Kushner v. Wallace, et al. (Lawyers Weekly No. 09-005-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV02473-BLS2 ____________________ EVAN M. KUSHNER v. ROBERT V. WALLACE, JR.; WALLACE CAPITAL, LLC; and WALLACE LENDING CORPORATION f/k/a Wallace Property Company, Inc. ____________________ MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS THE AMENDED COMPLAINT IN PART, PLAINTIFF’S MOTION TO FILE A SECOND AMENDED COMPLAINT, and PLAINTIFF’S MOTION TO COMPEL DISCOVERY This decision resolves three pending motions. First, Defendants have moved to dismiss most of the claims asserted by plaintiff Evan M. Kushner in his first amended complaint. The Court will allow this motion in part. It will dismiss so much of Count IV that asserts claims against Robert Wallace and Wallace Lending Corporation to enforce a promissory note entered into by Wallace Capital, LLC. Mr. Kushner may assert that claim against Wallace Capital, but not against the other two defendants. The Court will also dismiss any claim that Wallace Lending Corporation acted in concert with Robert Wallace to divert income from Wallace Capital LLC, because any such claim must be brought as a derivative action on behalf of Wallace Capital and not as a personal claim by Mr. Kushner. And the Court will also allow the motion to the extent that it seeks a more definite statement of the claims for breach of fiduciary duty, and will order that Kushner is bound by the more definite statement that his counsel provided during the hearing and clarified in a subsequent written submission. The rest of the motion to dismiss Kushner’s remaining claims is denied. Second, the Court will deny Kushner’s motion for leave to file a second amended complaint because the proposed second amended complaint would not provide a “short and plain statement” of Kushner’s claims as required by Mass. R. Civ. P. 8(a), and because Kushner has not shown that there is any good reason to allow this further amendment.1 Third, the Court will also deny Kushner’s motion to compel discovery. 1 Plaintiff ignored his obligation under Rule 8(a) to file “a short and plain statement” of his claims in his first amended complaint as well. He instead filed an amended complaint that is 38-pages long, has 202 numbered paragraphs, and is very – 2 – 1. Defendant’s Motion to Dismiss the First Amended Complaint. 1.1. Note Claim. Count IV of the amended complaint is a claim to enforce and collect under a $ 1.25 million promissory note. Kushner asserts this claim against all three defendants—Wallace Capital, Robert Wallace, and Wallace Lending. The latter two argue to dismiss this claim as against them, arguing that they cannot be held liable on a note that by its terms is payable only by Wallace Capital. The Court agrees that the amended complaint does not allege […]