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Belanger v. Kazarosian

United States District Court, D. Massachusetts

March 29, 2017

LISA SIEGEL BELANGER and DEVORA C. KAISER, Plaintiffs,
v.
MARSHA V. KAZAROSIAN, et al., Defendants.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE

         Lisa 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;[1] Brian Cuffe;[2] Thomas Barbar;[3]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;[4] and Kenney Enterprises, LLC (d/b/a “Right At Home”) (collectively, “Defendants”). [ECF No. 1].

         Plaintiffs 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.[5] [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].

         For the 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.

         I. BACKGROUND

         At the 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].

         On 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 order.[6]

         Plaintiffs 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.[7]

         On July 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. ¶ 157-58.

         On 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.[8] 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].

         On 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. Id.

         Plaintiffs 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.

         Plaintiffs 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.[9] 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.

         Plaintiffs 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].

         II. LEGAL STANDARD

         On a 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 ...


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