Garner, et al. v. Entertainment Management Complex LLC (Lawyers Weekly No. 09-018-18)

This dispute concerns the booking of private events at a public conference center in Brockton, Massachusetts. The facility is owned by Brockton 21st Century Corporation (“B21”), a non-profit organization that was created to help the City of Brockton with economic development activities, including the conference center and adjoining baseball stadium. B21 retained defendant Entertainment Management Complex LLC (“EMC”) to operate the conference center and stadium. EMC in turn retained plaintiffs Rashaud Garner and his company Entertainment One Stop Shop LLC (“EOSS”) to book events and provide event-related services at the conference center. The parties agree that EMC’s arrangement with Mr. Garner and EOSS was in effect at least until the end of 2017.
Plaintiffs claim that in October 2017 EMC agreed to extend their contract through the end of 2018. They seek a preliminary injunction that would, in essence, require that EMC to adhere to that alleged contract extension.
The Court will DENY the motion for a preliminary injunction because Plaintiffs have not yet proved that they have any likelihood of succeeding on the merits of their claims. Cf. Fordyce v. Town of Hanover, 457 Mass. 248, 266 (2010) (vacating preliminary injunction because plaintiffs were “unlikely to succeed on the merits”). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs had made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). Plaintiffs have not met that burden.
Mr. Garner relies primarily on emails he claims he exchanged with Todd Marlin of EMC on September 20 and October 20, 2017. According to Mr. Garner, on
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September 20 Mr. Marlin sent an email with the subject line “Q1, Q2 2018” and said “please go ahead and start booking events in the first quarter, second quarter of next year.” Mr. Gardner also asserts that on October 20, (i) Mr. Garner emailed Mr. Marlin at 1:49 p.m., stating that he wanted to book six bar mitzvahs at the conference center from April to June 2018, and (ii) Mr. Marlin replied at 5:55 p.m. by saying “Chris said it’s a go for 2018[.] Cool…see you then”. Mr. Gardner verified under the pains and penalties of perjury that “true and accurate” copies of these emails were attached to his complaint. He argues that the October 20 email constitutes an irrevocable, one-year extension of contract with EMC.
EMC has presented evidence that Mr. Garner falsified these emails. Specifically, it has submitted a sworn affidavit by Mr. Marlin attaching what purport to be the correct versions of these two email chains. Mr. Marlin swears that the September 20 email actually had the subject line “Q1 2018” and said “please go ahead and start booking events in the first quarter of next year.” In other words, EMC asserts that Mr. Garner falsified this email by inserting references to Q2 2018 that were not actually in the communication as sent by Mr. Marlin. In addition, Mr. Marlin swears that his actual email chain with Mr. Garner on October 20 was much longer than and materially different from the version presented by Mr. Garner. The version presented by EMC also begins with a 1:49 pm email in which Mr. Garner asks about booking bar mitzvahs during the second quarter of 2018. But Mr. Marlin’s response at 2:13 p.m. is to say “Let me talk to Chris.” There follows a back-and-forth in which Garner asks when Chris will be in, Marlin says he does not know, Garner says that he wants to talk with Chris, Marlin asks at 5:55 p.m. whether Garner will be “around tomorrow,” Garner says yes and explains when, and finally at 6:19 p.m. Marlin responds “Cool…see you then.” In this version Mr. Marlin never says “Chris said it’s a go for 2018”.
In deciding a motion supported by sworn affidavits, “the weight and credibility to be accorded those affidavits are within the judge’s discretion” and “[t]he judge need not believe such affidavits even if they are undisputed.” Commonwealth v. Furr, 454 Mass. 101, 106 (2009). An affidavit “is a form of sworn testimony the credibility
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of which is to be determined by the judge.” Psy-Ed Corp. v. Klein, 62 Mass. App. Ct. 110, 114, rev. denied, 442 Mass. 1114 (2004).
Based on the information presented by the parties, the Court does not credit Mr. Garner’s testimony regarding the September 20 and October 20 emails, and does not believe that the versions of these emails that he provided were either true or accurate. Instead it credits Mr. Marlin’s testimony. In the truncated version of the October 20 emails presented by Garner, the statement “Cool…see you then” makes no sense and does not appear to be in response to anything. In contrast, the full email chain presented by Mr. Marlin makes perfect sense. After Garnet conveys when he will next be at the conference center, Marlin responds by saying “Cool…see you then.” The Court concludes that Mr. Garner created a fictitious version of the October 20 emails. And that in turn leads it to conclude that Mr. Garner’s version of the September 20 emails is fictitious as well.
Since the Court does not believe that Mr. Garner received the October 20 email he relies upon, there is no reason to believe that Garner will succeed in proving that EMC ever agreed to extend Garner’s prior contract through the end of 2018. The falsified email was the sole evidentiary basis for this part of Garner’s claim.
Furthermore, since the Court has tentatively concluded—based on the current evidentiary record—that Mr. Garner knowingly provided the Court with falsified emails and that Mr. Garner made false statements under the oath, the Court exercises its discretion to deny the preliminary injunctive relief sought by Plaintiffs. “Trial judges have broad discretion to grant or deny injunctive relief.” Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014). Mr. Garner’s conduct appears to constitute an attempted fraud on the court. Cf. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730 (2006) (false statements aimed at influencing judge’s decision to issue restraining order constituted fraud on the court); Munshani v. Signal Lake Venture Fund II, LP, 60 Mass. App. Ct. 714, 719-720 (2004) (submission of false testimony and evidence “calculated to interfere with the court’s ability impartially to adjudicate” pretrial discovery disputes was sanctionable fraud on the court). In these circumstances, the Court has “inherent power” and “broad discretion to fashion a judicial response warranted by the fraudulent conduct,”
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including by denying relief sought by the party that engaged in the fraud. Rockdale Management Co. v. Shawmut Bank, N.A., 418 Mass. 596, 599 (1994).
Even if Garner had shown a likelihood of success on the merit and the other preconditions to obtaining preliminary injunctive relief, which he has not, the Court would still exercise its discretion to deny Garner’s motion as a sanction for Garner’s apparent attempt to deceive the Court. It is well established that “one must have behaved equitably in order to obtain equitable remedies,” such as injunctive relief ordering another party to perform under a contract. Galipault v. Wash Rock Investments, LLC, 65 Mass. App. Ct. 73, 85 (2005); accord, e.g., New England Merchants Nat. Bank of Boston v. Kann, 363 Mass. 425, 428 (1973) (“He who seeks equity must do equity.”). Mr. Garner is not entitled to equitable relief.
Plaintiffs’ motion for a preliminary injunction is DENIED.
February 27, 2018
Kenneth W. Salinger
Justice of the Superior Court

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