Provanzano v. Parker View Farm, Inc. et al
Filing
19
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER "In accordance with the foregoing, 1) plaintiff's motion to remand and for attorney's fees (Docket No. 11 ) is DENIED; 2) defendants' motion to dismiss (Docket No. 3 ) is DENIED; 3) defendants' motion for a protective order (Docket No. 14 ) is ALLOWED; and 4) Attorney Andrew S. Breines is directed to file a noticeof appearance in this case." (Duong, Diep)
United States District Court
District of Massachusetts
________________________________
)
JOSEPH S. PROVANZANO,
)
Plaintiff,
)
)
v.
)
Civil Action No.
)
10-11893-NMG
BRIDGETTE M. PARKER,
)
Individually and doing business )
as PARKER VIEW FARM, PARKER VIEW )
FARM, INC., ROBERT M. TURNER,
)
Individually and doing business )
as LM TURNER STABLES and LM
)
TURNER STABLES, INC.,
)
Defendants.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
The plaintiff, Joseph S. Provanzano, brings this action
against Bridgette M. Parker, individually and doing business as
Parker View Farm, Inc. (“Parker”) and Robert M. Turner,
individually and doing business as LM Turner Stables, Inc.
(“Turner”), for a violation of the Massachusetts Consumer
Protection Act, Mass. Gen. Laws ch. 93A, §§ 2 and 9 (“Chapter
93A”).
I.
Factual Background
Provanzano, a Massachusetts resident, is the owner of four
horses: Mild Emotion, Sandra’s Dream, Joe’s Boy and Ms. Martha
Anne.
In 2006, Mild Emotion suffered an eye injury while she was
being boarded and trained at Turner Stables in New Hampshire.
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After the mare was injured, Turner recommended that she be sent
to Parker (who owns a horse farm in Kentucky) for surgery and to
be boarded in the event that she needed additional surgery.
Provanzano claims (and the defendants deny) that Turner then
introduced him to Parker at a horse show in Massachusetts.
Provanzano subsequently agreed to board Mild Emotion at Parker’s
facility in Kentucky for $350 per month.
Beyond that, the
parties dispute the facts.
Provanzano claims that, at the time, he was not aware that
1) Parker’s primary business was breeding horses, 2) Turner was
her agent for selling those horses or 3) the two regularly
transacted business together.
Provanzano alleges that Turner
arranged for Mild Emotion’s transfer to Kentucky and assured
Provanzano that all of the tack that he had purchased for Mild
Emotion would be transferred with her.
Instead, Turner neglected
to return to plaintiff or deliver to Parker over $8,000 worth of
tack.
Parker charged Provanzano $6,000 more than agreed upon in
boarding fees and over $100,000 in additional expenses that were
not part of the original agreement.
The complaint goes on to assert that, during Mild Emotion’s
recuperation, Turner suggested that Provanzano breed her to defer
some of the costs.
In a letter to Parker and Turner, dated March
6, 2007, Provanzano told the defendants that they did not have
permission to breed Mild Emotion but despite those instructions,
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the defendants bred Mild Emotion in or about April, 2007.
Upon
receiving a second invoice, Provanzano learned that Mild Emotion
had birthed a foal, Sandra’s Dream.
Provanzano paid the
outstanding invoices only after Parker threatened to sell Mild
Emotion if he did not.
Despite the fact that, a short time later, Provanzano denied
permission (for a second time) for the defendants to breed Mild
Emotion, they bred her again and Joe’s Boy was the result.
At
that point, Provanzano was billed (and paid) $360 per month per
horse and foal, a stud fee, veterinary bills and other expenses.
The defendants then informed Provanzano that they would not breed
Mild Emotion again.
Provanzano asserts that when he arranged to have the horses
transported back to New England in May, 2010, he learned that
there was yet another foal, Ms. Martha Anne.
He received an
invoice for $2,000 for the breeding of Mild Emotion and incurred
additional transportation expenses for the filly.
Mild Emotion’s
hooves were so damaged (allegedly due to the three pregnancies)
that she needed very expensive veterinarian treatment and might
not be able to be shod in the future.
Provanzano alleges that
the injuries to Mild Emotion as a show horse will result in the
loss of approximately $80,000 in prize money.
Plaintiff claims that the defendants’ multiple actions
constitute unfair and deceptive acts or practices in violation of
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Chapter 93A.
On September 14, 2010, plaintiff sent the
defendants a Chapter 93A demand letter in which he claimed over
$150,000 in compensatory damages and that they be trebled.
He
received no reply but, a few weeks later, Turner and Parker sued
Provanzano in the Circuit Court for Woodford County, Kentucky
(No. 10-CI-00517) alleging business defamation and breach of a
verbal contract with Parker (“the Kentucky Action”).
In that
case, the defendants seek a declaratory judgment that they have
not violated any Massachusetts or other state law and claim that
Provanzano put a hold on the credit cards he used to pay Parker
and stopped payment on previously submitted checks.
Parker and Turner report that, as of November 11, 2010,
Provanzano had not yet been served in the Kentucky Action because
he evaded service by hiding from the service processor and not
returning his phone calls.
On November 12, 2010, defendants
served Attorney Andrew Breines, who was Provanzano’s counsel in
that action, with a motion for injunctive relief.
Breines
responded that he no longer represented Provanzano.
Nevertheless, Breines has been filing pleadings on behalf of
plaintiff in this case although he has not filed his appearance.
II.
Procedural History
Provanzano filed his complaint in the Massachusetts Superior
Court Department for Essex County in October, 2010 and the case
was timely removed to federal court by the defendants.
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On
November 11, 2010, the defendants filed a motion to dismiss which
Provanzano opposed.
On December 20, 2010, the plaintiff filed a
motion to remand the case to state court and requested oral
argument and attorney’s fees in connection with that motion.
Finally, on December 21, 2010, the defendants moved for a
protective order which plaintiff opposed.
III. Motion to Remand
A.
Standard
Defendants removed this case to federal court on the basis
of diversity jurisdiction pursuant to 28 U.S.C. § 1332.
A non-
resident defendant may remove a civil case from state court to a
United States District Court if the case presents a controversy
between citizens of different states and the amount in
controversy exceeds $75,000.
28 U.S.C. §§ 1332, 1441(b).
To
determine whether those requirements are satisfied, the Court
must examine the circumstances at the time of the petition for
removal.
Carey v. Bd. of Governors of Kernwood Country Club, 337
F. Supp. 2d 339, 341 (D. Mass. 2004).
If the Court determines
that those requirements are not satisfied, the case must be
remanded.
See 28 U.S.C. § 1447(c).
The party seeking removal
bears the burden of showing that removal was proper.
Danca v.
Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999).
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B.
Application
It is undisputed that there is complete diversity in this
case.
The plaintiff, however, asserts that he seeks less than
$75,000 in damages.
He claims that the amounts stated in the
complaint are the total amounts he paid to the defendants, not
his alleged damages.
The amount in controversy is determined by the sum claimed
by the plaintiff in his complaint, provided that the claim is
made in good faith.
St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 288-89 (1938).
In his complaint, plaintiff states:
As a result of the unfair and deceptive acts or practices
of the defendants, the plaintiff has been damaged by an
amount in excess of $150,000.00 with respect to the
boarding fees and stud fees for the unauthorized babies,
the missing property and the lost show income with
respect to Mild Emotion.
Specifically, plaintiff alleges that, as a result of defendants’
conduct, he lost approximately $80,000 in prize money and
incurred $109,568 of unnecessary expenses.
treble damages pursuant to Chapter 93A.
Plaintiff seeks
Even without including
the service charges, plaintiff’s claim for treble damages due to
lost prize money is $240,000.
The Court finds that the amount in
controversy requirement is, therefore, satisfied, and will deny
the plaintiff’s motion to remand.
Because the defendants’
removal was not frivolous or done in bad faith, plaintiff’s
request for attorney’s fees in connection with his motion to
remand will be denied as well.
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IV.
Motion to Dismiss
The defendants move to dismiss this action 1) pursuant to
Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction,
2) pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a
claim upon which relief can be granted and 3) because of the
pending Kentucky Action.
Defendants proffer a breeding contract that Provanzano
allegedly entered into with Parker in which he agreed that Parker
could breed Mild Emotion to the stallion, Jon Bugatti.
The
contract was signed by Parker on May 7, 2007 and by Provanzano on
February 18, 2008.
It includes a Kentucky choice of law
provision and a Woodford County, Kentucky forum selection clause.
Provanzano apparently handwrote under the Kentucky forum
selection clause: “owner’s responsibilities will be governed by
Massachusetts law.”
On the Court’s copy, however, the
handwritten note is crossed off and illegible.
In any event,
because the defendants do not rely on the forum selection clause
as the basis for their motion to dismiss, the Court declines to
consider the enforceability of that clause.
Defendants also submit a letter and two emails from
Provanzano, dated October 17, 2008, November 12, 2008 and
November 18, 2009, respectively, that express his intention to
sell the colts and are devoid of any indication that the breeding
was without permission.
Finally, the defendants proffer an
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invoice, dated December 7, 2007, on which Provanzano wrote that
he would love to be there when “Vixen” gives birth.
A.
Personal Jurisdiction
1.
Standard
On a motion to dismiss for want of personal jurisdiction,
the plaintiff bears the burden of demonstrating that jurisdiction
is 1) statutorily authorized and 2) consistent with the Due
Process Clause of the United States Constitution.
Astro-Med,
Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 9 (1st Cir. 2009).
When a district court rules on a motion to dismiss for lack of
personal jurisdiction without holding an evidentiary hearing, it
must apply the “prima facie” standard of review.
United States
v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001).
Under that standard,
it is plaintiff’s burden to demonstrate the existence of
every fact required to satisfy both the forum’s long-arm
statute and the Due Process Clause of the Constitution.
Id. (quoting United Elec. Radio & Mach. Workers of Am. v. 163
Pleasant St. Corp., 987 F.2d 39, 43 (1st Cir. 1993)).
The
plaintiff must proffer evidence of the specific facts upon which
he relies to establish personal jurisdiction.
Id. at 619.
To
meet that requirement, the plaintiff must “go beyond the
pleadings and make affirmative proof.”
St. Corp., 987 F.2d at 44).
Id. (quoting 163 Pleasant
“[P]laintiffs may not rely on
unsupported allegations in their pleadings to make a prima facie
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showing of personal jurisdiction.”
Boit v. Gar-Tec Prods., Inc.,
967 F.2d 671, 675 (1st Cir. 1992).
Because the Massachusetts long-arm statute reaches to the
full extent that the Constitution allows, the Court may proceed
directly to the Constitutional analysis.
See Sawtelle v.
Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995); Tatro v. Manor Care,
Inc., 625 N.E.2d 549, 553 (Mass. 1994).
Due Process requires
that the defendants have “minimum contacts” with the forum state
such that the “maintenance of the suit does not offend
traditional notions of fair play and substantial justice.”
Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
A court may exercise either general or specific personal
jurisdiction over an out-of-state defendant.
Angela Adams
Licensing, LCC v. Dynamic Rugs, Inc., 463 F. Supp. 2d 82, 84 (D.
Me. 2006).
General jurisdiction exists when the defendant has
engaged in “continuous and systematic activity,” unrelated to the
suit, in the forum state.
Cir. 1994).
Pritzker v. Yari, 42 F.3d 53, 60 (1st
Specific jurisdiction exists where the plaintiff's
cause of action arises from or relates to the defendant’s
contacts with the forum state.
Id.
The First Circuit employs a tripartite analysis to determine
whether specific jurisdiction is appropriate.
The Court inquires
whether 1) the claims arise out of or are related to the
defendants’ in-state activities, 2) the defendants have
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purposefully availed themselves of the laws of the forum state
and 3) the exercise of jurisdiction is reasonable under the
circumstances.
See, e.g., Platten v. HG Bermuda Exempted, Ltd.
437 F.3d 118, 135 (1st Cir. 2006); Sawtelle, 70 F.3d at 1389.
The reasonableness inquiry operates on a sliding scale with the
first two factors of the tripartite analysis.
That is, a
particularly strong showing of relatedness and purposeful
availment eases the plaintiff’s burden of demonstrating
reasonableness.
Sawtelle, 70 F.3d at 1394.
To satisfy the purposeful availment requirement, the First
Circuit Court of Appeals has held that
the defendant’s in-state contacts must represent a
purposeful availment of the privilege of conducting
activities in the forum state, thereby invoking the
benefits and protections of that state’s laws and making
the defendant’s involuntary presence before the state’s
courts foreseeable.
Astro-Med, 591 F.3d at 10.
The United States Supreme Court had
previously declared that such a requirement
ensures that a defendant will not be haled into a
jurisdiction solely as a result of random, fortuitous, or
attenuated contacts . . . or of the unilateral activity
of another party or a third person.
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985)
(internal citations omitted).
The “relatedness” test is a
“flexible, relaxed” standard that focuses on the nexus between
the plaintiff’s claim and the defendants’ contacts with the forum
state.
Astro-Med, Inc., 591 F.3d at 9; Ticketmaster-New York v.
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Alioto, 26 F.3d 201, 206-07 (1st Cir. 2004).
Finally, in evaluating whether the exercise of personal
jurisdiction would be reasonable or would offend traditional
notions of fair play and substantial justice, the Court considers
what are known as the “Gestalt factors,” including 1) the burden
on the defendant of appearing, 2) the forum state’s interest in
adjudicating the dispute, 3) the plaintiff’s interest in
obtaining convenient and effective relief, 4) the judicial
system’s interest in obtaining the most effective resolution of
the controversy and 5) the common interests of all sovereigns in
promoting substantive social policies.
Burger King Corp., 471
U.S. at 477.
2.
Application
In this case, the personal jurisdiction analysis is
confounded by the parties’ contradicting allegations.
Provanzano
claims that the defendants are present in Massachusetts regularly
to transact business, attend horse shows, solicit customers,
advertise and sell Parker’s horses.
Provanzano alleges that he
first met Turner at a horse show in Springfield, Massachusetts in
1998 where Turner sold him a horse.
Turner also then allegedly
asked Provanzano to board his horse at his facility in New
Hampshire, which Provanzano did.
Plaintiff maintains that Parker
regularly transacts business in Massachusetts on her own accord
and solicits business in Massachusetts through 1) advertisements
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in the national magazine Saddle Horse Report which is distributed
in Massachusetts and 2) her agent, Turner.
Provanzano also
claims that Turner introduced Parker to Provanzano at a horse
show in Springfield, Massachusetts in 2006 where they discussed
the prospect of transporting Mild Emotion to Kentucky for
treatment.
Defendants deny all of those allegations.
Although they
agree that Turner suggested Parker’s facility as an appropriate
location for Mild Emotion’s recovery, they maintain that Parker
has never met Provanzano in person and that Mild Emotion was
shipped to Kentucky solely on plaintiff’s initiative.
In her affidavit, Parker states that neither she, nor any of
her employees, traveled to Massachusetts in 2006 to meet with
Provanzano regarding Mild Emotion.
She attests that she has
never met Provanzano personally and that it was only after Mild
Emotion arrived in Kentucky that she discussed with Provanzano by
telephone how much he would pay for boarding Mild Emotion at her
facility.
Invoices for her services were sent to Provanzano’s
address in Massachusetts but Parker maintains that she did not
solicit Provanzano’s business either by contacting him or by
sending him promotional materials.
Her only business-related
trip to Massachusetts was in 2007, to attend one horse show with
a client.
In his affidavit, Turner states that he began training Mild
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Emotion in 2003 in New Hampshire.
At Provanzano’s request,
Turner suggested Parker View Farms as a place where the horse
could board in Kentucky but Turner maintains that the horse was
sent to Kentucky on Provanzano’s own initiative.
Turner denies
that he or any of his employees met with Provanzano in
Massachusetts at that time and asserts that he did not regularly
communicate with Provanzano after Mild Emotion was transported to
Kentucky.
Provanzano proffers only his verified complaint in support
of his jurisdictional allegations in which he alleges that he met
Parker and Turner at a horse show in Massachusetts.
A verified
complaint signed under the pains and penalties of perjury is,
however, treated as an affidavit.
See Rainwater v. Alarcon, 268
Fed. Appx. 531, 534 (9th Cir. 2008).
Because the Court must
accept plaintiff’s properly supported allegations as true, it
finds that Provanzano has stated a sufficient basis for specific
personal jurisdiction.
That is so because, where someone
voluntarily sends a representative into a state for his own
commercial advantage and for the purpose of entering into a
contract with a resident of that state, the purposeful availment
prong is satisfied.
See Foster-Miller, Inc. v. Babcock & Wilcox
Canada, 46 F.3d 138, 145 (1st Cir. 1995).
Whereas this action
arose out of that alleged meeting, the relatedness prong is also
satisfied.
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With respect to the Gestalt factors, the Court finds that
requiring the defendants to litigate in Massachusetts does not
offend traditional notions of fair play and substantial justice.
The First Circuit has held that the first factor is “only
meaningful where a party can demonstrate some kind of special or
unusual burden.”
Pritzker, 42 F.3d at 64.
Massachusetts is a
less burdensome venue for Turner than is Kentucky.
Although it
is more difficult for Parker to litigate in Massachusetts, it
does not present an unreasonable burden.
See id. (finding that
travel between New York and Puerto Rico was not a special or
unusual burden).
With respect to the second factor, Massachusetts has an
interest in adjudicating the dispute because it involves a
business relationship with a Massachusetts resident and the
application of a Massachusetts statute.
The third factor clearly
weighs in favor of the exercise of personal jurisdiction because
the plaintiff is a resident of Massachusetts.
With respect to
the fourth factor, in most cases between private litigants, such
as the instant action, the “interest of the judicial system in
the effective administration of justice does not appear to cut in
either direction”.
Sawtelle, 70 F.3d at 1395.
Finally, under
the fifth factor, the social policy in favor of protecting
consumers in Massachusetts counsels in favor of exercising
jurisdiction.
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In sum, the Court finds that Provanzano has sufficiently
alleged specific personal jurisdiction and his complaint will not
be dismissed on that basis.
B.
Motion to Dismiss for Failure to State a Claim
1.
Standard
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).
Bell Atl. Corp. v.
In considering the merits of
a motion to dismiss, the Court may look only to the facts alleged
in the pleadings, documents attached as exhibits or incorporated
by reference in the complaint and matters of which judicial
notice can be taken.
Nollet v. Justices of the Trial Court of
Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248 F.3d
1127 (1st Cir. 2000).
Furthermore, the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor.
Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).
If the
facts in the complaint are sufficient to state a cause of action,
a motion to dismiss the complaint must be denied.
See Nollet, 83
F. Supp. 2d at 208.
Although a court must accept as true all of the factual
allegations contained in a complaint, that doctrine is not,
however, applicable to legal conclusions.
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Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009).
Threadbare recitals of the legal
elements, supported by mere conclusory statements, do not suffice
to state a cause of action.
Id.
Accordingly, a complaint does
not state a claim for relief where the well-pled facts fail to
warrant an inference of any more than the mere possibility of
misconduct.
2.
Id. at 1950.
Application
Defendants argue that plaintiff has failed to state a claim
upon which relief can be granted under Mass. Gen. Laws ch. 93A
because he is not a “consumer”, which is defined as a “person who
purchases or leases goods or services or property, real or
personal, primarily for personal, family or household purposes.”
Slaney v. Westwood Auto, Inc., 322 N.E.2d 768, 777 (Mass. 1975).
Defendants argue that Provanzano viewed the breeding of Mild
Emotion as a business rather than a personal endeavor.
In any
event, Provanzano’s intent is a question of fact which will not
be resolved on a motion to dismiss.
Because plaintiff’s
allegations must be taken as true, Provanzano has stated a claim
upon which relief can be granted.
C.
The Kentucky Action
The defendants argue that, because the Chapter 93A issue
will be litigated in the Kentucky Action, the plaintiff will
suffer no prejudice if this case is stayed or dismissed.
They
argue that the first-to-file rule applies here and warrants the
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dismissal of this action.
The first-to-file rule provides that
where two suits involve the same issues, and prosecution
of both would entail duplicative litigation and a waste
of judicial resources, the first filed suit is generally
preferred.
Cordell Eng’g v. Picker Int’l Inc., 540 F. Supp. 1316, 1318 (D.
Mass. 1982).
The Court finds, however, that the first-to-file
rule does not apply here because that rule applies only when both
cases are filed in federal court.
See, e.g., World Energy Alts.
v. Settlemyre Indus., Inc., 671 F. Supp. 2d 215, 218 (D. Mass.
2009).
Thus, the Court will not dismiss this action on the basis
of the first-to-file rule.
Nevertheless, given the fact that the two suits arise from
the same nucleus of operative facts, involve the same parties and
both seek a determination of liability of Turner and Parker for a
violation of Chapter 93A, one alternative would be for this Court
to stay the litigation pending the outcome of the Kentucky
Action.
United States District Courts have the discretionary
power to stay proceedings, Landis v. North Am. Co., 299 U.S. 248,
254-55 (1936), but, under the “Colorado River Doctrine”, a
district court should stay its proceedings pending the resolution
of a concurrent state court proceeding arising from the same
facts only if “extraordinary circumstances” are present.
v. Grp. Ins. Comm’n, 290 F.3d 1, 10 (1st Cir. 2002).
Currie
The First
Circuit looks at a number of factors in determining whether
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extraordinary circumstances exist, including:
(1)
(2)
(3)
(4)
(5)
(6)
whether either court has assumed jurisdiction over
a res;
the inconvenience of the federal forum;
the desirability of avoiding piecemeal litigation;
the order in which the forums obtained jurisdiction;
whether federal law or state law controls; and
whether the state forum will adequately protect the
interests of the parties.
Id.
The Court finds that this case does not present
extraordinary circumstances justifying a stay.
Weighing against
a stay are the facts that 1) the Kentucky Action was filed in
anticipation of this lawsuit, 2) the claims in the two cases are
not identical, 3) process has yet to be served in the Kentucky
Action (albeit ostensibly due to Provanzano’s avoidance of the
process server) and 4) this case involves the application of a
Massachusetts statute.
Moreover, the Court need not be concerned
about inconsistent judgments here because the doctrine of res
judicata can be employed if one court renders a judgment before
the other.
See Kelly Inv., Inc. v. Cont’l Common Corp., 315 F.3d
494, 498-99 (5th Cir. 2002).
In sum, the Court declines to
dismiss or stay the litigation.
V.
Motion for a Protective Order
Defendants seek a protective order requiring Provanzano to
withdraw his discovery requests because there has been no Fed. R.
Civ. P. 26(f) conference.
Indeed, Fed. R. Civ. P. 26(d) provides
that a party cannot seek discovery “from any source before the
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parties have conferred as required by Rule 26(f)” unless it falls
into a number of exceptions delineated in Fed. R. Civ. P.
26(a)(1)(B).
Defendants argue that plaintiff is attempting to
use discovery to harass and annoy them while he evades service of
the complaint in the Kentucky Action.
Plaintiff opposes the
motion, stating that he filed routine discovery requests in order
to obtain evidence relevant to his opposition to the motion to
dismiss.
Because the Court will deny the motion to dismiss, discovery
related to opposing that motion is unnecessary.
Furthermore, the
Court will promptly set a date for the Fed. R. Civ. P. 26(f)
scheduling conference.
Thus, the motion for a protective order
will be allowed.
ORDER
In accordance with the foregoing,
1)
plaintiff’s motion to remand and for attorney’s fees
(Docket No. 11) is DENIED;
2)
defendants’ motion to dismiss (Docket No. 3) is DENIED;
3)
defendants’ motion for a protective order (Docket No.
14) is ALLOWED; and
4)
Attorney Andrew S. Breines is directed to file a notice
of appearance in this case.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated June 16, 2011
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