Cossart v. United Excel Corporation , 804 F.3d 13 ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 14-2144
    WILLIAM COSSART,
    Plaintiff, Appellant,
    v.
    UNITED EXCEL CORPORATION and KY HORNBAKER,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. George A. O'Toole, Jr., U.S. District Judge]
    Before
    Thompson, Kayatta, and Barron,
    Circuit Judges.
    Kevin T. Smith, with whom Law Office of Kevin T. Smith LLC
    was on brief, for appellant.
    Marissa I. Delinks, with whom Hinshaw & Culbertson LLP was on
    brief, for appellees.
    September 30, 2015
    BARRON, Circuit Judge.          This case presents a question
    about the limits of personal jurisdiction.               The issue arises in
    connection with a lawsuit brought in Massachusetts concerning an
    alleged     breach    of   an   employment      contract.      The    contract
    contemplated that the employee would work from Massachusetts for
    a Kansas company, which then facilitated the employee's work from
    Massachusetts by, among other things, providing him with equipment
    and officially registering a sales office with the Commonwealth.
    The employee sued after the company failed to pay him a commission
    that he alleges he was due. Under the facts presented, we conclude
    that the assertion of jurisdiction over the company and its
    president    is   consistent    with   both     the   Massachusetts   long-arm
    statute and the Due Process Clause.               We therefore reverse the
    District Court's dismissal for lack of personal jurisdiction and
    remand for further proceedings.
    I.
    United Excel Corporation, the employer and one of the
    two defendant-appellees, is a so-called "design/build" company
    that provides architectural and construction management services
    to hospitals.1       It is incorporated and headquartered in Kansas.
    1 The recited facts are drawn from the complaint, plaintiff's
    evidentiary submissions, and, when uncontradicted, defendants'
    affidavits. See C.W. Downer & Co. v. Bioriginal Food & Sci. Corp.,
    
    771 F.3d 59
    , 65 (1st Cir. 2014).
    - 2 -
    William Cossart, the plaintiff-appellant, worked for the company
    as a salesman.    He resides in Wayland, Massachusetts.
    United Excel recruited Cossart in 2010.        At that time,
    Cossart traveled from his home in Massachusetts to United Excel's
    offices in Kansas.      There, he negotiated an employment contract
    with, among others, Ky Hornbaker, United Excel's president and the
    other defendant in this case.
    That first employment contract assumed that Cossart
    would continue to work out of his home in Wayland, Massachusetts.
    United Excel memorialized the contract in a letter addressed to
    Cossart in Wayland.      The letter stated that United Excel would
    provide Cossart with the business equipment that he would need to
    work from Wayland, such as a computer, a printer, a cell phone,
    and video conference equipment. United Excel also provided Cossart
    with a business telephone number with a Kansas exchange and
    redirected calls made to that number to Cossart's phone in Wayland.
    And   United   Excel,   acting   through   Hornbaker,   registered   with
    Massachusetts to establish a "[g]eneral contracting sales office"
    in the state just a day after Cossart started his new job with
    United Excel in Wayland.
    In 2012, United Excel and Cossart changed Cossart's
    employment contract to make him a "commission only employee," while
    leaving the other terms of his employment unaltered.       United Excel
    once again memorialized the employment contract in a letter sent
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    to Cossart at his Wayland address.         And the new agreement, like
    the old, allowed Cossart to use home office equipment provided by
    United Excel to facilitate his remote employment.          United Excel
    also   continued   to   keep    its    registration   up   to   date   in
    Massachusetts.
    Over the course of his employment, Cossart made hundreds
    of telephone calls and sent hundreds of e-mails on behalf of United
    Excel from his Wayland office.        He had numerous meetings and made
    cold calls in an effort to solicit business from various hospitals
    in Massachusetts, but he did not successfully secure business with
    a Massachusetts client.
    An attempt to secure an out-of-state client, however,
    led to the present action.     In October 2013, Cossart, working from
    Massachusetts and under the second employment contract, identified
    a potential deal in which United Excel would be retained by a
    hospital in California.        Cossart then contacted the California
    hospital from his home in Wayland "numerous" times by phone and e-
    mail in the course of trying to secure that deal.          Cossart also
    traveled from Massachusetts to California for "several" in-person
    meetings.
    When execution of the contract for the work for the
    California hospital was "imminent," Cossart contacted Hornbaker to
    discuss Cossart's belief that United Excel would owe him a $219,000
    commission under the second employment contract for his work in
    - 4 -
    securing    the   deal   with   the   California   hospital.   Hornbaker
    responded by phone and e-mail that he would not consummate the
    California deal unless Cossart agreed to accept a commission of
    only $62,000.
    When Cossart refused to accept the lower commission,
    United Excel rescinded its offer on the California contract, and
    Hornbaker fired Cossart.        Cossart then brought this action in a
    Massachusetts state court against United Excel and Hornbaker.       The
    complaint alleged that the defendants violated the Massachusetts
    Wage Act, 
    Mass. Gen. Laws ch. 149, § 148
    ,2 by refusing to pay
    Cossart the compensation owed to him under the second employment
    contract for his efforts to secure the deal with the California
    hospital.
    The defendants removed the case to federal district
    court on the basis of diversity jurisdiction and then moved to
    dismiss for lack of personal jurisdiction over both United Excel
    and Hornbaker.    The District Court granted the motion, and Cossart
    now appeals.
    2 The Wage Act requires employers to "pay . . . [their]
    employee[s] the wages earned" -- including "commissions when the
    amount of such commissions . . . has been definitely determined
    and has become due and payable to such employee" -- within a
    certain time period. 
    Mass. Gen. Laws ch. 149, § 148
    . The Act
    also expressly subjects certain corporate officers -- including
    "the president and treasurer" -- to individual liability when their
    employer is sued under the Act. Cook v. Patient Educ., LLC, 
    989 N.E.2d 847
    , 851 (Mass. 2013) (quoting 
    Mass. Gen. Laws ch. 149, § 148
    ).
    - 5 -
    II.
    "Where, as here, a district court dismisses a case for
    lack of personal jurisdiction based on the prima facie record,
    rather than after an evidentiary hearing or factual findings, our
    review is de novo."       C.W. Downer & Co. v. Bioriginal Food & Sci.
    Corp., 
    771 F.3d 59
    , 65 (1st Cir. 2014).            In undertaking that
    review, "we take the plaintiff's evidentiary proffers as true and
    construe them in the light most favorable to the plaintiff's claim,
    and   we   also    consider   uncontradicted   facts   proffered   by   the
    defendant."       
    Id.
       As the plaintiff, Cossart "bears the burden of
    establishing that the district court has personal jurisdiction
    over [the defendants]."       Adelson v. Hananel, 
    510 F.3d 43
    , 48 (1st
    Cir. 2007).
    III.
    "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."       Sawtelle v. Farrell, 
    70 F.3d 1381
    , 1387 (1st
    Cir. 1995).       Thus, in order to establish personal jurisdiction
    over the defendants, Cossart must meet the requirements of both
    the Massachusetts long-arm statute and the Due Process Clause of
    the Fourteenth Amendment. The requirements of the Massachusetts
    long-arm statute are similar to -- although not necessarily the
    same as -- those imposed by the Due Process Clause. See Good Hope
    - 6 -
    Indus., Inc. v. Ryder Scott Co., 
    389 N.E.2d 76
    , 80 (Mass. 1979)
    ("Although     presented       with      jurisdictional          facts    sufficient    to
    survive due process scrutiny, a judge would be required to decline
    to exercise jurisdiction if the plaintiff was unable to satisfy at
    least one of the statutory prerequisites."); Burtner v. Burnham,
    
    430 N.E.2d 1233
    , 1235-36 (Mass. App. Ct. 1982) ("It now appears to
    be recognized that application of [the Massachusetts long-arm
    statute] requires that (even if the fact pattern of the case is
    constitutionally acceptable) the circumstances of the particular
    case   come    within     one       of   the        specific    subsections       of   [the
    Massachusetts     long-arm          statute].").        We     start     by   considering
    whether that statute reaches the two defendants, United Excel and
    Hornbaker.
    A.
    Section    3(a)       of   the    Massachusetts          long-arm    statute
    provides that "[a] court may exercise personal jurisdiction over
    a person . . . as to a cause of action in law or equity arising
    from   the    person's     .    .    .   transacting           any   business     in   this
    commonwealth."          Mass. Gen. Laws ch. 223A, § 3(a).                         We must
    "construe[] the 'transacting any business' language of the statute
    in a generous manner," and, in applying the clause to these facts,
    we must focus on "whether the defendant[s] attempted to participate
    in the commonwealth's economic life."                   United Elec., Radio & Mach.
    Workers of Am. v. 163 Pleasant St. Corp., 
    960 F.2d 1080
    , 1087 (1st
    - 7 -
    Cir.   1992).        In   deciding    whether   a   claim      "aris[es]      from"   a
    defendant's     "transacting     business,"       moreover,      we    look   to   see
    whether the transacted business was a "but for" cause of the harm
    alleged in the claim.          See Tatro v. Manor Care, Inc., 
    625 N.E.2d 549
    , 551 (Mass. 1994).
    Here,    United    Excel    recruited       and   hired    Cossart,      a
    Massachusetts resident, as an employee; registered a sales office
    with the Commonwealth in order to facilitate his work for the
    company; and retained him as a Massachusetts-based employee for a
    period of years.          Moreover, Hornbaker personally negotiated the
    employment contract that contemplated that this employee would
    work   out    of     Massachusetts      and     signed     the    certificate         of
    registration that established the United Excel sales office in
    Massachusetts.
    Those facts would seem to show -- in straightforward
    fashion -- that each defendant "attempted to participate in the
    commonwealth's economic life." United Elec., Radio & Mach. Workers
    of Am., 
    960 F.2d at 1087
    .               But the District Court concluded
    otherwise, and thus held that the "transacting any business"
    requirement of Section 3(a) was not met.
    With respect to United Excel, the District Court based
    its conclusion on Tatro, 625 N.E.2d at 551-52, and its reading of
    the statement in that case that "[g]enerally the purposeful and
    successful      solicitation     of     business     from      residents      of   the
    - 8 -
    Commonwealth . . . will suffice to satisfy" the "transacting any
    business" requirement of Section 3(a). See Cossart v. United Excel
    Corp., No. 14-10307-GAO, 
    2014 WL 4927041
    , at *1 (D. Mass. Sept.
    30, 2014). The District Court concluded that because Cossart never
    secured business from a Massachusetts client, and thus "[could
    not] show that any of [United Excel]'s attempts to transact
    business     in   the     Commonwealth    were     successful,"    Section   3(a)
    provided no basis for jurisdiction over United Excel.                
    Id.
    But Tatro does not hold that the "transacting business"
    language     of     Section    3(a)     requires    that   a   defendant      have
    successfully      solicited    business     in    Massachusetts.      And    other
    Massachusetts precedent shows that there is no such requirement.
    In Haddad v. Taylor, 
    588 N.E.2d 1375
    , 1377 (Mass. App. Ct. 1992),
    for example, the Massachusetts Appeals Court found that a non-
    resident defendant had transacted business within the meaning of
    Section 3(a) by negotiating, via telephone and the mail, a contract
    for    the   sale    of    land   in     Massachusetts     while   outside    the
    Commonwealth, even though he was not the owner of the land (but
    instead was acting through a power of attorney) and even though no
    contract was actually consummated.              Thus, the District Court erred
    in    treating    the     "purposeful     and    successful    solicitation     of
    business" language in Tatro as a necessary -- rather than merely
    a sufficient -- requirement for jurisdiction under Section 3(a).
    And without such a requirement, we find that United Excel's conduct
    - 9 -
    in Massachusetts easily qualifies as "transacting business" within
    the meaning of Section 3(a).
    With respect to Hornbaker, the District Court simply
    wrote:     "There is no evidence that Hornbaker as an individual
    conducted activities within the scope of the long-arm statute."
    Cossart, 
    2014 WL 4927041
    , at *1.           For the reasons given above, we
    disagree.   And precedent supports subjecting corporate officers to
    jurisdiction under the long-arm statute at least where they are
    "primary participants" in corporate action, as Hornbaker was.                  See
    LaVallee v. Parrot-Ice Drink Prods. Of Am., Inc., 
    193 F. Supp. 2d 296
    , 300-02 (D. Mass. 2002); Johnson Creative Arts, Inc. v. Wool
    Masters,    Inc.,   
    573 F. Supp. 1106
    ,    1111-12    (D.   Mass.   1983);
    Kleinerman v. Morse, 
    533 N.E.2d 221
    , 224-25 (Mass. App. Ct. 1989)
    (finding    jurisdiction        where    individual    defendant      "was    the
    principal actor on behalf of" the corporation).
    Finally,      we    easily   conclude     that    Cossart's      claim
    "aris[es]    from"     the      defendants'       transacting      business    in
    Massachusetts.       As stated above, Tatro held that the business
    transacted must only be a "but for" cause of the claim to give
    rise to jurisdiction.           625 N.E.2d at 553-54.         That standard is
    easily met here, where Cossart's claim arose from his work on the
    California deal -- work he performed in Massachusetts under his
    employment contract with United Excel and out of the sales office
    officially registered in Massachusetts by Hornbaker.
    - 10 -
    B.
    That leaves the question whether the Due Process Clause
    blocks      the     exercise       of     personal      jurisdiction      over        these
    defendants.         See Int'l Shoe Co. v. State of Wash., Office of
    Unemployment Comp. & Placement, 
    326 U.S. 310
    , 316 (1945). The
    exercise     of     personal       jurisdiction      may,    consistent        with    due
    process, be either "specific or case-linked" or "general or all-
    purpose".         See Goodyear Dunlop Tires Operations, S.A. v. Brown,
    
    131 S. Ct. 2846
    ,    2851    (2011).        Because    we   find    that       these
    defendants         may     constitutionally        be      subjected     to     specific
    jurisdiction, we need not address general jurisdiction.
    In     determining          whether     the    exercise      of    specific
    jurisdiction        over    an    out-of-state       defendant     conforms      to    the
    constitutional limits established by the Due Process Clause, we
    evaluate "(1) whether the claim directly arises out of, or relates
    to,   the    defendant's         forum    state    activities;     (2)    whether      the
    defendant's in-state contacts 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; and (3) whether the exercise of jurisdiction
    is reasonable."            C.W. Downer & Co., 771 F.3d at 65 (internal
    quotation marks and alterations omitted).                      And, after applying
    this test, under which all three prongs must be met, see id., we
    - 11 -
    conclude    that   due    process       permits    the   exercise    of   specific
    jurisdiction over both defendants.
    1.
    The first prong of the test, regarding "relatedness,"
    "serves the important function of focusing the court's attention
    on the nexus between a plaintiff's claim and the defendant's
    contacts with the forum."              Sawtelle, 
    70 F.3d at 1389
    .         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 that is
    allegedly    due   under   the     second      employment    contract     and   the
    Massachusetts Wage Act.          
    Id.
        Given that we are dealing here with
    a contract dispute, we 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." C.W. Downer & Co., 771 F.3d at 66 (internal quotation
    marks and citation omitted).
    The defendants contend that Cossart's claim bears little
    to   no    relationship     to     Massachusetts         because    the   disputed
    commission arose out of a contract with a California hospital, to
    be performed in California.             And further, the defendants assert
    that their decision to not move forward with the California deal,
    and thus to not pay Cossart any commission for his work on that
    deal, was made in Kansas.
    - 12 -
    Fundamentally, that argument fails because it overlooks
    the fact that this lawsuit arises out of an alleged breach not of
    a contract with a California hospital, but rather of the contract
    defendants procured with a Massachusetts resident to be performed
    by the resident primarily from Massachusetts.                      Nor, for that
    matter, was the potential California account that triggered the
    employment-contract dispute without its forum-state contacts.
    Cossart performed a substantial portion of the work that
    led to the potential California account from the Massachusetts
    sales office that United Excel (through Hornbaker) had registered
    with the Commonwealth.            That work included sending e-mails and
    making phone calls from Massachusetts to California. At all times,
    moreover, Cossart was acting within the scope of his employment
    with    United     Excel,   through        an   employment      relationship     the
    defendants had entered into with full knowledge that Cossart would
    perform his duties from Massachusetts.
    In addition, when final execution of the California
    contract     was    "imminent,"      Cossart        contacted    Hornbaker     from
    Massachusetts to discuss payment of his commission, which he says
    he had already earned.        And when United Excel, through Hornbaker,
    refused to pay the commission that was allegedly due, the company
    did    so   via    e-mail   and    phone    conversations       with   Cossart    in
    Massachusetts, thereby directly giving rise to this Massachusetts
    Wage Act claim.
    - 13 -
    We thus conclude that Cossart's claim relates to United
    Excel's and Hornbaker’s contacts with Massachusetts, for reasons
    similar to those expressed in our recent decision in C.W. Downer
    & Co.   See id. at 66 ("[The foreign corporate defendant] had an
    ongoing connection with Massachusetts in the performance under the
    [inter-firm     services]     contract.         [The     resident       corporate
    plaintiff's] claims arise from the alleged breach of that contract.
    That is enough to establish relatedness.").             And so we proceed to
    the next part of the inquiry: purposeful availment.
    2.
    The record is equally clear that "the defendant[s'] in-
    state contacts [identified in the relatedness inquiry] 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,"                       Id. at 65
    (quotation marks and citation omitted).               Our recent decision in
    C.W. Downer & Co. once again shows why.
    There,    we   held    that    an   out-of-state         company    had
    purposefully availed itself of the privilege of doing business in
    Massachusetts    by    retaining     the    services     of     a    Boston-based
    investment bank.      Id. at 66-69.        We rested that judgment on the
    company's   voluntary      solicitation    of   the    bank's       services;   the
    active formation of a long-term contractual relationship with a
    - 14 -
    party reasonably known to be in Massachusetts (such that the
    contracted-for services would foreseeably be rendered there); and
    the performance of work under that contract by the bank, which was
    treated as contact with the forum by the out-of-state company
    because the voluntary contractual relationship had foreseeably led
    the bank to undertake that work.       Id. at 66-67 ("[The forum
    plaintiff]'s extensive Massachusetts activities in this case,
    given the context, were not unilateral.    They were undertaken at
    [the non-forum defendant]'s request and are attributable to [the
    non-forum defendant]." (internal quotation marks omitted)).
    Those same factors are present here.       United Excel
    recruited Cossart at his home in Massachusetts.      The resulting
    employment contract, as negotiated by Hornbaker, contemplated that
    Cossart would continue to work from Massachusetts on United Excel's
    behalf and that the company would facilitate that work by providing
    the requisite office equipment.
    In the course of performing that contract, moreover,
    United Excel (through Hornbaker) voluntarily facilitated Cossart's
    work from Massachusetts by registering a sales office with the
    Commonwealth and keeping that registration current while Cossart
    remained a United Excel employee.3   In addition, in the course of
    3  Indeed, the facts here show even greater purposeful
    availment than in C.W. Downer & Co. insofar as the non-forum
    defendants here actively facilitated -- and did not merely
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    the performance of that agreement, Cossart did significant work
    for United Excel in Massachusetts -- as the defendants clearly
    foresaw he would.     That work included his efforts to secure the
    California deal, for which Cossart asserts he is owed a commission
    under the employment agreement.           Finally, United Excel (again
    through Hornbaker) allegedly breached the employment agreement
    when it informed Cossart at his Massachusetts home that he would
    not be paid the commission on the California deal.
    The   facts    that   prevented    personal      jurisdiction    in
    Phillips v. Prairie Eye Center, 
    530 F.3d 22
     (1st Cir. 2008), the
    principal case cited by defendants, are thus not present here.               In
    Phillips, the non-forum defendant did negotiate a contract with a
    Massachusetts employee.      
    530 F.3d at 28-29
    .      But the contract was
    to   be   performed   by   the    employee    in   Illinois,    not   from    a
    Massachusetts sales office that had been registered with the
    Commonwealth by the non-forum defendant.           See id.
    3.
    In light of our conclusion that the first two prongs of
    the specific-jurisdiction test are met, we could find that the Due
    Process Clause bars the exercise of personal jurisdiction over
    these defendants only if such exercise would not be fair and
    reasonable.   See C.W. Downer & Co., 771 F.3d at 69.            To determine
    reasonably foresee -- the plaintiff's performance of the contract
    from Massachusetts.
    - 16 -
    whether that is the case, we must consider the so-called "gestalt"
    factors: "(1) the defendant[s'] burden of appearing [in the forum
    state], (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.
    Here, neither defendant has shown that "some kind of
    special or unusual burden" would result from Massachusetts serving
    as the forum.     Bluetarp Fin., Inc. v. Matrix Const. Co., 
    709 F.3d 72
    , 83 (1st Cir. 2013) (citations and quotation marks omitted);
    see also C.W. Downer & Co., 771 F.3d at 69 ("Bioriginal identifies
    no special burden imposed by requiring it to litigate across the
    Canada–United States border . . . .").          And Massachusetts clearly
    has an interest in being the forum that determines whether Cossart,
    who performed his work for the company in the Commonwealth, has a
    meritorious claim under the Massachusetts Wage Act.                    Cf. C.W.
    Downer & Co., 771 F.3d at 70 ("Massachusetts has 'significant'
    interests    in   providing    a   convenient   forum    .   .   .   when    [its
    citizens'] commercial contracts are said to be breached by out-
    of-state defendants.").        The remaining factors relevant to the
    inquiry also do not indicate a problem with Massachusetts serving
    - 17 -
    as the forum state.   We therefore conclude that constitutional due
    process does not bar Massachusetts from doing so.
    IV.
    For the foregoing reasons, we reverse the District Court's
    order and judgment of dismissal for lack of personal jurisdiction
    as to both defendants and we remand for further proceedings.
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