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Carr v. Cesari & McKenna, LLP

Superior Court of Massachusetts, Suffolk

January 31, 2017

Kenneth Carr
Cesari & McKenna, LLP et al No. 136748

          Filed February 2, 2017


          Douglas H. Wilkins, Justice of the Superior Court.

         The Amended Complaint (" Complaint") in this case alleges legal malpractice and resulting harm to the plaintiff, Kenneth Carr, who is 84 years old. Mr. Carr brought this case a half-year ago and has sought a speedy trial under G.L.c. 231, § 59F. But the case is still at the pleadings stage. The Defendants, Cesari and McKenna, LLP and Thomas O'Konski, have brought " Defendants' Motion to Dismiss Amended Complaint or, in the Alternative, Motion to Stay Proceedings." (" Motion"). They succinctly claim: " [t]his case proves the Supreme Judicial Court's rationale for requiring factual detail before permitting a plaintiff to proceed with a case. See Defendants' Reply Memorandum of Law In Support of Their Motion to Dismiss the Amended Complaint (" Reply") at 1. That poses the question well: does the Motion's extensive and time-consuming debate over the meaning, level of detail and adequacy of pleadings and extra-pleading documents follow the Supreme Judicial Court's directives in Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008)? The Court concludes that it does not. After hearing, the Motion is DENIED .


          The court takes the well-pled facts in the Complaint as true only for purposes of decision on the Motion. Galiastro v. Mortg. Elec. Regis. Sys., 467 Mass. 160, 171, 4 N.E.3d 270 (2014).

         Carr and entities he operated were long-time clients of the law firm Cesari & McKenna (C& M"), of which defendant O'Konski was and is a partner. In 2012, C& M named partner John McKenna represented Carr regarding patent applications for an invention known as " Cool Cable." McKenna understood that Carr sought to retain personally the intellectual property rights, in part because of a dispute with his son, who co-managed one of Carr's companies, Meridian Medical Systems (" MMS"). Carr and his son agreed that the technology would belong to Carr. Carr told C& M that the patent application was to remain in Carr's name. As McKenna retired, O'Konski sought to develop his relationship with MMS. He and C& M exploited the rift between Car and his son to ingratiate the firm with Carr's son. The Defendants prepared and submitted inaccurate and contradictory filings with the United States Patent & Trademark Office (" USPTO") in 2013, which ultimately eliminated Carr as the named inventor and listed MMS as assignee. Their activities included an opinion letter that relied upon information the Defendants knew to be false regarding the Cool Cable's inventorship.

         As a result of the Defendants' actions and false documentation, Carr lost control over the patent application and his rights to the intellectual property for the technology. A transaction by which Carr would have been able to monetize his rights was also scuttled, allegedly as a result of the Defendants' actions. By stripping Carr of his rights and giving control of the patent to MMS, the Defendants and co-conspirators at MMS were able to force Carr out of MMS despite his significant equity interest in the company. Without Carr's leadership and funding, MMS failed and Carr suffered significant losses.


         Rule 12(b)(6) Standard

          The Motion raises only the question whether the challenged counts and the facts incorporated therein plausibly suggest that the plaintiffs are entitled to relief. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008). The rules of pleading do not require naming specific statutes and legal theories, as opposed to the facts underlying those theories. Pontremoli v. Spaulding Rehabilitation Hosp., 51 Mass.App.Ct. 622, 626 n.4, 747 N.E.2d 1261 (2001), quoting Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (" It is not fatal to the complaint that [the statute in question] was not specifically pleaded . . .'[A] complaint is not subject to dismissal if it would support relief on any theory of law'") (emphasis in original). The court also reviews documents attached to or specifically referenced in the pleadings for purposes of Mass.R.Civ.P. 12(b)(6). See generally Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000).

         To some extent, these principles invite more challenges to complaints--and therefore more up-front litigation expenses and delay. For defective pleadings, that is appropriate. But the Motion expands Iannacchino 's invitation well beyond the language of Rule 8(a) and 12(b)(6) or the appellate cases. It asks the Court not only to consider the Complaint's 92 paragraphs (covering 21 pages), but also to take judicial notice of 25 exhibits, totaling three inches in thickness, consisting of material in public records, but not referenced in the complaint, including pleadings and orders from courts in other jurisdictions, as well as the U.S. Patent Office. The Defendants present these materials not just for the purpose of showing what the documents say; they ask the Court to take certain assertions as conclusively proven (without any judicial finding that they are true) and to draw inferences and conclusions from the documents. The parties also debate extensively on whether there is enough " detail" in the Complaint and whether certain statements in the Motion go beyond the pleadings and matters of which the Court may take notice. This is not a productive response to Iannacchino 's invitation in cases like this one.


         The Defendants argue that the Complaint fails to allege facts plausibly proving the elements of causation and injury. To recover on a claim for legal malpractice, a plaintiff must show both that the attorney violated the applicable standard of care, and that " he probably would have obtained a better result had the attorney exercised adequate skill and care." Poly v. Moylan, 423 Mass. 141, 145, 667 N.E.2d 250 (1996), citing Fishman v. Brooks, 396 Mass. 643, 647, 487 N.E.2d 1377 (1986). To show causation Carr must allege that Cesari's negligence proximately caused the loss for which he seeks recovery. McCann v. Davis, Malm & D'Agostine, 423 Mass. 558, 560, 669 N.E.2d 1077 (1996); Baghdady v. Lubin & Meyer, P.C., 55 Mass.App.Ct. 316, 320-21, 770 N.E.2d 513 (2002); Atlas Tack v. Donabed, 47 Mass.App.Ct. 221, 226, 712 N.E.2d 617 (1999), citing Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, 25 Mass.App.Ct. 107, 111, 515 N.E.2d 891 (1987). He must allege what would have happened but for the attorney's negligence. See McCann, 423 Mass. at 560.

          " Generally, questions of causation, proximate and intervening, present issues for the jury to decide." Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 794, 507 N.E.2d 662 (1987). Nevertheless, resolution of causation questions in a Rule 12(b)(6) context was not unheard of, even before Iannacchino . See ...

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