James Tisbert v. New England Mobile Crushing Services, Inc.

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-12

JAMES TISBERT

vs.

NEW ENGLAND MOBILE CRUSHING SERVICES, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, New England Mobile Crushing Services, Inc.

(NEMCS), appeals from an amended judgment after a jury verdict

in favor of the plaintiff, James Tisbert, on claims that NEMCS

violated the Massachusetts Wage Act and overtime law, G. L.

cc. 149 and 151, by failing to pay Tisbert overtime and travel

expenses for work that he performed in Massachusetts. On

appeal, NEMCS argues that the Superior Court judge erred or

abused his discretion with respect to various pre and posttrial

rulings. We affirm.

Background. In 2012, NEMCS, a New Hampshire corporation,

hired Tisbert, a New Hampshire resident, as an equipment

operator. Tisbert spent most of his time working in

Massachusetts at numerous locations. He also "transported . . .

equipment, fuel, hydraulic fluid, oil, [and] grease" to the
Massachusetts job sites and back to New Hampshire at the end of

the workday in his personal vehicle. NEMCS provided Tisbert an

allowance of fifteen cents per mile for use of his vehicle,

which neither covered his expenses nor provided for his

overtime. On May 30, 2018, NEMCS terminated Tisbert's

employment.

On June 11, 2018, Tisbert filed a three-count complaint in

the Superior Court, subsequently filed an amended complaint and,

on July 24, 2018, filed a second amended complaint. He brought

three counts against NEMCS: (1) violation of the Massachusetts

Wage Act and overtime law; (2) breach of contract; and (3)

breach of the covenant of good faith and fair dealing. In

essence, Tisbert alleged that NEMCS failed to pay him for his

actual hours worked or for overtime.1

On July 20, 2018, NEMCS filed a motion to dismiss for lack

of subject matter and personal jurisdiction and improper venue.

After Tisbert filed his second amended complaint, NEMCS filed

another motion to dismiss, again raising the issues of personal

jurisdiction and venue. A Superior Court judge denied the

motions after a hearing. Specifically, he determined that the

court had personal jurisdiction and thus denied the motion

brought under Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974),

1 At trial, NEMCS's principal conceded that NEMCS failed to pay
the required rate for Tisbert's overtime hours.

2
and further found that NEMCS presented "insufficient argument"

to "meet its burden" on the issue of improper venue. The judge

stated that he would not reach the issues of forum non

conveniens or choice of law, i.e., "whether or not the

substantive law of New Hampshire would apply in this case," as

those issues were not before him. NEMCS filed a motion to

reconsider, and, in a supplemental memorandum to the motion,

raised forum non conveniens and choice of law. Thereafter,

NEMCS filed another motion to reconsider in which it urged the

judge to dismiss on grounds of improper venue, forum non

conveniens, and choice of law. On January 3, 2019, the same

judge denied these motions. NEMCS also filed a separate motion

to dismiss for failure to meet the jurisdictional amount for

damages under G. L. c. 212, § 3, which a second judge denied

without a hearing.

Prior to trial, NEMCS filed a motion in limine to bar

evidence of Tisbert's commuting time in New Hampshire. At the

final pretrial conference, in support of its motion, NEMCS again

raised the choice of law issue, arguing that the Wage Act and

overtime law should not be applied to evidence of Tisbert's

commuting time outside of Massachusetts. The judge denied

NEMCS's motion, finding that the evidence was admissible for

completeness. The judge expressed no view on the choice of law

issue, noting that the parties did not cite relevant legal

3
authority on the matter and asking that they present him with

more law in support of their arguments. As discussed further

below, NEMCS failed to do so.

Following a four-day jury trial a jury answered special

questions on the various claims, and found that the Wage Act and

overtime law required NEMCS to pay Tisbert regular and overtime

wages for both his travel time and his nontravel time and

awarded $18,148.35 in damages.2 On Tisbert's claim for breach of

contract, the special verdict slip asked whether Tisbert

"prove[d] that there was a valid contract in which [NEMCS]

agreed to pay him 28 cents per mile for travel during May 2015

through May 2018." The jury answered "No." Finally, on

Tisbert's claim for breach of the covenant of good faith and

fair dealing, the special verdict slip asked whether Tisbert

"prove[d] that he had a valid contract with [NEMCS]," and

whether Tisbert "prove[d] that [NEMCS] breached its obligation

under the contract to act in good faith and fairly during May

2015 and May 2018?" The jury answered "Yes" to both questions,

but awarded zero damages as to this count.

2 On the Wage Act and overtime law claim, the jury awarded
Tisbert zero dollars for travel time inside Massachusetts,
$12,375 for travel time inside New Hampshire, $5,171.10 for
nontravel overtime inside Massachusetts, and $602.25 for
nontravel overtime inside New Hampshire, the total of which is
$18,148.35.

4
On July 22, 2022, judgment entered for Tisbert.3 On July

28, 2022, NEMCS filed postjudgment motions to amend the judgment

and to set aside and enter judgment notwithstanding the verdict,

both of which the trial judge denied. Tisbert then served a

petition for fees and costs. The judge allowed the request in

part, but reduced the amount of requested fees by approximately

fifty percent. An amended judgment entered on September 23,

2022. NEMCS did not file a notice of appeal until October 21,

2022.4

Discussion. 1. Waiver. As a threshold matter, we note

that many of NEMCS's claims on appeal are unsupported by

citation to relevant legal authority and unsubstantiated by the

record, and therefore do not rise to the level of appellate

argument.5 "Several of the . . . arguments are bald assertions

3 The judgment calculated single damages of $18,148.35 and
multiple damages of $36,296.70.
4 Tisbert claims that NEMCS's appeal is untimely because,

although NEMCS filed a notice of appeal within thirty days of
the amended judgment, it did not file within thirty days of the
original judgment after the jury verdict. "No decided
Massachusetts case discusses in any detail the circumstances in
which entry of an amended judgment adding attorney's fees
creates new deadlines for motions and appeals that focus on the
underlying relief the amended judgment incorporates." Ross v.
Continental Resources, Inc., 73 Mass. App. Ct. 497, 507 n.12
(2009). In the circumstances here, however, the original
judgment is reasonably viewed as not final because it
incorporated a further order that expressly contemplated the
issuance of an amended judgment. We will therefore address
NEMCS's arguments.
5 Specifically, NEMCS fails to provide support for the arguments

concerning venue, the jurisdictional amount required for

5
of error, lacking legal argument and authority, and thus not

advanced in a manner which rises to the level of appellate

argument." Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3

(1993). See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481

Mass. 1628 (2019). Assuming without deciding that NEMCS's

various claims are not waived, they are without merit for the

reasons discussed below. See Zora, supra ("[a]s is within our

discretion, we address those arguments which warrant

discussion").

2. Motions to dismiss. NEMCS claims error in the denial

of its motions to dismiss and reconsider. We disagree.

a. Personal jurisdiction. NEMCS argues that the Superior

Court did not have personal jurisdiction over the case because

the parties are both from New Hampshire, Tisbert was hired in

and received wages from New Hampshire, and thus a Massachusetts

court could not exercise jurisdiction over two nonresidents who

did not do business with each other in the Commonwealth.

On a motion to dismiss, the plaintiff must make a prima

facie showing of personal jurisdiction over the defendant.

Cepeda v. Kass, 62 Mass. App. Ct. 732, 738 (2004). "[A] claim

of personal jurisdiction over a nonresident involves a two-

damages, the admission of evidence of Tisbert's New Hampshire
commuting time, and the denial of its motion to set aside and
enter judgment notwithstanding the verdict on count three
(breach of the covenant of good faith and fair dealing).

6
pronged inquiry: '(1) is the assertion of jurisdiction

authorized by statute, and (2) if authorized, is the exercise of

jurisdiction under State law consistent with basic due process

requirements mandated by the United States Constitution?'" Id.

at 736, quoting Good Hope Indus., Inc. v. Ryder Scott Co., 378

Mass. 1, 5-6 (1979). "Due process requires that a nonresident

defendant may be subjected to suit in Massachusetts only where

there was some minimum contact with the Commonwealth which

resulted from an affirmative, intentional act of the defendant,

such that it is fair and reasonable to require the defendant to

come into the State to defend the action" (quotation and

citation omitted). Cepeda, supra.

Here, the Massachusetts long-arm statute applied to NEMCS

because it "transact[ed] . . . business in this [C]ommonwealth,"

G. L. c. 223A, § 3, and Tisbert's "claim . . . [arose] from the

transaction of business." Tatro v. Manor Care, Inc., 416 Mass.

763, 767 (1994). Indeed, viewed in its totality, the second

amended complaint averred that NEMCS contracted with Tisbert and

sent him to work within Massachusetts for the financial benefit

of NEMCS during his employment. Regarding the second due

process prong, Tisbert's claim demonstrates NEMCS's purposeful

availment of commercial activity in Massachusetts and that it

was reasonable for NEMCS to anticipate being held accountable

for its actions in Massachusetts. See Bulldog Investors Gen.

7
Partnership v. Secretary of the Commonwealth, 457 Mass. 210, 217

(2010). See also Cepeda, 62 Mass. App. Ct. at 738 ("The burden

is one of production, not persuasion"). Cf. Droukas v. Divers

Training Academy, Inc., 375 Mass. 149, 159 (1978) (out-of-state

corporation lacked necessary contacts with Massachusetts to

establish jurisdiction where it had not carried out transaction

within Commonwealth).

b. Venue. NEMCS also contends that a Massachusetts court

was not the proper venue for litigating a matter between two

out-of-state residents. A question of venue has "procedural

implications totally distinct from jurisdiction . . . and in no

way affect[s] the inherent authority of the court" (quotation

and citation omitted). Cormier v. Pezrow New England, Inc., 437

Mass. 302, 305 (2002). "Jurisdiction . . . concerns and defines

the power of judicatories and courts [while] . . . [v]enue . . .

relates to and defines the particular county or territorial area

within the State or district in which the cause or prosecution

must be brought or tried. It commonly has to do with

geographical subdivisions, relates to practice or procedure, may

be waived, and does not refer to jurisdiction at all." Paige v.

Sinclair, 237 Mass. 482, 483-484 (1921). Here, NEMCS conflates

the concepts of venue and jurisdiction. Indeed, it makes no

actual argument that venue in the Essex County Superior Court,

as a "geographical subdivision[]" of the Commonwealth, id., was

8
improper. Thus, we need not consider this issue. See Tedeschi-

Freij v. Percy Law Group, P.C., 99 Mass. App. Ct. 772, 781

(2021). See also Mass. R. A. P. 16 (a) (9) (A) (court need not

pass on questions or issues not argued in brief).

c. Forum non conveniens. NEMCS further claims that the

case should have been dismissed pursuant to the doctrine of

forum non conveniens. "[T]he principle is that where in a broad

sense the ends of justice strongly indicate that the controversy

may be more suitably tried elsewhere, then jurisdiction should

be declined and the parties relegated to relief to be sought in

another forum" (citation omitted). New Amsterdam Cas. Co. v.

Estes, 353 Mass. 90, 95 (1967). A forum non conveniens analysis

considers the "administrative burdens caused by litigation that

has its origins elsewhere and the desirability of the trial of a

case in a forum that is at home with the governing law," and

"the practical problems that do or do not make a trial easy,

expeditious, and inexpensive" (quotation and citation omitted).

Oxford Global Resources, LLC v. Hernandez, 480 Mass. 462, 474

(2018). "A decision whether to dismiss an action under the

doctrine . . . involves the discretion of the motion judge,

cannot be made by applying a universal formula, and depends

greatly on the specific facts of the proceeding before the

court." W.R. Grace & Co. v. Hartford Acc. & Indem. Co., 407

Mass. 572, 577 (1990).

9
Although NEMCS contends that New Hampshire might have been

a more appropriate forum for this case, we discern no abuse of

discretion in the denial of NEMCS's motions to dismiss and

reconsider on this ground. The judge was entitled to conclude

in his discretion that Tisbert's general right to select the

forum in which to assert his claims was not overcome by any

"substantial and compelling reasons for concluding that the case

should not be tried here." W.R. Grace & Co., 407 Mass. at 583-

584. Furthermore, as Tisbert's claims concern Massachusetts law

and events that occurred in the Commonwealth, on the record

before us we cannot say that a Massachusetts forum was

inappropriate. "We, therefore, shall continue our practice

. . . of deferring to the discretion of the motion judge. Such

a rule is particularly appropriate when a forum non conveniens

motion is denied." Id.

d. Jurisdictional amount for damages. NEMCS also contends

that the case should have been dismissed because there was no

reasonable likelihood that damages would have met the

jurisdictional amount required by G. L. c. 212, § 3. The

argument is unavailing. In Superior Court, "actions may proceed

. . . only if there is no reasonable likelihood that recovery by

the plaintiff will be less than or equal to $25,000." G. L.

c. 212, § 3. "In determining whether to dismiss the action, the

judge should consider the amount reasonably likely to be

10
recovered by the plaintiff and whether that amount is marginally

or substantially higher than $25,000." Sperounes v. Farese, 449

Mass. 800, 807 (2007). Although Tisbert alleged in his

complaint that he was owed $321,750, well over the requisite

amount, NEMCS maintains that his estimate did not constitute a

good faith assessment of the amount in controversy. But in his

second amended complaint, Tisbert delineated his calculation of

this estimate.6 Taking the facts alleged in the complaint as

true pursuant to our review of a motion to dismiss, see

Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), there

was a reasonable likelihood that if successful on the claims,

Tisbert's damages would have been greater than $25,000. See

Sperounes, supra. Thus, NEMCS's claim is unavailing.

2. Evidence of New Hampshire commuting time. We are also

unpersuaded by NEMCS's claim that the judge abused his

discretion in denying its motion to preclude evidence of

Tisbert's New Hampshire commuting time. An evidentiary ruling

on a motion in limine is reviewed for abuse of discretion.

Commonwealth v. Rosa, 468 Mass. 231, 237 (2014). "The purpose

of a motion in limine is to prevent irrelevant, inadmissible or

prejudicial matters from being admitted in evidence."

6 In his second amended complaint, Tisbert provided allegations
regarding his "most recent pay," his overtime pay rate, and the
amount of time worked, and specified the wages to which he was
allegedly entitled, but was not paid, by hour, week, and year.

11
Commonwealth v. Lopez, 383 Mass. 497, 500 n.2 (1981). "Trial

judges have broad discretion to make discovery and evidentiary

rulings conducive to the conduct of a fair and orderly trial"

(quotation and citation omitted), Mattoon v. Pittsfield, 56

Mass. App. Ct. 124, 131 (2002), and "we do not interfere with

the judge's exercise of discretion in the absence of a showing

of prejudicial error resulting from an abuse of discretion."

Solimene v. B. Grauel & Co., 399 Mass. 790, 799 (1987).

In the final pretrial conference, the judge indicated that

evidence of Tisbert's New Hampshire commuting time was relevant

and admissible "for completeness [sic] sake and . . . the flow

of the narrative." Insofar as the crux of the present case

involved Tisbert's commuting time, the judge acted within his

discretion in admitting such evidence. "It has long been held

that, in balancing the probative value against the risk of

prejudice, the fact that evidence goes to a central issue in the

case tips the balance in favor of admission." Commonwealth v.

Jaime, 433 Mass. 575, 579 (2001).

3. Choice of law. Essentially, NEMCS contends that the

choice of law issue was properly raised in the Superior Court

and, therefore, the judge erred by not engaging in the necessary

choice of law analysis. The argument is unavailing.

NEMCS argues in particular that the judge should have

engaged in a choice of law analysis in ruling on NEMCS's

12
pretrial motion to reconsider the denial of a motion to dismiss,7

and on its posttrial motion to amend the judgment. We review

the denial of a motion to reconsider and the denial of a motion

to amend the judgment for abuse of discretion. See Blake v.

Hometown Am. Communities, Inc., 486 Mass. 268, 278 (2020);

Gannett v. Shulman, 74 Mass. App. Ct. 606, 615 (2009).

It is evident that NEMCS attempted to make two different

choice of law arguments. First, it argued that Massachusetts

choice of law principles require that the case be heard in New

Hampshire because it is the State with the most significant

relationship to the case. Second, NEMCS claimed that

Massachusetts substantive law should not be applied in this case

because it is contrary to New Hampshire's public policy, as New

Hampshire does not impose treble damages and attorney's fees

against employers, and because New Hampshire has a greater

material interest in the dispute between its residents than

Massachusetts. On appeal, NEMCS commingles these different

propositions, and does not present an intelligible choice of law

argument.

In any event, the judge was warranted in denying relief on

any choice of law claim because NEMCS failed to cite relevant

legal authority to support its arguments. Indeed, in denying

7 NEMCS did not raise the choice of law issue in its first two
motions to dismiss.

13
NEMCS's motion to amend the judgment, the judge stated that

"[NEMCS] did not put the Court on notice that [NEMCS] sought it

(or the jury) to perform a choice-of-laws analysis. . . . In

fact, the defendant has cited no legal authority in the motion."

The record supports the judge's determination, and we thus

discern no abuse of discretion. See Carey v. New England Organ

Bank, 446 Mass. 270, 285 (2006) ("The [party] never put the

judge on notice [of the issue] . . . [t]hus, we deem the issue

waived").

4. Inconsistent verdicts. NEMCS argues that where the

jury found in favor of NEMCS on the breach of contract claim and

further found on the special verdict slip that there was no

"valid contract in which [NEMCS] agreed to pay [Tisbert] wages

for travel time during May 2015 through May 2018," there "can be

no breach of the covenant of good faith and fair dealing." This

argument is likewise unavailing for several reasons. First,

NEMCS cites no relevant legal authority in its brief to support

this proposition. See Zora, 415 Mass. at 642 n.3; Mass. R. A.

P. 16 (a) (9) (A). Second, NEMCS raised no timely objection to

the verdict slip or to the purported inconsistency in the

verdict and thus waived this claim for appeal. See Conway v.

Planet Fitness Holdings, 101 Mass. App. Ct. 89, 101 (2022)

("[w]here . . . a jury returns a special verdict, an objection

that verdicts on several counts are inconsistent with each other

14
must be taken at the time when the verdicts are returned and

before they are recorded, so that the trial judge has an

opportunity to correct the error if there is one" [citation

omitted]). Third, on the record before us, we discern no

inconsistency in the jury's answers to the special questions.

The jury could have determined that Tisbert proved that he had a

"valid contract" with NEMCS, while also finding that Tisbert

failed to satisfy his burden to prove that there was a valid

contract "in which [NEMCS] agreed to pay him wages for travel

time during May 2015 through May 2018" (emphasis added).

Finally, even assuming that the verdicts were inconsistent,

there was no prejudice to NEMCS where the jury awarded Tisbert

zero damages on the breach of the covenant of good faith and

fair dealing claim.8,9

8 Asked at oral argument what remedy NEMCS was seeking in view of
the jury's award of zero damages on the breach of the covenant
of good faith and fair dealing claim, appellate counsel did not
specify any remedy or theory of recovery on this claim.
9 We likewise reject NEMCS's claim that the judge awarded

excessive attorney's fees. We review the judge's award of
attorney's fees for an abuse of discretion. Castricone v.
Mical, 74 Mass. App. Ct. 591, 603 (2009). Here, the record
supports the judge's fee award. See Rex Lumber Co. v. Acton
Block Co., Inc., 29 Mass. App. Ct. 510, 522 (1990) (identifying
factors to be considered). As stated above, we note that the
judge allowed the fee request in part, but reduced the amount of
requested fees by approximately fifty percent.

15
Conclusion. For the reasons discussed above, we determine

that the judge did not err or abuse his discretion regarding the

contested pre and posttrial rulings.10

Amended judgment affirmed.

By the Court (Wolohojian,
Neyman & Shin, JJ.11),

Assistant Clerk

Entered: March 22, 2024.

10 Tisbert has requested an award of his appellate attorney's
fees and costs. We agree that he is entitled to reasonable
attorney's fees under the Wage Act and overtime law. See G. L.
c. 149, § 150. Tisbert shall file a verified and itemized
application for such fees and costs within fourteen days of the
date of this decision, and NEMCS will have fourteen days
thereafter in which to file any opposition to the amounts
requested. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
11 The panelists are listed in order of seniority.

16