Apostolico v. Norwich Commercial Group
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.
C.A. No. 18-264 WES
NORWICH COMMERCIAL GROUP d/b/a
NORCOM MORTGAGE and
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
reasons set forth below, the motion is GRANTED IN PART and DENIED
Also before the Court is Plaintiff Domenic Apostolico’s
Motion to Amend the Complaint (“Mot. to Amend”), ECF No. 52.
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.
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
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.
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.
jurisdiction and/or for a more definite statement as to Counts VII
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.
jurisdiction because the Amended Complaint alleges neither that he
lives in Rhode Island nor that he has any relevant activities in
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.
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.
See Burger King Corp. v. Rudzewicz, 471 U.S.
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.
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).
establishing personal jurisdiction.
United Elec., Radio & Mach.
Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1090 (1st
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).
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).
deciding personal jurisdiction.
Moreover, a court has
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 . . . .”
Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st
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
thought to apply here.
See, e.g., Obj. Mem. 8-9.
purposeful availment, and (3) reasonableness.
St. Corp., 960 F.2d at 1089.
The test for
See 163 Pleasant
The Court takes up each in turn.
“directly arise out of, or relate to, the defendant’s forum-state
This standard is flexible and relaxed.
Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 206 (1st Cir.
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
See Nowak v. Tak How Invs., Ltd.,
94 F.3d 708, 715-16 (1st Cir. 1996).
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
See Am. Compl. ¶ 31. The record also
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)).
“calculated” to cause, injury in Rhode Island.
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).
Walden v. Fiore, 571 U.S.
However, there is more than sheer coincidence
injuries, and the state of Rhode Island.
is a Rhode Island employer per R.I. Gen. Laws § 28-14-1, and,
compensate Apostolico, a former employee of his Rhode Island
See Am. Compl. ¶¶ 26-31.
transmitted allegedly defamatory e-mails into Rhode Island, which
concerned Rhode Island goings-on and were apparently read in Rhode
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
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
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
the alleged wrongdoing.
See Calder, 465 U.S. at 790.
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.
serving as president of Norcom, a residential mortgage originator,
see Am. Compl. ¶¶ 4-5, DeFronzo enjoyed the benefits of Rhode
In and through Norcom, DeFronzo “initiated and maintained
relevantly but not solely Apostolico, and he “influenced, if not
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
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.
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
interest in obtaining convenient and effective relief, (4) the
resolution of the controversy, and (5) the common interests of all
Pleasant St., 960 F.2d at 1088 (citing Burger King, 471 U.S. at
Ticketmaster-New York, 26 F.3d at 209.
They are most
analytically determinative “where the minimum contacts question is
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
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.
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
defamatory material, and encouraging good behavior on the part of
out-of-state actors transacting business within its borders.
This Court finds Apostolico’s claims arise from, or relate
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.
More Definite Statement
DeFronzo argues that he cannot defend himself against the
Apostolico’s Amended Complaint.
See Defs.’ Mem. 8.
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 part of DeFronzo’s motion requesting a more definite statement
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.
O'Connell v. Hyatt
Therefore, the Court will permit Apostolico to file a second
amended complaint. 3
For the foregoing reasons, the Motion to Dismiss and/or For
Complaint, ECF No. 33, is GRANTED IN PART and DENIED IN PART.
Apostolico has thirty days to amend his Complaint to address the
deficiencies discussed infra Section II(B) and to add a claim for
IT IS SO ORDERED.
William E. Smith
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.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?