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Cossart v. United Excel Corp.

United States Court of Appeals, First Circuit

September 30, 2015

WILLIAM COSSART, Plaintiff, Appellant,
v.
UNITED EXCEL CORPORATION and KY HORNBAKER, Defendants, Appellees

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[Copyrighted Material Omitted]

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. George A. O'Toole, Jr., U.S. District Judge.

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.

Before Thompson, Kayatta, and Barron, Circuit Judges.

OPINION

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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. 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

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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 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 email in the course of trying to secure that deal. ...


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