Law Office of Joseph J. Cariglia, P.C. v. Jelly

Filing 20

District Judge Timothy S Hillman: MEMORANDUM AND ORDER entered granting 8 Motion to Dismiss for Lack of Jurisdiction; denying 10 Motion to Remand to State Court and denying as moot 16 Motion to Strike. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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LAW OFFICE OF JOSEPH J. CARIGLIA, )
)
CIVIL ACTION
P.C.
)
)
NO. 15-CV-40118-TSH
Plaintiff,
)
)
v.
)
)
JEFFERSON D. JELLY
)
)
Defendant.
______________________________________ )
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO REMAND (Docket No.
10), DEFENDANT’S MOTION TO DISMISS (Docket No. 8), AND PLAINTIFF’S
CROSS-MOTION TO STRIKE (Docket No. 16)
November 12, 2015
HILLMAN, D.J.
Three motions are pending before this Court. Defendant seeks to dismiss the case for lack
of personal jurisdiction; Plaintiff seeks to remand the case to Massachusetts Superior Court for
lack of subject matter jurisdiction and to strike a portion of Defendant’s affidavit submitted
alongside his motion to dismiss. For the reasons set forth below, Plaintiff’s motion to remand
(Docket No. 10) is denied, Defendant’s motion to dismiss (Docket No. 8) is granted, and
Plaintiff’s motion to strike (Docket No. 16) is denied as moot.
Background
Plaintiff, the Law Office of Joseph J. Cariglia, P.C. (Cariglia or Plaintiff), is a
Massachusetts professional corporation with a principal place of business in Worcester,
Massachusetts. Defendant, Jefferson D. Jelly, is a member of the bar of Connecticut and has a
principal place of business in West Hartford, Connecticut. In January of 2010, a married couple,

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Mr. and Mrs. Jones (the Joneses), of Rutland, Massachusetts, were involved in a motor-vehicle
accident in Connecticut. The Joneses sought legal representation from Jelly in connection with
this accident. In October of 2011, they decided to change counsel.
After discharging Jelly, the Joneses entered into a written contingent fee agreement with
Cariglia.1 Because the case involved the rendering of legal services in both Massachusetts and
Connecticut, Cariglia engaged a Connecticut law firm (the Connecticut firm) and referred the
Connecticut portion of the litigation to one of its attorneys, Humbert Polito, Jr. The referral was
made pursuant to a fee-sharing arrangement, whereby Cariglia was entitled to receive one third of
the fee charged to the Joneses by the Connecticut firm.

Cariglia also agreed to assume

responsibility for compensating Jelly.
The Connecticut firm initiated a lawsuit on behalf of the Joneses in Connecticut in 2012.
In July of 2015, the case was resolved, yielding a legal fee of approximately $186,000. After
learning of this resolution, Jelly allegedly made a “written claim” to Cariglia, asserting that the
contingent fee agreement between Cariglia and the Joneses was invalid under Connecticut law.
Cariglia contends that, as a result of this claim, the Connecticut firm has refused to pay Cariglia
his portion of the fee.
Cariglia brought suit against Jelly in Worcester Superior Court, asserting three counts:
(1) violation of Mass. Gen. Laws ch. 93A; (2) tortious interference with contractual relations; and
(3) unspecified declaratory judgment relating to Jelly’s challenges to the legitimacy of the contract
between Cariglia and the Joneses and the quantum meruit for Jelly’s services. Jelly removed the
case to this Court on the basis of diversity jurisdiction. Six days after removal, Cariglia amended

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The record does not clearly establish whether this contract was formed with both Mr. and Mrs.
Jones or only Mrs. Jones. Because this distinction is not crucial to the issues raised by the instant
motions, I shall assume that both Mr. and Mrs. Jones were parties to this agreement.
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his complaint and dropped the Chapter 93A claim. Jelly then filed a motion to dismiss for lack of
personal jurisdiction (Docket No. 8); and Cariglia filed a motion to remand for lack of subject
matter jurisdiction (Docket No. 10) and a motion to strike an affidavit attached to Jelly’s motion
to dismiss. (Docket No. 16.)
Discussion
1. Cariglia’s Motion to Remand for Lack of Subject Matter Jurisdiction
Standard of Review
Pursuant to 28 U.S.C. § 1441(a), a case is properly removed to federal court only if the
action could have been brought initially in federal court. See Syngenta Crop Prot., Inc. v. Henson,
537 U.S. 28, 33 (2002); City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997)
(quoting § 1441(a)) (“As a general matter, defendants may remove to the appropriate federal
district court ‘any civil action brought in a State court of which the district courts of the United
States have original jurisdiction.’”). In a case based on diversity jurisdiction, the parties must be
diverse in citizenship and the amount in controversy must be greater than $75,000. 28 U.S.C.
§ 1332(a)(1). The amount in controversy includes statutory multipliers of damages, such as the
treble damages provision in Mass. Gen. Laws ch. 93A. See Lopez v. U.S. Bank Nat. Ass'n, No. 14CV-11944-MGM, 2014 WL 4928883, at *2 (D. Mass. Sept. 30, 2014); Santos v. Preferred Mut.
Ins. Co., 21 F. Supp. 3d 111, 116 n.2 (D. Mass. 2014); Williams v. Litton Loan Servicing, No. CA
10-11866-MLW, 2011 WL 3585528, at *5 (D. Mass. Aug. 15, 2011).
Analysis
Cariglia argues that this Court lacks subject matter jurisdiction because the amount in
controversy is less than $75,000. Cariglia asserts that he is seeking only the one-third portion of

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the $186,000 fee—approximately $62,000.

In opposition, Jelly argues that this Court has

jurisdiction because, at the time of removal, the complaint included a claim for treble damages.
Cariglia’s initial complaint did include a claim for treble damages under Mass. Gen. Laws
ch. 93A. Thus, at the time of removal, the amount in controversy was greater than $75,000. After
removal, Cariglia eliminated the 93A claim, and he now seeks only single damages, approximately
$62,000. This Court has not been divested of jurisdiction. It is well established that “events
occurring subsequent to removal which reduce the amount recoverable, whether beyond the
plaintiff’s control or the result of his volition, do not oust the district court’s jurisdiction once it
has attached.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293 (1938); see
Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 390 (1998) (“for purposes of removal
jurisdiction, we are to look at the case as of the time it was filed in state court”); Coventry Sewage
Associates v. Dworkin Realty Co., 71 F.3d 1, 6, 7 (1st Cir. 1995) (“if events subsequent to
commencement of the action reduce the amount in controversy below the statutory minimum, the
federal court is not divested of jurisdiction. . . . [O]nce jurisdiction attaches, it is not ousted by a
subsequent change of events.”). Cariglia’s motion to remand is therefore denied.
2. Jelly’s Motion to Dismiss for Lack of Personal Jurisdiction
Standard of Review
“In determining whether a non-resident defendant is subject to its jurisdiction, a federal
court exercising diversity jurisdiction is the functional equivalent of a state court sitting in the
forum state.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st
Cir. 2002) (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995)) (citation and quotation
marks omitted). This Court “may exercise authority over a defendant by virtue of either general
or specific [personal] jurisdiction.” Id. (quoting Mass. Sch. of Law at Andover, Inc. v. Am. Bar

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Ass'n, 142 F.3d 26, 34 (1st Cir. 1998)). “General jurisdiction exists when the defendant has
engaged in ‘continuous and systematic activity’ in the forum, even if the activity is unrelated to
the suit.” Id. (quoting United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d
1080, 1088 (1st Cir. 1992)). In this case, Cariglia has not asserted that Jelly is subject to general
jurisdiction in Massachusetts.
“In the absence of general jurisdiction, a court’s power depends upon the existence of
specific jurisdiction.” Id. (quoting Mass. Sch. of Law, 142 F.3d at 34).

Specific personal

jurisdiction exists when “the cause of action arises directly out of, or relates to, the defendant’s
forum-based contacts.” Negron-Torres v. Verizon Commc'ns, Inc., 478 F.3d 19, 24 (1st Cir. 2007)
(quoting United Elec., Radio & Mach. Workers of America., 960 F.2d at 1088-89). The plaintiff
must show that the Massachusetts long-arm statute, Mass. Gen. Law ch. 223A, § 3, grants
jurisdiction, and that the exercise of jurisdiction is consistent with the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution. Daynard, 290 F.3d at 52. Because the Supreme
Judicial Court has interpreted that the Massachusetts long-arm statute extends to the limits allowed
by the U.S. Constitution, this Court need consider only the due process inquiry. Id. (citing
“Automatic” Sprinkler Corp. of Am. v. Seneca Foods Corp., 280 N.E.2d 423, 424 (Mass. 1972)).
The courts of this Circuit use a three-part inquiry to determine whether the Constitution
permits the exercise of specific personal jurisdiction. See Carreras v. PMG Collins, LLC, 660 F.3d
549, 554 (1st Cir. 2011). First, the plaintiff’s claims must arise out of or be related to the
defendant’s contacts with the forum state. See id.; Phillips Exeter Acad. v. Howard Phillips Fund,
196 F.3d 284, 288 (1st Cir. 1999). Second, the defendant’s contacts must “constitute purposeful
availment of the benefits and protections afforded by the forum’s laws.” Phillips Exeter Acad.,

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196 F.3d at 288. Third, the exercise of jurisdiction must be “consistent with principles of justice
and fair play.” Carreras, 660 F.3d at 554.
When personal jurisdiction is contested by a Rule 12(b)(2) motion to dismiss, the plaintiff
bears “the burden of persuading the court that jurisdiction exists.” Negron-Torres, 478 F.3d at 23
(quoting Mass. Sch. of Law, 142 F.3d at 34). When deciding a motion to dismiss for lack of
personal jurisdiction without holding an evidentiary hearing, this Court applies a “prima facie
standard,” considering “‘only whether the plaintiff has proffered evidence that, if credited, is
enough to support findings of all facts essential to personal jurisdiction.’” Id. (quoting Boit v. Gar–
Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)). In order to make a prima facie showing of
personal jurisdiction, “[t]he plaintiff must go beyond the pleadings and make affirmative proof.”
Id. (quoting Boit, 967 F.2d at 675). This Court takes “specific facts affirmatively alleged by the
plaintiff as true (whether or not disputed) and construe[s] them in the light most congenial to the
plaintiff’s jurisdictional claim.” Id. (quoting Mass. Sch. of Law, 142 F.3d at 34). Facts put forward
by the defendant are then “add[ed] to the mix,” but only “to the extent that they are
uncontradicted.” Id. (quoting Mass. Sch. of Law, 142 F.3d at 34).
Analysis
Cariglia argues that personal jurisdiction is proper under the Massachusetts long arm
statute and the U.S. Constitution because Jelly committed a tortious act outside of Massachusetts
with the intent to cause injury in Massachusetts. Cariglia’s assertions of the details of this act,
however, are vague. He alleges that Jelly made a “written claim,” in which Jelly contended that
the contingent fee agreement between Cariglia and the Joneses was invalid. Cariglia claims that
“Jelly must have known that his attempt to impose himself on a fee would cause injury in
Massachusetts” and that he “took a position that he knew would prevent Plaintiff from receiving

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contractually obligated fees.” (Docket No. 15 at 4-5.)

Thus, Cariglia argues that “Jelly

purposefully availed himself of Massachusetts by attempting to frustrate Plaintiff, a Massachusetts
corporation, and that Jelly expressly aimed his actions in Connecticut to Plaintiff in
Massachusetts.” (Docket No. 15 at 5.)
Cariglia has submitted only one document outside the pleadings, an affidavit of one of
Cariglia’s attorneys, Cherele Gentile.

According to Gentile, Jelly refused to comply with

Cariglia’s requests for documentation of the work that Jelly had performed on the Joneses’ case.
Gentile states that multiple letters were sent to Jelly regarding the quantum meruit value of his
services. One such letter, sent from Gentile to Jelly, was submitted as an exhibit to Jelly’s motion
to dismiss.
Jelly, for his part, argues that his only association with Massachusetts is his representation
of Mrs. Jones, a Massachusetts resident, for a claim brought only in Connecticut. Jelly asserts that
he did not personally send any letters to Cariglia and had no substantive discussions with Cariglia
regarding the fee for the Joneses’ case. Jelly believes that any statements attributed to him were
actually made by his attorney, whom he retained for the purpose of resolving this fee dispute.
Moreover, Jelly contends that any letter sent to Cariglia by Jelly’s attorney was merely in response
to the letter sent to him by Gentile. Jelly has submitted his own affidavit alongside his motion to
dismiss, in which he outlines the underlying facts of this fee dispute.
The “relatedness” prong of the personal jurisdiction inquiry focuses on the causal nexus
between the plaintiff’s claim and the defendant’s contacts with the forum state. See Astro–Med,
Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 9 (1st Cir. 2009). The relatedness standard ensures
that defendants have fair warning that their conduct will subject them to the forum state’s
jurisdiction. In a tort case, such as this one, a defendant’s in-state activities must be more than

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merely the but-for cause of a plaintiff’s injury; the defendant’s in-state conduct must have
“form[ed] an important, or at least material, element of proof in the plaintiff's case,” Harlow v.
Children's Hosp., 432 F.3d 50, 61 (1st Cir. 2005), such that “the litigation itself is founded directly
on those activities.” Adelson v. Hananel, 652 F.3d 75, 81 (1st Cir. 2011) (quoting Hannon v. Beard,
524 F.3d 275, 279-80 (1st Cir. 2008)).
To establish a claim of tortious interference with contractual relations under Massachusetts
law, a plaintiff must demonstrate four elements: “(1) he [or she] had a contract with a third party;
(2) the defendant knowingly induced the third party to break that contract; (3) the defendant’s
interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff
was harmed by the defendant’s actions.” Cavicchi v. Koski, 855 N.E.2d 1137, 1141 (Mass. App.
Ct. 2006) (quoting Draghetti v. Chmielewski, 626 N.E.2d 862, 868 (Mass. 1994)).
Here, Jelly’s only connection with Massachusetts is that he was replaced as representative
for the Joneses by a Massachusetts law firm, Cariglia, and, as a result, Cariglia apparently owes
him some portion of the fees earned on the Joneses’ case.2

As explained above, the

communications between Cariglia and Jelly are not entirely clear. Neither party has submitted any
letter sent to Cariglia by Jelly or his attorney. Cariglia only vaguely asserts that Jelly made a
“written claim” that the fee agreement between Cariglia and the Joneses was invalid, and that this
claim resulted in the Connecticut firm’s decision to withhold Cariglia’s portion of the fee.
Cariglia has not made any showing that Jelly’s communication with Cariglia induced the
Joneses to violate their agreement with Cariglia, nor has he even alleged that the Joneses have
violated that agreement. According to Cariglia, the Connecticut firm is allegedly withholding the

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I express no opinion as to Jelly’s actual entitlement to fees, as that issue is beyond the scope of
the instant motions.
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funds. Moreover, Cariglia has not alleged that the Joneses knew about Jelly’s “written claim.”
Thus, assuming that Jelly did send a letter to Cariglia challenging the validity of Cariglia’s
agreement with the Joneses, the instant litigation is not founded on the sending of this letter and
the letter does not form a material element of proof in Cariglia’s claim. See Adelson, 652 F.3d at
81; Harlow, 432 F.3d at 61. This conduct is not “related” to Cariglia’s claims for the purposes of
specific personal jurisdiction.
Because Jelly’s contacts with Massachusetts fail the relatedness prong of the three-part test
for establishing personal jurisdiction, I need not discuss purposeful availment or reasonableness.
Jelly’s motion to dismiss is granted.
3. Cariglia’s Motion to Strike Jelly’s Affidavit
Cariglia moves to strike paragraphs 10 and 12 of Jelly’s affidavit on the grounds that these
paragraphs contain inadmissible hearsay. In this Circuit there is no clear answer to the question
of whether inadmissible statements may be considered for the purposes of a motion to dismiss
under Rule 12(b)(2). I am inclined to find that the standard for affidavits set forth in Rule 56(c)(4)
applies in this context. See Am. Exp. Int'l, Inc. v. Mendez-Capellan, 889 F.2d 1175, 1178 (1st Cir.
1989); Metcalf v. Bay Ferries Ltd., 937 F. Supp. 2d 147, 150 (D. Mass. 2013); Milford Power Ltd.
P'ship by Milford Power Associates Inc. v. New England Power Co., 918 F. Supp. 471, 478 (D.
Mass. 1996); W. Marine Products, Inc. v. Dolphinite, Inc., No. CIV.A. 04-10251-PBS, 2005 WL
1000259, at *2 (D. Mass. Apr. 6, 2005). However, I need not reach a conclusion on this issue
today, because the statements in Jelly’s affidavit are not necessary to my determination that his
contacts with Massachusetts are insufficient to confer personal jurisdiction.
Plaintiff’s motion to strike is denied as moot.

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Accordingly,

Conclusion
For the reason set forth above, Plaintiff’s motion to remand (Docket No. 10) is denied,
Defendant’s motion to dismiss (Docket No. 8) is granted, and Plaintiff’s motion to strike (Docket
No. 16) is denied as moot. Plaintiff’s complaint is hereby dismissed.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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