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Desiano v. Envision Foods, Inc.

Superior Court of Massachusetts, Suffolk

September 21, 2017

Ralph Desiano
v.
Envision Foods, Inc

          MEMORANDUM OF DECISION AND ORDER ON (1) DEFENDANT'S MOTION TO DISMISS AND (2) PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

          Robert B. Gordon, Justice of the Superior Court.

         The plaintiff, Ralph Desiano (" Desiano"), has brought this action to enforce a Florida judgment against the defendant, Envision Foods, Inc. (" Envision"). In his Verified Complaint, Desiano seeks to reach and apply any amounts due or that may become due to Envision from the reach and apply defendant, Cosi, Inc. (" Cosi") under G.L.c. 214, § 3(6).[1] Presented for decision are Envision's Motion to Dismiss the Verified Complaint pursuant to Mass.R.Civ.P. 12(b)(2) and (6), and Desiano's Cross-Motion for Summary Judgment pursuant to Mass.R.Civ.P. 56(c).[2] For the reasons which follow, Envision's Motion to Dismiss shall be DENIED, and Desiano's Cross Motion for Summary Judgment shall be ALLOWED.

         BACKGROUND

         Desiano is a Florida resident. Envision is a dissolved Florida corporation, with no contacts (past or present) with the Commonwealth of Massachusetts. Reach and apply defendant Cosi is a Massachusetts corporation.

         On January 3, 2013, the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County Florida awarded Desiano a $195, 130.55 judgment against Envision (the " Florida judgment"), the validity of which is not contested. In accordance with Florida law, Desiano filed a judgment lien against Envision with the Florida Department of State on January 31, 2013.

         Desiano filed the present action on March 3, 2016, at which time the Florida judgment remained outstanding. By this action, Desiano seeks to reach and apply Envision's interest in all or a portion of a $500, 000 debt owed to Envision by reach and apply defendant Cosi (the " Cosi obligation"). Envision does not dispute the existence of the Cosi obligation, which accrued several years ago in connection with an unspecified business transaction in a foreign state.[3] The Cosi obligation is Envision's sole asset.

         DISCUSSION

         Envision has moved to dismiss the Complaint for lack of personal jurisdiction, and Desiano has cross moved for summary judgment. Under Mass.R.Civ.P. 12(b), the reviewing judge may treat a motion to dismiss brought pursuant to Mass.R.Civ.P. 12(b)(6) as a motion for summary judgment if matters outside the pleadings are presented to, and not excluded by, the Court. In the case at bar, the Court has been presented with and will consider materials extrinsic to the pleadings. Therefore, Envision's Motion to Dismiss will be treated as a motion for summary judgment, and disposed of as provided for in Rule 56.

         I. Standard of Review

          Summary judgment shall be granted where there are no genuine issues of material fact, and where the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). See Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden of establishing that there is no dispute of material fact on every relevant issue. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39, 825 N.E.2d 522 (2004). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact either by submitting affirmative evidence negating an essential element of the non-moving party's case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. See Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).

         II. Analysis

         Resolution of the parties' competing motions in this case turns on two issues. Envision's principal argument is that the Court lacks personal jurisdiction over it, and that the case must therefore be dismissed. Envision additionally argues that, in the event the Court declines to dismiss the case for lack of jurisdiction, it must nevertheless deny summary judgment to the plaintiff because issues of fact remain with respect to whether Desiano's right to the Cosi obligation is subordinate to a superior interest of a third party. The Court will address each issue in turn.

         A. Jurisdiction

         Envision argues that the Court lacks personal jurisdiction over it, and that such lack of jurisdiction is fatal to Desiano's reach and apply claim. Envision is correct insofar as it contends that the Court does not have personal jurisdiction over it.[4] However, as will be explained below, lack of ...


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