Superior Court of Massachusetts, Suffolk, Business Litigation Session
Date: March 23, 2018
MEMORANDUM AND ORDER ALLOWING DEFENDANTSâ MOTION TO
Kenneth W. Salinger, Justice of the Superior Court
case arises from a dispute between plaintiff Eugene OâMalley
and Adel A. Hamadi Al Tamimi concerning the financing of an
arbitration claim. They entered into a contract providing
that if OâMalley could arrange for someone to fund the
arbitration then Tamimi would pay him a four percent finderâs
fee. Tamimi breached the contract. OâMalley successfully sued
Tamimi for breach of contract and violation of G.L.c. 93A. He
was awarded treble damages of $580,200, plus interest, plus
roughly $825,000 in attorneys fees and costs. OâMalley
asserts that he has been unable to collect the full amount
owed by Tamimi under this judgment.
has now sued the two lawyers who represented Tamimi in this
transaction, Stephen Burr and Lawrence Kulig, as well as
their law firm, Eckert Seamans Cherin & Mellot, LLC. He
alleges that the funds OâMalley procured were paid into
Eckertâs IOLTA account, Burr and Kulig knew that four percent
of that amount should have been paid to OâMalley, Burr
falsely asserted that Tamimi had a good faith basis for not
paying OâMalley, the Defendants then let Tamimi transfer his
funders, and as a result OâMalley has been unable to collect
what he is owed. OâMalley asserts claims for fraud,
fraudulent concealment, violation of c. 93A, and intentional
infliction of emotional distress.
have moved to dismiss all claims. The Court will ALLOW the
motion to dismiss because all four claims are barred by the
statutes of limitations.
purpose of deciding the motion to dismiss, the Court assumes
that Mr. OâMalleyâs factual allegations and any reasonable
inferences that may be drawn from the facts alleged in his
complaint are true. See Golchin v. Liberty Mut. Ins.
Co., 460 Mass. 222, 223 (2011). OâMalley alleges the
and Tamimi entered into a written consulting agreement in
July 2011. It provided that if OâMalley could find an
investor to provide Tamimi with the funds he needed to
finance an arbitration claim against the Sultanate of Oman,
then OâMalley would be paid a finderâs fee equal to four
percent of the total amount of capital advanced to Tamimi.
was successful. He procured a $5.96 million investment in the
Oman arbitration. He was therefore owed a $238,400 finderâs
investor wired his $5.96 million payment to Eckert Seamansâ
client account for the benefit of Tamimi. The proceeds were
wired on September 6, 2011.
next day OâMalley emailed Burr. He asked that Eckert pay his
finderâs fee. Burr responded in emails stating that he had to
speak with his client, Tamimi, but expected that he would be
able to wire the full payment to OâMalley by September 8.
September 8 Burr wired a partial payment of $50,000 to
OâMalley. He also sent an email assuring OâMalley that "
I talked to him [Tamimi] an hour ago and told him that he
needed to pay you," and that " I will not get paid
until you get paid and the money will not leave here until
this is dealt with."
September 15 Burr emailed Tamimi and urged him to "
approve payment in full immediately." Burr also advised
his client that " [i]f I thought there was an opening to
negotiate under the terms of his contract I would tell you,
but there is not."
Tamimi did not want to pay the rest of what he owed to
OâMalley. So on September 28 Burr sent an email to OâMalley
in which Burr falsely asserted that Tamimi had raised "
some substantive issues as to whether you have fully earned
what your contract provided for," and that " his
concerns are good faith concerns and not just a negotiating