Wise v. Big Tuna, LLC, et al. (Lawyers Weekly No. 09-025-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION 2017-2403-BLS2 BETSY WISE, Plaintiff, vs. BIG TUNA, LLC, JEFFREY SENIOR, RESTAURANT CONCEPTS, INC., BETH SENIOR, and ELLIOTT M. LOEW, Defendants and ELLIOTT M. LOEW, Third Party Plaintiff, vs. HUTCHINGS, BARSAMIAN & MANDELCORN, LLP, THEODORE M. HESS-MAHAN, and JEFFREY FINK, Third Party Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIMS ASSERTED BY DEFENDANT ELLIOT M. LOEW AND THIRD PARTY DEFENDANTS’ MOTIONS TO DISMISS THE THIRD PARTY COMPLAINT This is an action brought by Betsy Wise, a member of Big Tuna, LLC (Big Tuna) and a shareholder of Restaurant Concepts, Inc. (RCI), against Big Tuna, RCI, Jeffrey Senior, and Attorney Elliott M. Loew.[1] Wise alleges that Big Tuna, RCI, and Senior are liable for misappropriation of corporate funds, breach of contract, breach of fiduciary duty, civil conspiracy, and violation G.L. c. 93A in connection with several allegedly unauthorized transactions. She also alleges that Loew, in his role as an attorney acting on behalf of Big Tuna and RCI, breached his fiduciary duty to her and violated c. 93A by concealing and/or seeking to obstruct her ability to obtain company documents and information related to her claims against the other defendants. In response to the claims against him, Loew has asserted a variety of claims against Wise as well as her “settlement counsel,” Jeffrey Fink, and her litigation counsel, Theodore M. Hess-Mahan and Hutchings, Barsamian & Mandelcorn, LLP (HBM). Wise, Fink, Hess-Mahan, and HBM (collectively, the Moving Parties) now seek to dismiss all of these claims pursuant to Mass. R. Civ. P. 12(b)(6).[2] For the reasons that follow, the Motion to Dismiss brought by Fink is Allowed in its entirety, and the Motions to Dismiss brought by Wise, Hess-Mahan, and HBM are Allowed in part and Denied in part. BACKGROUND The following is taken from the allegations in Loew’s Counterclaims and Third Party Complaint together with documents referenced therein.[3] Beginning in the mid-1980s, Wise and Senior opened several Skipjack’s restaurants and established various business entities for the purpose of starting, owning, and operating the restaurants. RCI was formed to manage all the restaurants and the other related business entities, and Big Tuna was formed for the purpose of owning and operating the Skipjack’s-Foxboro restaurant only. RCI was the manager of Big Tuna, and Senior was RCI’s President. At some point, Wise came to believe that Senior was engaging in a variety of wrongful actions in connection with his management of Big Tuna, and her relationship with Senior soured. In 2016, Wise sought a buyout of her interests in Big Tuna and redress for Senior’s […]