Orkin v. Albert

• Decision Date: 20 August 2021
• Docket Number: CIVIL ACTION NO. 4:20-cv-40116-TSH
• Citation: 557 F.Supp.3d 252
• Parties: Wayne and Arthur ORKIN, Plaintiffs, v. Lisa Sue ALBERT and Ian Albert, Defendants. Boost Web Seo, Inc., Intervenor.
• Court: U.S. District Court — District of Massachusetts

557 F.Supp.3d 252

Wayne and Arthur ORKIN, Plaintiffs,

v. Lisa Sue ALBERT and Ian Albert, Defendants.Boost Web Seo, Inc., Intervenor.

CIVIL ACTION NO. 4:20-cv-40116-TSH

United States District Court, D. Massachusetts.

Filed August 20, 2021

Jason Edward Tauches, PiltserCowan Law LLC, Boston, MA, for Plaintiffs.

Irwin B. Schwartz, Bla Schwartz, PC, Westwood, MA, for Defendant Lisa Sue Albert.

Irwin B. Schwartz, Sara W. Khan, Bla Schwartz, PC, Westwood, MA, for Defendant Ian Albert.

Order on Plaintiffs’ Motion for a Temporary Restraining Order (Docket No. 7); Boost Web SEO, Inc.’s Motion to Intervene and Motion for Constructive Trust (Docket No. 10); and Defendants’ Motion for Expedited Discovery (Docket Nos. 64, 66)

HILLMAN, D.J.,

Before the Court is Plaintiffs’ Motion for a Temporary Restraining Order (Docket No. 7); Boost Web SEO, Inc.’s Motion to Intervene (Docket No. 10), and Defendants’ Cross Moton for Expedited Discovery (Docket Nos. 64, 66).

Factual and Procedural Background

Wayne Orkin and Arthur Orkin ("Plaintiffs") brought this action against Lisa Albert and Ian Albert ("Defendants"), Arthur's sister and nephew, to dispute control of three family-operated businesses: Boost Web (a Florida corporation), OBANC (a Delaware corporation), and IA Payments (a Delaware corporation) (collectively, the "Companies"). Plaintiffs have also alleged various defamation claims against Lisa and/or Ian concerning their statements about Wayne's treatment of Arthur, Arthur's health and hygiene, and Wayne's affiliation and position at the Companies. The claims alleged include: defamation (Count I: Wayne v. Lisa); defamation (Count II: Wayne v. Lisa and Ian); defamation (Count III: Arthur v. Lisa); breach of fiduciary duty (Count IV: Wayne v. Lisa); breach of fiduciary duty (Count V: Wayne v. Ian); breach of contract (Count VI: Wayne v. Lisa); breach of contract (Count VII: Wayne v. Ian); unjust enrichment (Count VIII: Wayne v. Lisa and Ian); injunctive relief (Count IX); and intentional interference with advantageous business relationships (Count X: Wayne v. Lisa).

Discussion

I. Motion for TRO

"[Injunctive relief] is an extraordinary and drastic remedy that is never awarded as of right." Peoples Federal Sav. Bank v. People's United Bank , 672 F.3d 1, 8-9 (1st Cir. 2012). The standard for issuing a TRO is "the same as for a preliminary injunction." Bourgoin v. Sebelius , 928 F.Supp.2d 258, 267 (D. Me. 2013). To obtain relief, the moving party must satisfy the following four factors: (i) the likelihood that the movant will succeed on the merits; (ii) the possibility that, without an injunction, the movant will suffer irreparable harm; (iii) the balance of relevant hardships between the parties favors relief; and (iv) the effect of the court's ruling on the public interest. Coquico, Inc. v. Rodríguez-Miranda , 562 F.3d 62, 66 (1st Cir. 2009).

It would be utterly irresponsible for this Court to issue such extraordinary relief because Plaintiffs have presented little or no substantial evidence for any of their claims, and therefore have no likelihood of success on the merits.

A. Defamation (Counts I, II, III)

Under Massachusetts law, to prevail on a claim for defamation the plaintiff must establish that: (1) the defendant published an oral (slander) or written (libel) statement; (2) the statement was about, and concerned, the plaintiff; (3) the statement was defamatory; (4) the statement was false; and (5) the plaintiff suffered economic loss, or the claim is actionable without proof of economic loss. Noonan v. Staples, Inc. , 707 F. Supp. 2d 85, 89 (D. Mass. 2010). In Massachusetts, truth is justification for libel unless actual malice is proved. M.G.L. c. 231 § 92.

Plaintiffs have not established a likelihood of success on any of their three defamation claims.

Wayne is the primary caretaker for Arthur, the siblings’ nonagenarian father. Count I (Wayne v. Lisa) alleges that Lisa mailed or made defamatory statements over the phone regarding Wayne's treatment of Arthur to Arthur's medical providers and the Massachusetts Department of Elder Affairs. (Compl. ¶¶ 59-60; Ex. D, Docket No. 7-2). Lisa admits she sent a letter to Arthur's physician, but that all the claims in her letter about Wayne's negligence or abuse are true. (Docket No. 4, ¶ 46; Docket No. 15 at 2). Wayne, who bears the burden of proof on a TRO, has adduced no evidence beyond conclusory allegations that Lisa's claims are false or that they are made with actual malice. There are no medical records or evidence about Arthur's condition to rebut any of the letter's detailed claims about Arthur's repeated hospitalizations for falls, lack of home care, and recent drastic legal and financial decisions.

Count III (Arthur v. Lisa) makes similar allegations as Count I. Again, Arthur has provided no evidence to show that Lisa's claims were false or made "with reckless disregard for the truth" or knowledge of their falsity, let alone actual malice. The only evidence offered is a copy Lisa's letter to Wayne's urologist and Wayne's statement in his affidavit that the letter caused their father intense emotional distress. (Orkin Aff. ¶ 59, Docket No. 7).

Count II (Wayne v. Lisa and Ian) alleges that Ian and Lisa made a number of false statements to the Companies’ clients that Wayne was not affiliated with the Companies and is not an officer of the Companies. But the Complaint does not state when such statements were made, nor does it identify their recipients. The only detail provided is that "[o]n information and belief, Lisa and Ian have communicated to client of the Companies, to include Card Connect, that Wayne is no longer associated with the Companies." (Comp. ¶ 55). Wayne does not explain the basis for his belief and information, and without that critical evidence he has not established a likelihood of success on the merits, assuming arguendo that any statement by Lisa or Ian about his non-affiliation with the Companies is false.

Furthermore, Wayne's evidence that he is the President and a corporate officer at the Companies pales in comparison to Defendants’ evidence that he merely provided "sales and administrative support." Whereas Wayne has attached copies of his LinkedIn profile showing his title as Co-Founder (not President) of all three companies, and copies of one email in his email signature held him out as Boost's President, Boost has submitted Boost's Florida 2020 and 2021 corporate annual report and its incorporation documents, which list Lisa as the sole corporate officer and President. (Compare Exs. A, B, Docket No. 7-2 with Exs. A-C, Docket No. 10). While the Court can question why Boost and Defendants allowed Wayne to hold himself out as the President on Gmail and as a co-founder on social media, if, as they say, he merely provided "sales and administrative support," suspicion does not connote a likelihood of success on the merits. (¶ 6, Docket No. 10).

On a final note, Plaintiffs have asked the Court to order Lisa to rescind a complaint about Erva Herb Delta 8 Chocolates, a company he has invested in, that she submitted to the Food and Drug Administration. (Docket No. 7 at 2; 7-1 at 10; Ex. E, Docket No. 7-2). Wayne did not state any allegations about Lisa's defamatory remarks to the FDA about Erva Herb in the Complaint, see generally Docket No. 1, and he cannot spontaneously add a new defamation cause of action in his motion for a TRO.

B. Breach of Contract (Count VI, VII)

"To prevail on a claim for breach of contract, a plaintiff must demonstrate that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result." Bulwer v. Mount Auburn Hosp. , 473 Mass. 672, 690, 46 N.E.3d 24 (2016). Plaintiff Wayne Orkin has no likelihood of prevailing on his breach of contract claims against Lisa and Ian (Counts VI, Count VII) where he has not provided an iota of evidence that valid contracts exist.

Counts VI states a claim against Lisa for violating a purported agreement with Wayne to allow Wayne to manage Boost and its day-to-day operations while she would be limited to the accounting, with the understanding that no decision concerning Boost would be made without Wayne's consent because they would both be corporate officers. (Compl. ¶ 17). Wayne further claims as part of that agreement, Lisa would be named on the Boost Wells Fargo Checking Account and Wayne would remain an authorized signer in order to pay for client services, contract services, and other business expenses, such as her business phone. (¶¶ 18-19). Count VII alleges that Ian made the same agreement with Wayne as to OBANC and IA Payments. (¶¶ 21-26). Both counts charge that Ian and Lisa broke their respective agreements when Lisa stopped payments on checks and payments made by Wayne from the Boost account and removed Arthur as an authorized user, and when they diverted money from the Companies for their own personal use.

No written contracts were attached to the Complaint, but Wayne clarified in his TRO motion that his agreements with Lisa and Ian were verbal. (Orkin Aff. ¶¶ 6, 14). For Wayne to show likelihood of success on the merits on a breach of contract claim, he must at a minimum show that an enforceable contract exists. Florida, Massachusetts, and Delaware—the various states where Boost, IA Payments, and OBANC were incorporated, where their registered officer (Lisa Albert) resides, or where one or more parties may have possibly resided when the purported verbal agreement was struck based on the facts provided in the Complaint—all ban oral contracts that extend beyond one year. See M.G.L. c. 259, § 1 ; 6 Del. C § 2714(a) ; West's F.S.A. § 725.01. Per Wayne's allegations in the Complaint, his agreements with Lisa and Ian were made when the Companies were founded in 2018, 2019, and 2010, and had no...