Crowe v. Harvey Klinger, Inc.

Filing 27

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 9 Defendants' Motion to Dismiss. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SARA CROWE,
Plaintiff,
v.
HARVEY KLINGER, INC.
and HARVEY KLINGER,
Defendants.

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CIVIL ACTION
NO. 16-12033-JGD

MEMORANDUM DECISION AND ORDER ON DEFENDANTS’
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
September 30, 2017
DEIN, U.S.M.J.
I. 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. Swiss Am. Bank,
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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., 825 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 plaintiff’s 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 uncontradicted.” 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

1

The facts are derived from the following materials: (1) the FAC and exhibits thereto (FAC Ex. __);
(2) the affidavit of Sara Crowe (“Crowe Aff.”) and the exhibits thereto (Crowe Aff. Ex. __) (Docket No.
14); (3) the declaration of Harvey Klinger (“Klinger Decl.”), which is attached to defendant’s motion to
dismiss as Ex. 2 (Docket No. 9); (4) the reply declaration of Harvey Klinger (“Klinger Reply Decl.”), which
is attached to defendants’ reply memorandum as Ex. 1 (Docket No. 16); (5) other attachments to
plaintiff’s opposition (Pl. Ex. __) (Docket No. 13); and (6) other attachments to defendants’ reply
memorandum (Def. Ex. __) (Docket No. 16).

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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.
¶¶ 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 with the Agency, Ms. Crowe personally represented a
“significant number” of the authors signed with the Agency, including New 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
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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. Klinger 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
In mid-2015, Ms. Crowe’s husband was transferred to Massachusetts, and Ms. Crowe
subsequently informed Mr. Klinger that she needed to move to and work from Massachusetts.
(Crowe Aff. ¶ 7). Mr. Klinger agreed to allow Ms. Crowe to work from home in Massachusetts,
and Ms. Crowe moved here in June 2015. (Id.). Ms. Crowe states that if Mr. Klinger had not
agreed to the move, she “would have been forced to leave Harvey Klinger, Inc. at the time.”
(Id.). In fact, it is apparently undisputed that either party could have terminated the employment relationship, and that the Agency was not obligated to permit Ms. Crowe to work in
Massachusetts. (See Klinger Reply Decl. ¶ 30 (plaintiff’s “employment had no term and either
party could terminate at will”)).
Ms. Crowe asserts that it was not intended that she commute to the Agency in New
York after she moved to Massachusetts, and she was not given a travel budget to do so. (Crowe
Aff. ¶ 8). During the remainder of 2015, she spent a total of six days in the New York office, and
she spent fewer days there in 2016. (Id. ¶ 11). It is undisputed, however, that she maintained
an office at the Agency in New York (Klinger Decl. ¶ 6) and kept some personal items there.
(Crowe Aff. ¶ 16).

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From June 2015 until her resignation on September 8, 2016, Ms. Crowe worked on a
full-time basis for the Agency from Massachusetts, communicating with her authors and with
Mr. Klinger by mail, email, and phone. (Id. ¶ 10). Mr. Klinger himself attests that he had
numerous telephone calls and email communications with Ms. Crowe about manuscripts,
contracts, and “all the details of [their] work” while she resided in and worked from
Massachusetts. (Klinger Reply Decl. ¶ 4). At the time of those communications, Mr. Klinger
assumed that Ms. Crowe was at home. (Klinger Decl. ¶ 4).
Ms. Crowe estimates that she brought approximately ten new authors to the Agency,
while she was working in Massachusetts. (Crowe Aff. ¶ 12). She claims, although the Agency
disputes, that one of those new authors resided in Massachusetts. (Id.; see Klinger Reply Decl.
¶ 7). Two of the publishers of her clients’ books were located in Massachusetts. (Crowe Aff. ¶
13). It is undisputed that Ms. Crowe engaged in various networking activities in Massachusetts,
including having lunch with authors who lived in Massachusetts and attending readings in
libraries and bookstores in the Boston area. (Id.). She also attended a number of conferences
on behalf of the Agency, including an American Library Association Conference in Boston,
Massachusetts, a New England Society of Children’s Books Writers and Illustrators conference
in Springfield, Massachusetts, a South by Southwest Conference in Austin, Texas, and The
Bologna Book Fair in Bologna, Italy. (Id. ¶11). According to Ms. Crowe, at the time she left the
Agency she had over 50 author/clients across the United States, including three from
Massachusetts and one who resides internationally. (Crowe Aff. Ex. B).
Ms. Crowe asserts that during the course of her employment in Massachusetts, she
represented a “significant number” of authors signed with the Agency and that, for the year
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2015, the revenues generated from her authors were more than half of the Agency’s total
revenues that year. (Crowe Aff. ¶ 28). The parties disagree as to whether Ms. Crowe was
expected to be taxed under Massachusetts or New York law. (Crowe Aff. ¶ 9; Klinger Decl. ¶ 6).
Ms. Crowe asserts that she “typically received at least a portion of [her] commission
payments” by check, signed by Mr. Klinger, via mail at her Massachusetts address. (Crowe Aff.
¶ 29).
Ms. Crowe’s Resignation
Ms. Crowe began discussions with a different literary agency in late August 2016 and
received an initial offer of employment on August 31, 2016. (Crowe Aff. ¶ 15). By September 8,
2016, she had reached an agreement with her future new employer and decided to leave the
Agency. (Id.). On September 8, 2016, Ms. Crowe took the train to New York to speak with Mr.
Klinger about her decision to leave, and also to pick up “a few personal belongings” in the office
and say goodbye to former co-workers. (Id. ¶ 16). Mr. Klinger was not in the office, so Ms.
Crowe called him to say that she was resigning. (Id. ¶ 17).
After informing Mr. Klinger of her resignation, Ms. Crowe called her authors, with the
exception of the author she shared with Mr. Klinger, on her cell phone to notify them of the
change in circumstances. (Crowe Aff. ¶ 18; 21). She told them that they had the option to stay
with Harvey Klinger, Inc., follow her to her new agency, or find a new agency. (Id.). Ms. Crowe
offered her authors, with the exception of a few authors who had been “inactive,” the
opportunity to follow her to her new agency, and they accepted. (Id.).
On September 30, 2016, defendants advised Ms. Crowe through counsel that they
would “hold the check [Klinger] was going to pay her under protest now”; allegedly accused Ms.
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Crowe of being a “faithless servant” under New York law; and proposed a way to handle
commissions in light of her departure from the Agency. (See Crowe Aff. ¶ 24; FAC ¶ 27). Ms.
Crowe asserts that she asked to be able to consider this offer over the weekend, did so, and
then decided not to accept it. (Crowe Aff. ¶ 25).
On October 5, 2016, Ms. Crowe filed a Wage Claim with the Massachusetts Attorney
General. (FAC ¶ 34). She received a right to sue letter on October 12, 2016 and filed a
complaint in this matter with this court the same day. (Id. ¶ 28, 34). On October 19, 2016, the
Agency issued two checks to Ms. Crowe for commissions earned from Ms. Crowe’s authors. (Id.
¶ 29). These checks were delivered to her Massachusetts address. (Crowe Aff. ¶ 30). Both
checks were signed by Mr. Klinger and contained the following statement above the
endorsement line: “Paid under protest. No contractual obligation to pay royalties after
resignation exists. Payor retains the right to re-claim upon judicial resolution of this issue[.]”
(FAC ¶ 29-30; FAC Ex. A). The first check was dated October 4, 2016 and was allegedly for the
pay period of September 12 through September 30, 2016. (FAC ¶ 30; FAC Ex. A). The second
check was dated October 17, 2016 and was allegedly for the pay period of October 1 through
October 15, 2016. (FAC ¶ 32; FAC Ex. A).
Additional facts will be provided below where appropriate.
III. ANALYSIS
As described above, 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
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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. For the reasons
that follow below, this court finds that Ms. Crowe has made a prima facie showing of personal
jurisdiction over the Agency and Mr. Klinger. Accordingly, the motion to dismiss brought
pursuant to Fed. R. Civ. P. 12(b)(2) is DENIED.
A.

Personal Jurisdiction – Generally

In order to exercise personal jurisdiction over each defendant, the court must “find
sufficient contacts between the defendant and the forum to satisfy both that state’s long-arm
statute and the Fourteenth Amendment’s Due Process clause.” Sawtelle v. Farrell, 70 F.3d
1381, 1387 (1st Cir. 1995). The First Circuit has treated the “limits of Massachusetts’s long-arm
statute as coextensive with those of the Due Process Clause.” Copia Commc’ns, LLC v.
AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016). In such cases, the court has been able to “sidestep the statutory inquiry and proceed directly to the constitutional analysis[.]” Daynard, 290
F.3d at 52.2 Under the Due Process Clause, a court may exercise personal jurisdiction “over an
out-of-state defendant only if that defendant has ‘certain minimum contacts with [the forum
state] such that the maintenance of the suit does not offend traditional notions of fair play and

2

The court notes that recently, the First Circuit has “suggested that Massachusetts’s long-arm statute
might impose more restrictive limits on the exercise of personal jurisdiction than does the Constitution.”
Copia Commc’ns, 812 F.3d at 4 (decided Jan. 13, 2016). More recently, however, the Massachusetts
Appeals Court continued to follow Supreme Judicial Court precedent holding that the Massachusetts
long-arm statute allows for “an assertion of jurisdiction over the person to the limits allowed by the
Constitution of the United States,” and thus analyzed only the constitutional limits of personal jurisdiction. OpenRisk, LLC v. Roston, 90 Mass. App. Ct. 1107, 59 N.E.3d 456 (Table), No. 15-P-1282, 2016 WL
5596005, at *4 (Sept. 29, 2016) (citing “Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 361
Mass. 441, 443 (1972)). In light of the Massachusetts precedent on this issue, this court “sidestep[s] the
statutory inquiry and proceed[s] directly to the constitutional analysis[.]” Daynard, 290 F.3d at 52.

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substantial justice.’” Copia Commc’ns, 812 F.3d at 4 (quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945)) (alteration in original; additional quotations and citation omitted). Accordingly, “[t]he accepted mode of analysis for questions
involving personal jurisdiction concentrates on the quality and quantity of the potential
defendant’s contacts with the forum.” Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196
F.3d 284, 288 (1st Cir. 1999). “Jurisdiction is proper . . . where the contacts proximately result
from actions by the defendant himself that create a substantial connection with the forum
State.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109, 107 S.
Ct. 1026, 1030, 94 L. Ed. 2d 92 (1987) (punctuation and emphasis in original; internal quotation
marks and citations omitted).
“Personal jurisdiction may be either general or specific.” Cossaboon v. Maine Med. Ctr.,
600 F.3d 25, 31 (1st Cir. 2010). “General jurisdiction broadly subjects the defendant to suit in
the forum state’s courts ‘in respect to all matters, even those that are unrelated to the
defendant’s contacts with the forum.’” Id. (quoting Phillips Exeter Acad., 196 F.3d at 288).
Specific jurisdiction exists “where the cause of action arises directly out of, or relates to, the
defendant’s forum-based contacts.” Id. (quoting Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994),
cert. denied, 514 U.S. 1108, 115 S. Ct. 1959, 131 L. Ed. 2d 851 (1995).
In the instant case, Ms. Crowe asserts that the defendants have minimum contacts with
Massachusetts to satisfy the Due Process Clause of the Fourteenth Amendment, claiming that
both general and specific jurisdiction exists. As this court finds that it has specific jurisdiction
over the defendants, it need not reach the question of general jurisdiction. See Harlow v.

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Children’s Hosp. 432 F.3d 50, 57 (1st Cir. 2005) (“The plaintiff need not prove the existence of
both types of jurisdiction; either one, standing alone, is sufficient.”).
B.

Specific Jurisdiction Analysis

For purposes of the specific jurisdiction analysis, the First Circuit has “broken the
minimum contacts analysis into three categories—relatedness, purposeful availment, and
reasonableness[.]” Adelson v. Hananel, 510 F.3d 43, 49 (1st Cir. 2007). Thus, as the Court has
explained:
First, the claim underlying the litigation must directly arise out of, or relate
to, the defendant’s forum-state activities. Second, the defendant’s instate contacts must represent a purposeful availment of the privilege of
conducting activities in the forum state, thereby invoking the benefits and
protections of that state’s laws and making the defendant’s involuntary
presence before the state’s courts foreseeable. Third, the exercise of
jurisdiction must, in light of the Gestalt factors, be reasonable.
Id. (quoting Daynard, 290 F.3d at 60) (additional citation omitted). “An affirmative finding on
each of the three elements of the test is required to support a finding of specific jurisdiction.”
Phillips Exeter Acad., 196 F.3d at 288. As detailed below, the plaintiff has met her burden of
establishing both relatedness and purposeful availment. Moreover, the application of the
Gestalt factors to the facts of this case compels the conclusion that this court’s assertion of
personal jurisdiction over the defendants is reasonable.
Relatedness
The relatedness inquiry “is to be resolved under ‘a flexible, relaxed standard.’” BaskinRobbins Franchising LLC, 825 F.3d at 35 (quoting Pritzker, 42 F.3d at 61). In evaluating
relatedness, the court is mindful that “[q]uestions of specific jurisdiction are always tied to the
particular claims asserted.” Phillips Exeter Acad., 196 F.3d at 289. “[T]he defendant’s in-state
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conduct must form an important, or at least material, element of proof in the plaintiff’s case.”
Phillips v. Prairie Eye Ctr., 530 F.3d 22, 27 (1st Cir. 2008) (quoting Harlow, 432 F.3d at 61)
(internal quotation omitted). In the instant case, Ms. Crowe has asserted claims in contract. In
contract cases, the court must determine “whether the defendant’s activity in the forum state
was instrumental either in the formation of the contract or its breach.” Id. (internal quotation
and citation omitted). It is appropriate to “pay particularly close attention to ‘the parties’ prior
negotiations and contemplated future consequences, along with the terms of the contract and
the parties’ actual course of dealing.’” Cossart v. United Excel Corp., 804 F.3d 13, 20 (1st Cir.
2015) (quoting C.W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 66 (1st Cir.
2014)). Plaintiff may satisfy the relatedness requirement when the evidence shows that the
defendants had “an ongoing connection with Massachusetts in the performance under the
contract[,]” and that plaintiff’s claims arose “from the alleged breach of that contract.” C.W.
Downer, 771 F.3d at 66.
Plaintiff’s claims arise from her allegation that defendants failed to pay her commission
in violation of her oral employment agreement. Thus, in this case, “to determine relatedness,
we must consider the contacts between the defendants and the forum state viewed through
the prism of plaintiff’s . . . claim for unpaid compensation[.]” Cossart, 804 F.3d at 20 (internal
citation and quotation omitted). While Mr. Klinger initially negotiated and entered into the
employment agreement with Ms. Crowe in New York, it was amended in 2015 to allow Ms.
Crowe to work from Massachusetts. Moreover, after Ms. Crowe moved to Massachusetts, she
was paid for work performed in Massachusetts by checks sent to Massachusetts. This case
involved an alleged breach of “the contract defendants procured with a Massachusetts resident
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to be performed by the resident primarily from Massachusetts.” Cossart, 804 F.3d at 20. The
defendants continued Ms. Crowe’s employment with the Agency “with full knowledge that
[Ms. Crowe] would perform [her] duties from Massachusetts.” Id. at 20-21. And “when [the
Agency] refused to pay the commission that was allegedly due,” Ms. Crowe was based in the
Commonwealth and was working from the Commonwealth. Id. at 70. This is sufficient to
satisfy the relatedness requirement of the purposeful availment analysis. Id. (in a claim for
unpaid commissions, Massachusetts court had personal jurisdiction over a Kansas company
who permitted its employee to work out of Massachusetts).
Moreover, the Agency and Mr. Klinger had continuous contacts with Massachusetts
throughout the course of Ms. Crowe’s employment from Massachusetts — “the evidence of
contacts during the course of dealing is powerful.” C.W. Downer & Co., 771 F.3d at 66. As
detailed above, Ms. Crowe did extensive work in Massachusetts on behalf of the Agency, and
Mr. Klinger was in frequent communication with her over all aspects of their work while she
was in Massachusetts. The “ongoing connection with Massachusetts in the performance under
the contract” “is enough to establish relatedness” where, as here, the plaintiff’s claims “arise
from the alleged breach of that contract.” Id. (Massachusetts court had personal jurisdiction
over Canadian company in suit by Massachusetts investment bank alleging breach of contract
by the foreign company).
Purposeful Availment
Plaintiff also has put forth evidence of the defendants’ contacts with Massachusetts
sufficient to fulfill the purposeful availment prong of the jurisdictional inquiry. “The purposeful
availment inquiry . . . focuses on the defendant’s intentionality. This prong is only satisfied
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when the defendant purposefully and voluntarily directs his activities toward the forum so that
he should expect, by virtue of the benefit he receives, to be subject to the court’s jurisdiction
based on these contacts.” Swiss Am. Bank, Ltd., 274 F.3d at 623-24 (internal citation omitted).
Accordingly, purposeful availment occurs “when a defendant deliberately targets its behavior
toward the society or economy of a particular forum [such that] the forum should have the
power to subject the defendant to judgment regarding that behavior.” Carreras v. PMG Collins,
LLC, 660 F.3d 549, 555 (1st. Cir. 2011) (citing J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873,
881, 131 S. Ct. 2780, 2787-88, 180 L. Ed. 2d 765 (2011)). “The enforcement of personal
jurisdiction over a non-resident defendant is foreseeable when that defendant has established
a continuing obligation between itself and the forum state.” Sawtelle, 70 F.3d at 1393.
Defendants voluntarily established a continuing obligation between themselves and
Massachusetts when the Agency, through Mr. Klinger, agreed that Ms. Crowe would work fulltime for the Agency in Massachusetts. Though it was Ms. Crowe who proposed this arrangement, the Agency, through Mr. Klinger, voluntarily agreed to it, and elected not to terminate
their relationship. As Mr. Klinger acknowledged, at the time she moved to Massachusetts,
Ms. Crowe “was a key and trusted employee of the corporate defendant with nearly exclusive
responsibility for our children’s authors.” (Klinger Decl. ¶ 12). The fact that the parties decided
to continue their employment relationship knowing that Ms. Crowe would be working full-time
for the Agency in Massachusetts satisfies the purposeful availment requirement of the personal
jurisdiction analysis. See Cossart, 804 F.3d at 21 n.3 (purposeful availment may be found where
defendants “reasonably foresee” the plaintiff’s performance of the contract from
Massachusetts). See also Dorney v. Pindrop Sec., Inc., 15-CV-11505-ADB, 2015 WL 5680333, at
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*4 (D. Mass. Sept. 25, 2015) (purposeful availment found where corporate defendant entered
into an employment agreement with plaintiff knowing plaintiff would work from Massachusetts
even though there was “no requirement that [plaintiff] reside in or conduct his employment
duties from Massachusetts, and no expectation he would develop business there”).
Mr. Klinger
With respect to Mr. Klinger, there is evidence, as detailed above, that he has worked in
Massachusetts and owns property in the Commonwealth. However, this court may exert
personal jurisdiction over him for a more basic reason. “[P]recedent supports subjecting
corporate officers to jurisdiction under the long-arm statute at least where they are ‘primary
participants’ in corporate action as [Mr. Klinger] was”, and the First Circuit has applied this
reasoning to the constitutional analysis as well. Cossart, 804 F.3d at 19, 20-22, and cases cited.
Gestalt Factors
The third step of the specific jurisdiction analysis is for the court to determine whether
the exercise of personal jurisdiction is reasonable in light of the so-called “Gestalt factors.”
Sawtelle, 70 F.3d at 1394. This requires the court to consider “(1) the defendant’s burden of
appearing; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in
obtaining convenient and effective relief; (4) the judicial system’s interest in obtaining the most
effective resolution of the controversy; and (5) the common interests of all sovereigns in
promoting substantive social policies.” Id. “The[] gestalt factors are designed to put into
sharper perspective the reasonableness and fundamental fairness of exercising jurisdiction in
particular situations.” Pritzker v. Yari, 42 F.3d 53, 64 (1st Cir. 1994) (citing Ticketmaster-New
York, Inc. v. Alioto, 26 F.3d 201, 210 (1st Cir. 1994)). “The purpose of the gestalt factors is to aid
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the court in achieving substantial justice, particularly where the minimum contacts question is
very close. In such cases, the gestalt factors may tip the constitutional balance.” Nowak v. Tak
How Invs., Ltd., 94 F.3d 708, 717 (1st Cir. 1996) (internal quotation and citation omitted).
On balance, the application of the Gestalt factors to the facts of this case weighs in favor
of exercising personal jurisdiction over the defendants. With respect to the first factor — the
defendant’s burden of appearing, this court finds that the burden on the Agency and Mr.
Klinger would not be significant. Although the need to defend an action in a foreign jurisdiction
“is almost always inconvenient and/or costly . . . this factor is only meaningful where a party
can demonstrate some kind of special or unusual burden.” Pritzker, 42 F.3d at 64 (noting that
modern travel “creates no especially ponderous burden for business travelers”). Here,
defendants assert no special burden they would encounter in litigation out of state, nor could
they credibly do so given the fact that Mr. Klinger has done work as an agent in Massachusetts
and owns a vacation home here. While defendants argue that the various witnesses for the
defense are located outside of Massachusetts, this burden is neither “special” nor “unusual.”
See C.W. Downer, 771 F.3d at 70 (noting that “[m]ounting an out-of-state defense most always
means added trouble and cost” and that “most logistical challenges can be resolved through
the use of affidavits and video devices”) (internal citation and quotation omitted). Accord
Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 45 (D. Mass. 1997).
The second Gestalt factor, concerning the forum state’s interest in adjudicating the
dispute, weighs heavily in favor of keeping the lawsuit in Massachusetts. “Massachusetts
clearly has an interest in being the forum that determines whether [plaintiff], who performed
[her] work for the company in the Commonwealth, has a meritorious claim under the
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Massachusetts Wage Act.” Cossart, 804 F.3d at 22. See also Dorney, 2015 WL 5680333 at *4
(“Massachusetts has an interest in providing a convenient and effective forum in which its
citizens may resolve disputes with their corporate employers, especially when the dispute may
implicate Massachusetts law.”).
In opposition to this interest, defendants argue that if the court were to find that New
York State labor laws apply in this case, the court might be faced with a matter of first impression under New York law. However, this court is capable of applying the laws of other fora. See
C.W. Downer, 771 F.3d at 70-71 (where defendant argued that case presented a matter of first
impression under Saskatchewan law, court saw “no injustice” in having a Massachusetts court
adjudicate the claim because “federal district courts are in the regular practice of applying laws
of other fora”) (internal quotation omitted). Furthermore, “[t]he purpose of [this] inquiry is not
to compare the forum's interest to that of some other jurisdiction, but to determine the extent
to which the forum has an interest.” Sawtelle, 70 F.3d at 1395 (internal quotation and citation
omitted) (emphasis in the original). See also C.W. Downer & Co, 771 F.3d at 70 n.6 (regardless
of which jurisdiction’s law governs the contract, “the interests in providing a forum are
independent of the substantive law applied by the forum”). This second factor weighs heavily
in favor of keeping the lawsuit in Massachusetts.
The third Gestalt factor is the plaintiff’s interest in obtaining convenient and effective
relief. The First Circuit has repeatedly observed that “a plaintiff’s choice of forum must be
accorded a degree of deference with respect to the issue of its own convenience.” Sawtelle, 70
F.3d at 1395. Here, it would be more convenient for Ms. Crowe to litigate her claims in the

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forum in which she resides. See id. Consequently, the third Gestalt factor weighs heavily in
favor of exercising jurisdiction.
The fourth Gestalt factor, concerning the judicial system’s interest in obtaining the most
effective resolution of this case, is generally considered “a wash.” Baskin-Robbins, 825 F.3d at
41 (citing Sawtelle, 70 F.3d at 1395). “Even though Massachusetts courts can effectively
administer justice in this dispute, they have no corner on the market.” Id. Thus, this factor is
neutral. This court does note that there is a lawsuit filed in federal court in New York involving
this matter, and thus, there is “at least a question as to whether the instant lawsuit serves the
interstate judicial system’s interest in efficient resolution.” Bluetarp Fin., Inc. v. Matrix Constr.
Co., Inc., 709 F.3d 72, 83 (1st Cir. 2013). However, as detailed below in connection with the
defendants’ request to transfer this case, there is ample reason for the case to go forward in
Massachusetts. Therefore, this fact “is insufficient to tip the constitutional balance.” Id.
The final factor concerns the interests of the affected states in promoting substantive
social policies. As noted earlier, Massachusetts has a clear interest in affording its citizens a
convenient forum in which to bring their employment claims. On the other hand, New York has
an interest in adjudicating claims relating to corporate employers within its borders. Therefore,
this factor does not weigh in favor of one forum over another.
In sum although it may be somewhat inconvenient for the Agency and Mr. Klinger to
defend this case in Massachusetts, the inconvenience is not significant. Moreover, where the
remaining Gestalt factors relevant to this case weigh in favor of jurisdiction or are neutral, the
maintenance of the lawsuit against defendants in Massachusetts “would comport with ‘fair play
and substantial justice.’” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174,
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2184, 85 L. Ed. 2d 528 (1985) (quoting Int’l Shoe Co., 326 U.S. at 320, 66 S. Ct. at 160). For all
these reasons, this court finds that it has personal jurisdiction over the defendants, and the
defendants’ motion to dismiss for lack of personal jurisdiction is DENIED.
C.

Motion for Transfer

Defendants argue that even if this court concludes that the exercise of jurisdiction in
Massachusetts is proper, it should 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. “Under § 1404(a), a district court may transfer any civil action to any other district
where it may have been brought ‘[f]or the convenience of parties and witnesses, in the interest
of justice.’” Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir. 2000) (quoting 28 U.S.C. §
1404(a)). However, this court finds that transfer is not appropriate.
“Section 1404(a) is intended to place discretion in the district court to adjudicate
motions for transfer according to an ‘individualized, case-by-case consideration of convenience
and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 2244, 101 L.
Ed. 2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S. Ct. 805, 812, 11 L. Ed.
2d 945 (1964)). “Factors to be considered by the district court in making its determination
include the convenience of the parties and witnesses . . ., the availability of documents, and the
possibilities of consolidation.” Cianbro Corp. v. Curran–Lavoie, Inc., 814 F.2d 7, 11 (1st Cir.
1987). “Where identical actions are proceeding concurrently in two federal courts . . . the first
filed action is generally preferred in a choice-of-venue decision.” Coady, 223 F.3d at 11
(internal quotations and citation omitted). The burden of demonstrating that transfer is
appropriate “rests with the party seeking transfer; there is a strong presumption in favor of the
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plaintiff’s choice of forum.” Id. This presumption, as well as a review of the relevant factors in
this case, supports denial of the defendants’ motion.
Here, though an adequate alternative forum exists, considerations of convenience and
judicial efficiency do not sufficiently favor litigating the claim elsewhere. Discovery has
proceeded in this matter in both Massachusetts and New York since this motion was filed.
History has proven that the distance between New York and Massachusetts is not so large as to
pose any meaningful inconvenience in this matter. Moreover, it appears that there are
potentially third party witnesses who reside neither in Massachusetts nor in New York. The
defendants have not identified any evidence that they will be precluded from presenting, either
live, or through a video deposition or otherwise, if the matter remains in Massachusetts.
Finally, Massachusetts was the first-filed action and “the first filed action is generally
preferred in a choice-of-venue decision.” Id. (internal quotation omitted).3
In sum, defendants have not met their heavy burden of establishing that transfer of the
instant case to New York is appropriate over the plaintiff’s objection, and the defendants’
motion to transfer is DENIED.
IV. CONCLUSION
For all the reasons set forth herein, “Defendants’ Motion to Dismiss for Lack of Personal
Jurisdiction, Improper Venue and Forum Non Conveniens” (Docket No. 40) is DENIED.

3

While the defendants contend that plaintiff’s counsel misled defense counsel into delaying filing an
action against plaintiff in New York by asserting that plaintiff needed time to consider defendants’
settlement offer, there is no evidence that plaintiff breached an agreement not to file suit. (See Klinger
Reply Decl. ¶¶ 12-18, Ex. 1). Moreover, Massachusetts was a logical forum for the plaintiff to litigate.
See The Holmes Group, Inc. v. Hamilton Beach/Proctor Silex, Inc., 249 F. Supp. 2d 12, 18 (D. Mass. 2002)
(“Where a plaintiff chooses [her] home forum, such a choice usually represents considerations of
convenience rather than harassment of the defendant”).

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/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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