BERGUS v. FLORIAN

Filing 102

Judge Douglas P. Woodlock: MEMORANDUM REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT entered(Woodlock, Douglas)

Case 1:18-cv-10323-DPW Document 102 Filed 10/13/22 Page 1 of 34

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BORIS O. BERGUS,
Plaintiff,
v.
AGUSTIN M. FLORIAN
Defendant.

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CIVIL ACTION NO.
18-10323-DPW

MEMORANDUM
REGARDING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
October 13, 2022
Some 20 months after Dr. Agustin M. Florian, the defendant
in this action, brought a state court employment compensation
action against Dr. Boris O. Bergus, his former colleague in
medical practice, Dr. Bergus in turn brought this action against
Dr. Florian, alleging violation of Massachusetts securities law
and breach of fiduciary duty.

The case before me arises from

Dr. Bergus’s investments in a Peruvian company controlled by Dr.
Florian’s brother-in-law, Señor Castro Baca.
also a shareholder in that company.
summary judgment.

Dr. Florian is

Dr. Florian has moved for

For the reasons that follow, I will deny Dr.

Florian’s motion for summary judgment as to Dr. Bergus’s
Massachusetts securities law claims but grant the motion as to
Dr. Bergus’s claims of a breach of fiduciary duty.

Case 1:18-cv-10323-DPW Document 102 Filed 10/13/22 Page 2 of 34

I. BACKGROUND
A.

Factual Background1
1.

The Parties

The plaintiff Dr. Boris Bergus, a Florida resident, is a
physician who maintains a medical practice through his principal
office in Norwood, Massachusetts.

The defendant Dr. Agustin

The basic factual background set forth in this section is
essentially undisputed unless otherwise noted, and all
inferences are drawn in the light most favorable to Dr. Bergus,
the non-moving party with respect to Dr. Florian’s summary
judgment motion. Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st
Cir. 2008). In this Memorandum, in considering the facts based
on the summary judgment record submitted in 2020, I additionally
will refer to Dr. Florian’s supplemental summary judgment filing
[Dkt. No. 97] and Dr. Bergus’s response [Dkt. No. 99], and
affidavits of record in the case, even if not submitted
specifically for the summary judgment matter now before me.
Carmona v. Toledo, 215 F.3d 124, 132 n.7 (1st Cir. 2000) (“An
affidavit of a party that is on file in the case will be
considered by the court regardless of the purpose for which it
was prepared and filed.” (internal quotations and citation
omitted)). Dr. Bergus opposed [Dkt. No. 99] Dr. Florian’s
motion for leave to supplement the summary judgment record [Dkt.
No. 97] and moved to strike his second affidavit and the
accompanying exhibits filed in support of his sur-reply to Dr.
Bergus’s second motion for attachment [Dkt. No. 89]. I will
deny Dr. Bergus’s efforts to strike, and overrule his objection
to the supplemental summary judgment evidence [Dkt. Nos. 89,
99]. See Suzuki v. Abiomed, Inc., No. 16-12214-DJC, 2019 WL
109340, at *7 (D. Mass. Jan. 4, 2019) (citing OFI Int’l, Inc. v.
Port Newark Refrigerated Warehouse, No. 2:11-cv-06376 (WJM),
2015 WL 140134, at *1 (D.N.J. Jan. 12, 2015) (explaining that
“[f]ollowing the 2010 amendments to Rule 56, a motion to strike
is no longer a proper means of attacking the admissibility of
summary judgment evidence” and construing a motion to strike
certain summary judgment evidence as a Rule 56(c) objection).
While the supplemental filings are marbled with overwrought
argument and conclusory assertions, I have considered only the
underlying factual dimensions to those filings. See infra note
8.
1

2

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Florian was born in Peru, where he once ran for president and
has many connections.

Dr. Florian later moved to the United

States and has been a practicing surgeon in this country since
1966.

He started to work on a contract basis as a physician at

Dr. Bergus’s Norwood office in 2011.

He quit in October 2015

and filed a lawsuit on April 21, 2016 in Massachusetts Superior
Court against Dr. Bergus and his practice, Encompass Care
Company, Inc., for employment-related claims.

Florian v. Bergus

et al., Norfolk Super. Ct. No. 1682CV00516 (filed Apr. 21,
2016).2

Following the filing of a motion for summary judgment by Dr.
Bergus in the parties’ state case, the case was continued
repeatedly at the request of the parties and with the agreement
of the state court. On their face, the principal claims in the
state court matter and in this case do not overlap. Dr.
Florian’s complaint in the state case asserts that he was not
paid sufficiently for his services while employed at Dr.
Bergus’s medical practice. The state matter is, in essence, a
contractual dispute over the payment due to Dr. Florian under
the parties’ “Independent Contractor Agreement.” It appears,
however, the parties’ state employment contract dispute, in
which Dr. Florian made claims against Dr Bergus, led to Dr.
Bergus’s instant action before me, where Dr Bergus in turn sued
Dr. Florian relating to Dr. Bergus’s investments in a company
run by a member of Dr. Florian’s family. This connection
between the initially filed state case and this later filed case
was made explicit by an abuse of process counterclaim filed by
Dr. Florian in response to the Complaint in this case. The case
before me, Dr. Florian contends, has been filed in retaliation
for the state action. I denied Dr. Bergus’s motion to dismiss
this counterclaim in May 2018, and then upon reconsideration in
June 2018, observing at the hearing on the motion that the
question of ulterior or improper purpose in the case before me
would be best addressed following the outcome of the state case.
2

3

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In September 2012 and in May 2014 when Dr. Florian was
still working with Dr. Bergus, Dr. Bergus signed two contracts
to invest $125,000 and $250,000, respectively, in a Peruvian
company named Esperapal Juliaca Caracoto, S.A. (“Company”) that
operates a water and sewer project in Peru.

The Company’s

President, Señor Castro Baca, is Dr. Florian’s brother-in-law.
Señor Baca acts alone in the management role at the Company.
Dr. Florian is the only other shareholder of the Company apart
from Dr. Bergus and Señor Baca.

Because Dr. Bergus does not

speak Spanish and Señor Baca does not speak English, the only
way for Dr. Bergus to communicate in person with Señor Baca has
been through translation by Dr. Florian.
2.

First Investment in September 2012

In the late summer of 2012, Dr. Florian approached
Dr. Bergus about an investment opportunity in the Company.3

This

was the first time the two discussed any investment in Peru.
Dr. Florian told Dr. Bergus over the telephone that he had a
great opportunity for Dr. Bergus to invest in a water project
that Señor Baca’s company was pursuing.
have Dr. Bergus invest $125,000.

Dr. Florian sought to

Dr. Bergus learned that Dr.

Florian himself had invested $1 million in the Company.

Dr. Florian disputes that he approached Dr. Bergus. Rather, he
has testified that it was Dr. Bergus who first asked Dr. Florian
about investments in Peru and inquired if “he could invest in
that company.”
3

4

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Dr. Florian also told Dr. Bergus that the Company “ha[s] the
exclusive government contracts in place to supply water and
sewer services to one locale and [they] own the land on which
the water treatment plant and sewer treatment plant would be
developed.”4

Dr. Bergus then decided to invest without any due

diligence on his part because of his trust in Dr. Florian.
On September 24, 2012, Dr. Bergus received an email from
Señor Baca (titled “Partnership Agreement and Private Investment
Contract”) attaching a signed contract in English for Dr.
Bergus’s investment of $125,000 in the Company in exchange for
2.5% of the Company’s ownership interests (“September 2012
Contract”).5

This email, according to Dr. Bergus, was the first

The quoted language is from Dr. Bergus’s Affidavit in support
of his First Motion for Real Estate Attachment.
At his deposition, Dr. Bergus also stated the following:
Q How did Dr. Florian verbally offer you a contract?
A Dr. Florian approached me and said that he has -him and his brother have a well project going on in
Peru. All contracts and all land are owned. They need
a little extra cash to get through some of the
government bureaucracies and I’m going to get a
substantial return of my money. Would I be interested
in this investment? “I have checked this out. This is
a very good investment. Everyone is on the level here.
The government’s on board here. It’s a very stable
investment. We can get a return on this very quickly.”
That’s how it was offered to me.
5 In the email, Señor Baca stated:
Dear Dr. Bergus,
We are pleased to adress [sic] and welcome you as a
new partner of our company as we honored that you are
part of it. I hope soon to have the pleasure of meeting
you, hopefully you’ll come to Peru, or when I travel to
the U.S. I am forwarding the contract duly signed with
4

5

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communication he ever had with Señor Baca.6

Dr. Bergus

countersigned the contract and wired the funds to Señor Baca the
next day.
The September 2012 Contract stated that the Company “has
been developing for three years a comprehensive mega project of
water and sewage in the city of Juliaca ... which to date is in
its final stage” and “has acquired land of 100,000 square meters
to develop the treatment plant for the water area and 60,000
square meters to implement the treatment plant for wastewater
(sewage).”
According to Dr. Bergus, Dr. Florian failed to inform
Dr. Bergus that, contrary to the contract language, the Company
had in fact shelved the project in Juliaca by 2012.

Although

the Company secured the concession, i.e., the right to exploit
the land, from the city of Juliaca in December 2010, Señor Baca

all important specifications and information you need to
know.
My brother in law Gus has given us the best references
and reliability of you.
Best regards,
Sincerely,
Jose Antonio Castro Baca
CEO Eps Eserapal Juliaca Sac
6 According to Señor Baca, however, he had met Dr. Bergus in
April 2012 before Dr. Bergus signed the September 2012 Contract
when Señor Baca was in the United States for his mother’s
birthday. It was during their in-person meetings in April 2012,
Señor Baca and Dr. Florian contend, that Dr. Bergus offered to
invest in the Company. I address Dr. Florian and Señor Baca’s
April 2012 contentions infra Section II.B.1.b.
6

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has testified that the project in Juliaca was delayed and the
Company “had to go to a different district [in Caracoto] and
start again” because the mayor in Juliaca asked for bribes
“through 2011, and ’12.”7

Señor Baca also testified that he told

both Dr. Bergus and Dr. Florian about the bribes and the
subsequent development.
In addition, Dr. Bergus claims that the Company did not own
any of the 160,000 square-meter land specified in the September
2012 Contract, and thus Dr. Florian made a misrepresentation
when approaching Dr. Bergus.

Dr. Bergus produced eight negative

certificates of real property issued by the Peruvian registry,
which show no deeds of land ownership “registered or
provisionally registered” in the name of the Company at any time
from December 2010 to the 2018 dates of the eight certificates.8

In particular, Señor Baca testified:
A: Can I add some? The mayor asked for some money and we didn’t
give it to him and through 2011 and ‘12, ‘12, he tried to
eliminate this and we did not want to enter discussion and
problems with the mayor through 2012, 2012.
Q: This development with the mayor requesting money that you
did not pay, did you tell Dr. Bergus and Dr. Florian of
this development?
A: Of course. It was a shame.
Q: Did it -- did the fact that the mayor was demanding money
from the company, did it delay progress of the company?
A: Totally. And we had to go to a different district and start
again.
8 Dr. Florian challenges the probative value of these
certificates. To prove land ownership, Dr. Florian produced a
deed [Dkt. Nos. 83-4; 83-5] that shows the Company owned the
land at issue as of April 9, 2015. At the hearing regarding
this summary judgment motion, Dr. Florian’s counsel further
7

7

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Señor Baca further admitted at the deposition that the Company
did not own any land by September 2012.9

There appears no direct

evidence, however, that Dr. Florian, as distinguished from Señor
Baca, knew that the Company did not actually own the land as of
April 2012.10

Dr. Florian instead averred that “it was [his]

suggested that land ownership in Peru may not be registered
contemporaneously due to the country’s unstable political
circumstances. Dr. Bergus’s April 15, 2020 motion to strike
[Dkt. No. 89] centers on Dr. Florian’s second affidavit and
affiliated exhibits [Dkt. No. 83] filed in support of his surreply [Dkt. No. 84] in opposition to Dr. Bergus’s second motion
for attachment [Dkt. No. 69]. Dr. Florian filed the 2015 deed
along with his affidavit. As I explained during the June 10,
2020 summary judgment hearing, Dr. Florian’s knowledge as of
2015 is not material, nor is the more specific question of
ownership of the property at that time. It appears that nothing
in Dr. Florian’s affidavit contradicts his prior testimony;
rather the affidavit is an effort to explain it further. See
Patten v. Metro. Prop. & Cas. Ins. Co., __F. Supp. 3d__, 2022 WL
2118323, at *2 (D.N.H. June 13, 2022). However, “to the extent
that [Dr. Florian’s] affidavit includes [] conclusory statements
not based upon personal knowledge, those statements will be
given no weight in [support of his] motion for summary
judgment.” Reynolds v. Steward St. Elizabeth’s Med. Ctr. of
Bos., Inc., 364 F. Supp. 3d 37, 58 (D. Mass. 2019). That said,
I will deny Dr. Bergus’s Motion to Strike. [Dkt. No. 89] See
supra note 1.
9 Señor Baca testified in response to questions at his
deposition:
Q: So let’s talk about land ownership. You testified earlier
that as of September 24, 2012, the company did not, in
fact, own 160,000 square meters of land, correct?
A: Of course not.
At an earlier deposition, however, Señor Baca seemed to provide
contradictory testimony that the Company owned some land in
September 2012.
10 Señor Baca admitted telling Dr. Bergus, presumably through Dr.
Florian, that the Company was still “looking for land” as
referenced in the September 2012 Contract. But reading the
record in the light most favorable to Dr. Bergus, any such
conversation would have to have taken place after Dr. Bergus
8

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knowledge that the Company owned the land” as referenced in the
contract.
3.

Second Investment in May 2014

In early 2014, Dr. Florian told Dr. Bergus that the
Company’s project had expanded and now had contracts with two
cities, both Juliaca and Caracoto.

He informed Dr. Bergus that

Señor Baca was coming to the United States to seek an additional
investment from Dr. Bergus.

In April 2014, Señor Baca, Dr.

Bergus, and Dr. Florian had a meeting in Norwood, Massachusetts.
At the meeting, Señor Baca asked Dr. Bergus to invest an
additional $250,000.11
On May 7, 2014, Dr. Florian forwarded to Dr. Bergus an
email from Señor Baca dated April 29, 2014 (purportedly to Dr.
Bergus but with an incorrect address) offering an additional 5%
interest in the Company for the $250,000.

Dr. Bergus replied to

Dr. Florian “Thank you” and then informed Dr. Florian that he
rejected the 5% offer and requested more.

Dr. Florian told

Dr. Bergus that he would need to discuss this with Señor Baca.

signed the September 2012 Contract, because Dr. Bergus denies
having communicated with Señor Baca directly prior to that date.
11 According to Señor Baca, it was Dr. Bergus who offered to
invest another $350,000 during the April 2014 meeting after
Señor Baca showed Dr. Bergus the resolution for the concession
to develop the water project in Caracoto. They then negotiated
the terms for an additional investment of $250,000, in part,
“face to face” and in part translated through Dr. Florian.
9

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Over the next few days, Dr. Bergus and Dr. Florian discussed a
new agreement that would replace the September 2012 investment
contract.

Under the new agreement, Dr. Bergus would get a total

of 9% interest in the Company in exchange for $375,000, of which
$250,000 was to be his new investment.

On May 13, 2014,

Dr. Florian forwarded to Dr. Bergus another email from Señor
Baca (again to an incorrect address for Dr. Bergus) attaching a
new investment contract dated May 12, 2014 (“May 2014
Contract”).

Dr. Bergus countersigned the May 2014 Contract.

On

May 20, 2014, Dr. Bergus wired $250,000 to Señor Baca.
The May 2014 Contract stated that “[the Company] has been
developing for more than three years a comprehensive mega
project of water and sewage in the cities of Juliaca and
Caracoto ... which to date is in its final stage.”

Further, the

Company “has gained [an] Exploitation Concession Contract Water
and Sewerage for Fifty years granted by the Provincial Council
of San Roman-Juliaca ... [And a]s of today the [C]ompany has
three pieces of land of: 100,000, 160,000 and 40,000 square
meters to develop three Potable Water Treatment Plants ... [and]
another piece of land of 60,000 square meters to implement the
Wastewater Treatment Plant (sewage).”
According to Dr. Bergus, Dr. Florian again misrepresented
the scope of the project and the land ownership when Dr. Bergus
made this new investment in 2014.
10

As to the scope of the

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project, Señor Baca testified that he told Dr. Bergus through
Dr. Florian during the April 2014 meeting that the Company was
pursuing the project solely in Caracoto by that time, and the
Juliaca project was only possible if the Company could “get the
Caracoto project going.”12

Dr. Florian, however, testified that

he told Dr. Bergus that the project had expanded to include both
cities.13

12

13

Señor Baca testified in response to questioning:
Q: Is it your testimony, Senor Baca, that at this April 2014
meeting, you told Dr. Bergus in Spanish that the company
was proceeding solely with the new Caracoto project?
...
A: I ––
Q: Well, you spoke in Spanish.
A: No, it must have been in English because he doesn’t speak
Spanish. So my brother-in-law must have told him that,
because, yes, I spoke in Spanish.
...
Q: Is it your testimony that at this April 2014 meeting, you
told Dr. Bergus that the company was proceeding solely with
the new Caracoto project?
A: Of course, because we were ready to finish everything and
to obtain everything. And I also told him that if we were
going to be able to get the Caracoto project going, then we
were going to also get the Juliaca project and then we were
going to have more profit.
Dr. Florian testified in response to questioning:
Q: So is it your testimony, sir, that you told Boris that the
project was changing from San Roman-Juliaca to just
Caracoto?· Is that your testimony, sir?
A: No, that's not.· I didn't tell, told, I said I have changed
the name, the denomination of the company.· From Juliaca to
Juliaca Caracoto.
Q: You told Boris that the project had expanded -A: Yes.
Q: -- correct?
A: Yes.
Q: It included both San Roman-Juliaca, correct?
A: Yes.
11

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As to the land ownership, the May 2014 Contract referenced
three pieces of land14 (two of them were mentioned in the
September 2012 Contract) with a total of 360,000 square meters.
The eight negative certificates Dr. Bergus obtained from the
Peruvian registry, as noted above, show no deeds of land
ownership registered under the Company at any time from 2010 to
2018.

Señor Baca also concedes that as of May 2014, the Company

did not own the 360,000 square meters of land as referenced in
the contract.15

According to Señor Baca, the Company had owned

the land at one point but was forced to return it to the
communities later in 2015 due to local strife with the

Q: And the City of Caracoto?
A: Yes.
14 The May 2014 Contract refers to “three pieces of land:
100,000, 160,000 and 40,000 square meters” and “[a]nother piece
of land of 60,000 square meters.” [Dkt. No. 48-12] Señor Baca
testified that the May 2014 Contract referred, in total, to
three parcels of land, despite describing four separate pieces.
[Dkt. No. 48-8, Baca Dep. Tr. at 16:8–17:5]
The 2012 Contract
notes two pieces of land, “100,000 square meters to develop the
treatment plant for the water area and 60,000 square meters to
implement the treatment plant for wastewater (sewage).” [Dkt.
No. 48-25]
15 Señor Baca testified:
Q: So as of May 2014, when Dr. Bergus signed the second
investment contract, [the company] did not own three
parcels of land totaling 360,000 square meters?
A: Yeah, false. I had a -- I had a pre-contract that was
signed by the parts -- by the parties and that was signed
before the deed was issued, and I can offer to present it
here.
At an earlier deposition, however, Señor Baca seemed to
provide contradictory testimony that the Company owned the land
at issue in May 2014.
12

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government.16

While Dr. Florian contends he believed at the time

that the Company did own the land as referenced in the May 2014
Contract, Señor Baca’s testimony appears to suggest that he
attempted to convey the lack of ownership information to Dr.
Bergus through Dr. Florian during their meetings in 2014.17
The parties dispute also whether Dr. Florian received a
6.5% stock kicker as a result of Dr. Bergus’s second investment
in 2014.

Public filings show that Dr. Florian owned 15% of the

Company at its founding in 2010 and the percentage remained the
same at least until the shareholder meeting on May 16, 2014,
reflected in the Official Minutes.18

According to Dr. Bergus, in

April and May 2014, Dr. Florian told Dr. Bergus that Dr. Florian

Señor Baca contends that since the land dispute with the
communities “was resolved by an extra judicial resolution,” the
information did not show up in the Peruvian official registry.
17 For example, Señor Baca stated:
Q: This is a meeting in April 2014 in Massachusetts, correct?
A: I -- those -- that land was not mine, or it was not -- it
didn’t belong to the company either. I showed [Dr. Bergus]
pictures of the land that we were trying to acquire and -and I gave you the deeds of those. I gave them here. I
submitted them here and then I also gave Boris copies of
that.
Also, with reference to a meeting with Dr. Bergus, likely in
April 2014, Señor Baca testified:
Q: Explain to me the facts and circumstances that lead up to
this next investment of $250,000.
A: At 2014 when I -- I visit him and I show him that we have
obtain the concession and I show him that we needed to make
donations to the community and they would give us three
pieces of land ...
18 Dr. Bergus has also pointed out that Dr. Bergus’s 2.5%
interest from his first investment in 2012 was not reflected in
the Official Minutes.
16

13

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would get “something” if Dr. Bergus invested the additional
$250,000.

On September 2, 2014, after Dr. Bergus made the

second investment, Dr. Florian entered into the “Partnership and
Private Investment Contract” with Señor Baca in Peru.

The

contract “declares that 21.5% of the company’s total share
capital now belongs to [Dr. Florian].”
According to Dr. Florian, however, his increase of 6.5%
happened in 2011, before any of Dr. Bergus’s investments.

The

increase in his interest was memorialized in the “Investment
Recognition and Transfer Contract” dated March 10, 2011.

That

contract indicated that Dr. Florian was granted the additional
6.5% interest in the Company because he previously invested
$100,000 in a separate, unrelated, venture.
B.

Procedural History
On February 20, 2018, Dr. Bergus filed a verified

complaint19 commencing this action against Dr. Florian.

On March

22, 2018, Dr. Florian filed his answer and counterclaimed
against Dr. Bergus for abuse of process.

After I denied Dr.

Bergus’s motion to dismiss Dr. Florian’s counterclaim, the

A verified complaint may be “treated as the functional
equivalent of an affidavit.” Sheinkopf v. Stone, 927 F.2d 1259,
1262 (1st Cir. 1991). Accordingly, I have considered it as
providing evidence of record in connection with the summary
judgment record.
19

14

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parties undertook discovery.

Thereafter, Dr. Florian filed the

instant motion for summary judgment.20
II. ANALYSIS
A.

Standard of Review
Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

FED. R. CIV. P. 56(a).

”A dispute

is ‘genuine’ if ‘a reasonable jury could resolve the point in
favor of the nonmoving party.’”

Staples v. Gerry, 923 F.3d

7,12–13 (1st Cir. 2019) (quoting Meuser v. Fed. Express Corp.,
564 F.3d 507, 515 (1st Cir. 2009)).

“A fact is material only if

it possess[es] the capacity to sway the outcome of the
litigation under the applicable law.”

Vineberg v. Bissonnette,

548 F.3d 50, 56 (1st Cir. 2008) (internal quotation and citation
omitted).
Assessing the merits of a motion for summary judgment, I
“resolve all conflicts and draw all reasonable inferences in the

On January 16, 2020, Dr. Bergus filed a second motion for writ
of attachment [Dkt. No. 69], which I had taken under advisement
pending the disposition of this summary judgment motion. I had
referred Dr. Bergus’s first attachment motion to Magistrate
Judge Jennifer C. Boal, who issued a Report and Recommendation
on November 21, 2019, recommending denial of that motion for
writ of attachment. The Report and Recommendation became moot
after I granted Dr. Bergus’s withdrawal of his first attachment
motion. At a scheduling hearing on October 12, 2022, the
parties reported that the second motion for a writ of attachment
was rendered moot by a sale of the subject property immediately
after the June 10, 2020 summary judgment hearing in this case.
20

15

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nonmovant’s favor.”

Id.

Nevertheless, the nonmovant must do

more than “rest upon conclusory allegations, improbable
inferences, and unsupported speculation” and provide
“submissions of evidentiary quality” to meet the burden.

Id.

(internal quotations and citations omitted).
B.

Massachusetts Uniform Securities Act
Dr. Bergus claims that Dr. Florian is liable to him under

the Massachusetts Uniform Securities Act, specifically MASS. GEN.
LAWS ch. 110A, § 410(a)(2),21 because Dr. Florian solicited Dr.
Bergus to make the two investments, separately in 2012 and in
2014, by misrepresentation.
Under § 410(a)(2), a plaintiff must establish: “(1) the
defendant offer[ed] or [sold] a security; (2) in Massachusetts;
(3) by making any untrue statement of a material fact or by
omitting to state a material fact; (4) the plaintiff did not
know of the untruth or omission; and (5) the defendant knew, or
in the exercise of reasonable care [would] have known, of the
untruth or omission.”

Marram v. Kobrick Offshore Fund, Ltd.,

In his Complaint, Dr. Bergus appears also to allege violations
of GEN. LAWS ch. 110A, § 410(a)(1), relating to registration
requirements, and of § 410(b), relating to secondary liability,
but he does not address any of those theories in his memoranda
opposing summary judgment. Consequently, I do not address those
theories in connection with the motion now before me. Baltodano
v. Merck, Sharp & Dohme (I.A.) Corp., 637 F.3d 38, 43–44 (1st
Cir. 2011) (Thompson, J.) (explaining that a court may only
address summary judgment sua sponte in limited situations).
21

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809 N.E.2d 1017, 1026 (Mass. 2004) (internal quotations and
footnote omitted) (quoting MASS. GEN. LAWS ch. 110A, § 410(a)(2));
Tutor Perini Corp. v. Banc of America Secs. LLC, 842 F.3d 71, 85
(1st Cir. 2016).

In interpreting § 410(a)(2), the Supreme

Judicial Court of Massachusetts has directed the courts to “look
to Federal decisions under § 12(2) [of the Securities Act of
1933]” for guidance.22

Marram, 809 N.E.2d at 1025; see also

Adams v. Hyannis Harborview, Inc., 838 F. Supp. 676, 684 n.9 (D.
Mass. 1993) (noting that the Massachusetts securities laws “are
substantially similar to the federal securities laws and
therefore decisions construing the federal statutory language
are applicable to the state statute as well”), aff'd sub nom.
Adams v. Zimmerman, 73 F.3d 1164 (1st Cir. 1996).
1.

Whether Dr. Florian Was a “Seller”

Dr. Florian contends, as his flagship argument, that the
undisputed evidence shows as a matter of law that he was not a
statutory “seller” who offered or sold a security to Dr. Bergus.

Section 12(2)of the Securities Act “provides that any person
who ‘offers or sells’ a security by means of a prospectus or
oral communication containing a materially false statement or
that ‘omits to state a material fact necessary to make the
statements, in the light of the circumstances under which they
were made, not misleading,’ shall be liable to any ‘person
purchasing such security from him.’” Shaw v. Digit. Equip.
Corp., 82 F.3d 1194, 1201 (1st Cir. 1996) (quoting 15 U.S.C. §
77l(2)), superseded by statute on other grounds, 15 U.S.C. §
78u–4(b)(1, 2).
22

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§ 410(a)(2).

I cannot agree.

In my review of the record, there

are genuine issues of material fact as to Dr. Florian’s “seller”
status.
a.

Legal Standard for “Seller” Status

A defendant has offered or sold a security within the
meaning of § 410(a)(2) if he (1) “successfully solicits the
purchase” and (2) is “motivated at least in part by a desire to
serve his own financial interests or those of the securities
owner.”

Hays v. Ellrich, 31 N.E.3d 1064, 1071 (Mass.

2015)(citation omitted).

So defined, the term “seller”

encompasses more than the individual who actually transfers
title in a transaction.

Adams, 838 F. Supp. at 686.

Brokers,

agents, and other “persons commonly thought of as those from
whom the buyer ‘purchased’ are sellers under the securities
laws.”

Id.; see Mass. Mut. Life Ins. Co. v. Residential Funding

Co., LLC, 843 F. Supp. 2d 191, 205 (D. Mass. 2012) (citing
Pinter v. Dahl, 486 U.S. 622, 646-47 (1988)).

“The relevant

inquiry for seller liability is the defendant's relationship
with the plaintiff-purchaser, not the defendant’s degree of
involvement in the securities transaction and its surrounding
circumstances.”

Mass. Mut. Life Ins. Co., 843 F. Supp. 2d at

206 (internal quotation and citation omitted).
To establish that a defendant successfully solicited a
purchase, a plaintiff must do more than allege a defendant’s
18

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collateral involvement in the transaction.

“[A] defendant must

be directly involved in the actual solicitation of a securities
purchase. . . .”

Shaw v. Digit. Equip. Corp., 82 F.3d 1194,

1215 (1st Cir. 1996) (discussing § 12 of the Securities Act of
1933), superseded by statute on other grounds, 15 U.S.C. § 78u–
4(b)(1, 2).

Proof that “the defendant caused a plaintiff’s

purchase of a security is not enough.”
U.S. at 651) (emphasis in original).

Id. (citing Pinter, 486

Neither does a defendant’s

“‘remote’ involvement in a sales transaction or his mere
‘participat[ion] in soliciting the purchase’” satisfy the
solicitation element.

Id.

The requirement of actual

solicitation shields “participants[] collateral to the offer or
sale” from liability, including “securities professionals, such
as accountants and lawyers.”

Pinter, 486 U.S. at 650–51.

In addition to the solicitation element, a “seller” must be
“motivated at least in part by a desire to serve his own
financial interests or those of the securities owner.”

Hays, 31

N.E.3d at 1071 (internal quotation and citation omitted).
“Typically, a person who solicits the purchase will have sought
or received a personal financial benefit from the sale, such as
where he anticipates a share of the profits, or receives a
brokerage commission.”

Pinter, 486 U.S. at 654–55 (internal

citation and quotations omitted).

Massachusetts follows those

courts that “have taken a more expansive view of financial gain
19

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that includes increased compensation tied to share price[s] or
company performance” bolstered by new investments.

Hays, 31

N.E.3d at 1072 (quoting In re OSG Secs. Litig., 971 F. Supp. 2d
387, 404, n.119 (S.D.N.Y. 2013)).
b.

Dr. Florian’s Role in the September 2012
Investment

With respect to Dr. Bergus’s first investment in 2012, I
find that there are genuine issues of material fact as to
whether Dr. Florian was a “seller.”
First, there is evidence from which a reasonable jury could
conclude that Dr. Florian solicited the investment.

According

to Dr. Bergus, he never had any communication with Señor Baca
until he received Señor Baca’s email attaching the September
2012 Contract.23
events.
2012.

Dr. Florian disputes Dr. Bergus’s version of

He contends that Dr. Bergus met Señor Baca in April

In this connection, Dr. Florian submits [Dkt. Nos. 97-1;

97-2] immigration documents he asserts demonstrate that Señor
Baca traveled to the United States at that time.
Hr’g Tr. at 3:19–4:21]

[June 10, 2020

I have reviewed Dr. Florian’s

The language of the email would appear to suggest that Señor
Baca had not yet met Dr. Bergus and the investment was only
possible because of Dr. Florian:
“I hope soon to have the pleasure of meeting you, hopefully
you’ll come to Peru, or when i travel to the U.S.
...
My brother in law Gus has given us the best references and
reliability of you.”
23

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submissions, and it appears that the parties in their respective
arguments have overlooked an April 19, 2012 U.S. entry stamp on
Señor Baca’s Peruvian passport24.

See Dkt. No. 97-1 at 14.

Dr.

Florian’s additional submission, which shows Señor Baca’s travel
history between Peru and the United States from April 19 to
April 27, 2012, corroborates the entry stamp.
1]

[Dkt. No. 97-2 at

Accordingly, there is evidence that Señor Baca was in the

United States during the relevant time period.
His presence in the United States, however, does not
resolve whether Señor Baca — but not Dr. Florian — solicited Dr.
Bergus’s initial investment.

The documents do not show the

purpose of Señor Baca’s travel to the United States.

In fact,

the record supports an alternative reason for Señor Baca’s
travel — his mother’s birthday.
at 92:15-21]

[Dkt. No. 48-16, Baca Dep. Tr.

Dr. Florian provides no other documentation that

would allow me to resolve this highly contested issue, and a
trial, not a motion for summary judgment, is the appropriate
vehicle for “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the

I note in this connection, the “B1/B2” stamp layered on top of
the U.S. entry stamp. This “B1/B2” stamp appears to refer to
the type of Visa that an individual is using to enter the United
States. I take judicial notice that B2 refers to tourism. See
FED. R. EVID. 201(b)(2). Thus the “B1/B2” stamp can be read to
refer to the expiration of the B2 visa, which is apparently 6
months after entry.
24

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facts.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).
By “scrutinizing the entire record in the light most
flattering to [Dr. Bergus] and indulging all reasonable
inferences in [his] favor,”

Maldonado-Denis v. Castillo-

Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994), a factfinder could
determine it was Dr. Florian who first approached Dr. Bergus in
April 2012 about the Company and invited Dr. Bergus to invest.
Dr. Florian described the Company as a “great investment
opportunity” and told Dr. Bergus that the Company had exclusive
government contracts and owned the land to develop the water
project.

These facts, if proven, would establish that Dr.

Florian alone had a close “relationship with the plaintiffpurchaser” before Dr. Bergus signed the contract.
486 U.S. at 651.

See Pinter,

Dr. Florian’s words and interaction with Dr.

Bergus can reasonably be viewed as recommending and promoting
the investment opportunity, demonstrating Dr. Florian’s direct
and active role in the solicitation.

See Meadows v. S.E.C., 119

F.3d 1219, 1225 (5th Cir. 1997) (finding defendant solicited
investors when “the record demonstrates [defendant] recommended
the Companies to investors” by characterizing the investment as
a good deal in various ways).
Although there is no evidence that Dr. Florian had a role
in drafting the September 2012 Contract and the evidence
22

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strongly suggests that he did not sign it, Massachusetts
securities law covers not only direct transferrers of interest,
but also those who “successfully solicit[ed] the purchase.”
Hays, 31 N.E.3d at 1071 (citation omitted).

Although Dr.

Florian denied approaching Dr. Bergus in the first place and
Señor Baca insisted that any solicitation took place when he met
Dr. Bergus in person, their testimony underscores that a genuine
dispute exists with Dr. Bergus over material facts.
Second, there is evidence that supports the contention that
Dr. Florian was motivated at least in part by his financial
interests.

It is undisputed that Dr. Florian was a shareholder

of the Company in April 2012, and remained one.

Additional

capital infused into the Company was reasonably expected to
improve its performance.

And because Massachusetts courts have

tied personal financial gains with the company’s general
performance, Dr. Florian, by virtue of being a shareholder, can
be viewed as motivated by an expected enhanced return from the
infused capital.

See Hays, 31 N.E.3d at 1072 (defendant

motivated by personal financial gains when investment increased
the company’s net asset value, which increased his investor
advisory fees.); see also Meadows, 119 F.3d at 1226 (finding
that defendant, as an indirect shareholder of the companies,
“stood to benefit personally from the additional investments he
solicited”); cf. In re OSG Secs. Litig., 971 F. Supp. 2d at 404
23

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(holding that an issuer’s officers and directors were motivated
in part by their financial interests “by virtue of their
continued positions and salaries” where the at-issue company’s
survival was “at stake”).
Dr. Florian contends that Dr. Bergus has presented no
evidence showing the actual change in value for Dr. Florian’s
ownership as a result of Dr. Bergus’s investment.

But that is

not a requirement to qualify as “seller” under the Massachusetts
securities law; solicitors need only “anticipate[] a share of
the profits” from the investment regardless of whether the
profits actually materialize.

Pinter, 486 U.S. at 654–55

(internal quotation omitted).

A seller, to be motivated by

those potential gains, also need only expect improved company
performance that could be linked to personal gains.

See Hays,

31 N.E.3d at 1072 (even though the fund for which an advisor
solicited investment became insolvent, the Supreme Judicial
Court held the advisor to be a “seller” because he expected a
“potential for a long-term increase” in his fees if the fund
performed well).

Here, Dr. Bergus does not need to prove that

the Company’s performance actually improved with the capital
infusion, so long as it was expected.
Genuine issues of material fact therefore exist as to
whether Dr. Florian solicited Dr. Bergus to invest in 2012 and
was motivated in part to serve his own financial interests.
24

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c.

Dr. Florian’s Role in the May 2014 Investment

Because Dr. Florian remained a shareholder of the Company
in 2014 when Dr. Bergus made his second investment, the same
analysis regarding Dr. Florian’s financial interests in
connection with the 2012 transaction also applies to the 2014
transaction.25

The only remaining question regarding Dr.

Florian’s “seller” status is whether Dr. Florian solicited Dr.
Bergus’s 2014 investment.
Dr. Florian maintains that he was merely a translator
throughout the process.

But the record contains sufficient

evidence from which a factfinder could infer that Dr. Florian
acted as more than a conduit for communication.
Before Señor Baca’s meeting with Dr. Bergus in April 2014,
Dr. Florian updated Dr. Bergus regarding the Company’s progress
and, according to Dr. Bergus, brought up the opportunity for
additional investment.

Notably, Dr. Florian told Dr. Bergus

that the Company’s project had expanded to include both Juliaca
and Caracoto.

And after the meeting with Señor Baca, Dr. Bergus

communicated solely with Dr. Florian to negotiate key terms of
the new agreement, in particular the percentage of ownership Dr.

Additionally, the parties dispute whether Dr. Florian received
a 6.5% stock kicker as a result of Dr. Bergus’s 2014 investment.
This presents additional material facts in dispute that, read in
the record in the light most favorable to Dr. Bergus, could
demonstrate Dr. Florian’s additional financial motivation in
soliciting the investment.
25

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Bergus was to receive.

This form of direct interaction between

Dr. Florian and Dr. Bergus without Señor Baca’s involvement
rebuts the contention that Dr. Florian was merely a translator.
There is, moreover, inconsistency between testimony by Dr.
Florian and that by Señor Baca regarding what was translated
during the April 2014 meeting.

For instance, Señor Baca averred

he told Dr. Bergus, through Dr. Florian presumably, during the
meeting that the Company had abandoned the project in Juliaca
rather than pursuing both cities.

Señor Baca also suggested he

attempted to inform Dr. Bergus that the Company did not own the
land.

The evidence of record supports a finding that Dr.

Florian failed to convey that information to Dr. Bergus.

This

further casts doubt on Dr. Florian’s role as a pure translator;
rather, it suggests he was independently refining the
information to be conveyed to Dr. Bergus.
To be sure, the undisputed record shows that Señor Baca was
the primary person who solicited Dr. Bergus’s additional
investment during their meeting in April 2014.

Señor Baca was

apparently also the final decision-maker regarding the sale.
Dr. Bergus recognized, for example, that Dr. Florian would need
to “discuss [Dr. Bergus’s] rejection [of the offer] with [Dr.
Florian’s] brother in law.”

But there can be more than one

“seller” working to solicit a securities purchase.

Unlike in

Capital Ventures International v. J.P. Morgan Mortgage
26

Case 1:18-cv-10323-DPW Document 102 Filed 10/13/22 Page 27 of 34

Acquisition Corp., No. 12-cv-10085-RWZ, 2013 WL 535320, at *7
(D. Mass. Feb. 13, 2013), where the plaintiff alleged only a
“conclusory allegation” that defendants “worked collectively” to
market and sell the securities, Dr. Bergus here has raised
specific, albeit disputed, evidence sufficient to survive a
motion for summary judgment.

Dr. Florian updated Dr. Bergus

regarding the Company’s progress, negotiated contract terms with
him, and restated information conveyed at the meeting.

This

record evidence demonstrates not simply “involvement in
preparation ... [or] participation in activities relating to the
sale of securities,” Shaw, 82 F.3d at 1216 (internal quotation
omitted); it demonstrates direct involvement in the “actual
solicitation,” id. at 1215.
I thus find genuine issues of material fact as to whether
Dr. Florian was a statutory “seller” with respect to both of Dr.
Bergus’s investments.
2.

Whether Dr. Florian Made Misrepresentations

To prevail on his Massachusetts securities law claim, Dr.
Bergus must establish not only that Dr. Florian was a “seller,”
but also that Dr. Florian made some “‘untrue statement of a
material fact,’ or [] omit[ed] to state a material fact.”
Marram, 809 N.E.2d at 1026 (quoting MASS. GEN. LAWS ch. 110A, §
410(a)(2)).

That showing is required before the burden can be

shifted to Dr. Florian to prove his lack of knowledge of the
27

Case 1:18-cv-10323-DPW Document 102 Filed 10/13/22 Page 28 of 34

untruth or omission.26 Id.; see Amorim Holding Financeria,
S.G.P.S., S.A. v. C.P. Baker & Co., Ltd., 53 F. Supp. 3d 279,
296 (D. Mass. 2014) (describing the “burden-shifting mechanism”
under MASS. GEN. LAWS ch. 110A, § 410(a)(2))).
For both transactions, Dr. Bergus focuses on two purported
misrepresentations in opposing the summary judgment: (1) that
Dr. Florian omitted the material fact that the Company had
shelved its project in Juliaca by 2012 due to bribery; and (2)
that Dr. Florian made untrue statements of material fact
representing the Company owned the land referenced in both
contracts.
There is clear dispute in the record as to whether
Dr. Florian omitted material information about the scope of the
project in both 2012 and 2014, and as to whether the Company
actually owned the land at issue.

Further, neither party seems

to argue that these facts are immaterial.

I determine as a

matter of law that viewed from the perspective of the
“reasonable investor,” the disclosure of project location and
land ownership would “significantly alter[] the total mix of
information available” about a company that develops a water

There is no meaningful dispute in this case as to the other
prongs under MASS. GEN. LAWS ch. 110A, § 410(a)(2), namely that the
sales of securities occurred in Massachusetts and Dr. Bergus was
not otherwise aware of the untruth or omission.
26

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project beneath the ground.

Marram, 809 N.E.2d at 1030

(internal quotation omitted).
As the Supreme Judicial Court in Marram recognized, the
Massachusetts securities law “provides strong protections” to
the purchaser by “hold[ing] the seller to the heavy burden of
proof ‘that he did not know, and in the exercise of reasonable
care could not have known, of the untruth or omission.’” 809
N.E.2d at 1026 (quoting MASS. GEN. LAWS ch. 110A, § 410(a)(2))
(citing J.C. LONG, BLUE SKY LAW, § 9:23 at 9-35 (2003) (defendant
sellers are held to an “inverse negligence standard” that is “a
very difficult defense to sustain”)).
Dr. Florian fails to meet this heavy burden with respect to
the question in dispute.

As noted above,27

Señor Baca testified

that during the April 2014 meeting, he conveyed the information
about both the location change and non-possession of the land to
Dr. Bergus through Dr. Florian’s translation.

This, if proven,

would establish Dr. Florian’s knowledge at the time of
solicitation.
Similar attempts to disclose via translation were made by
Señor Baca in 2012,28 although the precise timing of that
conversation is unclear from Señor Baca’s testimony.

Such a

conversation may have happened after Dr. Florian’s solicitation

27
28

Supra footnotes 12 & 17.
Supra footnotes 7 & 10.
29

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in April 2012, given that Dr. Bergus denied ever communicating
with Señor Baca prior to signing the September 2012 Contract.
But even if nothing in the record suggests Dr. Florian’s actual
knowledge as of April 2012, he has not presented undisputed
evidence that, with the exercise of reasonable care, he could
not have known the information.
against Dr. Florian.

Some evidence cuts directly

For example, Dr. Florian travels to Peru

regularly, has political connections there, and maintains a
close relationship with Señor Baca.
shareholder in the Company.

Dr. Florian was also a

In any event, because the

“reasonable care” defense “necessitates an extremely factintensive inquiry ... courts addressing the issue in the
analogous federal securities law context repeatedly state that
[such a] defense generally cannot be resolved on a motion for
summary judgment.”

Mass. Mut. Life Ins. Co. v. DB Structured

Prods., 110 F. Supp. 3d 288, 297 (D. Mass. 2015) (citation and
footnote omitted).
In sum, with respect to both of Dr. Bergus’s investments, I
conclude that a factfinder could reasonably find that Dr.
Florian was a “seller” who misrepresented or omitted material
facts.

Consequently, I will deny Dr. Florian’s motion for

summary judgment as to the Massachusetts securities law claim.

30

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C.

Breach of Fiduciary Duty
To prevail on the breach of fiduciary duty claim under

Massachusetts law29, “a plaintiff must show (1) the existence of
a duty of a fiduciary nature, based upon the relationship of the
parties, (2) breach of that duty, and (3) a causal relationship
between that breach and some resulting harm to the plaintiff.”
Amorim Holding Financeria, S.G.P.S., S.A., 53 F. Supp. 3d at 295

Recently, in Robinhood Financial, LLC v. Galvin, No.
2184CV00884, 2022 WL 1720131, at *1 (Mass. Super. Ct. Mar. 30,
2022) (Ricciuti, J.), a judge of the Massachusetts Superior
Court addressed a fiduciary duty allegation “grounded upon a
regulation adopted by the Secretary [of State of the
Commonwealth],” 950 MASS. CODE. REGS. § 12.207(1)(a) (“the
Fiduciary Duty Rule”). The regulation, for enforcement actions
under MASS. GEN. LAWS ch. 110A, § 204(a)(2)(G), makes it an
“unethical or dishonest conduct or practice” for broker-dealers
to “fail [] to act in accordance with a fiduciary duty to a
customer.” Id. (quoting 950 MASS. CODE. REGS. § 12.207(1)(a)).
Robinhood Financial, LLC challenged the rule, arguing, inter
alia, that it was invalid and “unlawfully overr[ode]
Massachusetts common law.” Id. Judge Ricciuti agreed. Id. at
*2. He explained that the regulation would make “broker-dealers
who are not subject to fiduciary obligations under Patsos [v.
First Albany Corp., 741 N.E.2d 841, 849-52 (Mass. 2001)] . . .
subject to [ ] the [regulatory] Fiduciary Duty Rule.” Id. at
*11. Accordingly, Judge Ricciuti held the rule invalid, noting
there was nothing “suggest[ing] that the Legislature intended to
give the Secretary authority to override existing Supreme
Judicial Court Precedent or. . .re-define familiar securities
concepts through rulemaking.” Id. at *15. The Secretary has
appealed the Superior Court’s judgment. See Def.’s Notice of
Appeal, Robinhood Financial, LLC v. Galvin, No. 2184C0084, ECF
No. 49 (September 8, 2022). Of course, this developing issue
under Massachusetts fiduciary duty law is not directly on point
here because this is not an enforcement action. [Dkt. No. 1 at
¶¶ 89–94] Nevertheless, Robinhood Financial, LLC illustrates
the ongoing demands of adjusting common law fiduciary duty
doctrine to an increasingly statutory-based regime for
regulatory fiduciaries.
29

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(citation omitted).

Dr. Bergus alleges a type of fiduciary

relationship that can be said to be analogous to one between a
stockbroker and a customer.30

The record, however, fails to

support such a fiduciary relationship between Dr. Florian and
Dr. Bergus.
Massachusetts law recognizes that “[a]ssigning general
fiduciary duties only to those stockbrokers who have the ability
to, and in fact do, make most if not all of the investment
decisions for their customers properly provides appropriate
protection only for those customers who are particularly
vulnerable to a broker’s wrongful activities.”
Albany Corp., 741 N.E.2d 841, 851 (Mass. 2001).

Patsos v. First
Courts have

found that no fiduciary relationship exists “[w]here the account
is ‘non-discretionary,’ meaning that the customer makes the

To the extent that Dr. Bergus asserts any fiduciary
relationship arising from Dr. Florian’s status as a coshareholder with Dr. Bergus, that claim would presumably be
governed by the law of Peru, where the Company is incorporated.
See Mariasch v. Gillette Co., 521 F.3d 68, 71-72 (1st Cir. 2008)
(“Massachusetts applies the internal affairs doctrine, which
recognizes that only one State should have the authority to
regulate a corporation's internal affairs - matters peculiar to
the relationships among . . . shareholders . . . . The state
with authority over a corporation’s internal affairs is the
state of incorporation.”) (quotation and citation omitted). Dr.
Bergus, however, does not allege violation of Peruvian law here;
rather, the briefing has been under Massachusetts fiduciary law
and Dr. Bergus has framed his allegations within the context of
a “personal” and “investment relationship[].” [Compl. at ¶¶ 89–
94, Dkt. No. 1] These allegations do not raise internal affairs
doctrine concerns.
30

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investment decisions and the stockbroker merely receives and
executes a customer’s orders.”

Id. at 849.

Dr. Bergus’s two investments were entirely nondiscretionary.

To the extent that Dr. Florian served in a

capacity analogous to a broker, he did not make any investment
decisions for Dr. Bergus.

Dr. Bergus’s testimony that he put

trust in Dr. Florian in making his investment decision does not
alter the analysis.

“[A] business relationship between a broker

and customer does not become a general fiduciary relationship
merely because an uninformed customer reposes trust in a broker
who is aware of the customer’s lack of sophistication.”

Id. at

851.
The record reveals no fiduciary relationship between Dr.
Bergus and Dr. Florian.

Consequently, I will grant Dr.

Florian’s motion for summary judgment as to the breach of
fiduciary duty claim.
III. CONCLUSION
For the reasons explained above, I DENY Dr. Bergus’s motion
respectively to strike [Dkt. No. 89] and [see Dkt. Nos. 97 and
99] opposition to Dr. Florian’s effort to supplement the summary
judgment record, and having done so, DENY in part (as to the
Massachusetts securities law claim) Dr. Florian’s motion [Dkt.
No. 46] for summary judgment and GRANT it in part (as to the

33

Case 1:18-cv-10323-DPW Document 102 Filed 10/13/22 Page 34 of 34

breach of fiduciary duty claim).

Further, I DENY Dr. Bergus’s

second motion for attachment [Dkt. No. 69] as moot.

/s/ Douglas P. Woodlock_______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

34