Provanzano v. Parker

• Citation: 796 F.Supp.2d 247
• Decision Date: 16 June 2011
• Docket Number: Civil Action No. 10–11893–NMG.
• Parties: Joseph S. PROVANZANO, Plaintiff, v. Bridgette M. PARKER, Individually and doing business as Parker View Farm, Parker View Farm, Inc., Robert M. Turner, Individually and doing business as LM Turner Stables and LM Turner Stables, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

796 F.Supp.2d 247

Joseph S. PROVANZANO, Plaintiff,

v.Bridgette M. PARKER, Individually and doing business as Parker View Farm, Parker View Farm, Inc., Robert M. Turner, Individually and doing business as LM Turner Stables and LM Turner Stables, Inc., Defendants.

Civil Action No. 10–11893–NMG.

United States District Court, D. Massachusetts.

June 16, 2011.

Joseph S. Provanzano, Provanzano Law Offices, Peabody, MA, pro se.

Grahmn New Morgan, Michael J. Mott, Dinshore & Shohl LLP, Lexington, KY, for Defendants.

MEMORANDUM & ORDER

GORTON, District Judge.

The plaintiff, Joseph S. Provanzano, brings this action against Bridgette M. Parker, individually and doing business as Parker View Farm, Inc. (“Parker”) and Robert M. Turner, individually and doing business as LM Turner Stables, Inc. (“Turner”), for a violation of the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A, §§ 2 and 9 (“Chapter 93A”).

I. Factual Background

Provanzano, a Massachusetts resident, is the owner of four horses: Mild Emotion, Sandra's Dream, Joe's Boy and Ms. Martha Anne. In 2006, Mild Emotion suffered an eye injury while she was being boarded and trained at Turner Stables in New Hampshire. After the mare was injured, Turner recommended that she be sent to Parker (who owns a horse farm in Kentucky) for surgery and to be boarded in the event that she needed additional surgery. Provanzano claims (and the defendants deny) that Turner then introduced him to Parker at a horse show in Massachusetts. Provanzano subsequently agreed to board Mild Emotion at Parker's facility in Kentucky for $350 per month. Beyond that, the parties dispute the facts.

Provanzano claims that, at the time, he was not aware that 1) Parker's primary business was breeding horses, 2) Turner was her agent for selling those horses or 3) the two regularly transacted business together. Provanzano alleges that Turner arranged for Mild Emotion's transfer to Kentucky and assured Provanzano that all of the tack that he had purchased for Mild Emotion would be transferred with her. Instead, Turner neglected to return to plaintiff or deliver to Parker over $8,000 worth of tack. Parker charged Provanzano $6,000 more than agreed upon in boarding fees and over $100,000 in additional expenses that were not part of the original agreement.

The complaint goes on to assert that, during Mild Emotion's recuperation, Turner suggested that Provanzano breed her to defer some of the costs. In a letter to Parker and Turner, dated March 6, 2007, Provanzano told the defendants that they did not have permission to breed Mild Emotion but despite those instructions, the defendants bred Mild Emotion in or about April, 2007. Upon receiving a second invoice, Provanzano learned that Mild Emotion had birthed a foal, Sandra's Dream. Provanzano paid the outstanding invoices only after Parker threatened to sell Mild Emotion if he did not.

Despite the fact that, a short time later, Provanzano denied permission (for a second time) for the defendants to breed Mild Emotion, they bred her again and Joe's Boy was the result. At that point, Provanzano was billed (and paid) $360 per month per horse and foal, a stud fee, veterinary bills and other expenses. The defendants then informed Provanzano that they would not breed Mild Emotion again.

Provanzano asserts that when he arranged to have the horses transported back to New England in May, 2010, he learned that there was yet another foal, Ms. Martha Anne. He received an invoice for $2,000 for the breeding of Mild Emotion and incurred additional transportation expenses for the filly. Mild Emotion's hooves were so damaged (allegedly due to the three pregnancies) that she needed very expensive veterinarian treatment and might not be able to be shod in the future. Provanzano alleges that the injuries to Mild Emotion as a show horse will result in the loss of approximately $80,000 in prize money.

Plaintiff claims that the defendants' multiple actions constitute unfair and deceptive acts or practices in violation of Chapter 93A. On September 14, 2010, plaintiff sent the defendants a Chapter 93A demand letter in which he claimed over $150,000 in compensatory damages and that they be trebled. He received no reply but, a few weeks later, Turner and Parker sued Provanzano in the Circuit Court for Woodford County, Kentucky (No. 10–CI–00517) alleging business defamation and breach of a verbal contract with Parker (“the Kentucky Action”). In that case, the defendants seek a declaratory judgment that they have not violated any Massachusetts or other state law and claim that Provanzano put a hold on the credit cards he used to pay Parker and stopped payment on previously submitted checks.

Parker and Turner report that, as of November 11, 2010, Provanzano had not yet been served in the Kentucky Action because he evaded service by hiding from the service processor and not returning his phone calls. On November 12, 2010, defendants served Attorney Andrew Breines, who was Provanzano's counsel in that action, with a motion for injunctive relief. Breines responded that he no longer represented Provanzano. Nevertheless, Breines has been filing pleadings on behalf of plaintiff in this case although he has not filed his appearance.

II. Procedural History

Provanzano filed his complaint in the Massachusetts Superior Court Department for Essex County in October, 2010 and the case was timely removed to federal court by the defendants. On November 11, 2010, the defendants filed a motion to dismiss which Provanzano opposed. On December 20, 2010, the plaintiff filed a motion to remand the case to state court and requested oral argument and attorney's fees in connection with that motion. Finally, on December 21, 2010, the defendants moved for a protective order which plaintiff opposed.

III. Motion to RemandA. Standard

Defendants removed this case to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. A non-resident defendant may remove a civil case from state court to a United States District Court if the case presents a controversy between citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1332, 1441(b). To determine whether those requirements are satisfied, the Court must examine the circumstances at the time of the petition for removal. Carey v. Bd. of Governors of Kernwood Country Club, 337 F.Supp.2d 339, 341 (D.Mass.2004). If the Court determines that those requirements are not satisfied, the case must be remanded. See 28 U.S.C. § 1447(c). The party seeking removal bears the burden of showing that removal was proper. Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir.1999).

B. Application

It is undisputed that there is complete diversity in this case. The plaintiff, however, asserts that he seeks less than $75,000 in damages. He claims that the amounts stated in the complaint are the total amounts he paid to the defendants, not his alleged damages.

The amount in controversy is determined by the sum claimed by the plaintiff in his complaint, provided that the claim is made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288–89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In his complaint, plaintiff states:

As a result of the unfair and deceptive acts or practices of the defendants, the plaintiff has been damaged by an amount in excess of $150,000.00 with respect to the boarding fees and stud fees for the unauthorized babies, the missing property and the lost show income with respect to Mild Emotion.

Specifically, plaintiff alleges that, as a result of defendants' conduct, he lost approximately $80,000 in prize money and incurred $109,568 of unnecessary expenses. Plaintiff seeks treble damages pursuant to Chapter 93A. Even without including the service charges, plaintiff's claim for treble damages due to lost prize money is $240,000. The Court finds that the amount in controversy requirement is, therefore, satisfied, and will deny the plaintiff's motion to remand. Because the defendants' removal was not frivolous or done in bad faith, plaintiff's request for attorney's fees in connection with his motion to remand will be denied as well.

IV. Motion to Dismiss

The defendants move to dismiss this action 1) pursuant to Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction, 2) pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted and 3) because of the pending Kentucky Action.

Defendants proffer a breeding contract that Provanzano allegedly entered into with Parker in which he agreed that Parker could breed Mild Emotion to the stallion, Jon Bugatti. The contract was signed by Parker on May 7, 2007 and by Provanzano on February 18, 2008. It includes a Kentucky choice of law provision and a Woodford County, Kentucky forum selection clause. Provanzano apparently handwrote under the Kentucky forum selection clause: “owner's responsibilities will be governed by Massachusetts law.” On the Court's copy, however, the handwritten note is crossed off and illegible. In any event, because the defendants do not rely on the forum selection clause as the basis for their motion to dismiss, the Court declines to consider the enforceability of that clause.

Defendants also submit a letter and two emails from Provanzano, dated October 17, 2008, November 12, 2008 and November 18, 2009, respectively, that express his intention to sell the colts and are devoid of any indication that the breeding was without permission. Finally, the defendants proffer an invoice, dated December 7, 2007, on which Provanzano wrote that he would love to be there when “Vixen” gives birth.

A. Personal Jurisdiction

1. Standard

On a motion to dismiss for want of personal jurisdiction, the plaintiff bears the burden of demonstrating that jurisdiction is 1) statutorily authorized and 2) consistent with the Due Process Clause of the United States Constitution. Astro–Med, Inc. v. Nihon...