Crowe v. Harvey Klinger, Inc.

277 F. Supp. 3d 182
CourtDistrict Court, D. Massachusetts
DecidedSeptember 30, 2017
DocketCIVIL ACTION NO. 16-12033-JGD
StatusPublished
Cited by6 cases

This text of 277 F. Supp. 3d 182 (Crowe v. Harvey Klinger, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crowe v. Harvey Klinger, Inc., 277 F. Supp. 3d 182 (D. Mass. 2017).

Opinion

MEMORANDUM DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Judith Gail Dein, United States Magistrate Judge

L INTRODUCTION

Plaintiff, Sara Crowe (“Ms. Crowe”), is a resident of Massachusetts and has brought this action against her former employer, Harvey Klinger, Inc. (the “Agency”), and its principal and CEO, Harvey Klinger. This action arises out of an employment dispute. Ms. Crowe, a literary agent, contends that her employment contract required the Agency to pay her commissions on deals related to authors she had brought to the Agency, regardless of whether she continued to be employed by the Agency. Ms. Crowe alleges that in violation of her employment contract, the defendants stopped paying her commissions upon her resignation from the Agency. By her First Amended Complaint (“FAC”) (Docket No. 4), Ms. Crowe has asserted claims against the defendants for violation of New York Labor Law § 198 (The New York Wage Theft Prevention Act (“WTPA”)) (Count I), violation of New York Labor Law § 195(1) (Count II), violation of the anti-retaliation provisions of the WTPA (Count III), violation of Mass. Gen. Laws ch. 149 § 148 (The Massachusetts Wage Act) (Count IV), violation of Mass. Gen. Laws ch. 149 § 150 (Count V), and relief pursuant to 28 U.S.C. § 2201 (the Declaratory Judgment Act) (Count VI). (See FAC ¶¶ 35-68).

’ This matter is before the court on “Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction, Improper Venue and Forum Non Conveniens.” (Docket No. 9). By their motion, the defendants contend that all of Ms. Crowe’s claims must be dismissed pursuant to Fed. R. Civ. P. 12(b)(2) because the defendants lack sufficient contacts with Massachusetts to support this court’s exercise of personal jurisdiction over them. The defendants also contend that if this court determines that it has jurisdiction, it should nevertheless transfer this action to the federal district court for the Southern District of New York pursuant to 28 U.S.C. § 1404 on the basis of forum non conveniens.

For the reasons detailed herein, this court finds that the defendants are subject to this court’s jurisdiction and that transfer is not warranted. Accordingly, the defendants’ motion is DENIED.

II. STATEMENT OF FACTS

Standard of Review of Record

“On a motion to dismiss for want of personal jurisdiction, the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009), and cases cited. “When a district court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, as in this case, the ‘prima facie’ standard governs its determination.” United States v. [186]*186Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). Under this standard, the plaintiff must “demonstrate the existence of every fact required to satisfy both the forum’s long-arm statute and the Due Process Clause of the Constitution.” Id. (quotations and citation omitted). Thus, to meet her burden in this case, Ms. Crowe must “proffer evidence which, taken at face value, suffices to show all facts essential to personal jurisdiction.” Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 826 F.3d 28, 34 (1st Cir. 2016). The court will “take the facts from the pleadings and whatever supplemental filings (such as affidavits) are contained in the record, giving credence to the plaintiffs version of genuinely contested facts.” Id. It will “then add to the mix facts put forward by the defendants, to the extent .that they are uncon-tradicted.” N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005) (quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002)) (additional quotations and citation omitted).

Applying this standard to the instant case, the relevant facts are as follows.1

The Parties

Sara Crowe, a literary agent by profession, is currently domiciled in Milton, Massachusetts. (FAC ¶ 1). Harvey Klinger, Inc. is a literary agency incorporated under the laws of New York with its principle place of business in New York, New York. (Id. ¶ 2). Harvey Klinger is the sole owner of the Agency (Klinger Decl. ¶ 1) and is the principal and CEO. (FAC ¶ 9). He is. also a literary agent for the Agency. (Klinger Decl. ¶ 4; Crowe Aff. ¶ 18). In his capacity as a literary agent, Mr. Klinger has done business in Massachusetts “for a writer if a publishing house in Massachusetts is offering a publishing contract.” (Klinger Decl. ¶ 4). Ms. Crowe asserts, and Mr. Klinger does not dispute, that he resides and votes in Pennsylvania. (Crowe Aff. ¶ 27). Mr. Klinger owns a half interest in a “vacation—long weekend” house in Provincetown, Massachusetts, which is “half rented summers only.” (Klinger Decl. ¶3).

The Employment Relationship

Ms. Crowe was employed as a, literary agent by the Agency from February 1, 2005 to September 8, 2016. (Crowe Aff. ¶ 1; FAC ¶ 9). She was hired by and worked for Mr. Klinger. (Id.). As a literary agent for the Agency, Ms. Crowe represented children’s, young adult, and adult fiction writers and eventually specialized in representing children’s authors. (Crowe Aff. 1Í1Í 2-3)., She represented her authors’ written work to publishers, assisted in the- sale and deal negotiation of those authors’ works in domestic and foreign markets, and was responsible for initiating and maintaining relationships with authors. (FAC ¶ 10-11). During her employment with the Agency, Ms. Crowe -developed a number of agent relationships with authors of children’s books and became one of the top selling children’s books agents. (Crowe Aff. ¶ 3)., By the end of her employment ydth the Agency, Ms. Crowe personally represented a “significant number”, of the authors signed with the Agency, including [187]*187New York Times bestselling and award winning authors and titles. (Id. ¶ 28; FAC ¶ 10-11).

In 2014, Ms. Crowe and Mr. Klinger agreed that Ms. Crowe’s wages would be paid exclusively by commission in an amount equal to 70% of the commission that the Agency received on authors - Ms. Crowe sourced. (Crowe Aff. ¶4). This agreement was oral and was 'never reduced to writing. (Klinger Reply Decl. ¶23). Ms. Crowe alleges that the. agreement did not include a requirement that Ms. Crowe remain employed by the Agency to receive these funds (Crowe Aff. ¶ 4). She also alleges that she repeatedly requested that Mr. Klingér reduce the commission agreement to writing, but that he refused to do so. (Crowe Aff. ¶ 5). Nevertheless, the Agency paid Ms. Crowe 70% of the commissions it received from Ms. Crowe’s authors. (FAC ¶ 19).

Ms. Crowe’s Move to Massachusetts

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