United States District Court, D. Massachusetts
LISA SIEGEL BELANGER and DEVORA C. KAISER, Plaintiffs,
MARSHA V. KAZAROSIAN, et al., Defendants.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
Siegel Belanger and Devora Kaiser (“Plaintiffs”),
two daughters of Marvin H. Siegel (“Siegel”),
have filed this emergency action against various defendants
involved in their father's estate planning and medical
care, including Marsha Kazarosian; Brian Cuffe; Thomas
Barbar;Whittier Health Network, Inc. (d/b/a
“Whittier Pavilion”); Beverly Hospital (a/k/a
Northeast Hospital Corp.); Merrimack Valley Hospital (d/b/a
Steward Family Hospital, Inc.); Holy Family Hospital, Inc.
(a/k/a TAS-CHFH, Inc.); Robert Portney; Spencer Amesbury;
Ping Cui; Janice Funk; and Kenney Enterprises, LLC (d/b/a
“Right At Home”) (collectively,
“Defendants”). [ECF No. 1].
seek temporary restraining orders against Defendants
Kazarosian, Cuffe, Barbar, Kazarosian Costello LLP, Deutsch
Williams, and Right At Home; multiple preliminary injunctions
against various defendants; orders compelling production of
documents from various defendants; an independent medical
examination of Siegel; and declaratory relief. [ECF No. 1 at
95-98]. Currently pending before this Court are motions to
dismiss filed by Cuffe [ECF No. 21], Barbar [ECF No. 23],
Kazarosian [ECF No. 24], Whittier Pavilion [ECF No. 29], and
Right At Home [ECF No. 34], as well as a motion to strike
filed by Kazarosian [ECF No. 27].
reasons explained below, the motions to dismiss filed by
Cuffe [ECF No. 21], Barbar [ECF No. 23], Kazarosian [ECF No.
24], Whittier Pavilion [ECF No. 29], and Right At Home [ECF
No. 34] are GRANTED. Kazarosian's motion to
strike [ECF No. 27] is GRANTED in part. Accordingly,
the Court DENIES Plaintiffs' requests for
temporary restraining orders and preliminary injunctions, and
DISMISSES the requests for declaratory relief. As
there are no remaining grounds for relief, this action is
DISMISSED in its entirety.
motion to dismiss stage, the Court accepts as true all
well-pleaded facts, analyzes those facts in the light most
hospitable to the Plaintiffs' theory, and draws all
reasonable inferences from those facts in favor of the
Plaintiffs. United States ex rel. Hutcheson v. Blackstone
Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011). The
following facts are taken from Plaintiffs' Complaint for
Emergency & Preliminary Injunctive Relief. [ECF No. 1].
February 12, 2015, Plaintiffs initiated a separate action in
this Court under case number 15-cv-10198-ADB (the
“Prior Action”). On January 19, 2017, while
motions to dismiss were pending in the Prior Action,
Plaintiffs initiated the instant action. [ECF No. 1]. On
March 28, 2017, this Court issued a memorandum and order
dismissing the Prior Action. See Memorandum and
Order, Belanger v. BNY Mellon Asset Mgmt., LLC, No.
15-cv-10198-ADB (D. Mass. Mar. 28, 2017). By way of
reference, this Court adopts the factual background
summarized in the Prior Action's memorandum and
Lisa Siegel Belanger (“Belanger”) and Devora
Kaiser (“Kaiser”) are two of Siegel's three
biological daughters. In the Prior Action, Plaintiffs sought
monetary damages for various harms alleged to have been
sustained by them in relation to the treatment of Siegel.
Here, again related to Defendants' treatment of Siegel,
Plaintiffs allege that irreparable harm will be suffered if
emergency equitable relief is not granted.
14, 2016, Cuffe, as guardian of Siegel, appeared in the Essex
Probate & Family Court in Massachusetts (“Probate
Court”) where he filed a Report of Monitor. [ECF No. 1
¶¶ 156, 158]. Cuffe represented that Robert
Portney, who had been Siegel's exclusive treating
psychologist since January 2012, was no longer willing to
treat Siegel due to Belanger naming him in a lawsuit filed in
federal court. Id. ¶¶ 155, 159. Cuffe went
on to state that he had contacted at least ten area
psychologists, none of whom were willing to treat Siegel.
Id. ¶ 159. Due to Portney's termination of
care, Siegel was being taken off anti-psychotic medications,
with his last dose scheduled for July 31, 2016. Id.
October 23, 2016, Kaiser visited Siegel in his home and he
seemed well. Id. ¶ 182. On November 19, 2016,
however, Kazarosian, as counsel for Siegel, emailed
Plaintiffs' probate attorney, Allan Knowles, to say that
Siegel had been hospitalized at Merrimack Valley Hospital the
previous day out of an abundance of caution after one of his
aides thought she noticed a twitch and weakness in his right
hand. Id. ¶¶ 182, 186.
Kazarosian represented that the situation was not an
emergency and that Siegel's heart rate, and blood
pressure were normal and his appetite and ambulation were
unaffected. Id. ¶ 187. Kazarosian went on to
state that it was her understanding that the medical staff
had detected no issues and that Siegel could be released the
following day. Id. ¶ 188. On November 21, 2016,
Kazarosian sent a follow-up email informing Plaintiffs that
Siegel had been discharged on November 20, 2016, and was back
home. Id. ¶ 190; [ECF No. 1-105].
November 22, 2016, Kazarosian emailed Plaintiffs' probate
attorney again to advise that Siegel had been admitted to
Beverly Hospital “for what appears to be the same
concerns that were raised this weekend.” [ECF No. 1
¶ 192; ECF No. 1-107]. On November 30, 2016, Barbar, as
counsel for Cuffe, twice emailed Plaintiffs' probate
attorney with updates on Siegel's medical condition. [ECF
Nos. 1-11, 1-108]. In his first email, Barbar indicated that
Siegel would remain at Beverly Hospital for one more night
and that the “tests that were conducted . . . came back
negative.” [ECF No. 1-108]. Less than two minutes
later, Barbar sent a second email indicating that he had
received further information from Siegel's guardian who
informed him that Siegel had been “evaluated at Beverly
Hospital for his progressive dementia with concerns for a
mild stroke.” [ECF No. 1-11]. The tests had indicated
that Siegel had progressive dementia, needed two care givers
to assist with ambulation, and was non-responsive to
directions or questions. Id. Further, Siegel's
diet was being “changed to ground foods and . . .
liquids, ” and the medical providers were recommending
that Siegel be prepared for palliative care or hospice.
Id. Siegel was to be discharged the following day.
allege that the report provided by Barbar in his November 30,
2016 emails conflicted with Kaiser's personal
communications with Siegel between August 2016 and October
23, 2016. [ECF No. 1 ¶ 167]. Further, Kaiser visited
Siegel while he was being treated at Beverly Hospital
(between November 22, 2016 and December 1, 2016), and
“observed [his] independent use of a spoon to feed
himself.” Id. ¶ 171. Plaintiffs concede
that Siegel's “verbal interaction was much
lessened” while in Beverly Hospital, but assert that
Siegel was able to verbally interact with Kaiser.
Id. ¶ 172. Additionally, Kaiser visited Siegel
“more than a handful of times” after his release
from Beverly Hospital and observed that his verbal
interaction had increased and his motor skills had improved.
Id. ¶¶ 173-76.
allege that Siegel's hospitalization on November 18, 2016
was the result of Defendants' ulterior motives, including
their “intentions to liquidate [Siegel's]
estate.” Id. ¶¶ 179, 182. In support
of this allegation, Plaintiffs point to a series of events
occurring between August 17, 2011, and September 25,
2015. Id. ¶¶ 178-81.
Plaintiffs make a further allegation, seemingly in support of
Defendants' ill motives in hospitalizing Siegel, that the
“evident triggering event” causing Siegel to be
discharged from Beverly Hospital on December 1, 2016, was a
November 28, 2016 letter Belanger wrote to Beverly
Hospital's counsel in the Prior Action informing them
“of the inexplicable lengthy admission of
[Siegel].” Id. ¶ 201. Plaintiffs assert
that the November 28, 2016 letter, which was later forwarded
to the hospital's legal department, caused Siegel's
“sudden discharge” on December 1, 2016 and
supports Plaintiff's contention that the hospital stay
was unwarranted. Id. ¶¶ 203-05.
initiated this action against Defendants on January 19, 2017.
[ECF No. 1]. On January 26, 2017, this Court held a Status
Conference [ECF No. 31], following which Defendants Cuffe
[ECF No. 21], Barbar [ECF No. 23], Kazarosian [ECF No. 24],
Whittier Pavilion [ECF No. 29], and Right At Home [ECF No.
34] filed motions to dismiss. Plaintiffs opposed the motions
to dismiss filed by Defendants Cuffe, Barbar, and Kazarosian
on February 15, 2017. [ECF No. 36].
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6), the Court must accept as true all well-pleaded
facts, analyze those facts in the light most hospitable to
the Plaintiffs' theory, and draw all reasonable
inferences from those facts in favor of the Plaintiffs.
United States ex rel. Hutcheson, 647 F.3d at 383. In
ruling on a motion under Rule 12(b)(6), the Court “must
consider the complaint, documents annexed to it, and other
materials fairly incorporated within it, ” which
“sometimes includes documents referred to in the