Smith v. Dover Home & Carpet, Inc.

2012 Mass. App. Div. 101, 2012 Mass. App. Div. LEXIS 35

This text of 2012 Mass. App. Div. 101 (Smith v. Dover Home & Carpet, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Dover Home & Carpet, Inc., 2012 Mass. App. Div. 101, 2012 Mass. App. Div. LEXIS 35 (Mass. Ct. App. 2012).

Opinion

Pierce, J.

The defendants, Dover Home & Carpet, Inc., d/b/a The Dover Rug Company Inc., d/b/a The Dover Rug Company and/or Dover Fine Oriental Rugs & Carpeting, have appealed the summary judgment in this action brought by the plaintiff, Barbara H. Smith (“Smith”), to enforce a New Hampshire judgment. The defendants contend that the New Hampshire judgment is not entitled to full faith and credit in Massachusetts because Smith failed to make valid service of process on the defendants in the New Hampshire action. For the reasons set forth below, the allowance of summary judgment is vacated, and Smith’s complaint is dismissed.

On January 16, 2009, Smith commenced a civil action in the Nashua New Hampshire District Court against “The Dover Rug Company, Inc., d/b/a The Dover Rug Company and/or Dover Fine Oriental Rugs & Carpeting and/or Dover Home and Carpet” in connection with the sale and installation of carpeting at Smith’s New Hampshire residence. The pleading initiating the litigation was a Writ of Summons (the “Writ”), the New Hampshire equivalent of a complaint. The Writ included claims for breach of warranty and alleged violations of G.Lc. 93A and its New Hampshire counterpart.

Since the defendants are all located in Massachusetts, Smith proceeded with service of process according to the terms of New Hampshire’s long-arm statute, N.H. Rev. Stat. Ann. (“RSA”) 510:4. On January 22,2009, Michelle L. Clarke, a deputy with the Merrimack County Sheriff’s office in Concord, New Hampshire, executed an affidavit of service stating that on that date a copy of the Writ had been delivered to the Office of the New Hampshire Secretary of State pursuant to RSA 510:4. On January 29, 2009, Attorney Richard C. Follender (“Follender”), counsel for Smith throughout these proceedings, executed an affidavit stating that, pursuant to RSA 510:4, a copy of the Writ had been sent to the defendants via certified mail, return receipt requested. Attached to the Follender affidavit was a certified mail receipt sent to “Dover Rug Company, Inc., 549 Worcester Road, Natick, MA 01760.” The return receipt was addressed to: “Mr. Mahmud Jafri, CEO Dover Rug Company, 549 Worcester Road, Natick, MA 01760.” The section of the return receipt to be completed on delivery contained an unidentified signature.

[102]*102On March 24, 2009, a judge of the Nashua District Court in New Hampshire issued a notice of default against the defendants for failing to file an appearance, answer the claims, or otherwise appear in the action. On March 31, 2009, Attorney Michael Magerer (“Magerer”) forwarded to the Nashua District Court a “Motion of “The Dover Rug Company’ (Misnomer of Party) to Vacate Default, By and through Dover Home & Carpet, Inc.” Magerer’s accompanying cover letter instructed the court clerk as follows: “Also, please enter my Appearance for the named Defendant, The Dover Rug Company,’ subject to the enclosed motion. I am in the process of retaining local counsel for purposes of representation, either directly or pursuant to a Motion for Admittance Pro Hac Vice.”

The motion to vacate stated that “Dover Home & Carpet, Inc.,” not “The Dover Rug Company,” was located at the Natick address where Smith had served the Writ. The motion admits that the names of the two entities “are substantially similar, so as to cause confusion, thus prompting Dover Home & Carpet, Inc., d/b/a Dover Rug Company (‘Dover Home’), to file this present Motion.” The motion also stated that The Dover Rug Company is not related to what Attorney Magerer refers to as “Dover Home” and “the two entities do hot have commonality of ownership and/or management (officers).”

On April 9,2009, Smith filed an opposition to the motion to vacate, with the following exhibits attached:

A sales order for the work at Smith’s home, dated August 15,2007, with the letterhead: “Dover Fine Oriental Rugs & Carpeting, 549 Worcester Rd., Natick, MA 01760.”
A VISA credit card receipt, also dated August 15, 2007, with the name “Dover Home & Carpet,” and again, the 549 Worcester Road, Natick address.
A Certificate printed April 6,2009, from the Corporations Division of the Massachusetts Secretary of State for Dover Home & Carpet, Inc., listing 184 Worcester Street, Route 9, Wellesley, Massachusetts as the location of its principal office, Zeba M. Jafri as the president of the company, and Mahmud Jafri as the secretary.
A second Certificate from the Massachusetts Secretary of State, apparently printed December 31,2008, for Dover Rug Company, Inc., listing the same Wellesley address and Syed Ali Jafri as the president, treasurer, and secretary.
An annual report for the Dover Rug Company, Inc., dated January 16, 2003, listing Mahmud Jafri as clerk and a director of the company.
Redacted correspondence between the parties, including a letter to Smith dated December 17, 2007, on letterhead captioned: “Dover Fine Rugs & Carpeting” at 549 Worcester Street, Natick and 1420 Washington Street, Hanover, Massachusetts, with a copy to Mahmud Jafri.
[103]*103Printed material from defendant’s web site referring to Dover Fine Rugs and Carpeting & Dover Rug Company, Inc. with addresses at 549 Worcester Road, Natick and 1344 Washington Street, Hanover. The material refers to Mahmud Jafri as CEO and the “founder” of “Dover Rug” and explains that in 1989 the business opened a showroom in Dover, Massachusetts, before moving to Wellesley and then opening a second showroom in Hanover. The material also states that in 2001, the Wellesley operation moved to Natick, and in 2005, the Hanover operations moved to another “more accommodating facility,” also in Hanover.

Together with her opposition to the motion to vacate, Smith filed a motion to amend Writ of Summons due to misnomer, seeking to restate the defendant’s name as “Dover Home & Carpet, Inc., d/b/a The Dover Rug Company, Inc., d/b/a the Dover Rug Company and/or Dover Fine Oriental Rugs & Carpeting and/or Dover Home and Carpet.” Smith’s supporting affidavit explained: “During the course of our business dealings, the Defendant provided several different names to me regarding the name of its business; however, I always understood the name to be The Dover Rug Company or The Dover Rug Company, Inc.”

On April 10,2009, Nashua District Court Judge Michael J. Ryan issued an “Order Denying Defendant’s Motion to Vacate Default and Granting Plaintiff’s Motion to Amend Writ of Summons Due to Misnomer.” In the order, Judge Ryan made the following findings:

Mr. Mahmud Jaffri [sic], the Secretary of Dover Home & Carpet, Inc., was served a copy of the Writ of Summons by certified mail as required by New Hampshire law. He, or someone acting on his behalf, signed the Receipt for the envelope containing the Writ. The Writ was also served on the New Hampshire Secretary of State as required by New Hampshire law. The address to which the letter was sent was 549 Worcester Road, Natick, Massachusetts. The defendant states in its Motion to Vacate that 549 Worcester Road Natick, Massachusetts is the address of Dover Home & Carpet, Inc. In her Writ of Summons, the plaintiff listed Dover Home and Carpet as a defendant. While the name was listed as a d/b/a in the Writ, it gave the defendant sufficient notice that it was being sued.

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Bluebook (online)
2012 Mass. App. Div. 101, 2012 Mass. App. Div. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-dover-home-carpet-inc-massdistctapp-2012.