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Kimmel & Silverman, P.C. v. Porro

United States District Court, D. Massachusetts

September 30, 2014


Order Filed: July 2, 2014

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[Copyrighted Material Omitted]

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For Kimmel & Silverman PC, Craig Kimmel, Esq., Plaintiffs: James S. Singer, Rudolph Friedmann, LLP, Boston, MA; Zachary J. Tuck, Rudolph Friedmann LLP, Boston, MA.

For David P. Angueira, Esq., Swartz & Swartz PC, Defendants: Terrance J. Hamilton, LEAD ATTORNEY, Casner & Edwards, LLP, Boston, MA; Andrew T. Imbriglio, Matthew T. Murphy, Casner & Edwards, LLP, Boston, MA.

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George A. O'Toole Jr., United States District Judge

The magistrate judge to whom this matter was referred has recommended that the defendants' motion for summary judgment and the plaintiffs' cross-motion for summary judgment be denied and that the defendants' further motion for summary judgment be granted. The defendants and the plaintiffs have each filed objections to the Report and Recommendation (" R& R" ) and replies to the objections.

Having reviewed the relevant pleadings and submissions, as well as the objections to the R& R, I approve and ADOPT the magistrate judge's recommendation in its entirety.

Accordingly, the Defendants' Motion (dkt. no. 126) for Summary Judgment and Plaintiffs' Cross-Motion (dkt. no. 151) for Partial Summary Judgment are DENIED and Defendants' Further Motion (dkt. no. 144) for Summary Judgment is GRANTED.



Judith Gail Dein, United States Magistrate Judge


This action involves the alleged disclosure of confidential information obtained in one lawsuit in connection with the prosecution of a subsequent action. Specifically, the defendants, David P. Angueira, Esq. and the law firm of Swartz & Swartz, P.C. (collectively, the " Swartz defendants" ), represented the defendants, Jacqueline Porro, Esq. and Matthew Porro, in litigation against the plaintiffs, Kimmel & Silverman, P.C. and Craig Kimmel, Esq. (collectively, " Kimmel" ). The action, entitled Porro, et al. v. Kimmel & Silverman, P.C., et al., Civil Action No. 07-12000-GAO (the " Porro Lawsuit" ), was eventually settled pursuant to a Settlement Agreement.

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Kimmel contends that, in connection with the Porro Lawsuit, the Swartz defendants and the Porros obtained confidential information which they were precluded from disclosing pursuant to the terms of the Settlement Agreement.

After the Porro Lawsuit was completed, the Swartz defendants represented Krista Lohr in litigation against Kimmel, this time in a lawsuit in the Eastern District of Pennsylvania entitled Lohr v. Kimmel & Silverman, P.C., et al., No. 2:10-cv-05857-HB (the " Lohr Lawsuit" ). In connection with the Lohr Lawsuit, the Swartz defendants filed documents with the court which Kimmel contends contained confidential information, the disclosure of which, it is alleged, violated the Settlement Agreement in the Porro Lawsuit. The instant litigation ensued against the Swartz defendants and the Porros. Herein, Kimmel contends that the defendants' actions, including the filing of the allegedly confidential information, constituted a breach of contract (Count I), breach of the implied covenant of good faith and fair dealing (Count III), and fraud (Count IV). In addition, Kimmel has asserted a claim against the Swartz defendants for tortious interference by which they allege that the defendants knowingly induced the Porros to violate the Settlement Agreement when the Swartz defendants obtained and then used the confidential information to further their case in the Lohr Lawsuit (Count II).

During the course of this action, in August 2013, the plaintiffs reached a settlement with the Porros. As agreed in their settlement, Kimmel and the Porros executed reciprocal Releases in which they released all of their claims against one another in this action. In addition, all of the parties, including the Swartz defendants, executed a Stipulation of Dismissal as to the Porros. The Stipulation of Dismissal was filed in this court on September 24, 2013. Accordingly, the Porros are no longer parties to this litigation.

The matter is presently before the court on the " Defendants' Motion for Summary Judgment" (Docket No. 126) and the " Defendants' Further Motion for Summary Judgment" (Docket No. 144), which were filed by the Swartz defendants, as well as on the " Plaintiffs' Cross-Motion for Partial Summary Judgment as to Liability on Count I" (Docket No. 151). By their first motion for summary judgment, the Swartz defendants argue that the broad language of the Release that Kimmel executed in favor of the Porros, which includes the release of the Porros' past attorneys, constitutes a release of all of Kimmel's claims against the Swartz defendants as well. For all the reasons described below, this court finds that the parties to the settlement had no intention of releasing the Swartz defendants from this action, and that the inclusion of language encompassing those parties within the scope of the Release constituted a mutual mistake that supports the reformation of the Release. Accordingly, this court recommends to the District Judge to whom this case is assigned that the Swartz defendants' first motion for summary judgment (Docket No. 126) be DENIED, and that the Release be reformed in order to exclude the Swartz defendants from its scope.

By their second motion for summary judgment, the Swartz defendants are seeking summary judgment on the merits of the plaintiff's claims. Specifically, the defendants assert that they are entitled to judgment as a matter of law on all of those claims because their disclosure of any alleged confidential information in the context of the Lohr Lawsuit was protected as a matter of law under various theories. The plaintiffs, in addition to opposing the motion, contend by their cross-motion that

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they are entitled to judgment as a matter of law on their claim for breach of contract because, they allege, the Swartz defendants violated the Settlement Agreement by filing the confidential information. As described herein, this court finds that all of the conduct giving rise to the remaining claims in this action was carried out by the Swartz defendants while they were representing clients in the course of litigation. Consequently, this court is constrained to conclude that the absolute litigation privilege recognized under Massachusetts law protects the Swartz defendants from liability to the plaintiffs in this action. Accordingly, this court recommends that the defendants' further motion for summary judgment (Docket No. 144) be ALLOWED, and that the plaintiff's cross-motion for partial summary judgment (Docket No. 151) on Count I be DENIED.


The following facts relevant to the parties' motions for summary judgment are undisputed unless otherwise indicated.

Events Giving Rise to This Action

In 2007, Jacqueline and Matthew Porro filed the Porro Lawsuit against the plaintiffs in this action, Attorney Kimmel and the law firm of Kimmel & Silverman, P.C. (See DF ¶ 1; PR ¶ 1). The defendants in this case, Attorney Angueira and the law firm of Swartz & Swartz, P.C., represented the Porros in that litigation. (DF ¶ 2). The parties to the Porro Lawsuit reached a settlement, and in May 2009, they entered into a Settlement Agreement. (DMF ¶ 3). The Settlement Agreement provided in relevant part as follows: " The Parties and their counsel agree not to disclose any information regarding the underlying facts leading up to or the existence or substance of this Agreement . . . ." (Opinion & Order (Docket No. 63) at 1). Attorney Angueira signed his name on the Agreement under a line that read, " Approved as to form." (Id.; see also DAF ¶ 14).

Five months after the Settlement Agreement was signed in the Porro Lawsuit, Krista Lohr filed the Lohr Lawsuit against

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Kimmel in the District Court for the Eastern District of Pennsylvania. (Opinion & Order at 1; PF ¶ 7). The Swartz defendants represented Ms. Lohr in that litigation. (PF ¶ 7). On January 7, 2011, the Swartz defendants, on behalf of their client, filed a memorandum in opposition to a motion to dismiss in the Lohr Lawsuit. (Id. ¶ 8; DR ¶ 8). They also submitted, as exhibits to the memorandum, copies of deposition transcripts and an email chain that they had obtained through discovery in the Porro Lawsuit. (PF ¶ ¶ 8, 11; DR ¶ 8). Kimmel claims that these materials contained confidential information that was subject to the Settlement Agreement, and that the disclosure of these materials in the Lohr Lawsuit violated the terms of the Agreement. (See PF ¶ 9; Compl. (Docket No. 1) ¶ ¶ 22-25, 55). While the Swartz defendants do not dispute that they filed the challenged materials, they dispute that the documents were confidential, or that they were parties to the Settlement Agreement, or that the Settlement Agreement precluded them from using those documents in connection with the Lohr Lawsuit. (See DR ¶ ¶ 10-12, 14; DMF ¶ ¶ 6-7). They also contend that their actions in filing the documents during the course of litigation were absolutely privileged and are therefore not actionable in the present case.

The parties to the Lohr Lawsuit ultimately reached a settlement. (DMF ¶ 4). On October 4, 2012, a stipulation of dismissal was filed and entered on the docket, thereby resolving that litigation. (Id.). The Swartz defendants have asserted that the settlement in the Lohr Lawsuit has rendered the plaintiffs' claims in this matter moot.

The Instant Litigation

On June 22, 2011, prior to the completion of the Lohr Lawsuit, Kimmel filed the instant action against the Porros and the Swartz defendants. By their complaint, the plaintiffs asserted claims against all of the defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud. (Compl. at Counts I, III & IV). They also asserted a claim against the Swartz defendants for tortious interference with the Settlement Agreement between Kimmel and the Porros. (Id. at Count II). As described in the complaint, the plaintiffs' contract and tortious interference claims are based directly upon the Swartz defendants' conduct in filing the deposition transcripts and email chain from the Porro Lawsuit as exhibits in the Lohr Lawsuit. (See id. ¶ ¶ 52-71). In support of their claim for fraud, the plaintiffs allege that the defendants induced them to enter into the Settlement Agreement in the Porro Lawsuit by falsely representing that they would not disclose any information concerning the facts leading up to the Settlement Agreement. (Id. ¶ ¶ 74-76). They further allege that the defendants knew that their representation was false, and that the plaintiffs suffered harm as a result of their reliance on the representation. (Id. ¶ ¶ 75, 77-78).

On June 22, 2011, the plaintiffs herein filed a motion for a temporary restraining order and a preliminary injunction to protect the confidentiality of the information regarding the underlying facts leading up to, and inclusive of, the Settlement Agreement in the Porro Lawsuit. (See Docket Nos. 7 & 8). In support of their motion, the plaintiffs presented evidence supporting their claim that the defendants were bound by the terms of the Settlement Agreement and had breached that Agreement by submitting the email chain and deposition transcripts to the court in the Lohr Lawsuit. (Docket No. 8 at 8-9). The plaintiffs also argued that they had suffered irreparable harm to their prestige and reputation due to the disclosure of the

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challenged materials, and that they would likely suffer additional harm in the absence of an injunction. (Id. at 10-11). Finally, they argued that the defendants would not be harmed, and there would be no adverse impact on the public, if the ...

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