O’Malley v. Burr, et al. (Lawyers Weekly No. 09-031-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV03497-BLS2 ____________________ EUGENE O’MALLEY v. STEPHEN BURR, LAWRENCE KULIG, and ECKERT SEAMANS CHERIN & MELLOT, LLC ____________________ MEMORANDUM AND ORDER ALLOWING DEFENDANTS’ MOTION TO DISMISS This case arises from a dispute between plaintiff Eugene O’Malley and Adel A. Hamadi Al Tamimi concerning the financing of an arbitration claim. They entered into a contract providing that if O’Malley could arrange for someone to fund the arbitration then Tamimi would pay him a four percent finder’s fee. Tamimi breached the contract. O’Malley successfully sued Tamimi for breach of contract and violation of G.L. c. 93A. He was awarded treble damages of $ 580,200, plus interest, plus roughly $ 825,000 in attorneys’ fees and costs. O’Malley asserts that he has been unable to collect the full amount owed by Tamimi under this judgment. O’Malley has now sued the two lawyers who represented Tamimi in this transaction, Stephen Burr and Lawrence Kulig, as well as their law firm, Eckert Seamans Cherin & Mellot, LLC. He alleges that the funds O’Malley procured were paid into Eckert’s IOLTA account, Burr and Kulig knew that four percent of that amount should have been paid to O’Malley, Burr falsely asserted that Tamimi had a good faith basis for not paying O’Malley, the Defendants then let Tamimi transfer his funders, and as a result O’Malley has been unable to collect what he is owed. O’Malley asserts claims for fraud, fraudulent concealment, violation of c. 93A, and intentional infliction of emotional distress. Defendants have moved to dismiss all claims. The Court will ALLOW the motion to dismiss because all four claims are barred by the statutes of limitations. 1. Factual Allegations. For the purpose of deciding the motion to dismiss, the Court assumes that Mr. O’Malley’s factual allegations and any reasonable inferences that may be drawn from the facts alleged in his complaint are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). O’Malley alleges the following facts. – 2 – O’Malley and Tamimi entered into a written consulting agreement in July 2011. It provided that if O’Malley could find an investor to provide Tamimi with the funds he needed to finance an arbitration claim against the Sultanate of Oman, then O’Malley would be paid a finder’s fee equal to four percent of the total amount of capital advanced to Tamimi. O’Malley was successful. He procured a $ 5.96 million investment in the Oman arbitration. He was therefore owed a $ 238,400 finder’s fee. The investor wired his $ 5.96 million payment to Eckert Seamans’ client account for the benefit of Tamimi. The proceeds were wired on September 6, 2011. The next day O’Malley emailed Burr. He asked that […]