MEMORANDUM OF DECISION AND ORDER ON (1)
DEFENDANT'S MOTION TO DISMISS AND (2) PLAINTIFF'S
CROSS MOTION FOR SUMMARY JUDGMENT
B. Gordon, Justice of the Superior Court.
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). 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). For the reasons which follow,
Envision's Motion to Dismiss shall be DENIED,
and Desiano's Cross Motion for Summary Judgment shall be
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.
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.
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. The Cosi obligation is Envision's
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.
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).
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.
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. However, as will be explained below,
lack of ...