Anesthesia Associates of Massachusetts, PC v. Plexus Anesthesia Services of Massachusetts, PC (Lawyers Weekly No. 09-016-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00375-BLS2 ____________________ ANAESTHESIA ASSOCIATES OF MASSACHUSETTS, PC v. PLEXUS ANESTHESIA SERVICES OF MASSACHUSETTS, PC ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Anaesthesia Associates of Massachusetts, PC (“AAM”) claims that defendant Plexus Anesthesia Services of Massachusetts, PC (“PASM”) owes it at least $ 2.0 million for past anesthesia services. AAM asks the Court to enter a preliminary injunction that would PASM from transferring or encumbering any assets, or from making any payments of any funds except for paying wages to its employees, paying its attorneys, or paying rent, utilities, and taxes. AAM asserts that it will suffer irreparable harm without the requested injunction because PASM has been making and would continue to make preferential payments to entities other than AAM, thereby preventing from receiving money it is still owed for past services rendered. “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). “Trial judges have broad discretion to grant or deny injunctive relief.” Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014). The Court will DENY this motion for a preliminary injunction for two reasons: AAM has not met its burden of proving irreparable harm, and the broad relief it seeks is not permitted without a judgment under Massachusetts law.1 1 At the close of the oral argument, the Court stated that it was also persuaded that granting the preliminary injunction sought by AAM would be against the public interest because it would materially interfere with PASM’s ability to provide anesthesiology services to its hospital clients. However, the Massachusetts Appeals Court has held that it is reversible error for a trial court to consider harm to the public interest as a factor in granting or denying a preliminary injunction in a case like this – 2 – 1. Failure to Prove Irreparable Harm. As the moving party, AAM has the “burden of showing it would suffer an irreparable harm absent an injunction.” GTE Products Corp. v. Stewart, 414 Mass. 721, 726 (1993). AAM asserts that it will suffer irreparable harm without the proposed preliminary injunction because PASM has been making preferential payments to another entity. The sole evidence supporting that assertion is a statement made “upon information and belief” by AAM’s chief operating officer. But assertions in an affidavit or verified complaint made on “information and belief” that are not supported by any other evidence […]

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