Wayne Chang et al.
ConnectU, Inc. et al.  No. 134816
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT, AND SCHEDULING ORDER
P. Leibensperger, Justice
result of two previous decisions of this court, the only
remaining defendant is ConnectU, Inc. (" CU").
Plaintiffs, Wayne Chang and his company, The I2Hub
Organization, Inc., (referred to collectively as "
Chang"), now moves for summary judgment on two counts
(Count I and III) of his complaint against CU. In reality,
however, the motion is for partial summary judgment.
That is because resolution of the motion (a) would not
address the issue of damages potentially owed to Chang, and
(b) would leave open, unless voluntarily dismissed by Chang,
the claims in Chang's complaint (Counts IV, VIII and IX)
against CU that are not the subject of Chang's motion for
summary judgment. In addition, the procedural history of the
claims against CU gives rise to some lack of clarity that
should be resolved before proceeding to judgment.
Accordingly, the motion for partial summary judgment is
denied, without prejudice, at this point. As described at the
end of this Order, a schedule for resolving these last
remaining claims against this last remaining party is
Counts I and III of his complaint Chang alleges breach of
contract and breach of the implied covenant of good faith and
fair dealing, respectively. The claims are based on a
Memorandum of Understanding (" MOU") entered into
between Chang and CU in 2004. The MOU details certain
conditions to be met by Chang regarding integration of
software platforms and then states that upon completion of
the conditions, " CU will give Wayne Chang the option to
exercise a 15% stake in CU." Chang asserts that all
conditions were met in accordance with the MOU. Chang
Statement of Undisputed Material Facts (" SUMF")
time CU and Chang entered into the MOU, CU was involved in
litigation against Mark Zuckerberg and Facebook, Inc.
CU's claims against Zuckerberg and Facebook were assets
of C U.SUMF ¶ 21. The litigation was eventually settled
in 2008. Pursuant to the settlement, 100% of CU's common
stock was transferred to Facebook in exchange for the payment
of cash and Facebook common stock. Chang alleges that CU did
not inform him of the settlement and did not pay him anything
for his 15% interest in C U.SUMF ¶ s 27, 28, 32.
commenced this action on December 21, 2009, against CU and
the other defendants listed in footnote one. On February 9,
2010, CU answered the complaint, denying liability. Both
parties claimed trial by jury. Counsel of record for CU was
Peter M. Durney from the Boston firm of Cornell & Gollub.
defendants subsequently moved to dismiss. By decision dated
April 28, 2011, the court (Lauriat, J.) allowed the motion as
to Counts V, VI and VII of the complaint. The court also
allowed the dismissal of all claims against Scott R. Mosko
and the law firm of Finnegan, Henderson, Farabow, Garrett &
Dunner LLP. The court noted, in dicta, at page 8,
note 3, that " Chang cannot recover from ConnectU"
because the corporation was now wholly owned by Facebook.
February 19, 2013, status conference there was discussion
about whether Chang wished to proceed against CU, especially
given the footnote mentioned above. Following the conference,
on March 22, 2013, Chang and CU filed a Stipulation of
Dismissal, without prejudice, pursuant to Mass.R.Civ.P.
41(a)(1). Judgment was entered on the docket reflecting the
Stipulation of Dismissal pursuant to Mass.R.Civ.P. 58(a).
April 28, 2014, the Winklevoss Defendants moved for summary
judgment. In a decision dated December 24, 2014, this court
(Billings, J.) granted summary judgment in favor of the
Winklevoss Defendants. That decision would have ended the
case, but for the following. The court expressed disagreement
with the previous dicta from the decision on the
motion to dismiss where it was stated that Chang did not have
a claim against CU. The court expressly ordered that final
judgment should not enter until Chang had an opportunity to
move, if he wished, to reinstate his claims against CU. The
court ordered that " [s]hould Chang wish to pursue his
option claim against ConnectU, Inc., he shall serve a motion
upon its counsel who formerly appeared in this proceeding,
and file the motion papers with the Court on or before
January 30, 2015."
occurred next are the facts that prompt the need for further
clarification. On January 16, 2015, Chang served his Second
Motion to Join ConnectU, Inc. as Defendant on Cornell &
Gollub, the counsel for CU who had formerly appeared in this
proceeding. Affidavit of Meredith Wilson Doty ¶ 2
(August 8, 2016) (" Doty Aff."). Counsel for Chang
was then contacted by new counsel for CU--Roberto M. Braceras
of the Boston firm of Goodwin Procter. Mr. Braceras indicated
that he had been retained by CU to respond to the motion.
Id. at ¶ 5. He requested an extension of time
to consider a response to the motion by CU. Id. On
January 29, 2015, the court received an " Assented-To
Motion By Non-Party ConnectU, Inc. To Extend the Deadline for
the Filing of Plaintiffs' Motion to Join ConnectU, Inc.
As Defendant" (the " Extension Motion"). The
motion was submitted on behalf of CU and signed by Mr.
Extension Motion, Goodwin Procter states that CU is filing
the Extension Motion " and appears in the matter for the
sole and limited purpose of seeking an extension of time to
consider a response to the Motion to Join [CU] recently
served upon it by Plaintiff." Goodwin Procter represents
that it had been retained by CU " to serve as new
counsel in connection with Plaintiffs' efforts to
reinstate litigation against ConnectU." Goodwin Procter
also states that CU appears in the matter to seek an
extension of time " without waiving any claims,
defenses, objections, or other rights it may have." The
Extension Motion was allowed by the court.
February 19, 2015, Chang filed in court his Second Motion to
Join ConnectU, Inc. as Defendant. No opposition to the motion
was filed by CU, either by Goodwin Procter or Cornell &
Gollub. The motion was allowed. Chang's counsel notified
Goodwin Procter of the allowance of the motion to join CU.
Doty Aff. ¶ 14.
Chang commenced discovery from CU. According to Chang's
counsel, in July 2015, Goodwin Procter informed her in
writing that " any further correspondence directed to
ConnectU in this matter can be sent to Roberto Braceras at
Goodwin Procter, and does not need to be sent to Peter Durney
at Cornell & Gollub." Doty Aff. ¶ 19. ...