Superior Court of Massachusetts, Suffolk, Business Litigation Session
Rashaud GARNER et al.
ENTERTAINMENT MANAGEMENT COMPLEX, LLC
MEMORANDUM AND ORDER DENYING PLAINTIFFSâ MOTION FOR A
Kenneth W. Salinger, Justice of the Superior Court
dispute concerns the booking of private events at a public
conference center in Brockton, Massachusetts. The facility is
owned by Brockton 21st Century Corporation ("B21"),
a non-profit organization that was created to help the City
of Brockton with economic development activities, including
the conference center and adjoining baseball stadium. B21
retained defendant Entertainment Management Complex, LLC
("EMC") to operate the conference center and
stadium. EMC in turn retained plaintiffs Rashaud Garner and
his company Entertainment One Stop Shop, LLC
("EOSS") to book events and provide event-related
services at the conference center. The parties agree that
EMCâs arrangement with Mr. Garner and EOSS was in effect at
least until the end of 2017.
claim that in October 2017 EMC agreed to extend their
contract through the end of 2018. They seek a preliminary
injunction that would, in essence, require that EMC to adhere
to that alleged contract extension.
Court will DENY the motion for a preliminary injunction
because Plaintiffs have not yet proved that they have any
likelihood of succeeding on the merits of their claims. Cf.
Fordyce v. Town of Hanover, 457 Mass. 248, 266
(2010) (vacating preliminary injunction because plaintiffs
were "unlikely to succeed on the merits"). "A
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). Plaintiffs
have not met that burden.
Garner relies primarily on emails he claims he exchanged with
Todd Marlin of EMC on September 20 and October 20, 2017.
According to Mr. Garner, on September 20 Mr. Marlin sent an
email with the subject line "Q1, Q2 2018" and said
"please go ahead and start booking events in the first
quarter, second quarter of next year." Mr. Gardner also
asserts that on October 20, (i) Mr. Garner emailed Mr. Marlin
at 1:49 p.m., stating that he wanted to book six bar mitzvahs
at the conference center from April to June 2018, and (ii)
Mr. Marlin replied at 5:55 p.m. by saying "Chris said
itâs a go for 2018[.] Cool ... see you then." Mr.
Gardner verified under the pains and penalties of perjury
that "true and accurate" copies of these emails
were attached to his complaint. He argues that the October 20
email constitutes an irrevocable, one-year extension of
contract with EMC.
presented evidence that Mr. Garner falsified these emails.
Specifically, it has submitted a sworn affidavit by Mr.
Marlin attaching what purport to be the correct versions of
these two email chains. Mr. Marlin swears that the September
20 email actually had the subject line "Q1 2018"
and said "please go ahead and start booking events in
the first quarter of next year." In other words, EMC
asserts that Mr. Garner falsified this email by inserting
references to Q2 2018 that were not actually in the
communication as sent by Mr. Marlin. In addition, Mr. Marlin
swears that his actual email chain with Mr. Garner on October
20 was much longer than and materially different from the
version presented by Mr. Garner. The version presented by EMC
also begins with a 1:49 p.m. email in which Mr. Garner asks
about booking bar mitzvahs during the second quarter of 2018.
But Mr. Marlinâs response at 2:13 p.m. is to say "Let me
talk to Chris." There follows a back-and-forth in which
Garner asks when Chris will be in, Marlin says he does not
know, Garner says that he wants to talk with Chris, Marlin
asks at 5:55 p.m. whether Garner will be "around
tomorrow," Garner says yes and explains when, and
finally at 6:19 p.m. Marlin responds "Cool ... see you
then." In this version Mr. Marlin never says "Chris
said itâs a go for 2018."
deciding a motion supported by sworn affidavits, "the
weight and credibility to be accorded those affidavits are
within the judgeâs discretion" and "[t]he judge
need not believe such affidavits even if they are
undisputed." Commonwealth v. Furr, 454 Mass.
101, 106 (2009). An affidavit "is a form of sworn
testimony the credibility of which is to be determined by the
judge." Psy-Ed Corp. v. Klein, 62 Mass.App.Ct.
110, 114, rev. denied, 442 Mass. 1114 (2004).
on the information presented by the parties, the Court does
not credit Mr. Garnerâs testimony regarding the September 20
and October 20 emails, and does not believe that the versions
of these emails that he provided were either true or
accurate. Instead it credits Mr. Marlinâs testimony. In the
truncated version of the October 20 emails presented by
Garner, the statement "Cool ... see you then" makes
no sense and does not appear to be in response to anything.
In contrast, the full email chain presented by Mr. Marlin
makes perfect sense. After Garner conveys when he will next
be at the conference center, Marlin responds by saying
"Cool ... see you then." The Court concludes that
Mr. Garner created a fictitious version of the October 20
emails. And that in turn leads it to conclude that Mr.
Garnerâs version of the September 20 emails is fictitious as
the Court does not believe that Mr. Garner received the
October 20 email he relies upon, there is no reason to
believe that Garner will succeed in proving that EMC ever
agreed to extend Garnerâs prior contract through the end of
2018. The falsified email was the sole evidentiary basis for
this part of Garnerâs claim.
since the Court has tentatively concluded-based on the
current evidentiary record-that Mr. Garner knowingly provided
the Court with falsified emails and that Mr. Garner made
false statements under the oath, the Court exercises its
discretion to. deny the preliminary injunctive relief sought
by Plaintiffs. "Trial judges have broad discretion to
grant or deny injunctive relief." Lightlab Imaging,
Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194
(2014). Mr. Garnerâs conduct appears to constitute an
attempted fraud on the court. Cf. Commissioner of
Probation v. Adams, 65 Mass.App.Ct. 725, 730 (2006)
(false statements aimed at influencing judgeâs decision to
issue restraining order constituted fraud on the court);
Munshani v. Signal Lake Venture Fund II, LP, 60
Mass.App.Ct. 714, 719-20 (2004) (submission of false
testimony and evidence "calculated to interfere with the
courtâs ability impartially to adjudicate" pretrial
discovery disputes was sanctionable fraud on the court). In
these circumstances, the Court has "inherent power"
and "broad discretion to fashion a judicial response
warranted by the fraudulent conduct," including by
denying relief sought by the party that engaged in the fraud.
Rockdale Management Co. v. Shawmut Bank, N.A., 418
Mass. 596, 599 (1994).
Garner had shown a likelihood of success on the merits and
the other preconditions to obtaining preliminary injunctive
relief, which he has not, the Court would still exercise its
discretion to deny Garnerâs motion as a sanction for Garnerâs
apparent attempt to deceive the Court. It is well established
that "one must have behaved equitably in order to obtain
equitable remedies," such as injunctive relief ordering
another party to perform under a contract. Galipault v.
Wash. Rock Investments, LLC, 65 Mass.App.Ct. 73, 85
(2005); accord, e.g., New England Merchants Nat. Bank of
Boston v. Kann, 363 Mass. 425, 428 (1973) ("He who
seeks equity must do equity"). Mr. Garner is not
entitled to equitable relief.
motion for a preliminary ...