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 
2

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.
3

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 
4

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.
5

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 
6

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 twodamages, 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).
7

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. 
8

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 
9

improper. Thus, we need not consider this issue. See TedeschiFreij 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).
10

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 
11

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.
12

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 
13

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.
14

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 
15

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.
16

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.