Apostolico v. Norwich Commercial Group

Filing 57

MEMORANDUM AND ORDER granting in part and denying in part 33 Motion to Dismiss; granting 52 Motion to Amend/Correct Complaint within 30 days of this order. So Ordered by District Judge William E. Smith on 3/30/2020. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
DOMENIC APOSTOLICO, JR.
)
)
Plaintiff,
)
)
)
v.
)
C.A. No. 18-264 WES
)
NORWICH COMMERCIAL GROUP d/b/a
)
NORCOM MORTGAGE and
)
PHILLIP DeFRONZO,
)
)
Defendants.
)
__________________________________ )
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
Before the Court is Defendant Phillip DeFronzo’s Motion to
Dismiss and/or For a More Definite Statement with Respect to the
First Amended Complaint (“Mot. to Dismiss”), ECF No. 33. 1

For the

reasons set forth below, the motion is GRANTED IN PART and DENIED
IN PART.

Also before the Court is Plaintiff Domenic Apostolico’s

Motion to Amend the Complaint (“Mot. to Amend”), ECF No. 52.

For

the reasons set forth below, that motion is GRANTED.

Initially, both Defendants were party to this motion. See
Mot. to Dismiss 1. However, Norwich Commercial Group subsequently
withdrew, so that the motion is now pressed by DeFronzo alone.
See Def. Norcom’s Mot. to Withdraw Its Mot. to Dismiss and/or For
a More Definite Statement as to Norcom Only, ECF No. 39.
1

I. BACKGROUND
Defendant

Norwich

Commercial

Group

(“Norcom”)

is

a

Connecticut corporation with its principal place of business in
the same state.

First Am. Compl. (“Am. Compl.”) ¶ 3, ECF No. 22.

Norcom is “licensed to originate residential mortgages” in Rhode
Island, among other states.

Id. ¶ 5.

DeFronzo is president of

Norcom, a position he occupied throughout the period pertinent to
this case.

Id. ¶ 4.

His state of citizenship is uncertain.

According to the Amended Complaint, in March 2017, Norcom
hired Apostolico to manage its branch in Cranston, Rhode Island.
Id. ¶ 6.

In January 2018, the entire Cranston branch — including

Apostolico — left Norcom and joined another mortgage lender.
¶¶ 17-18.

Id.

In the wake of the separation, Apostolico demanded

payment of outstanding wages and other monies owed; Norcom refused,
citing standard reconciliation processes.

See id. ¶¶ 19-30.

Apostolico eventually sued Norcom for nonpayment of wages.
See Compl., ECF No. 2. He then amended his pleading, joining
DeFronzo as a defendant and adding claims for breach of contract
(Count V), defamation (VI), false light (Count VII), fraud (VIII),
and tortious interference with contract (Count IX). See Am. Compl.
¶¶ 4, 61-95.
DeFronzo

now

moves

to

dismiss

for

lack

of

personal

jurisdiction and/or for a more definite statement as to Counts VII

2

and VIII. 2 See Mot. to Dismiss 1-2.

Additionally, Apostolico asks

leave to again amend his Complaint, adding a claim for retaliation.
See Mot. to Amend 1-2.
II. DISCUSSION
A.

Personal Jurisdiction

DeFronzo

contends

that

there

is

no

basis

for

personal

jurisdiction because the Amended Complaint alleges neither that he
lives in Rhode Island nor that he has any relevant activities in
Rhode Island.

See Defs.’ Mem. of Law in Supp. of Their Mot. to

Dismiss and/or For a More Definite Statement (“Defs.’ Mem.”) 4,
ECF No. 33-1.

He also maintains that personal jurisdiction stands

or falls on the strength of Apostolico’s Amended Complaint.

See

Def. DeFronzo’s Reply to Pl.’s Obj. to DeFronzo’s Mot. to Dismiss
and/or for a More Definite Statement (“Def. Reply”) 2-3, ECF No.
41. In response, Apostolico argues that the Court has jurisdiction
because DeFronzo employed Apostolico in, and directed injurious
activities at, Rhode Island.

See, e.g., Obj. Mem. 8-10.

Due process forbids that an individual should be hauled before
an alien tribunal.
462,

471–72

See Burger King Corp. v. Rudzewicz, 471 U.S.

(1985).

Therefore,

a

court

may

only

assert

jurisdiction over a defendant who has constitutionally appreciable
The parties have since agreed that the breach of contract
claim (Count V) is brought against Norcom only. See Mem. in Supp.
of Obj. to Def.’s Mot. to Dismiss and/or For a More Definite
Statement (“Obj. Mem.”) 4, ECF No. 40.
2

3

contacts with the state in which it sits, lest “fair play and
substantial justice” be offended.

Int'l Shoe Co. v. State of

Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316
(1945) (internal citations omitted).
Where

disputed,

the

plaintiff

establishing personal jurisdiction.

carries

the

burden

of

United Elec., Radio & Mach.

Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1090 (1st
Cir.

1992).

There

are

several

ways

to

decide

personal

jurisdiction; here, the Court employs the prima facie method.
Under this standard, the query is simply “whether the plaintiff
has proffered evidence that, if credited, is enough to support
findings of all facts essential to personal jurisdiction.”
v. Gar-Tec Prod., Inc., 967 F.2d 671, 675 (1st Cir. 1992).

Boit
As in

all determinations of personal jurisdiction, the Court “accept[s]
the allegations in the complaint as true and construe[s] the facts
in the light most favorable to the plaintiff.” Phillips v. Prairie
Eye Ctr., 530 F.3d 22, 24 (1st Cir. 2008).
“broad

discretion”

to

consider

deciding personal jurisdiction.

Moreover, a court has

“extra-pleading

material”

in

Thompson Trading Ltd. v. Allied

Lyons PLC, 124 F.R.D. 534, 535 (D.R.I. 1989).

It may “take the

facts from the pleadings and whatever supplemental filings (such
as affidavits) are contained in the record . . . .”

Baskin-Robbins

Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st
Cir. 2016).
4

Exercise of personal jurisdiction must comport with the longarm statute of the forum state and the due process requirements of
the Fourteenth Amendment.
1387 (1st Cir. 1995).

See Sawtelle v. Farrell, 70 F.3d 1381,

Since Rhode Island’s long-arm statute is

co-extensive with the Fourteenth Amendment, see R.I. Gen. Laws §
9-5-33, the analysis is simply whether DeFronzo has the necessary
minimum contacts with Rhode Island to allow this Court to exercise
personal jurisdiction without running afoul the Constitution.
Although Apostolico does not say so explicitly, the Court
surmises

that

specific

thought to apply here.
specific

jurisdiction

(rather

than

general)

See, e.g., Obj. Mem. 8-9.
has

three

prongs:

(1)

purposeful availment, and (3) reasonableness.
St. Corp., 960 F.2d at 1089.
1.

establish

is

The test for

relatedness,

(2)

See 163 Pleasant

The Court takes up each in turn.

Relatedness

To

jurisdiction

relatedness,

the

underlying

claims

must

“directly arise out of, or relate to, the defendant’s forum-state
activities.”

Id.

This standard is flexible and relaxed.

See

Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir.
1994).

Causation is the crux of the inquiry.

St. Corp., 960 F.2d at 1089.

See 163 Pleasant

While proximate causation is often

important in determining personal jurisdiction, its absence is not
constitutionally intolerable.

See Nowak v. Tak How Invs., Ltd.,

94 F.3d 708, 715-16 (1st Cir. 1996).
5

Here, Apostolico, a Rhode Island citizen, alleges that Norcom
and DeFronzo, Rhode Island employers both, are withholding past
due wages and other monies, and that this withholding is at
DeFronzo’s “direction.”
reflects

that

DeFronzo

See Am. Compl. ¶ 31. The record also
sent

an

e-mail

to

Norcom

employees

—

including, apparently, some in Rhode Island — concerning the
departure of the Cranston branch, which e-mail allegedly defamed
Apostolico and cast him in a false light.

See Am. Compl. ¶¶ 20-

21; Obj. Mem. at 10-11; Obj. Mem., Ex. 1, DeFronzo Dep., at 37:138:4.

Taken generously, these activities together serve as the

germ of Apostolico’s claims.
For the purposes of personal jurisdiction, activity can be
effectuated without physical presence.

See N. Laminate Sales,

Inc. v. Davis, 403 F.3d 14, 25 (1st Cir. 2005) (“[A] defendant
need not be physically present in the forum state to cause injury
(and thus ‘activity’ for jurisdictional purposes) in the forum
state.”) (citing Calder v. Jones, 465 U.S. 783, 789 (1984)).
DeFronzo’s

activities

allegedly

caused,

and

“calculated” to cause, injury in Rhode Island.

allegedly

were

See Am. Compl. ¶¶

31-33; see also Obj. Mem. 9-10.
The Court is cognizant that “mere injury to a forum resident”
will not support personal jurisdiction.
277, 290 (2014).
between

Walden v. Fiore, 571 U.S.

DeFronzo’s

However, there is more than sheer coincidence
alleged

activities,
6

Apostolico’s

purported

injuries, and the state of Rhode Island.

Significantly, DeFronzo

is a Rhode Island employer per R.I. Gen. Laws § 28-14-1, and,
crediting

the

proffered

allegations,

he

knowingly

failed

to

compensate Apostolico, a former employee of his Rhode Island
enterprise.
the

record

See Am. Compl. ¶¶ 26-31.
in

Apostolico’s

favor,

Additionally, construing
DeFronzo

intentionally

transmitted allegedly defamatory e-mails into Rhode Island, which
concerned Rhode Island goings-on and were apparently read in Rhode
Island.

See id. ¶¶ 20-21; Obj. Mem. 10-11; Obj. Mem., Ex. 1,

DeFronzo Dep., at 37:1-38:4.

Finally, DeFronzo traveled to the

Cranston branch to persuade Apostolico to remain with Norcom,
indicating participation in Rhode Island-based events immediate to
the litigation at hand.

See Obj. Mem., Ex. 1, DeFronzo Dep., at

45:2-15.
It is true that DeFronzo’s activities were conducted in his
capacity as president of Norcom.

Yet “the mere fact that the

actions connecting defendants to the state were undertaken in an
official rather than personal capacity does not preclude the
exercise

of

personal

jurisdiction

over

those

defendants.”

Cathedral Art Metal Co. v. Giftco, Inc., No. CA 06-465S, 2010 WL
7212158, at *4 (D.R.I. Sept. 21, 2010), report and recommendation
adopted sub nom. Cathedral Art Metal Co. v. Giftco, Inc., No. CA
06-465-M, 2011 WL 3555860 (D.R.I. Aug. 11, 2011).

This rule is

doubly true, given that DeFronzo is a “primary participant[]” in
7

the alleged wrongdoing.
2.

See Calder, 465 U.S. at 790.

Purposeful Availment

As for purposeful availment, the question is whether the
defendant voluntarily took advantage of the forum state’s laws, so
that he or she could have reasonably anticipated being called to
court therein. See 163 Pleasant St. Corp., 960 F.2d at 1089.

By

serving as president of Norcom, a residential mortgage originator,
see Am. Compl. ¶¶ 4-5, DeFronzo enjoyed the benefits of Rhode
Island

laws

market.

framing,

governing,

and

safeguarding

the

lending

In and through Norcom, DeFronzo “initiated and maintained

substantial

contacts”

with

Rhode

Island

individuals,

most

relevantly but not solely Apostolico, and he “influenced, if not
controlled,

decisions

that

directly

affected”

Rhode

Island

residents, putting himself in a position that foreseeably invited
litigation within the state.

See Villa Marina Yacht Sales, Inc.

v. Hatteras Yachts, 915 F.2d 7, 11 (1st Cir. 1990) (construing
language
prong).

of

territory

long-arm

statute

similar

to

availment

Also, the fact that DeFronzo is an employer under Rhode

Island law should have alerted him to the real possibility of being
summoned before a tribunal in this state.
3.

Reasonableness

Whether personal jurisdiction is reasonable hinges on five
factors: “(1) [T]he defendant's burden of appearing, (2) the forum
state's interest in adjudicating the dispute, (3) the plaintiff's
8

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.”

163

Pleasant St., 960 F.2d at 1088 (citing Burger King, 471 U.S. at
476–77).
justice.”

These

factors

help

the

court

secure

Ticketmaster-New York, 26 F.3d at 209.

“substantial
They are most

analytically determinative “where the minimum contacts question is
very close.”

Nowak, 94 F.3d at 717.

The question here is close,

but the factors favor Apostolico.
First, DeFronzo has not shown that litigating this dispute in
Rhode Island would present a “special or unusual burden.” Pritzker
v. Yari, 42 F.3d 53, 64 (1st Cir. 1994).
Second, Rhode Island has an interest in enforcing its wage
laws and remedying tortious wrongs inflicted on its residents by
out-of-state actors.

See Ticketmaster-New York, 26 F.3d at 211.

Third, Apostolico understandably wishes to litigate in Rhode
Island, where he lives and where he was employed by Norcom.
preference deserves some deference.

This

See id.

Fourth, considerations of effective resolution seem, as is
often the case, a “wash.”

Nowak, 94 F.3d at 718.

Fifth, Rhode Island has strong policy interests in ensuring
compliance

with

its

labor

laws,

discouraging

the

spread

of

defamatory material, and encouraging good behavior on the part of
9

out-of-state actors transacting business within its borders.
This Court finds Apostolico’s claims arise from, or relate
to,

DeFronzo’s

activities

in

Rhode

Island;

that

DeFronzo

purposefully availed himself of Rhode Island’s laws; and that the
reasonableness factors cut in Apostolico’s favor.
Therefore, the Court determines that it may assert personal
jurisdiction over DeFronzo.
B.

More Definite Statement

DeFronzo argues that he cannot defend himself against the
charges

of

defamation

and

false

Apostolico’s Amended Complaint.
Apostolico

subsequently

light

due

to

ambiguity

See Defs.’ Mem. 8.

identified

the

allegedly

in

Although
offending

material by memorandum and exhibit, see Obj. Mem. 5-7, the pleading
itself remains confusing and cursory as to these claims.
Complaint must be cured to remove these deficiencies.

The

Therefore,

the part of DeFronzo’s motion requesting a more definite statement
is granted.
C.

Motion to Amend Complaint

On February 20, 2020, Apostolico moved to again amend his
Complaint to add a claim for retaliation.

See Mot. to Amend.

court should freely give leave when justice so requires.”
Civ. P. 15(a)(2).

This standard is liberal.

Hotels

Rico,

of

Puerto

357

F.3d

152,

154

“The

Fed. R.

O'Connell v. Hyatt
(1st

Cir.

2004).

Therefore, the Court will permit Apostolico to file a second
10

amended complaint. 3
III. CONCLUSION
For the foregoing reasons, the Motion to Dismiss and/or For
a

More

Definite

Statement

with

Respect

to

the

First

Amended

Complaint, ECF No. 33, is GRANTED IN PART and DENIED IN PART.
Furthermore,

the

Motion

to

Amend,

ECF

No.

52,

is

GRANTED.

Apostolico has thirty days to amend his Complaint to address the
deficiencies discussed infra Section II(B) and to add a claim for
retaliation.
IT IS SO ORDERED.

William E. Smith
District Judge
Date: March 30, 2020

In their Opposition to the Motion to Amend, Defendants
raise several arguments as to why Apostolico cannot succeed on his
retaliation claim. See Defs.' Opp'n to Pl.'s (Second) Mot. for
Leave to Amend 5, ECF No. 54. The Court finds the issues raised
to be more appropriate for disposition on summary judgment.
3

11