JUDITH ANN TAYLOR & others [Note 1] vs. EASTERN CONNECTION OPERATING, INC.

LENK, J. The question presented in this case is whether, in the circumstances, individuals who live and work outside of Massachusetts for a corporation headquartered in Massachusetts may bring an action in a Massachusetts court to enforce certain Massachusetts independent contractor, wage, and overtime pay statutes. Insofar as the written contract between the parties contains an enforceable clause requiring both that actions be brought in Massachusetts and that the "Contract and all rights and obligations of the parties" be determined under Massachusetts law, and where application of Massachusetts law is not contrary to a fundamental policy of the jurisdiction where the individuals live and work, we conclude that it was error to dismiss the plaintiffs' complaint. [Note 2]

1. Background. We recite the facts alleged in the complaint, accepting as true such facts, as well as any reasonable inferences drawn therefrom. See Mass. R. Civ. P. 12 (b) (1), (6), 365 Mass. 754 (1974); Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998).

The plaintiffs, Judith Ann Taylor, Gardner Taylor, and Donald Wellington, are individuals who live in New York and work there as couriers for the defendant, Eastern Connection Operating, Inc., a corporation headquartered in Woburn, Massachusetts. The defendant is in the business of delivering packages in various States along the East Coast, including Massachusetts and New York.

The plaintiffs entered into identical contracts (collectively, the contract) with the defendant to perform package pickup and delivery services exclusively in New York. [Note 3] Under the language of the contract, the plaintiffs are classified as "independent

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contractors" and the defendant is classified as a "broker" arranging transportation services. The contract also includes the following clause: "This Contract and all rights and obligations of the parties shall be construed in accordance with the laws where the Broker is headquartered and any action shall be commenced in that jurisdiction in the closest [S]tate court." [Note 4]

In 2010, the plaintiffs brought this action in the Superior Court on behalf of themselves and other similarly situated individuals. They alleged that the defendant had misclassified them as independent contractors rather than as employees, in violation of G. L. c. 149, § 148B, the Massachusetts independent contractor statute. They also alleged that the defendant failed to pay them wages and overtime in violation of G. L. c. 149, § 148, the Massachusetts wage statute, and G. L. c. 151, § 1A, the Massachusetts overtime statute (collectively, the Massachusetts wage statutes).

The defendant moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. See Mass. R. Civ. P. 12 (b) (1), (6). The judge allowed the motion, concluding that the Massachusetts independent contractor statute does not apply to non-Massachusetts residents working outside Massachusetts, and, therefore, that the plaintiffs cannot be reclassified as employees pursuant to that statute. He determined also that, as independent contractors, the plaintiffs failed to state claims under the Massachusetts wage statutes, since those statutes apply only to employees. See G. L. c. 149, § 148; G. L. c. 151, § 1A.

2. Discussion. a. Forum selection. As an initial matter, we observe that the plaintiffs properly brought their claims against the defendant in the Superior Court. Because the contract states that it is to be construed according to the laws of Massachusetts, we determine the validity of the forum selection clause in accordance with Massachusetts law. See Melia v. Zenhire, Inc., 462 Mass. 164, 168 (2012), citing Jacobson v. Mailboxes Etc.

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U.S.A., Inc., 419 Mass. 572, 575 (1995). "Massachusetts courts enforce forum selection clauses so long as they are fair and reasonable." Melia v. Zenhire, Inc., supra at 182, citing Jacobson v. Mailboxes Etc. U.S.A., Inc., supra at 574-575. "The opponent of a forum selection clause bears the 'substantial burden' of showing that enforcement of a forum selection clause would be unfair and unreasonable." Melia v. Zenhire, Inc., supra, quoting Cambridge Biotech Corp. v. Pasteur Sanofi Diagnostics, 433 Mass. 122, 133 (2000).

Here, the contract states that "any action shall be commenced in that jurisdiction [where the defendant is headquartered] in the closest [S]tate court." Since the defendant drafted the forum selection clause presumably for its own convenience, see note 4, supra, there is nothing unfair or unreasonable about enforcing that clause in the present circumstances. Further, Massachusetts courts undoubtedly have personal jurisdiction over the defendant, which is headquartered in the Commonwealth, see G. L. c. 223A, § 2, and the Superior Court has subject matter jurisdiction over disputes of this nature. See G. L. c. 212, §§ 3, 4. The question then becomes which State's law the Superior Court should apply in deciding the plaintiffs' claims.

b. Choice of law. i. Misclassification claim. The plaintiffs' first claim, and the claim on which their other claims are predicated, is that the defendant misclassified them as independent contractors when they are, in fact, employees. Specifically, the plaintiffs invoke the protections of the Massachusetts independent contractor statute. [Note 5] They argue that the choice-of-law clause in the contract requires the application of Massachusetts law to their claims. The defendant contends that the Massachusetts

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independent contractor statute does not apply to the plaintiffs, who live and work exclusively in New York. We must consider whether, in the circumstances, the parties' express choice of Massachusetts law is controlling. [Note 6]

In assessing which State's law to apply to the plaintiffs' misclassification claim, "we look to our established 'functional' choice of law principles and to the Restatement (Second) of Conflict of Laws [(1971)] [(Restatement)], with which those principles generally are in accord." Hodas v. Morin, 442 Mass. 544, 549 (2004), quoting Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631- 632 (1985). Where, as here, the parties have expressed a specific intent as to the governing law, [Note 7] Massachusetts courts generally uphold the parties' choice. [Note 8] See Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 260 (1977).

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Under the Restatement, if the particular issue to which the choice-of-law clause is being applied is "one which the parties could have resolved by an explicit provision in [the contract] directed to that issue," Restatement, supra at § 187(1), the parties' choice of law should be upheld, on the theory that, where permissible, the parties "may incorporate into the contract by reference extrinsic material which may, among other things, be the provisions of some foreign law." Id. at § 187 comment c.

If, however, the particular issue to which the choice-of-law clause is being applied is "one which the parties could not have resolved by an explicit provision" in the contract, the parties' choice of law should be upheld, unless (1) "the chosen [S]tate has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice," or (2) "application of the law of the chosen [S]tate would be contrary to a fundamental policy of a [S]tate which has a materially greater interest than the chosen [S]tate in the determination of the particular issue and which . . . would be the state of the applicable law in the absence of an effective choice by the parties." Restatement, supra at § 187(2). See Feeney v. Dell Inc., 454 Mass. 192, 206 (2009), quoting Hodas v. Morin, supra at 550, quoting Restatement, supra. See also L.L. McDougal, III, R.L. Felix, & R.U. Whitten, American Conflicts Law § 137 (5th ed. 2001).

Here, the parties expressed a specific intent that the contract be construed in accordance with Massachusetts law. The particular issue -- whether the plaintiffs were independent contractors or employees -- is not one the parties could resolve with an explicit provision in the contract, as, under either New York or Massachusetts law, a court could conclude that the plaintiffs were employees regardless of their classification under

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the language of the contract. See G. L. c. 149, § 148B (a); Scott v. Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429, 433 (1995), quoting Matter of Ted Is Back Corp. (Roberts), 64 N.Y.2d 725, 726 (1984). Therefore, we apply the "two-tiered analysis" of § 187(2). Hodas v. Morin, supra at 550.

First, because the defendant is headquartered in Massachusetts, "we readily conclude that Massachusetts has a 'substantial relationship' to the transaction." Id., quoting Restatement, supra at § 187(2)(a).

Second, even if we were to assume that New York has a greater interest in the determination of the issue, and that New York law would apply in the absence of an effective choice by the parties, application of Massachusetts law would not in any event contravene a fundamental policy of New York. See Restatement, supra at § 187(2)(b). Under both Massachusetts and New York law, a purported independent contractor who does not enjoy sufficient independence from the hiring party is deemed an employee. See G. L. c. 149, § 148B (a); Scott v. Massachusetts Mut. Life Ins. Co., supra, quoting Matter of Ted Is Back Corp. (Roberts), supra. Although the Massachusetts independent contractor statute features a more expansive definition of "employee" than the New York common-law test, "[t]he fact . . . that a different result might be achieved if the law of the chosen forum is applied does not suffice to show that the [forum] law is repugnant to a fundamental policy" of the State whose law would otherwise apply. Johnson v. Ventra Group, Inc., 191 F.3d 732, 740 (6th Cir. 1999), citing Banek Inc. v. Yogurt Ventures U.S.A., Inc., 6 F.3d 357, 363 (6th Cir. 1993). See Restatement, supra at § 187 comment g ("To be 'fundamental,' a policy must . . . be a substantial one"). Contrast Hodas v. Morin, supra at 551 (application of Massachusetts law in action for prebirth judgment of parentage law contrary to fundamental policy of New York, where New York law prohibits gestational carrier agreements and Massachusetts law permits them).

The defendant points to no authority, and we are aware of none, indicating that it is a fundamental policy of New York that employees be defined only in accordance with the New York common-law test for employment. Rather, we view the fundamental policy of New York in this area as being roughly

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equivalent to that of Massachusetts; both States seek to protect workers by classifying them as employees, and thereby grant them the benefits and rights of employment, where the circumstances indicate that they are, in fact, employees. New York simply uses a different mechanism to effectuate this aim than does Massachusetts. Accordingly, under the two-tiered analysis of the Restatement, we discern no reason not to uphold the parties' express choice of law.

The defendant contends that, regardless of choice-of-law principles, the Massachusetts independent contractor statute has no application to work performed outside of Massachusetts by non-Massachusetts residents, and that the choice-of-law clause cannot imbue the statute with extraterritorial effect it otherwise lacks. However, where no explicit limitation is placed on a statute's geographic reach, there is no presumption against its extraterritorial application in appropriate circumstances. See Hodas v. Morin, supra at 547 ("That the gestational carrier, her husband, and the plaintiffs all reside outside of Massachusetts does not bar the Probate and Family Court's subject matter jurisdiction under G. L. c. 215, § 6, because the equity statute poses no residency requirement"); O'Connell v. Chasdi, 400 Mass. 686, 689 n.3 (1987) (applying Civil Rights Act, G. L. c. 12, § 11I, to conduct occurring in South America where "the statute does not contain a provision limiting its application"). See also Gonyou v. Tri-Wire Eng'g Solutions, Inc., 717 F. Supp. 2d 152, 155 (D. Mass. 2010) ("Massachusetts has applied its statutory law to conduct outside its borders if sufficient contacts with the Commonwealth exist"). Rather, "[w]hen a statute is silent as to its extrastate applicability, as is usually the case, a court may and should as appropriately look to all the relevant choice of law considerations as if it were choosing between common-law rules." Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. Rev. 267, 306 (1966). [Note 9]

The Massachusetts independent contractor statute is silent as

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to its extraterritorial effect. See G. L. c. 149, § 148B. We therefore rely on our "functional" choice-of-law principles in assessing the applicability of the statute to the plaintiffs' claims. Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631-632 (1985). Given that the parties agreed to construe the contract in accordance with Massachusetts law, that there is no express limitation on the territorial reach of the Massachusetts independent contractor statute, and that there is no apparent reason to disregard the parties' choice of law, we conclude that the Massachusetts independent contractor statute applies to the plaintiffs' misclassification claim. See Gravquick A/S v. Trimble

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Navigation Int'l Ltd., 323 F.3d 1219, 1223 (9th Cir. 2003) ("If a [S]tate law does not have limitations on its geographical scope, courts will apply it to a contract governed by that [S]tate's law, even if parts of the contract are performed outside of the [S]tate . . . . When a law contains geographical limitations on its application, however, courts will not apply it to parties falling outside those limitations, even if the parties stipulate that the law should apply [citations omitted]").

Because the Massachusetts independent contractor statute properly applies to the plaintiffs' misclassification claim, it was error to have dismissed that claim. Additionally, because the plaintiffs may yet be deemed employees under the Massachusetts independent contractor statute, it was error as well to dismiss their wage and overtime claims on the ground that, as independent contractors, they failed to state claims under the Massachusetts wage statutes. See G. L. c. 149, § 148; G. L. c. 151, § 1A.

ii. Wage and overtime claims. Since the complaint was dismissed at an early stage of the litigation, it has yet to be determined whether, under the Massachusetts independent contractor statute, the plaintiffs were employees of the defendant or independent contractors. Such a determination will govern the plaintiffs' wage and overtime claims, which are predicated on the assertion that they were employees. See G. L. c. 149, § 148; G. L. c. 151, § 1A. If it is determined that the plaintiffs were independent contractors, the wage and overtime claims are subject to dismissal. See G. L. c. 149, § 148; G. L. c. 151, § 1A.

The record before us contains neither the contract nor any information relating to its formation, both of which may bear on the proper construction of the choice-of-law clause, particularly as to whether it may and does encompass statutory wage and overtime claims. In either event, the parties more generally have not had an opportunity to present evidence or argument pertinent to the proper application of our functional choice-of-law principles to such claims. See Bushkin Assocs, Inc. v. Raytheon Co., supra at 631-634. The matter must accordingly be resolved on remand.

3. Conclusion. The judgment of dismissal is vacated, and the

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case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.