United States District Court, D. Massachusetts
ALAN M. KAUFMAN, Plaintiff,
ANDREW JOSEPH, ET AL., Defendants.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
case involves a long-running dispute concerning a business
relationship between pro se plaintiff Alan Kaufman
("Kaufman" or "plaintiff") and
defendants, Attorney Andrew Joseph ("Joseph"), his
law firm, Drinker Biddle & Reath LLP ("DBR"),
and Southwestern Bell Mobile Systems, LLC d/b/a Cingular
Wireless n/k/a AT&T Mobility ("AT&T" and,
collectively with Joseph and DBR, "defendants").
Plaintiff alleges that 1) DBR breached the covenant of good
faith and fair dealing and all three defendants 2) defrauded
the Court and 3) made fraudulent misrepresentations. Pending
before the Court is defendants' joint motion to dismiss.
For the following reasons, that motion will be allowed.
Initial Business Relationship
apparently was the controlling officer of Harvard Cellular,
Inc. (“Harvard Cellular”) between 1991 and
2002. In 2002, Harvard Cellular entered into
an agency agreement with the predecessor-in-interest to New
Cingular Wireless (“New Cingular”), a subsidiary
of AT&T, to open five retail stores in New York City. New
Cingular advanced $350, 000 to Harvard Cellular to lease and
build properties for the New York City stores. Harvard
Cellular's stores, which sold New Cingular products,
opened that July.
agreement between Harvard Cellular and New Cingular required
that Harvard Cellular obtain authorization from New Cingular
before closing any of the stores. Without doing so, Harvard
Cellular closed its New York City stores in December, 2002.
It failed to reimburse New Cingular for the advance, building
costs, the cost of handsets for which it had accepted
delivery and other operating costs. New Cingular sought
recovery of those expenses and the parties went to
proceedings between Harvard Cellular and New Cingular lasted
13 days. During and after the arbitration, New Cingular was
represented by attorneys from DBR, including Joseph. Kaufman
alleges that Joseph began settlement negotiations with
Harvard Cellular while the arbitration was ongoing because he
did not expect New Cingular to succeed. Ultimately, the
parties did not settle and the arbitrator ruled in favor of
New Cingular, ordered Harvard Cellular to pay New Cingular
$1.2 million for breaching its contractual obligations and
denied Harvard Cellular's counterclaims for fraudulent
inducement and breach of contract.
New York and Florida Actions
Cingular filed suit in the New York Supreme Court to confirm
the arbitration award (“New York Action”).
Harvard Cellular sought partial vacatur. In 2006, the New
York Supreme Court allowed the motion to confirm the
arbitration award and denied Harvard Cellular's motion
for partial vacatur.
2008, New Cingular brought a separate action in the United
States District Court for the Southern District of Florida to
enforce personal guarantees signed by Kaufman with respect to
the arbitration award (“Florida Action”). Kaufman
counterclaimed that, among other things, he was fraudulently
induced to sign the personal guarantees. The Court in the
Florida Action allowed New Cingular's motion for summary
judgment and dismissed Kaufman's counterclaims as barred
by res judicata. The parties subsequently entered a
settlement agreement that deferred execution of the
arbitration judgment until Kaufman reached a specified net
worth (“the 2009 Settlement Agreement”).
2010, Kaufman sent a letter to New Cingular allegedly
threatening to publish a book disparaging defendants. DBR
sent a cease and desist letter that reminded Kaufman of his
obligations under the 2009 Settlement Agreement. In 2016,
Kaufman informed AT&T, Joseph and the arbitrator, John
Wilkinson, by letter, that he intended to file this
filed the instant complaint in September, 2016, in the
Massachusetts Superior Court for Suffolk County alleging
that, during the arbitration that occurred in 2003 and 2004
and thereafter, DBR breached its covenant of good faith and
fair dealing and all the defendants committed fraud upon the
court and made fraudulent misrepresentations. Defendants
removed the case to this Court and filed a joint motion to
dismiss for failure to state a claim upon which relief can be
granted. That motion, which Kaufman timely opposed, is the
subject matter of this memorandum and order and will be
Motion to Dismiss
survive a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for
relief that is actionable as a matter of law and
“plausible on its face”. Ashcroft v.
Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible if, after accepting as true all
non-conclusory factual allegations, a court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno
Burset, 640 F.3d 1, 12 (1st Cir. 2011). A court may not
disregard properly pled factual allegations even if actual