Van Eperen v. Massachusetts Mutual Life Insurance Co. et al

Filing 137

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, upon de novo review, the court hereby ADOPTS the Report and Recommendation (Dkt. No. 125 ). Based upon this, the court hereby DENIES Hills Motion to Dismiss ( Dkt. No. 85 ). A copy of Judge Robertsons Report and Recommendation will be appended to this Memorandum as Exhibit A. The next phase of this case will unfold according to the schedule set forth in Judge Robertsons Scheduling Order, issued on May 8, 2017 (Dkt. No. 136 ). It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
JAMES M. VAN EPEREN,
Plaintiff,
v.
MASSACHUSETTS MUTUAL LIFE
INSURANCE CO., et al.,
Defendants.
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C.A. NO. 14-13008-MAP

MASSACHUSETTS MUTUAL LIFE
INSURANCE CO.,
Counterclaim Plaintiff,

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v.
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JAMES M. VAN EPEREN, et al., )
Counterclaim Defendants. )

MEMORANDUM AND ORDER RE:
REPORT AND RECOMMENDATION REGARDING
COUNTERCLAIM DEFENDANT RITA HILL’S MOTION TO DISMISS
(Dkt. Nos. 85 & 125)
May 31, 2017
PONSOR, U.S.D.J.
Plaintiff and Counterclaim Defendant James M. Van
Eperen (“Van Eperen”) was a general agent for Defendant and
Counterclaim Plaintiff Massachusetts Mutual Life Insurance
Co. (“MassMutual”).

Van Eperen has sued MassMutual and

certain affiliates, claiming that MassMutual wrongfully
terminated him, refused to pay him wages and compensation
owed to him, and damaged him by violating certain federal
and state laws.

He also claims breach of contract, breach

of the covenant of good faith and fair dealing, defamation,
and a number of other common law torts.
MassMutual denies Van Eperen’s allegations and has
filed a counterclaim against him and an associate, Rita
Hill, a resident of Tennessee.

Hill has moved to dismiss

MassMutual’s counterclaim for lack of personal jurisdiction,
improper venue, insufficient service of process, failure to
state a claim, and violation of the statute of limitations.
This court referred Hill’s motion to Magistrate Judge
Katherine A. Robertson for a report and recommendation.

On

February 28, 2017, Judge Robertson issued her Report and
Recommendation (Dkt. No. 125), to the effect that the motion
should be denied.

After three extensions, Hill has failed

to file any timely objections to the Report and
Recommendation, and it is now before the court.
For the reasons set forth below, the court will adopt
Judge Robertson’s Report and Recommendation and will deny
Hill’s Motion to Dismiss.
The meticulous presentation of the facts and
penetrating analysis of the issues raised by the Motion to
Dismiss in the Report and Recommendation make protracted
discussion here superfluous.

None of the arguments offered

by Hill supports dismissal.
With regard to personal jurisdiction, as the Report and
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Recommendation makes clear, MassMutual’s claims against Hill
easily satisfy the three analytical prerequisites identified
by the First Circuit: relatedness, purposeful availment, and
reasonableness.

Astro-Med, Inc. v. Nihon Kohden Am., Inc.,

591 F.3d 1, 9 (1st Cir. 2009).

The injury that MassMutual

alleges it suffered clearly occurred in Massachusetts.

Hill

purposely availed herself of a relationship with MassMutual,
knowing that it was located in Springfield.

MassMutual did

not reach out to Hill, but Hill affirmatively sought a
relationship with MassMutual, knowing that its headquarters
were located in Springfield.

Finally, so-called “gestalt”

factors all support the reasonableness of exercise of
personal jurisdiction in this court.

Foster-Miller, Inc. v.

Babcock & Wilcox Canada, 46 F.3d 138, 150 (1st Cir. 1995).
Moreover, venue in this jurisdiction cannot be said to
be improper.

No unusual burden will fall upon Plaintiff.

All the additional considerations to be weighed in
considering venue tilt towards Massachusetts, or at least
not significantly away from it.
For the reasons stated in the Report and
Recommendation, there has been no improper joinder. (See
Dkt. No. 125 at 29-31.)
All of the claims asserted by MassMutual offer specific
allegations sufficient to overcome Hill’s Motion to Dismiss
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based on a failure to state a claim.

Even the additional

requirements applicable to averments of fraud are satisfied
by the very specific allegations made by MassMutual and
summarized in the Report and Recommendation.

As noted,

Hill’s alleged misrepresentations about the nature of the
insurance policy she was selling, her deliberate concealment
of persons whom she was sharing commissions with, and the
loss by MassMutual of in excess of $6 million are sufficient
to demonstrate fraud, negligent misrepresentation, fraud in
the inducement, and civil conspiracy.
At least at this stage, Hill’s argument based on the
statute of limitations is not sufficiently strong to deprive
MassMutual of the opportunity for discovery.
For all these reasons, and without any objection from
Hill, upon de novo review, the court hereby ADOPTS the
Report and Recommendation (Dkt. No. 125).

Based upon this,

the court hereby DENIES Hill’s Motion to Dismiss (Dkt. No.
85).

A copy of Judge Robertson’s Report and Recommendation

will be appended to this Memorandum as Exhibit A.
The next phase of this case will unfold according to the
schedule set forth in Judge Robertson’s Scheduling Order,
issued on May 8, 2017 (Dkt. No. 136).
It is So Ordered.

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/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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