United States District Court, D. Massachusetts
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY and THE COMMERCE INSURANCE COMPANY, Plaintiffs,
SAVIN HILL FAMILY CHIROPRACTIC, INC., et al., Defendants.
MEMORANDUM OF DECISION AND ORDER ON PARTIES'
MOTIONS TO STRIKE
Gail Dein United States Magistrate Judge
plaintiffs, Metropolitan Property and Casualty Insurance
Company (“Metropolitan”) and The Commerce
Insurance Company (collectively, “Plaintiffs” or
“Carriers”), have brought this action against two
chiropractic entities, their present and former principals,
certain of their employees and various related entities and
individuals, claiming that the defendants engaged in a
fraudulent scheme to obtain insurance benefits from the
Carriers by billing for chiropractic treatment that was
“unreasonable and unnecessary, that [was] wrongfully
and grossly exaggerated, not rendered in some cases, rendered
by unlicensed personnel, rendered to non-injured body areas,
as well as for magnified and fabricated symptoms and
injuries, ” and by “filing, pursuing and
prosecuting insurance claims based on such treatment and
bills.” (Second Am. Compl. (Docket No. 304) ¶ 3).
By their Second Amended Complaint, the Plaintiffs have
asserted claims for violations of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§§ 1962(c)-(d) (Counts I-IV), common law
fraud/deceit (Count V), true conspiracy (Count VI), civil
conspiracy (Count VII), breach of contract pursuant to Mass.
Gen. Laws ch. 90 (Count VIII), intentional interference with
contractual relations (Count IX), intentional interference
with advantageous business relationships (Count X), and
unfair and deceptive trade practices pursuant to Mass. Gen.
Laws ch. 93A (“Chapter 93A”) (Count XI). In
addition, the Plaintiffs have asserted claims for injunctive
and equitable relief under Chapter 93A (Counts XII-XIII).
matter is presently before the court on the defendants'
motions to dismiss the Second Amended Complaint (Docket Nos.
331, 334, 336, 337, 339 and 342), which have been filed by
six different categories of defendants. Those defendants
include, but are not limited to, the Law Offices of Jeffrey
S. Glassman LLC (“GLO”), its owner, Jeffrey S.
Glassman, Esq. (“Attorney Glassman”), and two
individuals who were employed as paralegals at GLO, Brandy
Soto (“Soto”) and Heger Asenjo
(“Asenjo”) (collectively, the “Paralegal
Defendants”). In connection with their oppositions to
Attorney Glassman's and the Paralegal Defendants'
motions to dismiss, the Plaintiffs have filed: (1)
“Plaintiffs, Metropolitan Property and Casualty
Insurance Company and The Commerce Insurance Company's
Motion to Strike All Exhibits Attached to Brandy Soto and
Heger Asenjo's Memorandum in Support of Their Motion to
Dismiss the Second Amended Complaint” (Docket No. 385);
and (2) “Plaintiffs, Metropolitan Property and Casualty
Insurance Company and The Commerce Insurance Company's
Motion to Strike All Exhibits Attached to Jeffrey S.
Glassman's Memorandum in Support of His Motion to Dismiss
the Second Amended Complaint” (Docket No. 391). By
their motions, the Plaintiffs are seeking to strike various
documents that Attorney Glassman and the Paralegal Defendants
have attached as exhibits to their memoranda of law in
support of their motions to dismiss. The Plaintiffs argue
that the challenged documents must be stricken because they
neither fall within the four corners of the Second Amended
Complaint nor fall within the scope of any of the narrow
exceptions to the rule that documents outside the complaint
may not be considered on a motion to dismiss unless the
motion is converted into one for summary judgment. They
further argue that the motions should not be construed as
ones for summary judgment unless the Plaintiffs are first
given an opportunity to engage in discovery.
the Paralegal Defendants and Attorney Glassman have opposed
the Plaintiffs' motions. In addition, the Paralegal
Defendants have brought a cross-motion to strike, which is
contingent upon a ruling in the Plaintiffs' favor.
Specifically, the Paralegal Defendants argue that if this
court agrees with the Plaintiffs, and finds that the
Paralegal Defendants' exhibits are not appropriate for
consideration at the motion to dismiss stage, the court
“must then strike all allegations contained in the
[Second Amended Complaint] that are supported by these
materials[.]” (Docket No. 416 at 14). Thus, the
Paralegal Defendants reason that the “Plaintiffs simply
cannot have it both ways, where on the one hand, they are
permitted to rely upon the [exhibits] to support the
allegations in the [Second Amended Complaint], but then, on
the other hand, safeguard those same materials from the
Defendants' analysis.” (Id.). Accordingly,
they request that this court deny the relief requested by the
Plaintiffs in the motion to strike their exhibits, but ask
that if this court declines to do so, it issue an order
“strik[ing] all allegations in the [Second Amended
Complaint] that rely upon these same documents.”
(Id. at 15).
described below, this court finds that it is appropriate to
consider the exhibits that have been submitted by Attorney
Glassman, as well as Exhibit 1 attached to the Paralegal
Defendants' memorandum of law, in connection with this
court's analysis of the defendants' motions to
dismiss, but that the remaining exhibits submitted by the
Paralegal Defendants are not properly before the court.
Therefore, and for all the reasons detailed herein, the
Plaintiffs' motion to strike all of the exhibits attached
to the Paralegal Defendants' memorandum in support of
their motion to dismiss (Docket No. 385) is ALLOWED IN PART
and DENIED IN PART, and the Plaintiffs' motion to strike
all of the exhibits attached to Attorney Glassman's
memorandum in support of his motion to dismiss (Docket No.
391) is DENIED. Because the Paralegal Defendants have
provided no legal basis for striking any of the allegations
set forth in the Second Amended Complaint under the
circumstances presented here, their cross-motion to strike
unsupported allegations (Docket No. 416) is hereby DENIED as
ruling on a motion to dismiss brought under Fed.R.Civ.P.
12(b)(6), the court must accept as true all well-pleaded
facts and give the plaintiff the benefit of all reasonable
inferences. See Cooperman v. Individual, Inc., 171
F.3d 43, 46 (1st Cir. 1999). “Ordinarily, a court may
not consider any documents that are outside of the complaint,
or not expressly incorporated therein, unless the motion is
converted into one for summary judgment.” Alt.
Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267
F.3d 30, 33 (1st Cir. 2001). “There is, however, a
narrow exception ‘for documents the authenticity of
which are not disputed by the parties; for official public
records; for documents central to plaintiffs' claims; or
for documents sufficiently referred to in the
complaint.'” Id. (quoting Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993)).
instant case, none of the parties has asked the court to
convert the defendants' motions to dismiss into motions
for summary judgment, and it is undisputed that the motions
are governed by the standard set forth in Rule 12(b)(6). Nor
is there any dispute that the exhibits at issue have not been
incorporated into the Second Amended Complaint. Therefore,
the question raised by the pending motions to strike is
whether the exhibits submitted by the Paralegal Defendants
and Attorney Glassman fall within the “narrow
exception” for documents that may be considered by the
court in connection with a motion to dismiss.
Plaintiffs' Motion to Strike the Paralegal
connection with their motion to dismiss the Second Amended
Complaint, the Paralegal Defendants submitted documents that
are attached to their memorandum of law as Exhibits 1, 2 and
3. Exhibit 1 consists of excerpts from the transcript of a
hearing that took place before the District Judge to whom
this case is assigned on May 16, 2016. (See Docket
No. 335-1). Exhibit 2 contains brief excerpts from the sworn
testimony of individuals who were represented by GLO in
connection with claims for insurance benefits from the
Plaintiffs. (Docket No. 335-3 through 335-18). The Paralegal
Defendants have relied on those excerpts in order to
challenge the Plaintiffs' characterization of the
individuals' testimony, as alleged in Exhibit C to the
Second Amended Complaint. In particular, they have cited the
excerpts in an effort to dispute the accuracy and reliability
of the Plaintiffs' factual allegations regarding the
substance of the individuals' testimony. (See
Docket No. 335 at 14-19). Exhibit 2 also contains a chart in
which the Paralegal Defendants have summarized their
challenges to the Plaintiffs' characterization of the
underlying testimony. (See Docket No. 335-2).
Finally, Exhibit 3 to the Paralegal Defendants'
memorandum of law contains portions of an Expert Report,
dated November 12, 2015, which was prepared by the
Plaintiffs' expert witness, Michael V. Frustaci, DC.
(Docket No. 335-19). The Paralegal Defendants have relied on
this Report to challenge the credibility of allegations,
contained in the Second Amended Complaint, describing Dr.
Frustaci's analysis of claim files at issue in the
litigation, and his opinion that the documents contained
therein were indicative of a scheme to defraud the Carriers.
(See Docket No. 335 at 24-26). While the Plaintiffs
contend that these documents should be stricken because they
are extrinsic to the Second Amended Complaint, not integral
to the Plaintiffs' claims, and raise myriad factual
issues that are not appropriate on a motion to dismiss, the
Paralegal Defendants argue that the court may properly
consider them because the hearing transcript is subject to
judicial notice, the Plaintiffs have relied upon the
remaining exhibits to support the allegations set forth in
the Complaint, and there is no dispute regarding the
authenticity of the documents.
respect to the hearing transcript contained in Exhibit 1,
this court finds that it is appropriate to consider it in
connection with the defendants' motions to dismiss.
“It is well-accepted that federal courts may take
judicial notice of proceedings in other courts if those
proceedings have relevance to the matters at hand.”
Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir.
1990). In fact, courts have applied this principle in order
to take judicial notice of events that occurred during
hearings in open court. See, e.g.,
Berkshire-Cranwell Ltd. P'ship v. Tokio Marine &
Nichido Fire Ins. Co., Ltd., 874 F.Supp.2d 41, 49-50 (D.
Mass. 2012) (describing statement made by plaintiff during
hearing on motions in state Superior Court). Accordingly, the
Plaintiffs' motion to strike is denied with respect to
the transcript attached as Exhibit 1 to the Paralegal
Defendants' memorandum of law in support of their motion
remaining exhibits submitted by the Paralegal Defendants
warrant a different outcome. As described above, those
exhibits include brief excerpts of witness testimony and the
Plaintiffs' expert's written report. The Paralegal
Defendants argue that these documents should be considered
because the Plaintiffs relied on them throughout the Second
Amended Complaint, and because they are central to the
Plaintiffs' claims for fraud against the defendants.
(Docket No. 416 at 7-12). However, this court finds that
consideration of these materials would not be appropriate on
a motion to dismiss.
well-established in this circuit that the court, in reviewing
a complaint pursuant to Rule 12(b)(6), “may properly
consider the relevant entirety of a document integral to or
explicitly relied upon in the complaint, even though not
attached to the complaint, without converting the motion into
one for summary judgment.” Clorox Co. P.R. v.
Proctor & GambleCommercial Co., 228 F.3d
24, 32 (1st Cir. 2000) ...