Superior Court of Massachusetts, Suffolk, Business Litigation Session
Date: February 21, 2018
MEMORANDUM AND ORDER DENYING PLAINTIFFâS MOTION FOR A
Kenneth W. Salinger, Justice of the Superior Court
Associates of Massachusetts, PC ("AAM") claims that
defendant Plexus Anesthesia Services of Massachusetts, PC
("PASM") owes it at least $2.0 million for past
anesthesia services. AAM asks the Court to enter a
preliminary injunction that would prevent PASM from
transferring or encumbering any assets, or from making any
payments of any funds except for paying wages to its
employees, paying its attorneys, or paying rent, utilities,
and taxes. AAM asserts that it will suffer irreparable harm
without the requested injunction because PASM has been making
and would continue to make preferential payments to entities
other than AAM, thereby preventing from receiving money it is
still owed for past services rendered.
preliminary injunction is an extraordinary remedy never
awarded as of right." Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008). To the contrary,
"the significant remedy of a preliminary injunction
should not be granted unless the plaintiffs had made a clear
showing of entitlement thereto." Student No. 9 v.
Board of Educ., 440 Mass. 752, 762 (2004). "Trial
judges have broad discretion to grant or deny injunctive
relief." Lightlab Imaging, Inc. v. Axsun
Technologies, Inc., 469 Mass. 181, 194 (2014).
Court will DENY this motion for a preliminary injunction for
two reasons: AAM has not met its burden of proving
irreparable harm, and the broad relief it seeks is not
permitted without a judgment under Massachusetts
Failure to Prove Irreparable Harm
moving party, AAM has the "burden of showing it would
suffer an irreparable harm absent an injunction."
GTE Products Corp. v. Stewart, 414 Mass. 721, 726
asserts that it will suffer irreparable harm without the
proposed preliminary injunction because PASM has been making
preferential payments to another entity. The sole evidence
supporting that assertion is a statement made "upon
information and belief" by AAMâs chief operating
officer. But assertions in an affidavit or verified complaint
made on "information and belief" that are not
supported by any other evidence do "not supply an
adequate factual basis for the granting of a preliminary
injunction." Eaton v. Federal Natâl Mortgage
Assân, 462 Mass. 569, 590 (2012); accord Alexander &
Alexander, Inc. v. Danahy, 21 Mass.App.Ct. 488, 494
AAM has made no factual showing of likely irreparable harm
other than assertions made solely on "information and
belief," it has failed to meet its burden of proving
that it will suffer irreparable harm without the proposed
injunction. It is therefore not entitled to obtain
preliminary injunctive relief. See, e.g., American Grain
Products Processing Institute v. Department of Pub.
Health, 392 Mass. 309, 326-29 (1984) (vacating
preliminary injunction because plaintiff did not prove it
would suffer irreparable harm without relief); Nolan v.
Police Commâr of Boston, 383 Mass. 625, 630 (1981)
Failure to Justify a Creditorâs Bill Attachment
would not be entitled to the requested preliminary injunction
even if it had met its burden of proving irreparable harm.
AAM is seeking incredibly broad relief. Rather than seek a
real estate attachment or some other kind of pre-judgment
security that is authorized by rule or statute, AAM asks the
Court to tie up or freeze all of PASMâs assets and to bar it
from spending any money except to pay its employees, lawyers,
or its rent, utility, and tax bills. AAM has not met its
burden of proving that such preliminary injunctive relief can
or should be granted.
request to tie up PASM funds and other assets is essentially
a "nonstatutory action[ ] to reach and apply" that
used to be known as a "creditorâs bill." See
Cavadi v. DeYeso, 458 Mass. 615, 625 (2011).
"Traditionally, a creditorâs bill could be brought (i)
by a judgment creditor, (ii) who had attempted to obtain
satisfaction at law, and (iii) who sued in equity for the
purpose of reaching property that could not be taken on
execution at law." Id. The "true rule in
equity is that under usual circumstances a creditorâs bill
may not be brought except by a judgment creditor after a
return of ânulla bonaâ on execution." First Nat.
Bank of Boston v. Nichols, 294 Mass. 173, 182 (1936),
quoting Harkin v. Brundage, 276 U.S. 36, 52 (1928).
In cases involving fraudulent conveyances that leave a
judgment debtor insolvent, the judgment creditor need not
prove a fruitless attempt at execution, but still must show
that it has obtained a final and enforceable judgment before
obtaining equitable relief in the nature of a creditorâs
bill. See Foster v. Evans, 384 Mass. 687, 693-94
Plaintiffs are not yet judgment creditors of PASM, the Court
may not exercise its general equity jurisdiction to
temporarily grant injunctive relief in the nature of
creditorsâ bill attachment. See First Nat.
Bank, 294 Mass. at 182-83; Consolidated Ordnance Co.
v. Marsh, 227 Mass. 15, 23 (1917); In re Rare Coin
Galleries of America, Inc., 862 F.2d 896, 904-05 (1st
Cir. 1988) (applying Massachusetts law); Hunter v.
Youthstream Media Networks, 241 F.Supp.2d 52, 55-57
(2002) (Collings, M.J.) (applying Massachusetts law). The
Court notes that the United States Supreme Court has reached
the same result under federal law, holding that federal
courts have "no authority to issue a preliminary
injunction preventing" parties "from disposing of
their assets pending adjudication of [a] claim for money
damages," where the plaintiff does not claim any lien
upon or other equitable interest in the assets. Grupo
Mexicano de Desarrollo, S.A. v. Alliance Bond Fund,
Inc., 527 U.S. 308, 310, 333 (1999).
published appellate Massachusetts decision cited by AAM for
the proposition that trial courts may freeze a defendantâs
assets is not to the contrary. The Boston Athletic
Assân appeal did not involve a creditorâs bill
attachment, but instead involved an injunction to prevent the
dispersal of particular, contested funds generated by a
contract the validity of which was in dispute. See Boston
Athletic Assân v. International Marathons, Inc., 392
Mass. 356, 362 (1984). The Court recognizes that it would
have the power to enjoin the dissipation of particular funds
in which a plaintiff has a demonstrated equitable interest,
as in the BAA case. See also, e.g., Gucci
America, Inc. v. Weixing Li,768 F.3d 122, 130-31 (2d
Cir. 2014) (distinguishing Grupo Mexicano ...