed solely by Hong Kong law, which gives exclusive
jurisdiction to Hong Kong courts and imposes statutory
limitation periods on these claims. Defs.' Mot. Dismiss
Pl.'s Compl., ECF No. 9; Mem. L. Supp. Mot. Dismiss
Pl.'s Compl. ("Defs.' Mem.") 4-13, ECF No.
10. Wellington and Argyle further argue that Hong Kong is the
proper forum for these claims and thus the Court ought
dismiss the complaint due to forum non conveniens.
Id. 13-14. Chan opposed the motion, Pl.'s Mem.
L. Opp'n Defs.' Mot. Dismiss ("Pl.'s
Opp'n"), ECF No. 17, which elicited a further reply,
Defs.' Reply Further Supp. Mot. Dismiss ("Defs.'
Reply"), ECF No. 20. The Court heard argument on
November 7, 2019 and took the matter under advisement.
Electronic Clerk's Notes, ECF No. 21.
careful consideration of the parties' arguments, the
Court DENIES the motion to dismiss, ECF No. 9, because
Chan's detailed complaint provides "enough facts to
state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Wellington and Argyle stress the
presumption against the extraterritorial application of
Massachusetts law, a question which the Supreme Judicial
Court has left open. See Taylor v.
Eastern Connection Operating Co., 465 Mass. 191, 199
n.9, 988 N.E.2d 408 (2013) ("[a]ssuming without deciding
that there is a presumption against the application of
Massachusetts statutes outside the United States");
O'Connell v. Chasdi, 400 Mass.
686, 689 n. 3, 511 N.E.2d 349 (1987) (applying Massachusetts
civil rights law to conduct occurring in South America but
declining to decide the question because no party raised the
issue). Thus, they assert that the
Massachusetts anti-discrimination statute, 151B, does not
govern the conduct alleged in the complaint because it took
place in Hong Kong. Defs.' Mem. 4-7.
Massachusetts law may apply overseas is an intriguing
question of law. The Court cannot yet reach that question,
however, because the complaint alleges unlawful conduct
within the Commonwealth's territorial bounds.
Chan alleges that Wellington, located in Boston, was her
employer; that she reported directly to Argyle, also in
Boston; that her employment duties required her to travel
frequently to Boston; and that Wellington and Argyle engaged
in a pattern of unlawful discriminatory acts against her,
culminating with her termination, orchestrated from the
firm's Boston headquarters. See Compl.
¶¶ 8-60. In considering this motion to dismiss, the
Court must accept these allegations as true and make all
reasonable inferences in Chan's favor. See
Twombly, 550 U.S. at 555. On these alleged facts, the
unlawful acts occurred, at least partly, in Massachusetts.
The extraterritorial application of the Commonwealth's
anti-discrimination statute is therefore not implicated.
undisputed physical placement in Hong Kong may be pertinent
to the overall analysis of the existence of employment
relationship between the parties, which is in dispute.
See Defs.' Mem. 2. Yet this fact is just one
among others that ought be considered in determining who
Chan's employer was and, relatedly, whether the allegedly
unlawful conduct took place within or without Massachusetts.
For example, ''Massachusetts cases have determined
that an employer can be defined by *who has direction and
control of the employee and to whom . . . [the employee]
owe[s] obedience in respect of the performance of his
work.'" DeLia v. Verizon
Commons Inc., 656 F.3d 1, 4 (1st Cir. 2011) (alteration
in original) (quoting Roberts v. Delta
Air Lines, Inc., 599 F.3d 73, 78 (1st Cir. 2010) and
Fleming v. Shaheen Bros., Inc., 71
Mass.App.Ct. 223, 881 N.E.2d 1143, 1147 (2008) (internal
quotation marks omitted)). Additionally, "all of the
incidents of the relationship must be assessed and weighted
with no one factor being decisive." Id. at 5
(quoting Dykes v. DePuy, Inc., 140
F.3d 31, 37 (1st Cir. 1998) and Nationwide Mut. Ins.
Co. v. Darden, 503 U.S. 318, 324
(1992)). In deciding whether a Massachusetts law applies to
conduct in another state (and perhaps even internationally),
Massachusetts courts have rejected the notion "that the
physical place where work is performed trumps all other
considerations." Dow v.
Casale, 83 Mass.App.Ct. 751, 755, 989 N.E.2d 909,
913 (2013). The Court therefore declines to give Chan's
placement in Hong Kong decisive weight.
addition, there are no contractual choice of law provisions
that prevent this Court applying Massachusetts law. Both
parties agree that the respondent's claims are rooted in
torts. Defs.' Mem. 8-9. Pl.'s Opp'n 14, 16. This
Court has observed that "claims sounding in tort are not
necessarily controlled by contractual choice of law
clauses." Silica Tech, L.L.C. v.
J-Fiber, GmbH, Civ. A. No. 06-10293-WGY, 2009 WL
2579432, at *21 (D. Mass. Aug. 19, 2009). In any case,
nothing in the contract's language suggests that claims
sounding in tort should be construed by the law of a specific
jurisdiction, whether Hong Kong or any other. See
Compl. Ex. A, Employment Contract ("Contract").
it is premature to conclude that choice-of-law considerations
dictate that the Court ought apply the law of Hong Kong
rather than the law of Massachusetts. "The first step in
a choice of law analysis is to determine whether an actual
conflict exists between the substantive laws of the
interested jurisdictions . . . ." Reicher
v. Berkshire Life Ins. Co. of Am., 360 F.3d
1, 4 (1st Cir. 2004). Wellington and Argyle have not
adequately established what the relevant Hong Kong law is,
let alone shown actual conflict with Massachusetts law. The
submission of partial, uncertified samples of foreign law
makes it difficult for the Court to see how it may materially
differ from the local law. In Silica Tech, this
Court addressed the element of actual conflict between
Massachusetts law and foreign law. Silica Tech,
L.L.C. 2009 WL 2579432, at *10. While the Court may take
judicial notice of foreign law, it is not required to do so
when a party fails to bring the law to the attention of the
Court. Id. at *10-11. In its
discretion, the Court may consult diverse sources, such as
"certified translations of foreign statutes, legal
writings about the foreign law and decisions by the courts of
the foreign country" or expert testimony. Id.
Here, the Court does not yet have a full and reliable
statement of relevant Hong Kong law. Absent proof of an
actual conflict with Massachusetts antidiscrimination law,
the Court should apply the latter. See Valle v. Powertech
Indus. Co., 381 F.Supp.3d 151, 160 (D. Mass. 2019)
(Casper. J) ("Because neither party has established that
the content of Taiwanese law creates an actual conflict with
Massachusetts contract law, the Court interprets the
Agreement pursuant to Massachusetts law.").
the Court disagrees with the argument of Wellington and
Argyle that Hong Kong has exclusive jurisdiction over these
claims. Defs.' Mem. 10-11. The language of the Hong Kong
statute and case law cited by the defendants, to the extent
it accurately reflects Hong Kong law, seems to govern Hong
Kong's internal legal affairs only. Neither the Hong Kong
statute nor the cited case law implies any control over
foreign courts, nor could they limit this Court's
jurisdiction. "A federal court sitting in diversity
jurisdiction is obliged to apply federal procedural law and
state substantive law." Alternative Sys. Concepts,
Inc. v. Synopsys, Inc., 374 F.3d 23,
32 (1st Cir. 2004) (citing Hanna v. Plumer, 380 U.S.
460, 465 (1965) and Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938)). An exclusive
jurisdiction provision is procedural rather than substantive;
thus the Court ought apply its own procedural law to
determine jurisdiction. See Randall v.
Arabian Am. Oil Co., 778 F.2d 1146, 1152 (5th Cir.
1985). Moreover, as the Fifth Circuit observed:
The exclusive jurisdiction provisions of the [Saudi Arabian]
Labor Law cannot deprive a United States District Court of
subject matter jurisdiction. ... We reject outright the
notion that the law of a foreign country can unilaterally
curtail the power of our federal courts to hear a dispute
even though the dispute involves rights fixed by the laws of
another nation. Only the Constitution and the laws of the
United States can dictate what cases or controversies our
federal courts may hear ....
Id. at 1150.
similar vein, although not involving foreign law, the Supreme
Court has held that a state may make its law exclusive;
however, outside its borders, it cannot bind other
states' courts. See Crider v. Zurich Ins. Co.,
380 U.S. 39, 41 (1965).
the Court cannot at this time rule that any of the claims in
the complaint is time-barred because it is premature to
determine what law should apply and Honk Kong law has not
reliably been established. Even if the Court will apply Hong
Kong law, some claims are apparently within the time limits.
The termination of Chan's employment, which raises
several claims under the complaint, occurred on September 12,
2017. Compl. ¶ 56. Since Chan filed her complaint on
July 24, 2019, the termination of employment did not exceed
the purported two-year limitations period under Hong Kong
law. Defs.' Mem. 12. Moreover, the Court cannot yet
determine whether Hong Kong law recognizes the continuing
violation doctrine and whether it applies to these facts, in
which case earlier alleged acts of discrimination may not be
time-barred. Cf. 0'Rourke v. City
of Providence, 235 F.3d 713, 727-728, 730 (1st Cir.
2001); Noviello v. City of Boston, 398 F.3d 76, 86
(1st Cir. 2005).
the Court rejects the application of the forum non
coveniens doctrine. Although Chan's choice of forum
deserves only diminished deference because Massachusetts is
not her home forum, this does not automatically bar her
access to this Court when the defendants, who are domiciled
in Massachusetts, have not met their burden to show that
litigating in Massachusetts would be highly inconvenient.
See Piper Aircraft Co.v.Reyno,
454 U.S. 235, 255-56 (1981); InterfacePartners
Int'l Ltd. v. Hananel, 575 F.3d 97, 101-02
(1st Cir. 2009); Mercierv. Sheraton Int'l,
Inc., 981 F.2d 1345, 1354 (1st Cir. 1992)("The