Richardson v. The UPS Store, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

KEVIN RICHARDSON II, and All Others *

Similarly Situated, *

*

Plaintiff, *

*

v. * Civil Action No. 18-cv-12338-ADB

*

THE UPS STORE, INC. and J&V *

LOGISTICS LLC, *

*

Defendants. *

MEMORANDUM AND CERTIFICATION ORDER

TO THE MASSACHUSETTS SUPREME JUDICIAL COURT

BURROUGHS, D.J.

Plaintiff Kevin Richardson II (“Richardson”) brings this putative class action lawsuit

against The UPS Store, Inc. (“UPS Store”) and J&V Logistics LLC (“J&V” and together with

UPS Store, “Defendants”) to recover for notarization charges that he claims violated a

Massachusetts statutory maximum of $1.25 per notarization. Richardson asserts that

Massachusetts General Laws chapter 262, § 41 (“Chapter 262, § 41”) establishes a $1.25

maximum charge for notarizations. See [ECF Nos. 33, 39, 42]. Defendants maintain that the

$1.25 maximum is specific to the now obsolete practice of noting dishonored commercial paper

or other bills, which was, long ago, a common practice associated with protesting dishonored

commercial paper. See [ECF Nos. 34, 36, 45]. The question of state law presented by the

parties’ dispute is potentially case dispositive, does not appear to be governed by any controlling

precedent, and is likely of importance to a significant number of notaries public across

Massachusetts. Presently before the Court are Richardson’s motion for class certification, [ECF

No. 32], and Defendants’ motion to certify a question to the Massachusetts Supreme Judicial

Court (“SJC”), [ECF No. 35]. For the reasons discussed herein, the motion for class certification

[ECF No. 32] is DENIED WITH LEAVE TO RENEW and the motion to certify a question to

the SJC [ECF No. 35] is GRANTED.

I. BACKGROUND AND FACTS

On August 30, 2016, Richardson filed this putative class action in the Superior Court of

Essex County (the “Superior Court”), claiming that on various dates from 2012 through 2016 he

was charged in excess of $1.25 for notarizations at a UPS store in Beverly, Massachusetts. [ECF

No. 1-3 at 10]. Specifically, Richardson asserts that on at least eight occasions between 2012

and 2016 he or his wife paid up to $10.00 for individual notarizations at the Beverly,

Massachusetts UPS store, incurring a total of $65.00 in fees for those services. [ECF No. 33 at

2]. None of the notarization services that Richardson paid for related to protesting commercial

paper or other documents. See [ECF No. 34 at 2]. Rather, the services Richardson purchased

involved verification of his or his wife’s identity to assure the authenticity of their signatures on

certain forms, such as an “interlock operator affidavit” and “statement of consent” that

Richardson had to submit in connection with his application for a motor vehicle driver’s hardship

license. See id. at 26.1 Defendants moved to dismiss the complaint, arguing that Chapter 262,

§ 41 limits the fees a notary may charge only for notarial services that are specifically mentioned

1 Pursuant to Massachusetts General Laws chapter 90, § 24(1)(c)(3), after an individual’s right to

operate a motor vehicle has been revoked due to a second conviction for operating under the

influence, the individual’s motor vehicle license is suspended for two years, and the individual

may obtain a hardship license for employment or education purposes. Code of Massachusetts

Regulations Title 540 Code of Massachusetts Regulations 25.00 provides the process of

obtaining a hardship license and, correspondingly, an interlock device. See 540 CMR 25.00.

“[A]ny individual to whom an Ignition Interlock Restriction applies [must] execute a form,

promulgated by the Registrar, which clearly indicates the penalties for violating the laws and

regulations pertaining to Ignition Interlock Devices.” 540 CMR 25.08(5). The “form shall be

signed by the individual under the pains and penalties of perjury, and notarized.” Id.

in Chapter 262, § 41. [ECF No. 1 at 3]. The Superior Court denied the motion to dismiss

because it read the “final clause” of Chapter 262, § 41 to “potentially limit notary public fees for

all notary services performed in Massachusetts.” [ECF No. 10-2 at 12].2

On October 10, 2018, Richardson served Defendants with a motion for class certification

that claimed damages in excess of $5.9 million. [ECF No. 1 at 3]. Defendants then removed the

case to this Court pursuant to the Class Action Fairness Act of 2005. Id.; see 28 U.S.C. §

1332(d). On April 11, 2019, Richardson filed his motion for class certification, which

Defendants oppose. [ECF Nos. 32, 34]. On May 13, 2019, Defendants filed their motion to

certify the question of the correct interpretation of Chapter 262, § 41 to the SJC, which

Richardson opposes. [ECF Nos. 35, 39].3

II. DISCUSSION

The SJC “may answer questions of law certified to it by . . . a United States District Court

. . . when requested by the certifying court” where the question of Massachusetts law “may be

determinative of the cause then pending in the certifying court and as to which it appears to the

certifying court [that] there is no controlling precedent in the decisions of [the SJC].” Mass.

S.J.C. R. 1:03. Certification of questions to the highest court of a state is likewise permissible as

a matter of federal judicial discretion where the question is potentially case dispositive and no

2 Notwithstanding the Superior Court’s holding, it seems clear that Chapter 262, § 41 does not

establish a $1.25 statutory maximum for “all notary services.” For example, § 41 provides a

maximum cost of $2.00 for the “whole cost of protest, including necessary notices and the

record, if [a] bill, order, draft, check or note is” for $500 or more. Mass. Gen. Laws ch. 262,

§ 41. As such, the cost of “noting” discussed by the final clause of Chapter 262, § 41 cannot

reasonably be interpreted to supply a statutory maximum for “all notary services.”

3 The Court remains somewhat mystified about why Defendants would remove a case to federal

court after more than two years of litigation and then ask to have the central issue in the case

certified back to a state court. The better practice would have been to either not remove the case

or reconcile to federal review of the issues presented.

controlling precedent exists. See Nieves v. Univ. of P.R., 7 F.3d 270, 274 (1st Cir. 1993)

(“Absent controlling state-law precedent, a federal court sitting in diversity has the discretion to

certify a state-law question to the state’s highest court.”).4 Before certifying a question to a state

court, a federal court must consider whether the “course the state court would take is reasonably

clear.” In re Engage, Inc., 544 F.3d 50, 53 (1st Cir. 2008) (quoting Nieves, 7 F.3d at 275).

Certification is only appropriate where a case presents “a close and difficult legal issue.” Id.

Even where a question of Massachusetts state law presents a difficult question of state law, a

federal court must exercise discretion in deciding whether to “make [its] best guess . . . or to

certify the question to the SJC.” Id. Certification is particularly appropriate where the answer to

the legal question may turn on policy judgments or where there will be significant implications

for persons who are not party to the litigation. Id. Federal courts may also consider the “dollar

amounts involved, the likely effects of a decision on future cases, and federalism interests.”

Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 52 (1st Cir. 2013).

Here, the requirements for certifying a question to the SJC are met. The parties’ dispute

centers on the meaning of the last nineteen words of Chapter 262, § 41, which provides:

The fees of notaries public shall be as follows:

For the protest of a bill of exchange, order, draft or check for non-acceptance or

non-payment, or of a promissory note for non-payment, if the amount thereof is

five hundred dollars or more, one dollar; if it is less than five hundred dollars, fifty

cents; for recording the same, fifty cents; for noting the non-acceptance or non-

payment of a bill of exchange, order, draft or check or the non-payment of a

promissory note, seventy-five cents; and for each notice of the non-acceptance or

non-payment of a bill, order, draft, check or note, given to a party liable for the

payment thereof, twenty-five cents; but the whole cost of protest, including

4 See also Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 50–51 (1st Cir. 2013)

(certifying question where “[t]he issues of state law will be determinative in this case”);

BostonGas Co. v. Century Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008) (certifying question where

“the issue is determinative of the scope of Boston Gas’ claim”); In re Engage, Inc., 544 F.3d 50,

52–53 (1st Cir. 2008) (certifying question where “this state law issue may be determinative of

R&G’s cause of action”).

necessary notices and the record, if the bill, order, draft, check or note is of the

amount of five hundred dollars or more, shall not exceed two dollars, and if it is

less than five hundred dollars, shall not exceed one dollar and fifty cents; and the

whole cost of noting, including recording and notices, shall in no case exceed one

dollar and twenty-five cents.

Mass. Gen. Laws ch. 262, § 41. Richardson’s lawsuit is premised on his assertion that the

charges in excess of $1.25 that he incurred exceeded the statutory maximum.5 If Chapter 262,

§ 41 does not establish a $1.25 maximum for the notarial acts at issue, this lawsuit will almost

certainly conclude in Defendants’ favor. The question of whether Massachusetts law establishes

a $1.25 maximum for all notarial services therefore “may be determinative of the cause.” See

Mass. S.J.C. R. 1:03.

The Court is unaware of any controlling precedent from the SJC or the First Circuit on

this question. Further, it has found no persuasive authority from any lower courts. The case law

that Richardson marshals in support of his argument that Chapter 262, § 41 establishes a $1.25

maximum for notarizations is comprised of the equivocal assertion from the Superior Court in

this case that the statute “potentially limit[s] notary public fees for all notary services,” a

sentence in a dissent from a 1987 SJC opinion, and a stipulated conclusion of law that was

entered pursuant to a joint motion in a 2012 Suffolk County Superior Court case. [ECF No. 39 at

2].6 Although Richardson’s proffered case law is relatively unpersuasive, Defendants have

offered no case law of their own.

5 Richardson has also asserted that Massachusetts General Laws chapter 262, § 43 might

proscribe the charges at issue here. Section 43 provides, “The fees of public officers for any

official duty or service shall, except as otherwise provided, be at the rate prescribed in this

chapter for like services.” The Court thinks this argument is unlikely to succeed even if it is

reached, but it will nevertheless include Chapter 262, § 43 in the certified question.

6 The 1987 SJC case, Quinn v. State Ethics Commission, 516 N.E. 124 (Mass. 1987), concerned

whether an individual who served as both a bail commissioner and comptroller of the Water

Resource Authority violated Massachusetts’ conflict of interest law. Justice Liacos wrote in

dissent that the SJC’s attempt to distinguish notaries public from bail commissioners for the

purposes of the conflict of interest law seemed “disingenuous.” Id. at 130 (Liacos, J.,

Instead, Defendants point to the history of Chapter 262, § 41 and a significant body of

secondary sources that seem to conclude that Massachusetts does not have a maximum fee for

non-protest-related notarial services. See [ECF No. 34 at 11–12 (citing National Notary,

Massachusetts Notary Primer 30 (Nat’l Notary Ass’n 3d ed. 2018) (“In Massachusetts, there is

no statutory fee schedule for acknowledgements, oaths, affirmations, jurats, certified copies, or

signature witnessing.”), then citing Charles N. Faerber, 2012–2013 U.S. Notary Reference

Manuel 286 (Nat’l Notary Ass’n 11th ed. 2011))]. In rebuttal, Richardson offers his own

secondary sources. See [ECF No. 39 at 7 (citing American Society of Notaries, Handbook for

Notaries Public of Massachusetts 25 (2d ed. 1996) (“The maximum you may charge a client for a

common notarial act appears to be $1.25.”), then citing William Francis Galvin, Secretary of the

Commonwealth, Guidelines for the Notary Public (May 1996) (“[N]otaries public may charge no

more than one dollar and twenty-five cents ($1.25) for noting and recording a document

. . . .”)]. The Court is satisfied considering the dispositive nature of the issue, the contradictory

conclusions of secondary sources, and the complete absence of binding precedent or persuasive

judicial authority that the question at issue presents a question of state law that warrants

certification to the SJC.

Further, certifying a question on the proper interpretation of Chapter 262, § 41 is

appropriate here given the potential breadth of the impact on non-parties, the sums of money

dissenting). He implied that notaries public were not in fact so different from bail

commissioners in part because “[t]he public who use the services of the notaries public pay a

statutorily set fee.” Id. (citing Mass. Gen. Laws ch. 262, § 41). The majority did not address the

issue and Justice Liacos’ assertion is not even clearly inconsistent with Defendants’ argument

that Chapter 262, § 41 establishes fees only for notarial services associated with protesting

commercial paper. The Superior Court case, Real Estate Bar Association for Massachusetts v.

National Loan Closers, Inc., No. SUCV201201609E, 2012 WL 6928118 (Mass. Super. Ct. Nov.

30, 2012), was based upon a joint motion and the parties’ stipulated conclusion of law that

“notaries public may not charge more than $1.25 to notarize a document.” Id. at *4.

involved, and because the question presented will help provide a definitive answer as to the

rights of more than 100,000 public servants who are licensed and regulated by the

Commonwealth as notaries public. See Mass.gov, Find A Notary Public, https://www.mass.

gov/service-details/find-a-notary-public.7 A clear and definitive answer as to whether notaries

public may charge in excess of $1.25 for non-protest-related notarial services will likely benefit a

significant number of notaries by clarifying the terms on which they may engage in business,

answering the question of civil liability for past charges, and informing notaries whether they

could be subjected to disciplinary action or non-renewal of their commission for charging more

than $1.25 for a non-protest-related notarial act. See Mass. Gen. Laws ch. 222, §§ 13(b)(vii),

18(a). Additionally, were this Court to disagree with the above-mentioned dissenting SJC justice

and the two Massachusetts Superior Court judges who addressed this issue in a tangential or

relatively cursory manner, the question would remain unsettled. One way or the other, a ruling

from the SJC will definitively resolve the question in a way that this Court cannot. Further,

while the $5.9 million at issue here may be a relatively paltry sum in the scheme of class action

litigations, it is surely an amount of significance to the parties, and it likely represents only a

fraction of the potential liability that entities and individuals across the Commonwealth may be

subject to if Richardson’s position succeeds. The Court therefore will exercise its discretion to

certify a question to the SJC on the proper interpretation of Chapter 262, § 41.

7 See Easthampton Sav. Bank, 736 F.3d at 52 (certifying questions where “resolution of these

issues will have ramifications for thousands more mortgages throughout the Commonwealth”);

In re Engage, Inc., 544 F.3d at 53 (“certification is particularly appropriate here since the

answers to these questions . . . will certainly have implications beyond these parties”);

BostonGas Co., 529 F.3d at 15 (certification appropriate where outcome “could easily matter in

future cases not involving these parties”); Brown v. Crown Equip. Corp., 501 F.3d 75, 77 (1st

Cir. 2007) (certifying question where “implications go beyond the parties”).

III. CERTIFICATION TO SUPREME JUDICIAL COURT

Accordingly, the Court certifies the following question to the Massachusetts Supreme

Judicial Court:

Does Massachusetts General Laws Chapter 262, §§ 41 or 43 proscribe fees in

excess of $1.25 for notarization of a document where the notarial act at issue is

unrelated to the protest of a bill of exchange, order, draft or check for non-

acceptance or non-payment, or of a promissory note for non-payment?

The clerk is directed to forward this order to the SJC under the seal of this Court and to

provide any portion of the record that the SJC may require, including portions of the record filed

under seal.

In the interest of docket control, the motion for class certification [ECF No. 32] is

DENIED WITH LEAVE TO RENEW. Richardson shall have fourteen (14) days from any

decision from the SJC on the certified question to renew the motion for class certification. If

Richardson intends to renew his motion following a ruling from the SJC, the parties shall meet

and confer to narrow the issues before the motion is renewed.

SO ORDERED.

June 24, 2019 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE