Arthur ORKIN et al. As Trustees of the Orkin Family Trust DTD 12-9-96
Louis Allen WOOLF et al.
DECISION AND ORDER ON DEFENDANTâS MOTION TO
William F. Sullivan, Justice of the Superior Court
plaintiffs are husband and wife who hired defendant Woolf to
advise them in regards their retirement investments on behalf
of the Orkin trust. Woolf was a registered representative of
Investors Capital Corporation. A portion of their investment
dealt with certain property in Texas which resulted in
distributions to the plaintiffs. These investments were done
in 2010. In 2015 distributions ceased from the Irving Street
property in Texas. The plaintiffs received a distribution
suspension notice in 2015.
November 3, 2017 the plaintiffs filed a statement of claim
with FINRA. The defendant moved to dismiss this claim and the
claim was in fact dismissed. After this dismissal, the
plaintiffs filed suit in Worcester Superior Court. The
defendants have filed a motion to dismiss under Mass.R.Civ.P.
12(b)(6) arguing that the plaintiffâs claims are barred by
the applicable statutes of limitations.
defendants argue that the statute of limitations on all
counts of the complaint, both in contract and in tort,
plaintiffs oppose the motion, arguing that because of the
defendantâs fraudulent behavior and other factors, the
statutes of limitations were tolled until the plaintiffs
discovered the negligence, fraud and breach of contract. The
plaintiffs maintain that they did not become aware of the
claims until 2015.
considering a motion to dismiss, the Court accepts all
well-pleaded factual allegations of the complaint as true,
but disregards characterizations and conclusions. See
Sisson v. Lhowe, 460 Mass. 705, 706 (2011);
Welch v. Sudbury Youth Soccer Assân, 453 Mass. 352,
354 (2009); Eyal v. Helen Broadcasting Corp., 411
Mass. 426, 429 (1991); Productora e Importadora de Papel,
S.A. de C.V. v. Fleming, 376 Mass. 826, 833-35 (1978);
Multi Tech v. Mitchell Mgmt. Sys., 25 Mass.App.Ct.
333, 335 (1988).
survive a motion to dismiss under Mass.R.Civ.P. 12(b)(6) a
complaint must set forth the basis of the plaintiffâs
entitlement to relief with "more than labels and
conclusions." Iannacchino v. Ford Motor Co.,
451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While factual
allegations need not be detailed, they "must be enough
to raise a right to relief above the speculative level ...
[based] on the assumption that all the allegations in the
complaint are true (even if doubtful in fact) ..."
Id., quoting Bell Atl. Corp., 550 U.S. at 555-56. At
the pleading stage, Mass.R.Civ.P. 12(b)(6) requires that the
complaint set forth "factual âallegations plausibly
suggesting (not merely consistent with)â an entitlement to
relief ..." Iannacchino, supra, quoting Bell
Atl. Corp., 550 U.S. at 557.
tort actions, the three-year limitations period
"commences after the cause of action accrues." The
statute does not define the term "accrues."
However, the general rule for tort actions is that an action
accrues when the plaintiff is injured. Joseph A. Fortin
Constr., Inc. v. Massachusetts Hous. Fin. Agency, 392
Mass. 440, 442, 466 N.E.2d 514 (1984). Cannon v. Sears,
Roebuck & Co. 374 Mass. 739, 741, 374 N.E.2d 582 (1978).
The Supreme Judicial Court has developed a discovery rule to
determine when the statute of limitations begins to run in
circumstances where the plaintiff did not know or could not
reasonably have known that he or she may have been harmed by
the conduct of another. Bowen v. Eli Lilly & Co.,
408 Mass. 204, 205, 557 N.E.2d 739 (1990).
this discovery rule, the statute of limitations starts when
the plaintiff discovers, or reasonably should have
discovered, "that [he] has been harmed or may have been
harmed by the defendantâs conduct." Therefore, the
three-year statute of limitations period does not start to
run "until a plaintiff has first, an awareness of [his]
injuries and, second, an awareness that the defendant caused
[his] injuries." Doe v. Creighton, 439 Mass.
281, 283, 786 N.E.2d 1211 (2003).
general rule regarding contract claims is that a cause of
action for breach of contract accrues at the time of the
breach. Campanella & Cardi Constr. Co. v.
Commonwealth, 351 Mass. 184, 185, 217 N.E.2d 925 (1966).
"However, there are situations in which a cause of
action in ... contract ... which is based on an inherently
unknowable wrong may not accrue until the person injured
knows or in the exercise of reasonable diligence should know
the facts giving rise to the cause of action." Frank
Cooke, Inc. v. Hurwitz, 10 Mass.App.Ct. 99, 106, 406
N.E.2d 678 (1980).
plaintiff relies upon the discovery rule to argue that his
claim was delayed due to an inability to recognize the cause
of his injuries, he bears the burden of "proving both an
actual lack of causal knowledge and the objective
reasonableness of that lack of knowledge." Id.
Generally, an issue concerning what the plaintiff knew or
should have known is a factual question that is appropriate
for the trier of fact. Riley v. Presnell, 409 Mass.
239, 240, 565 N.E.2d 780 (1991).
present case, there are significant issues of fact that must
be resolved by a jury. The complaint describes the plaintiffs
as unsophisticated investors who placed their trust in the
defendants. The complaint also outlines the types of
investments that were made on the plaintiffsâ behalf. The
description of these investments make it reasonable that it
would be difficult for investors like the plaintiffs to
determine or discover any ...