ROBERT SARVIS v. LESLIE M. BASSETT & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-999

ROBERT SARVIS

vs.

LESLIE M. BASSETT & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Robert Sarvis, the plaintiff-appellant, filed a complaint

in the Superior Court seeking damages for breach of contract,

promissory estoppel, quantum meruit, and violations of G. L.

c. 93A. A judge dismissed the complaint for lack of personal

jurisdiction over the defendants, Leslie Bassett and Pridgen

Bassett Law, LLC (PB Law). On appeal, Sarvis argues that the

clerk should have entered a default pursuant to Mass. R. Civ. P.

55 (a), 365 Mass. 822 (1974). He further argues that the judge

should not have dismissed the complaint for lack of personal

jurisdiction. We affirm.

1 Pridgen Bassett Law, LLC.
Background. The following facts are viewed in the light

most favorable to Sarvis. See Tatro v. Manor Care, Inc., 416

Mass. 763, 765 (1994). 2 Sarvis is a business consultant

specializing in administrative procedures under the Employee

Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§§ 1001 et seq. He resides and operates his business in

Massachusetts. Sarvis began representing employees of a paper

mill located in Brattleboro, Vermont, and headquartered in

Georgia in an ERISA action. Because any legal action against

the paper mill was to be initiated in Georgia, in 2020 Sarvis

contacted PB Law, a Georgia law firm 3 consisting of Bassett and

another attorney, Nancy Pridgen, to provide representation to

the employees. The parties did not reduce their agreement to

writing. On behalf of the employees, the defendants filed a

class action complaint in a United States District Court in

Georgia for unpaid severance pay and filed a separate action in

State court in Georgia for unpaid vacation pay. Per their

2 We take as true the facts set forth in the complaint, in
Sarvis's affidavits that bear on the motion to dismiss, and in
his statements made at the hearing on the motion. See
Kleinerman v. Morse, 26 Mass. App. Ct. 819, 821 (1989).

3 PB Law is incorporated in Georgia and has its principal
place of business in Georgia.

2
verbal agreement, 4 Sarvis conducted legal research and drafted

complaints from his workplace in Nantucket, and the defendants

reviewed, approved, and filed the papers in the Federal court in

Georgia and in the Fulton County Superior Court.

Sarvis alleges he and Bassett agreed that Bassett would

fully prosecute the class actions through completion but that on

November 10, 2021, Bassett withdrew from both Federal and State

actions without proper notice to him. Sarvis filed a complaint

in the Superior Court on December 19, 2022, seeking $65,000 in

damages as compensation for the work he completed and the

expenses he incurred after the defendants' withdrawal. The

defendants were served in hand on January 11, 2023. The

defendants' deadline to serve a motion to dismiss was January

31, 2023. See Mass. R. Civ. P. 12 (a) (1), 365 Mass. 754

(1974).

On February 10, 2023, an attorney filed both a special

appearance on behalf of the defendants and a motion to dismiss. 5

4 Sarvis did not present evidence establishing the
circumstances under which the parties came to their verbal
agreement.

5 The motion was filed a second time with the Superior Court
as part of a package, pursuant to Rule 9A of the Rules of the
Superior Court (2018), that included the motion, a memorandum of
law, an affidavit by Basset, and Sarvis's opposition. Sarvis
states in an affidavit that the papers are identical to what
Bassett had filed on January 31, 2023. The docket does not
reflect that Bassett filed any papers on January 31, 2023.

3
On February 13, 2023, the Superior Court received Sarvis's

motion for default judgment, which he had signed and mailed on

February 7, 2023. In light of the pendency of the motion to

dismiss, the clerk returned Sarvis's motion for default

judgment. In March 2023, Sarvis also filed a motion to strike

and a renewed motion for default judgment, which the judge

denied.

Discussion. 1. Default. Sarvis argues that the clerk was

required to enter a default under Mass. R. Civ. P. 55 (a), which

provides for entry of default against a party who has "failed to

plead or otherwise defend." See Padmanabhan v. Executive

Director of the Bd. of Registration in Medicine, 491 Mass. 1031,

1032 (2023) ("entry of default under rule 55 [a] is a 'formal,

ministerial act of the clerk' that does not require judicial

authorization" [citation omitted]). 6 This argument founders

because, at the time Sarvis's motion was received and docketed

on February 13, 2023, the defendants had filed a special

appearance and motion to dismiss three days earlier. Thus, rule

55 (a)'s condition that the defendants had failed to plead or

otherwise defend the matter was not satisfied at the time the

6 The rule provides: "When a party against whom a judgment
for affirmative relief is sought has failed to plead or
otherwise defend as provided by these rules and that fact is
made to appear by affidavit or otherwise, the clerk shall enter
his default." Mass. R. Civ. P. 55 (a).

4
clerk received Sarvis's motion. 7 For the same reasons, we

discern no abuse of discretion in the order denying the

plaintiff's motion to strike. See Eagle Fund, Ltd. v. Sarkans,

63 Mass. App. Ct. 79, 85 (2005) (committing case management

issues such as default to discretion of judge).

2. Personal jurisdiction. We next address the question of

personal jurisdiction. 8 Because jurisdictional questions are

questions of law, we review them de novo. See Doucet v. FCA US

LLC, 492 Mass. 204, 207 (2023). "For a nonresident to be

subject to the authority of a Massachusetts court, the exercise

7 Sarvis's argument that the clerk automatically should have
entered a default as soon as January 31, 2023, passed is
incorrect. Motions to dismiss are served on the other parties
and not necessarily filed with the court on the deadline. See
Superior Court Rule 9A. Accordingly, the passage of the
deadline for a defendant to respond to the complaint pursuant to
Mass. R. Civ. P. 12 (a) (1) does not inherently alert the clerk
that a defendant defaulted, because the defendant may have
served the motion pursuant to Superior Court Rule 9A. In any
event, had a default entered, the motion judge could have set
aside a default for good cause shown. See Mass. R. Civ. P.
55 (c), 365 Mass. 822 (1974). Absent prejudice and unreasonable
conduct or delay, the law strongly favors adjudication on the
merits. See Monahan v. Washburn, 400 Mass. 126, 128-129 (1987).

8 We reject Sarvis's argument that the defendants have
waived this defense because they did not file the motion to
dismiss within twenty days of being served with the complaint.
See Aronovitz v. Fafard, 78 Mass. App. Ct. 1, 8 (2010)
("Affirmative defenses are waived when they are not raised in
the first responsive pleading"). The defendants filed the
motion to dismiss based on personal jurisdiction before a
default entered and three days before Sarvis moved for default
judgment. Moreover, Sarvis was aware that Bassett was
"otherwise defend[ing]" based on her attempt to file a special
appearance on January 31, 2023.

5
of jurisdiction must satisfy both Massachusetts's long-arm

statute, G. L. c. 223A, § 3, and the requirements of the due

process clause of the Fourteenth Amendment [to the United States

Constitution]." Id., quoting Exxon Mobil Corp. v. Attorney

Gen., 479 Mass. 312, 314 (2018), cert. denied, 586 U.S. 1069

(2019). Sarvis "has the burden of establishing the facts upon

which the question of personal jurisdiction over [the

defendants] is to be determined." Exxon Mobil Corp., 479 Mass.

at 314, quoting Droukas v. Divers Training Academy, Inc., 375

Mass. 149, 151 (1978).

a. Long-arm statute. Under G. L. c. 223A, § 3 (a), a

court may exercise personal jurisdiction over a person

"transacting any business" in Massachusetts. "To meet this

criterion, a plaintiff must allege facts that 'satisfy two

requirements -- the defendant must have transacted business in

Massachusetts, and the plaintiff's claim must have arisen from

the transaction of business by the defendant.'" Doucet, 492

Mass. at 207, quoting Tatro, 416 Mass. at 767.

To determine whether a defendant "transacted business" in

Massachusetts, a defendant's "purposeful and successful

solicitation of business" from Massachusetts residents will

generally suffice. Doucet, 492 Mass. at 208, quoting Tatro, 416

Mass. at 767. However, "an isolated (and minor) transaction

6
with a Massachusetts resident" is insufficient. Doucet, supra,

quoting Tatro, supra.

Here, the defendants did not "transact business" in

Massachusetts. Not only do the defendants have no offices in

Massachusetts, but none of PB Law's employees work in or are

licensed to practice in Massachusetts. See Fletcher Fixed

Income Alpha Fund, Ltd. v. Grant Thornton LLP, 89 Mass. App. Ct.

718, 723 (2016) (G. L. c. 223A, § 3 [a], was not satisfied even

where defendant was registered to do business in Massachusetts

and had more than 175 employees there). Additionally, the

defendants had no "preexisting and ongoing" business

relationships in Massachusetts. See Doucet, 492 Mass. at 208

(§ 3 [a] was satisfied where defendant had "preexisting and

ongoing business agreements" in Massachusetts). Although the

defendants have a website, they do not specifically advertise

their services to Massachusetts residents. See Roberts v.

Legendary Marine Sales, 447 Mass. 860, 860-861 (2006) (§ 3 [a]

was not satisfied where defendant's website advertisements were

not "specifically aimed at Massachusetts").

Furthermore, the parties' relationship was not initiated by

the defendants. Instead, Sarvis solicited business from the

defendants. See Doucet, 492 Mass. at 208. Although the parties

exchanged phone calls and e-mails, Sarvis did not present

evidence establishing the extent of those communications and who

7
initiated them. Additionally, at no point did the defendants

travel to Massachusetts for the matter. See von Schönau-Riedweg

v. Rothschild Bank AG, 95 Mass. App. Ct. 471, 489 (2019)

(visiting Massachusetts multiple times on research missions for

client constituted "transacting business" under G. L. c. 223A,

§ 3 [a]). Instead, all the defendants' services took place in

Georgia involving litigation in Georgia for clients in Vermont.

Sarvis, relying on Good Hope Indus., Inc. v. Ryder Scott

Co., 378 Mass. 1 (1979), argues that the defendants

"transact[ed] business" in Massachusetts because they knew they

were "contracting" with a Massachusetts resident. Sarvis,

however, oversimplifies the Good Hope case, which was based on a

"factual constellation." Id. at 6.

The court in Good Hope concluded that the defendant

transacted business in Massachusetts not only because it entered

into a business relationship with a party known to be in

Massachusetts, but also because the defendant initiated over

fifty telephone calls to the plaintiff in Massachusetts, sent

monthly invoices and periodic appraisal reports to the plaintiff

in Massachusetts, and regularly accepted check payments from the

plaintiff's Massachusetts bank account over a period of

seventeen months. See Good Hope, 378 Mass. at 6, 9-10. As

discussed, Sarvis did not present evidence of the frequency of

the phone calls and e-mails between the parties or who initiated

8
them. Furthermore, Sarvis has not demonstrated the

circumstances by which the parties' verbal agreement was formed.

Sarvis sent three wire transfers from his Massachusetts bank

account to the defendants upon receipt of their e-mailed

invoices. These circumstances are not an "enterprise of

substantial dimension and duration" engaged in by the Good Hope

defendants. Id. at 9.

On the record before us, the defendants' interactions with

Sarvis appear to be nothing more than "incidental" and "minor"

and directed at another State, Georgia. See Tatro, 416 Mass. at

767. Accordingly, Sarvis failed to demonstrate that G. L.

c. 223A, § 3 (a), was satisfied.

b. Due process. Even if G. L. c. 223A, § 3 (a), was

satisfied, Sarvis has failed to show that the requirements of

the due process clause were met. 9 See Exxon Mobil, 479 Mass. at

314. "The primary focus of the Federal personal jurisdiction

inquiry is the defendant's relationship to the forum State"

(quotations omitted). Doucet, 492 Mass. at 210, quoting

Bristol-Myers Squibb Co. v. Superior Court of Cal., 582 U.S.

This case concerns specific jurisdiction, as Sarvis does
9

not assert that the defendants are subject to general
jurisdiction, which requires contacts "so constant and pervasive
as to render [the out-of-State entity] essentially at home in
the forum State" (quotation omitted). Daimler AG v. Bauman, 571
U.S. 117, 122 (2014), quoting Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011).

9
255, 262 (2017). "This long-standing constitutional requirement

for personal jurisdiction depends on the defendant's having such

contacts with the forum State that the maintenance of the suit

is reasonable, in the context of our [F]ederal system of

government, and does not offend traditional notions of fair play

and substantial justice" (quotations omitted). Doucet, supra,

quoting Ford Motor Co. v. Montana Eighth Judicial Dist. Court,

592 U.S. 351, 358 (2021).

To prove the requisite contacts, the plaintiff must

demonstrate that the defendants have "purposefully avail[ed]

[themselves] of the privilege of conducting activities within

the forum State, thus invoking the benefits and protections of

its laws" (quotation omitted). Doucet, 492 Mass. at 211,

quoting Knox v. MetalForming, Inc., 914 F.3d 685, 691 (1st Cir.

2019). "This requirement ensures that the exercise of

jurisdiction is essentially voluntary and foreseeable, and is

not premised on a defendant's random, fortuitous, or attenuated

contacts" (quotation omitted). Doucet, supra, quoting Knox, 914

F.3d at 691.

Additionally, "the defendant’s suit-related conduct must

create a substantial connection with the forum State." Walden

v. Fiore, 571 U.S. 277, 284 (2014). Importantly, the

defendant's relationship to the forum State must arise out of

contacts that the "defendant himself creates" (quotation and

10
emphasis omitted). Id. Furthermore, those contacts must be

"with the forum State itself, not . . . with persons who reside

there." Id. at 285.

Sarvis heavily relies on Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985), to argue that the defendants, by entering

into a "contract" with a Massachusetts resident, purposefully

availed themselves of Massachusetts. The Burger King case

involved a franchise agreement between the defendant franchisee

in Michigan, and the plaintiff corporation, Burger King,

headquartered in Florida. See id. at 466, 468. The Court in

Burger King held that the defendant purposefully availed himself

of Florida where he applied for a franchise with Burger King,

engaged in negotiations for months with Burger King's Michigan

office and Florida headquarters, entered into a twenty-year

franchise agreement obligating him to payments of over $1

million and "exacting regulation" of his business from Florida

headquarters, and agreed that Florida law would govern in the

event of a dispute. Id. at 466-467, 479-480, 482.

The circumstances here are distinguishable from those in

Burger King. First, Sarvis is the one who "[reached] out

beyond" Massachusetts to solicit the defendants in Georgia to

provide representation in Georgia. See Burger King, 471 U.S. at

479-480, quoting Travelers Health Ass'n v. Virginia, 339 U.S.

643, 647 (1950). Additionally, Sarvis did not present evidence

11
establishing how extensively or frequently the parties

communicated with one another, or who initiated those

communications.. Sarvis did not establish all of the terms of

the parties' verbal agreement. Assuming the parties formed a

contract, this alone would be insufficient to show that the

defendants "purposefully availed" themselves of Massachusetts.

See Burger King, supra at 478 ("If the question is whether an

individual's contract with an out-of-state party alone can

automatically establish sufficient minimum contacts in the other

party's home forum, we believe the answer clearly is that it

cannot" [emphasis omitted]).

Moreover, the defendants' contacts appear to be with

Sarvis, not Massachusetts itself. See Walden, 571 U.S. at 285.

As discussed, the defendants' offices and employees are in

Georgia, not Massachusetts. The defendants do not advertise

their services to Massachusetts residents. The defendants'

services all took place in Georgia, concerning litigation in

Georgia for a client in Vermont representing a class of others

who reside in Vermont. At no point did the defendants travel to

Massachusetts for the matter. Although the defendants

communicated with Sarvis while he was in Massachusetts, his

location was not relevant. Accordingly, Sarvis has failed to

12
demonstrate that the defendants "purposefully availed"

themselves of Massachusetts. 10

Judgment affirmed.

By the Court (Henry,
Hershfang & Smyth, JJ. 11),

Clerk

Entered: November 4, 2024.

10 The defendants' request for attorney's fees is denied.

11 The panelists are listed in order of seniority.

13