Opinion
20-P-1319
04-01-2022
Makalah LACY v. JUBLIA PTE LTD. & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Makalah Lacy, commenced this action against Jublia Pte Ltd. (Jublia), a foreign corporation located in Singapore, and Yan Kuan Tan, Jublia's chief executive officer and majority equity owner, alleging, among other claims, breach of contract and violation of the Massachusetts Wage Act. The defendants appeared specially and filed a motion to dismiss the complaint for lack of personal jurisdiction and insufficient service of process, pursuant to Mass. R. Civ. P. 12 (b) (2) and (5), 365 Mass. 754 (1974). Following a nonevidentiary hearing, a judge of the Superior Court concluded that the exercise of personal jurisdiction over Jublia was proper under our long-arm statute, G. L. c. 223A, § 3, but he determined that the requirements of the statute were not satisfied as to Yan. He also concluded that the service of process was sufficient. Lacy then moved for the entry of a final judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), as to Yan only. The motion was allowed, judgment entered, and this appeal ensued. Because we conclude that Lacy did not meet her burden of establishing the facts necessary to sustain personal jurisdiction over Yan, we affirm the judgment dismissing the complaint as to Yan.
Background. The following facts are relevant to the jurisdictional issue viewed in the light most favorable to Lacy. See Tatro v. Manor Care, Inc., 416 Mass. 763, 765 (1994). On or about February 20, 2019, Lacy, a Massachusetts resident, responded to a job advertisement posted on AngelList, an online job search website, for a position as a "Customer Success Manager" with Jublia, a technology and analytics company that provides marketing support to its customers. The advertisement described the job as a "remote" position and stated that candidates based in the east coast of the United States were preferred. After she submitted her online application and resume, Lacy was interviewed by Yan on two occasions. Yan exercised control over Jublia's policies and procedures, including employee hiring and compensation, and, based on the record before us, appears to have been Lacy's main contact at Jublia. Lacy was hired on April 8, 2019, and signed a "permanent" employment contract, which Yan signed on behalf of Jublia.
We take as true the facts set forth in the complaint, Lacy's affidavit submitted in support of her opposition to the defendants’ motion to dismiss, and, when uncontradicted, Yan's affidavit. See Kleinerman v. Morse, 26 Mass. App. Ct. 819, 821 (1989).
Lacey does not specify the medium by which those interviews took place, but she does state that they were scheduled via an online video communication service, Google Meet, and that, in scheduling them, Lacy and Yan exchanged multiple text messages about the time difference between Lacy's residence in Boston and Yan's residence in Singapore.
Lacy was scheduled to start work on April 22, 2019, but she was unable to do so because she had been admitted to the hospital for a medical condition three days earlier. Lacy left the hospital on April 23, 2019, and, upon her release, notified Jublia via text message of her hospitalization and provided a letter of verification. Lacy then trained and worked at Jublia for seven days: April 24-26, 29-30, and May 1-2, 2019. On May 5, 2019, Lacy notified Yan via text message that she had been hospitalized again. Two days later, on May 7, 2019, Lacy provided another letter verifying her second hospital stay and sent Yan a text message indicating that she might need a few days to recover. Yan responded by text message stating that they (Jublia) had decided not to keep Lacy "on the team." He subsequently informed Lacy that the decision to terminate her employment had been made and "likely will not change." Lacy was not compensated for the days she had trained and worked at Jublia, nor did she receive any payment for the days she was hospitalized.
Discussion. When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of adducing facts on which jurisdiction may be found. See Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 3 (1979) ("Facing a motion to dismiss under Mass. R. Civ. P. 12 [b] [2], the plaintiff[ ] bear[s] the burden of establishing sufficient facts on which to predicate jurisdiction over the defendant"). To satisfy this burden, the plaintiff must show that (1) the assertion of jurisdiction is authorized under the Massachusetts long-arm statute; and (2) if authorized, the exercise of jurisdiction is consistent with basic due process requirements mandated by the United States Constitution. Id. at 5-6.
The parties appear to be in agreement that the only basis for the court to exercise personal jurisdiction over Yan is to be found in § 3 (a ) of the Massachusetts long-arm statute, which provides, in relevant part, that a nonresident defendant is subject to personal jurisdiction in Massachusetts if (1) the defendant directly or by an agent transacts business in the State; and (2) the plaintiff's claim arises out of that transaction of business. G. L. c. 223A, § 3 (a ). Lacy argues that Yan is subject to personal jurisdiction in Massachusetts because, as an owner and an officer of Jublia, he transacted business here by participating in the process of hiring her and, presumably, firing her. To support this argument, Lacy points to the fact that Yan, while knowing that Lacy resided in Massachusetts, interviewed her, negotiated the employment contract, and communicated with her via telephone, text message, and email, before and during her short term of employment.
The general rule is that a court may not exercise personal jurisdiction over a nonresident corporate officer merely because it has jurisdiction over the corporation. However, "active entrepreneurial or managerial conduct [by an officer] in the State where jurisdiction is asserted will cause jurisdiction to attach." Kleinerman v. Morse, 26 Mass. App. Ct. 819, 824 (1989).
Here, Lacy has not met her burden of establishing facts to show that Yan, on behalf of Jublia or personally, transacted business in Massachusetts within the meaning of the long-arm statute. As the judge observed, there is no evidence that Yan reached out to Massachusetts in an individual capacity. Jublia's physical offices are located in Singapore, and Yan, who resides in Singapore, never traveled to Massachusetts, did not recruit Lacy, and had only minimal contact with her consisting of a few telephone calls, text messages, and emails over a period of approximately two months or less. In addition, although Lacy alleges, and we accept as true, that Yan had authority over employment decisions, the facts do not support a conclusion that Yan engaged in "active entrepreneurial or managerial conduct" on behalf of Jublia in Massachusetts. Kleinerman, 26 Mass. App. Ct. at 824. In fact, Kleinerman, supra, on which Lacy relies, is distinguishable. In that case, we concluded that the "transacting any business" requirement of the long-arm statute was satisfied where the out-of-State corporate officer served as president of a subsidiary located in Massachusetts and actively participated in the management of that subsidiary, including traveling to Massachusetts to conduct inspections. The case of Cossart v. United Excel Corp., 804 F.3d 13, 19 (1st Cir. 2015), upon which Lacy also relies, is similarly distinguishable. In Cossart, the First Circuit of the United States Court of Appeals concluded that an out-of-State company and its president had "transacted business" in Massachusetts within the meaning of G. L. c. 223A, § 3 (a ), by recruiting and hiring the plaintiff, a Massachusetts resident, at the plaintiff's home in Massachusetts, negotiating an employment contract through the president that contemplated the plaintiff would work from Massachusetts on the company's behalf, and facilitating the plaintiff's work by providing office equipment and registering a sales office with the Commonwealth. In addition, the company retained the plaintiff as a Massachusetts-based employee for a period of years until the president allegedly breached the employment contract by failing to pay the plaintiff a commission.
Nor are we persuaded, as Lacy argues, that Yan's potential liability under the Massachusetts Wage Act bears on the question of jurisdiction. While it is true that individuals may be personally liable for a violation of the Massachusetts wage and hour laws, see G. L. c. 149, § 148B, such liability has no application to the long-arm statute. We agree with the judge's observation that "There is a distinction between sufficient allegations of liability and sufficient proof of personal jurisdiction."
Lacy has not indicated the date on which she submitted an application to Jublia, but Yan's affidavit stated that the application was received on or about February 20, 2019. Lacy's employment was terminated on or about May 7, 2019.
We recognize that the "transacting any business" clause has been construed liberally, but our cases require more than what Lacy has presented here. See, e.g., Tatro, 416 Mass. at 766-769 (Massachusetts resident's telephone contact with hotel located in California, to reserve room for conference, amounted to transaction of business in Massachusetts by California hotel where hotel was engaged in broader range of activities to obtain business for Massachusetts residents that included, among other things, "direct billing arrangements" with three Massachusetts corporations, all of which used defendant hotel for conventions or meetings). Compare Droukas v. Divers Training Academy Inc., 375 Mass. 149, 151, 153-157 (1978) (isolated sale of two marine engines and contacts consisting of advertising in publication distributed in Massachusetts, corresponding with plaintiff by mail and telephone to accept and confirm sale, and shipping goods via independent carrier to Massachusetts insufficient to confer jurisdiction under § 3 [a ]); Stanton v. AM Gen. Corp., 50 Mass. App. Ct. 116, 118 (2000) (defendant's isolated transaction of purchasing certain component parts from Massachusetts company and selling vehicles it manufactured to Massachusetts dealership insufficient to constitute transacting business).
Having concluded that the long-arm statute does not provide a basis for conferring personal jurisdiction over Yan, "we need not inquire into the constitutional constraints on the exercise of jurisdiction under the statute," and decline to do so. Roberts v. Legendary Marine Sales, 447 Mass. 860, 865 (2006), quoting Morrill v. Tong, 390 Mass. 120, 133 (1983).
Judgment affirmed.