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Fiorillo v. Lana

United States District Court, D. Massachusetts

May 6, 2016

NICHOLAS FIORILLO, TRUSTEE OF THE FIORILLO FAMILY REVOCABLE TRUST AND THE 18 PENN AVENUE REALTY TRUST, Plaintiff,
v.
FELICIO LANA, MARK WINIKER, CANAL MARKETPLACE DEVELOPMENT LLC, AND THE 426 MAIN STREET REALTY LLC, Defendants.

MEMORANDUM AND ORDER ON FELICIO LANA’S MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 107), PLAINTIFF’S CROSS-MOTION TO STRIKE (DOCKET NO. 118), MARK WINIKER AND CANAL MARKETPLACE DEVELOPMENT, LLC’S MOTION TO ASSESS ATTORNEY’S FEES (DOCKET NO. 110), AND PLAINTIFF’S MOTION TO REMAND OR DISMISS (DOCKET NO. 126)

TIMOTHY S. HILLMAN DISTRICT JUDGE

This convoluted dispute arises from several real estate transactions involving Nicholas Fiorillo (Plaintiff) and various other parties. Defendant Felicio Lana has moved for summary judgment, and Plaintiff has cross-moved to strike Lana’s supporting affidavit. Defendants Mark Winiker and Canal Marketplace Development, LLC (Canal Marketplace), who were granted summary judgment in December of 2015, move for attorney’s fees. Most recently, Plaintiff has moved to remand the case to state court or, in the alternative, to dismiss.

Because Plaintiff lacks standing to bring his claims in the capacity of trustee, Lana’s motion for summary judgment (Docket No. 107) is granted. Plaintiff’s motion to strike (Docket No. 118) is granted in part and denied in part. Winiker and Canal Marketplace’s motion for attorney’s fees (Docket No. 110) is granted. Plaintiff’s motion to remand (Docket No. 126) is denied as moot.

Background

The following facts are derived from Lana’s Statement of Material Facts and the exhibits attached to his motion.[1] In July of 2004, an entity known as “426 Main Street Realty, LLC” (426 LLC) purchased real property located at 426 Main Street in Worcester, Massachusetts (426 Property) from Mark Winiker. At that time, the 426 LLC’s sole member was Perry Boudreau. As consideration for the sale of the property, the 426 LLC gave Winiker a note for the purchase price secured by a mortgage encumbering the 426 Property. In 2009, Boudreau sold his membership interest in the 426 LLC to Fiorillo. As the holder of the mortgage, Winiker approved of the sale of this membership interest. The agreement between Boudreau and Fiorillo provided that if Fiorillo were to commit an act of default, the membership interest in the 426 LLC would revert back to Boudreau. Fiorillo immediately defaulted by failing to tender any of the payments due under the agreement. Boudreau reclaimed his membership interest.

In January of 2011, Fiorillo entered into a partnership agreement with Kevin Curtis, for the purpose of purchasing and managing real estate. Lana was aware of this partnership arrangement but did not know the details of the agreement. Around that same time, Curtis entered into an agreement to purchase the membership interest in the 426 LLC from Boudreau. Like the previous agreement with Fiorillo, the agreement with Curtis provided that the interest would revert back to Boudreau if Curtis defaulted. Curtis defaulted, and Boudreau reclaimed his membership interest, sometime in or before January of 2014.

Lana is an individual who owns a property management business called Northeast Properties. In or around December of 2013, when Curtis was in default, Lana learned that Boudreau was potentially going to sell the 426 Property. At or around the same time, Curtis introduced Lana to Boudreau and Winiker. Lana and Curtis owned neighboring properties in Worcester and had been familiar with one another for a few years.

While Lana and Boudreau were negotiating Lana’s purchase of the 426 Property, Lana took over the property’s management. He took over the management responsibilities under the belief that he would eventually own the property. Lana collected the rents and paid the bills. He invested a substantial amount of time into managing the property and spent more than $57, 000 on repairs. He collected $20, 750 in rent. Lana did not apply for any loans in connection with the 426 Property, nor did he file any insurance claims, nor did he steal any equipment from the property. He did not represent to any third parties that he had an ownership interest in the property.

In April of 2014, Fiorillo filed the present action in state court against numerous defendants, alleging various state and federal causes of action. He brought the suit in his capacity as trustee of the Fiorillo Family Revocable Trust and the 18 Penn Avenue Realty Trust. This lawsuit has prevented Boudreau from selling the 426 Property to Lana. On December 1, 2015, after a tortured procedural history, this Court granted summary judgment in favor of Defendants Mark Winiker and Canal Marketplace, on the ground that the Plaintiff lacked standing to bring this suit as a trustee. These Defendants moved for attorney’s fees on December 21, 2015, on the basis that Fiorillo’s claims against them were frivolous. Fiorillo did not file an opposition to this motion until four months later, in April of 2016, after this Court prompted his counsel to do so during oral argument on Lana’s motion for summary judgment.

The following counts remain against Lana: “tortious interference in contractual or advantageous relations and Mass. Gen. Laws ch. 93A” (count I); violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. (count II); civil RICO conspiracy in violation of 18 U.S.C. §§ 1962(d), 1964(c) (count III); unfair and deceptive practices in violation of Mass. Gen. Laws ch. 93A, § 11 (count IX); conversion (count X); and “conspiracy and conversion” (count XIII). On December 17, 2015, Lana moved for summary judgment. On January 25, 2016, Plaintiff moved to strike Lana’s supporting affidavit. Then, on April 12, 2016, Plaintiff moved to remand the case to Superior Court or alternatively to dismiss without prejudice.

Standards of Review

Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment if the moving party shows, based on the materials in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A factual dispute precludes summary judgment if it is both “genuine” and “material.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986). An issue is “genuine” when the evidence is such that a reasonable factfinder could resolve the point in favor of the nonmoving party. Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994). A fact is “material” when it might affect the outcome of the suit under the applicable law. Id.

When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 153 (1st Cir. 2009). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact within the record. Id. at 152. “Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party’s case, the nonmoving party must ...


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