NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-999
ROBERT SARVIS
vs.
LESLIE M. BASSETT & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Robert Sarvis, the plaintiff-appellant, filed a complaint
in the Superior Court seeking damages for breach of contract,
promissory estoppel, quantum meruit, and violations of G. L.
c. 93A. A judge dismissed the complaint for lack of personal
jurisdiction over the defendants, Leslie Bassett and Pridgen
Bassett Law, LLC (PB Law). On appeal, Sarvis argues that the
clerk should have entered a default pursuant to Mass. R. Civ. P.
55 (a), 365 Mass. 822 (1974). He further argues that the judge
should not have dismissed the complaint for lack of personal
jurisdiction. We affirm.
1 Pridgen Bassett Law, LLC. Background. The following facts are viewed in the light
most favorable to Sarvis. See Tatro v. Manor Care, Inc., 416
Mass. 763, 765 (1994). 2 Sarvis is a business consultant
specializing in administrative procedures under the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§§ 1001 et seq. He resides and operates his business in
Massachusetts. Sarvis began representing employees of a paper
mill located in Brattleboro, Vermont, and headquartered in
Georgia in an ERISA action. Because any legal action against
the paper mill was to be initiated in Georgia, in 2020 Sarvis
contacted PB Law, a Georgia law firm 3 consisting of Bassett and
another attorney, Nancy Pridgen, to provide representation to
the employees. The parties did not reduce their agreement to
writing. On behalf of the employees, the defendants filed a
class action complaint in a United States District Court in
Georgia for unpaid severance pay and filed a separate action in
State court in Georgia for unpaid vacation pay. Per their
2 We take as true the facts set forth in the complaint, in Sarvis's affidavits that bear on the motion to dismiss, and in his statements made at the hearing on the motion. See Kleinerman v. Morse, 26 Mass. App. Ct. 819, 821 (1989).
3 PB Law is incorporated in Georgia and has its principal place of business in Georgia.
2 verbal agreement, 4 Sarvis conducted legal research and drafted
complaints from his workplace in Nantucket, and the defendants
reviewed, approved, and filed the papers in the Federal court in
Georgia and in the Fulton County Superior Court.
Sarvis alleges he and Bassett agreed that Bassett would
fully prosecute the class actions through completion but that on
November 10, 2021, Bassett withdrew from both Federal and State
actions without proper notice to him. Sarvis filed a complaint
in the Superior Court on December 19, 2022, seeking $65,000 in
damages as compensation for the work he completed and the
expenses he incurred after the defendants' withdrawal. The
defendants were served in hand on January 11, 2023. The
defendants' deadline to serve a motion to dismiss was January
31, 2023. See Mass. R. Civ. P. 12 (a) (1), 365 Mass. 754
(1974).
On February 10, 2023, an attorney filed both a special
appearance on behalf of the defendants and a motion to dismiss. 5
4 Sarvis did not present evidence establishing the circumstances under which the parties came to their verbal agreement.
5 The motion was filed a second time with the Superior Court as part of a package, pursuant to Rule 9A of the Rules of the Superior Court (2018), that included the motion, a memorandum of law, an affidavit by Basset, and Sarvis's opposition. Sarvis states in an affidavit that the papers are identical to what Bassett had filed on January 31, 2023. The docket does not reflect that Bassett filed any papers on January 31, 2023.
3 On February 13, 2023, the Superior Court received Sarvis's
motion for default judgment, which he had signed and mailed on
February 7, 2023. In light of the pendency of the motion to
dismiss, the clerk returned Sarvis's motion for default
judgment. In March 2023, Sarvis also filed a motion to strike
and a renewed motion for default judgment, which the judge
denied.
Discussion. 1. Default. Sarvis argues that the clerk was
required to enter a default under Mass. R. Civ. P. 55 (a), which
provides for entry of default against a party who has "failed to
plead or otherwise defend." See Padmanabhan v. Executive
Director of the Bd. of Registration in Medicine, 491 Mass. 1031,
1032 (2023) ("entry of default under rule 55 [a] is a 'formal,
ministerial act of the clerk' that does not require judicial
authorization" [citation omitted]). 6 This argument founders
because, at the time Sarvis's motion was received and docketed
on February 13, 2023, the defendants had filed a special
appearance and motion to dismiss three days earlier. Thus, rule
55 (a)'s condition that the defendants had failed to plead or
otherwise defend the matter was not satisfied at the time the
6 The rule provides: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default." Mass. R. Civ. P. 55 (a).
4 clerk received Sarvis's motion. 7 For the same reasons, we
discern no abuse of discretion in the order denying the
plaintiff's motion to strike. See Eagle Fund, Ltd. v. Sarkans,
63 Mass. App. Ct. 79, 85 (2005) (committing case management
issues such as default to discretion of judge).
2. Personal jurisdiction. We next address the question of
personal jurisdiction. 8 Because jurisdictional questions are
questions of law, we review them de novo. See Doucet v. FCA US
LLC, 492 Mass. 204, 207 (2023). "For a nonresident to be
subject to the authority of a Massachusetts court, the exercise
7 Sarvis's argument that the clerk automatically should have entered a default as soon as January 31, 2023, passed is incorrect. Motions to dismiss are served on the other parties and not necessarily filed with the court on the deadline. See Superior Court Rule 9A. Accordingly, the passage of the deadline for a defendant to respond to the complaint pursuant to Mass. R. Civ. P. 12 (a) (1) does not inherently alert the clerk that a defendant defaulted, because the defendant may have served the motion pursuant to Superior Court Rule 9A. In any event, had a default entered, the motion judge could have set aside a default for good cause shown. See Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974). Absent prejudice and unreasonable conduct or delay, the law strongly favors adjudication on the merits. See Monahan v. Washburn, 400 Mass. 126, 128-129 (1987).
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-999
ROBERT SARVIS
vs.
LESLIE M. BASSETT & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Robert Sarvis, the plaintiff-appellant, filed a complaint
in the Superior Court seeking damages for breach of contract,
promissory estoppel, quantum meruit, and violations of G. L.
c. 93A. A judge dismissed the complaint for lack of personal
jurisdiction over the defendants, Leslie Bassett and Pridgen
Bassett Law, LLC (PB Law). On appeal, Sarvis argues that the
clerk should have entered a default pursuant to Mass. R. Civ. P.
55 (a), 365 Mass. 822 (1974). He further argues that the judge
should not have dismissed the complaint for lack of personal
jurisdiction. We affirm.
1 Pridgen Bassett Law, LLC. Background. The following facts are viewed in the light
most favorable to Sarvis. See Tatro v. Manor Care, Inc., 416
Mass. 763, 765 (1994). 2 Sarvis is a business consultant
specializing in administrative procedures under the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§§ 1001 et seq. He resides and operates his business in
Massachusetts. Sarvis began representing employees of a paper
mill located in Brattleboro, Vermont, and headquartered in
Georgia in an ERISA action. Because any legal action against
the paper mill was to be initiated in Georgia, in 2020 Sarvis
contacted PB Law, a Georgia law firm 3 consisting of Bassett and
another attorney, Nancy Pridgen, to provide representation to
the employees. The parties did not reduce their agreement to
writing. On behalf of the employees, the defendants filed a
class action complaint in a United States District Court in
Georgia for unpaid severance pay and filed a separate action in
State court in Georgia for unpaid vacation pay. Per their
2 We take as true the facts set forth in the complaint, in Sarvis's affidavits that bear on the motion to dismiss, and in his statements made at the hearing on the motion. See Kleinerman v. Morse, 26 Mass. App. Ct. 819, 821 (1989).
3 PB Law is incorporated in Georgia and has its principal place of business in Georgia.
2 verbal agreement, 4 Sarvis conducted legal research and drafted
complaints from his workplace in Nantucket, and the defendants
reviewed, approved, and filed the papers in the Federal court in
Georgia and in the Fulton County Superior Court.
Sarvis alleges he and Bassett agreed that Bassett would
fully prosecute the class actions through completion but that on
November 10, 2021, Bassett withdrew from both Federal and State
actions without proper notice to him. Sarvis filed a complaint
in the Superior Court on December 19, 2022, seeking $65,000 in
damages as compensation for the work he completed and the
expenses he incurred after the defendants' withdrawal. The
defendants were served in hand on January 11, 2023. The
defendants' deadline to serve a motion to dismiss was January
31, 2023. See Mass. R. Civ. P. 12 (a) (1), 365 Mass. 754
(1974).
On February 10, 2023, an attorney filed both a special
appearance on behalf of the defendants and a motion to dismiss. 5
4 Sarvis did not present evidence establishing the circumstances under which the parties came to their verbal agreement.
5 The motion was filed a second time with the Superior Court as part of a package, pursuant to Rule 9A of the Rules of the Superior Court (2018), that included the motion, a memorandum of law, an affidavit by Basset, and Sarvis's opposition. Sarvis states in an affidavit that the papers are identical to what Bassett had filed on January 31, 2023. The docket does not reflect that Bassett filed any papers on January 31, 2023.
3 On February 13, 2023, the Superior Court received Sarvis's
motion for default judgment, which he had signed and mailed on
February 7, 2023. In light of the pendency of the motion to
dismiss, the clerk returned Sarvis's motion for default
judgment. In March 2023, Sarvis also filed a motion to strike
and a renewed motion for default judgment, which the judge
denied.
Discussion. 1. Default. Sarvis argues that the clerk was
required to enter a default under Mass. R. Civ. P. 55 (a), which
provides for entry of default against a party who has "failed to
plead or otherwise defend." See Padmanabhan v. Executive
Director of the Bd. of Registration in Medicine, 491 Mass. 1031,
1032 (2023) ("entry of default under rule 55 [a] is a 'formal,
ministerial act of the clerk' that does not require judicial
authorization" [citation omitted]). 6 This argument founders
because, at the time Sarvis's motion was received and docketed
on February 13, 2023, the defendants had filed a special
appearance and motion to dismiss three days earlier. Thus, rule
55 (a)'s condition that the defendants had failed to plead or
otherwise defend the matter was not satisfied at the time the
6 The rule provides: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default." Mass. R. Civ. P. 55 (a).
4 clerk received Sarvis's motion. 7 For the same reasons, we
discern no abuse of discretion in the order denying the
plaintiff's motion to strike. See Eagle Fund, Ltd. v. Sarkans,
63 Mass. App. Ct. 79, 85 (2005) (committing case management
issues such as default to discretion of judge).
2. Personal jurisdiction. We next address the question of
personal jurisdiction. 8 Because jurisdictional questions are
questions of law, we review them de novo. See Doucet v. FCA US
LLC, 492 Mass. 204, 207 (2023). "For a nonresident to be
subject to the authority of a Massachusetts court, the exercise
7 Sarvis's argument that the clerk automatically should have entered a default as soon as January 31, 2023, passed is incorrect. Motions to dismiss are served on the other parties and not necessarily filed with the court on the deadline. See Superior Court Rule 9A. Accordingly, the passage of the deadline for a defendant to respond to the complaint pursuant to Mass. R. Civ. P. 12 (a) (1) does not inherently alert the clerk that a defendant defaulted, because the defendant may have served the motion pursuant to Superior Court Rule 9A. In any event, had a default entered, the motion judge could have set aside a default for good cause shown. See Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974). Absent prejudice and unreasonable conduct or delay, the law strongly favors adjudication on the merits. See Monahan v. Washburn, 400 Mass. 126, 128-129 (1987).
8 We reject Sarvis's argument that the defendants have waived this defense because they did not file the motion to dismiss within twenty days of being served with the complaint. See Aronovitz v. Fafard, 78 Mass. App. Ct. 1, 8 (2010) ("Affirmative defenses are waived when they are not raised in the first responsive pleading"). The defendants filed the motion to dismiss based on personal jurisdiction before a default entered and three days before Sarvis moved for default judgment. Moreover, Sarvis was aware that Bassett was "otherwise defend[ing]" based on her attempt to file a special appearance on January 31, 2023.
5 of jurisdiction must satisfy both Massachusetts's long-arm
statute, G. L. c. 223A, § 3, and the requirements of the due
process clause of the Fourteenth Amendment [to the United States
Constitution]." Id., quoting Exxon Mobil Corp. v. Attorney
Gen., 479 Mass. 312, 314 (2018), cert. denied, 586 U.S. 1069
(2019). Sarvis "has the burden of establishing the facts upon
which the question of personal jurisdiction over [the
defendants] is to be determined." Exxon Mobil Corp., 479 Mass.
at 314, quoting Droukas v. Divers Training Academy, Inc., 375
Mass. 149, 151 (1978).
a. Long-arm statute. Under G. L. c. 223A, § 3 (a), a
court may exercise personal jurisdiction over a person
"transacting any business" in Massachusetts. "To meet this
criterion, a plaintiff must allege facts that 'satisfy two
requirements -- the defendant must have transacted business in
Massachusetts, and the plaintiff's claim must have arisen from
the transaction of business by the defendant.'" Doucet, 492
Mass. at 207, quoting Tatro, 416 Mass. at 767.
To determine whether a defendant "transacted business" in
Massachusetts, a defendant's "purposeful and successful
solicitation of business" from Massachusetts residents will
generally suffice. Doucet, 492 Mass. at 208, quoting Tatro, 416
Mass. at 767. However, "an isolated (and minor) transaction
6 with a Massachusetts resident" is insufficient. Doucet, supra,
quoting Tatro, supra.
Here, the defendants did not "transact business" in
Massachusetts. Not only do the defendants have no offices in
Massachusetts, but none of PB Law's employees work in or are
licensed to practice in Massachusetts. See Fletcher Fixed
Income Alpha Fund, Ltd. v. Grant Thornton LLP, 89 Mass. App. Ct.
718, 723 (2016) (G. L. c. 223A, § 3 [a], was not satisfied even
where defendant was registered to do business in Massachusetts
and had more than 175 employees there). Additionally, the
defendants had no "preexisting and ongoing" business
relationships in Massachusetts. See Doucet, 492 Mass. at 208
(§ 3 [a] was satisfied where defendant had "preexisting and
ongoing business agreements" in Massachusetts). Although the
defendants have a website, they do not specifically advertise
their services to Massachusetts residents. See Roberts v.
Legendary Marine Sales, 447 Mass. 860, 860-861 (2006) (§ 3 [a]
was not satisfied where defendant's website advertisements were
not "specifically aimed at Massachusetts").
Furthermore, the parties' relationship was not initiated by
the defendants. Instead, Sarvis solicited business from the
defendants. See Doucet, 492 Mass. at 208. Although the parties
exchanged phone calls and e-mails, Sarvis did not present
evidence establishing the extent of those communications and who
7 initiated them. Additionally, at no point did the defendants
travel to Massachusetts for the matter. See von Schönau-Riedweg
v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 489 (2019)
(visiting Massachusetts multiple times on research missions for
client constituted "transacting business" under G. L. c. 223A,
§ 3 [a]). Instead, all the defendants' services took place in
Georgia involving litigation in Georgia for clients in Vermont.
Sarvis, relying on Good Hope Indus., Inc. v. Ryder Scott
Co., 378 Mass. 1 (1979), argues that the defendants
"transact[ed] business" in Massachusetts because they knew they
were "contracting" with a Massachusetts resident. Sarvis,
however, oversimplifies the Good Hope case, which was based on a
"factual constellation." Id. at 6.
The court in Good Hope concluded that the defendant
transacted business in Massachusetts not only because it entered
into a business relationship with a party known to be in
Massachusetts, but also because the defendant initiated over
fifty telephone calls to the plaintiff in Massachusetts, sent
monthly invoices and periodic appraisal reports to the plaintiff
in Massachusetts, and regularly accepted check payments from the
plaintiff's Massachusetts bank account over a period of
seventeen months. See Good Hope, 378 Mass. at 6, 9-10. As
discussed, Sarvis did not present evidence of the frequency of
the phone calls and e-mails between the parties or who initiated
8 them. Furthermore, Sarvis has not demonstrated the
circumstances by which the parties' verbal agreement was formed.
Sarvis sent three wire transfers from his Massachusetts bank
account to the defendants upon receipt of their e-mailed
invoices. These circumstances are not an "enterprise of
substantial dimension and duration" engaged in by the Good Hope
defendants. Id. at 9.
On the record before us, the defendants' interactions with
Sarvis appear to be nothing more than "incidental" and "minor"
and directed at another State, Georgia. See Tatro, 416 Mass. at
767. Accordingly, Sarvis failed to demonstrate that G. L.
c. 223A, § 3 (a), was satisfied.
b. Due process. Even if G. L. c. 223A, § 3 (a), was
satisfied, Sarvis has failed to show that the requirements of
the due process clause were met. 9 See Exxon Mobil, 479 Mass. at
314. "The primary focus of the Federal personal jurisdiction
inquiry is the defendant's relationship to the forum State"
(quotations omitted). Doucet, 492 Mass. at 210, quoting
Bristol-Myers Squibb Co. v. Superior Court of Cal., 582 U.S.
This case concerns specific jurisdiction, as Sarvis does 9
not assert that the defendants are subject to general jurisdiction, which requires contacts "so constant and pervasive as to render [the out-of-State entity] essentially at home in the forum State" (quotation omitted). Daimler AG v. Bauman, 571 U.S. 117, 122 (2014), quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
9 255, 262 (2017). "This long-standing constitutional requirement
for personal jurisdiction depends on the defendant's having such
contacts with the forum State that the maintenance of the suit
is reasonable, in the context of our [F]ederal system of
government, and does not offend traditional notions of fair play
and substantial justice" (quotations omitted). Doucet, supra,
quoting Ford Motor Co. v. Montana Eighth Judicial Dist. Court,
592 U.S. 351, 358 (2021).
To prove the requisite contacts, the plaintiff must
demonstrate that the defendants have "purposefully avail[ed]
[themselves] of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of
its laws" (quotation omitted). Doucet, 492 Mass. at 211,
quoting Knox v. MetalForming, Inc., 914 F.3d 685, 691 (1st Cir.
2019). "This requirement ensures that the exercise of
jurisdiction is essentially voluntary and foreseeable, and is
not premised on a defendant's random, fortuitous, or attenuated
contacts" (quotation omitted). Doucet, supra, quoting Knox, 914
F.3d at 691.
Additionally, "the defendant’s suit-related conduct must
create a substantial connection with the forum State." Walden
v. Fiore, 571 U.S. 277, 284 (2014). Importantly, the
defendant's relationship to the forum State must arise out of
contacts that the "defendant himself creates" (quotation and
10 emphasis omitted). Id. Furthermore, those contacts must be
"with the forum State itself, not . . . with persons who reside
there." Id. at 285.
Sarvis heavily relies on Burger King Corp. v. Rudzewicz,
471 U.S. 462 (1985), to argue that the defendants, by entering
into a "contract" with a Massachusetts resident, purposefully
availed themselves of Massachusetts. The Burger King case
involved a franchise agreement between the defendant franchisee
in Michigan, and the plaintiff corporation, Burger King,
headquartered in Florida. See id. at 466, 468. The Court in
Burger King held that the defendant purposefully availed himself
of Florida where he applied for a franchise with Burger King,
engaged in negotiations for months with Burger King's Michigan
office and Florida headquarters, entered into a twenty-year
franchise agreement obligating him to payments of over $1
million and "exacting regulation" of his business from Florida
headquarters, and agreed that Florida law would govern in the
event of a dispute. Id. at 466-467, 479-480, 482.
The circumstances here are distinguishable from those in
Burger King. First, Sarvis is the one who "[reached] out
beyond" Massachusetts to solicit the defendants in Georgia to
provide representation in Georgia. See Burger King, 471 U.S. at
479-480, quoting Travelers Health Ass'n v. Virginia, 339 U.S.
643, 647 (1950). Additionally, Sarvis did not present evidence
11 establishing how extensively or frequently the parties
communicated with one another, or who initiated those
communications.. Sarvis did not establish all of the terms of
the parties' verbal agreement. Assuming the parties formed a
contract, this alone would be insufficient to show that the
defendants "purposefully availed" themselves of Massachusetts.
See Burger King, supra at 478 ("If the question is whether an
individual's contract with an out-of-state party alone can
automatically establish sufficient minimum contacts in the other
party's home forum, we believe the answer clearly is that it
cannot" [emphasis omitted]).
Moreover, the defendants' contacts appear to be with
Sarvis, not Massachusetts itself. See Walden, 571 U.S. at 285.
As discussed, the defendants' offices and employees are in
Georgia, not Massachusetts. The defendants do not advertise
their services to Massachusetts residents. The defendants'
services all took place in Georgia, concerning litigation in
Georgia for a client in Vermont representing a class of others
who reside in Vermont. At no point did the defendants travel to
Massachusetts for the matter. Although the defendants
communicated with Sarvis while he was in Massachusetts, his
location was not relevant. Accordingly, Sarvis has failed to
12 demonstrate that the defendants "purposefully availed"
themselves of Massachusetts. 10
Judgment affirmed.
By the Court (Henry, Hershfang & Smyth, JJ. 11),
Clerk
Entered: November 4, 2024.
10 The defendants' request for attorney's fees is denied.
11 The panelists are listed in order of seniority.