The plaintiff, Ari Weitzner, M.D., P.C. (Weitzner), brought a class action complaint in Superior Court for injunctive relief and damages against the defendant, Cynosure, Inc. (Cynosure). A judge denied class certification and subsequently entered judgment on the merits of Weitzner's individual claims. Weitzner has appealed. He contends (1) that the judge wrongly denied certification of the proposed class of plaintiffs, and (2)
Background. The following facts emerge from the record as undisputed. Weitzner conducts an ophthalmology practice in Brooklyn, New York; Cynosure is a manufacturer of laser and light-based technology with a principal place of business in Massachusetts. Between April 7, 2004, and May 20, 2004, Cynosure sent Weitzner four unsolicited facsimile advertisements.
On May 24, 2005, Weitzner filed the class action complaint in Superior Court alleging that Cynosure had violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. The TCPA prohibits, inter alia, the transmission of unsolicited advertisements via facsimile. 47 U.S.C. § 227(b)(1)(C). Weitzner requested $1,500 in statutory damages for each violation of the TCPA and an order enjoining Cynosure from "continuing to send unsolicited facsimile advertisements." See 47 U.S.C. § 227(b)(3). Three months later, in August of 2005, Cynosure voluntarily suspended its facsimile transmission program. In February of 2006, a judge denied Cynosure's motion to dismiss the complaint. Weitzner subsequently ignored Cynosure's offer to confess judgment on his individual claims.
In April of 2008, Weitzner moved for certification of a nationwide class composed of:
Weitzner alleged that Cynosure had sent more than 3,265,000 unsolicited facsimile advertisements during the twenty-five month class period.
After the denial of class certification, the same judge entered a final judgment dismissing Weitzner's class action allegations with prejudice, awarding Weitzner $6,000 in damages for receipt of the four unsolicited facsimile advertisements, and permanently enjoining Cynosure from sending Weitzner unsolicited facsimile advertisements in the future. The judge did not address Weitzner's argument that the denial of class certification should have resulted in dismissal of the action without prejudice.
b. Due process requirement. If a class action embodies "claims wholly or predominantly for money judgments," a forum State court may "bind an absent plaintiff concerning a claim for money damages or similar relief at law" if it provides "minimal procedural due process protection." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-812 & n. 3 (1985) (Shutts). That protection includes notice, the opportunity to be heard and to participate in the litigation, and the opportunity to opt out of the class action. The nonresident members of the proposed class of plaintiffs possess a claim or a chose in action in the nature of a "constitutionally recognized property interest." Id. at 807, citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-314 (1950). An adverse judgment by a State court adjudication of the class action "may extinguish the chose in action forever through res judicata." Shutts, supra at 807. The procedural safeguards respect the absentee's property interest. Their implementation is important because due process does not require the forum State to have the same minimum contacts with the nonresident class plaintiff as it would require for jurisdiction over a nonresident defendant. Id. at 808-809.
The Supreme Judicial Court has interpreted Shutts as "holding
Here, neither basis supports the exercise of personal jurisdiction over the out-of-State class plaintiffs. Rule 23 does not allow an individual to opt out of a Massachusetts class action, Weld v. Glaxo Wellcome Inc., 434 Mass. at 84; and Weitzner does not dispute that the out-of-State class plaintiffs do not possess "minimum contacts" with Massachusetts.
Finally, the record contradicts Weitzner's contention that the suit sought "predominantly injunctive relief" so as to free him
2. Superior Court jurisdiction over the individual damages claims. Weitzner argues that the judge wrongly proceeded to enter final judgment on the merits of his individual damages claims. In reliance on Zizza v. Zizza, 456 Mass. 401 (2010) (Zizza), he contends that the judge, after denial of class certification, "should have dismissed the action without prejudice for lack of jurisdiction."
In Zizza, the plaintiff filed an action in Superior Court alleging that her former husband had breached an agreement for child support. Id. at 402. She sought "payment of the alleged child support arrearages" and an order "requiring $262 to be deducted from [father's] weekly pay and given directly to [her]." Id. at 403. After a hearing, a Superior Court judge dismissed the complaint for failure to satisfy the amount in controversy requirement applicable to the Superior Court. Id. at 404. See G. L. c. 212, § 3, inserted by St. 2004, c. 252, § 2 (civil action for money damages filed in the Superior Court
The court concluded that the civil one-trial reform legislation of 2004, see St. 2004, c. 252, now codified in part in G. L. c. 212, § 3, "vest[ed] discretion in [a] Superior Court judge to determine whether or not to exercise jurisdiction over the complaint in such circumstances, thereby either retaining the case for decision in the Superior Court despite the absence of the threshold amount in controversy, or dismissing the case despite the equity claim." Zizza, supra at 408. For the exercise of that discretion it recommended "without limitation" such criteria as:
Id. at 408 n.13.
Appellate review of a judge's exercise of such ancillary
Weitzner computes these factors to favor dismissal without prejudice of his surviving individual damages claim because it sounds in law and falls below the $25,000 threshold. The mechanical application of the guidelines should not frustrate the fundamental purpose of the one-trial reform legislation of 2004. For both the Superior and District Courts, the overriding objective of their common legal and equitable jurisdictional authority became the efficient adjudication of the merits of a case. See Sperounes v. Farese, 449 Mass. 800, 804-807 (2007) (discussing the expanded and consolidated authority of the District Court to provide both monetary and injunctive relief as a means "to increase efficiency in the trial courts" by elimination of the former system of delay and duplication between the two courts); Zizza, 456 Mass. at 407 (the "purpose of the one-trial system was to increase the efficacy of trials in the District and Superior Courts over the inefficient [prior] remand-removal system").
In the present circumstances the judge exercised sound discretion to retain jurisdiction and to resolve the case. The claims had been pending in the Superior Court for more than seven years; the judge who denied class certification and entered judgment had become familiar with the facts and the applicable law; Cynosure had offered to confess judgment; and the remaining issues of liability and damages were straightforward. The judge acted with sensible efficiency and fairness. Full and final judgment was proper.
Shutts, supra at 808.
"In sharp contrast to the predicament of a defendant haled into an out-of-state forum," a potential class action plaintiff maintains a relatively small stake in the litigation and receives the benefit of pooled resources and administration of his claim. Id. at 809.