Preview
Date Filed 5/2/2023 12:15 PM
Superior Court - Suffolk
Docket Number 2384CV00033
18
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
BUSINESS LITIGATION
SESSION
ESTATE OF RUSSELL MECHLING, BY
ITS EXECUTOR ELLEN ULMER,
Plaintiff,
CIVIL ACTION
Vv.
NO. SUCV 2384-CV-00033-BLS2
FINANCIAL CREDIT INVESTMENT III
SPV-A (CAYMAN), L.P.,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION OF
DEFENDANT FINANCIAL CREDIT INVESTMENT III SPV-A (CAYMAN), L.P., TO
EXTEND DEADLINE TO SERVE RESPONSIVE PLEADING
Defendant Financial Credit Investment III SPV-A (Cayman), L.P. (“FCI Cayman”),
respectfully submits this memorandum of law in support of its motion, pursuant to Superior
Court Rule 9A(d)(1), to extend by thirty (30) days, until June 1, 2023, the deadline for it to
respond under Mass. R. Civ. P. 12 to the Amended Complaint (“Amended Complaint”) filed in
this action by the Estate of Russell Mechling, by Its Executor Ellen Ulmer (“Plaintiff”). In
support thereof, FCI Cayman respectfully states as follows:
As set forth in the Court’s docket, Plaintiff appears to have commenced this action on or
about January 6, 2023, with a John Doe defendant and no other defendant. There appears to
have been some initial discovery sought by Plaintiff, and on or about April 10, 2023, Plaintiff
filed its Amended Complaint naming FCI Cayman as the sole defendant. According to the return
of service filed by Plaintiff, Plaintiff reportedly caused “a copy of the summons and a copy of the
Amended Complaint to be delivered by mail, requiring a signed receipt, to Defendant at its
address of c/o Maples Corporate Services Ltd., P.O. Box 309, Ugland House, Grand Cayman,
Date Filed 5/2/2023 12:15 PM
Superior Court - Suffolk
Docket Number 2384CV00033
KY, KY1-1104,” and that “delivery was accomplished by FedEx on April 12, 2023, and was
signed for by D. Ebbie Forbes.” See Docket Entry No. 15, {{ 3, 4.
Based on this representation by Plaintiff, under Rule 12, a responsive pleading would
ordinarily be due today, May 2, 2023.
Late in the evening on Sunday, April 30, 2023, the undersigned counsel at Foley Hoag
LLP in Boston was contacted to represent FCI Cayman in this action. By the time counsel
cleared conflicts, and had the necessary preliminary conversations, it was early afternoon on
Monday, May 1. See Declaration of Kenneth Leonetti (“Leonetti Decl.”), 3. FCI Cayman’s
counsel then contacted Plaintiffs Massachusetts counsel of record, Matthew C. Welnicki,
Kenney and Sams, P.C., to request a thirty-day extension of time to respond to the Amended
Complaint. Attorney Welnicki requested that FCI Cayman’s counsel send an email with such
request and indicated that it would be forwarded to Plaintiffs lead counsel at Cozen O’Connor.
Id., 4 3. The attorneys at Cozen O’Connor refused to consent to any extension unless FCI
Cayman waived any challenge to the adequacy of service of process and provided that, in the
event that an amended complaint is filed in an entirely different action in the District of
Connecticut, that FCI Cayman, through Foley Hoag or other counsel, will accept service of that
amended complaint by email.! FCI Cayman’s counsel indicated that it was unwilling and not
authorized to waive any defenses at this juncture, including to service of process. /d., [4 4-5,
Exh. A.
FCI Cayman is an entity under the laws of the Cayman Islands and is located in the
Cayman Islands. FCI Cayman contends that it has a number of meritorious defenses to the
' Foley Hoag does not represent FCI Cayman in this Connecticut action, nor is it even aware of
that action.
Date Filed 5/2/2023 12:15 PM
Superior Court - Suffolk
Docket Number 2384CV00033
Amended Complaint under Mass. R. Civ. P. 12(b) that it intends to assert, including insufficient
service of process under the Hague Convention and lack of personal jurisdiction over it in
Massachusetts. In light of the fact that its counsel was just engaged, counsel needs time to assess
those defenses and others, and prepare a motion and accompanying papers.
As basis for its refusal, Plaintiffs lead counsel contends that service of process was
proper under the Massachusetts Rules of Civil Procedure and the Hague Convention. Leonetti
Decl., 45, Exh A. Whether or not Plaintiff is correct is beside the point, and FCI Cayman should
not be forced to give up what may be meritorious defenses at this juncture. It is improper under
the Massachusetts Rules of Civil Procedure, the Rules of Professional Responsibility, and
Massachusetts practice generally for Plaintiff to attempt to leverage concessions in exchange for
what is a routine request for an extension of time by lawyers who have only just been engaged.
See, e.g., Mass. R. Civ. P. 1 (“They [these rules] should be construed, administered and
employed by the court and the parties to secure the just, speedy, and inexpensive determination
of every action and proceeding”).
This is not the first time that Plaintiff's lead law firm has refused reasonable requests for
an extension of time. For instance, in a case in the Western District of Kentucky, in which
Plaintiff's lead law firm here was also the lead firm, and which concerned similar causes of
action as those made here, Plaintiffs lead law firm refused a request by defendant’s counsel
(who had similarly just been retained) for a 31 day extension to respond to the complaint unless
the defendant waived certain defenses under Rule 12, forcing defense counsel to seek redress
from the court. See Estate of Naomi Pressma, By Its Executor, Conrad Pressma v. ITM
Twentyfirst Services, LLC, et al., Civil Action No. 3:21-CV-00034-BJB-LLK (W.D. Ky.)
(Docket Entry No. 6). This refusal repeated in another action in the District of Delaware. See
Date Filed 5/2/2023 12:15 PM
Superior Court - Suffolk
Docket Number 2384CV00033
Estate of Gloria Tofias v. Wells Fargo Bank, N.A. et al., 1:23-cv-00184-MN-JLH (D. Del.)
(Docket Entry No. 5). In both instances, the courts granted the motion for an extension of time,
and the Kentucky Federal Court in particular admonished Plaintiff's lead law firm for its refusal
to agree to this modest extension request. Pressma v. ITM, Civil Action No. 3:21-CV-00034-
BJB-LLK (W.D. Ky Feb. 22, 2021) (“Counsel should bear in mind that the just, speedy, and
inexpensive determination of civil suits, FRCP 1, depends on collegial and reasonable dealings
between officers of the court, in a manner that limits rather than expands the need for judicial
supervision.”); see also Leonetti Decl., § 6, Exh. B.
FCI Cayman understands that the Pressma case was dismissed against all defendants for
lack of personal jurisdiction and the plaintiff voluntarily dismissed the Tofias case after the
defendant filed a motion to dismiss based on, inter alia, lack of Article III standing and lack of
personal jurisdiction. Whether or not those defenses are equally present here is not a matter for
decision at this time, but nor should FCI Cayman be forced to waive any defenses at this time,
when it believes it may have a meritorious motion to dismiss that would resolve this action.
WHEREFORE, FCI Cayman respectfully requests that the Court extend for 30 days, until
June 1, 2023, its time to respond to the Amended Complaint, and grant such other, further, and
different relief as this Court deems just and appropriate.
Date Filed 5/2/2023 12:15 PM
Superior Court - Suffolk
Docket Number 2384CV00033
Respectfully Submitted,
FINANCIAL CREDIT INVESTMENT ILL SPV-A
(CAYMAN), LP.
By its attorneys,
/s/ Kenneth S. Leonetti ee
Kenneth S. Leonetti, BBO #629515
kleonetti@foleyhoag.com
Roseanna K. Loring, BBO # 703637
rloring@foleyhoag.com
Foley Hoag LLP
155 Seaport Boulevard
Boston, MA 02210
(617) 832-1000
Dated: May 2, 2023
Date Filed 5/2/2023 12:15 PM
Superior Court - Suffolk
Docket Number 2384CV00033
CERTIFICATE OF SERVICE
Thereby certify that on May 2, 2023, I caused a true and correct copy of the foregoing
document to be served by email and first-class mail on counsel of record for Plaintiff, Matthew
C. Welnicki, Kenney and Sams, P.C., 114 Turnpike Road, Southborough, MA 01772,
mewelnicki@kslegal.com.
/s/ Kenneth S. Leonetti
Kenneth S. Leonetti, BBO #629515
Preview
Date Filed 5/2/2023 12:15 PM Superior Court - Suffolk Docket Number 2384CV00033 18 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT BUSINESS LITIGATION SESSION ESTATE OF RUSSELL MECHLING, BY ITS EXECUTOR ELLEN ULMER, Plaintiff, CIVIL ACTION Vv. NO. SUCV 2384-CV-00033-BLS2 FINANCIAL CREDIT INVESTMENT III SPV-A (CAYMAN), L.P., Defendant. MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION OF DEFENDANT FINANCIAL CREDIT INVESTMENT III SPV-A (CAYMAN), L.P., TO EXTEND DEADLINE TO SERVE RESPONSIVE PLEADING Defendant Financial Credit Investment III SPV-A (Cayman), L.P. (“FCI Cayman”), respectfully submits this memorandum of law in support of its motion, pursuant to Superior Court Rule 9A(d)(1), to extend by thirty (30) days, until June 1, 2023, the deadline for it to respond under Mass. R. Civ. P. 12 to the Amended Complaint (“Amended Complaint”) filed in this action by the Estate of Russell Mechling, by Its Executor Ellen Ulmer (“Plaintiff”). In support thereof, FCI Cayman respectfully states as follows: As set forth in the Court’s docket, Plaintiff appears to have commenced this action on or about January 6, 2023, with a John Doe defendant and no other defendant. There appears to have been some initial discovery sought by Plaintiff, and on or about April 10, 2023, Plaintiff filed its Amended Complaint naming FCI Cayman as the sole defendant. According to the return of service filed by Plaintiff, Plaintiff reportedly caused “a copy of the summons and a copy of the Amended Complaint to be delivered by mail, requiring a signed receipt, to Defendant at its address of c/o Maples Corporate Services Ltd., P.O. Box 309, Ugland House, Grand Cayman, Date Filed 5/2/2023 12:15 PM Superior Court - Suffolk Docket Number 2384CV00033 KY, KY1-1104,” and that “delivery was accomplished by FedEx on April 12, 2023, and was signed for by D. Ebbie Forbes.” See Docket Entry No. 15, {{ 3, 4. Based on this representation by Plaintiff, under Rule 12, a responsive pleading would ordinarily be due today, May 2, 2023. Late in the evening on Sunday, April 30, 2023, the undersigned counsel at Foley Hoag LLP in Boston was contacted to represent FCI Cayman in this action. By the time counsel cleared conflicts, and had the necessary preliminary conversations, it was early afternoon on Monday, May 1. See Declaration of Kenneth Leonetti (“Leonetti Decl.”), 3. FCI Cayman’s counsel then contacted Plaintiffs Massachusetts counsel of record, Matthew C. Welnicki, Kenney and Sams, P.C., to request a thirty-day extension of time to respond to the Amended Complaint. Attorney Welnicki requested that FCI Cayman’s counsel send an email with such request and indicated that it would be forwarded to Plaintiffs lead counsel at Cozen O’Connor. Id., 4 3. The attorneys at Cozen O’Connor refused to consent to any extension unless FCI Cayman waived any challenge to the adequacy of service of process and provided that, in the event that an amended complaint is filed in an entirely different action in the District of Connecticut, that FCI Cayman, through Foley Hoag or other counsel, will accept service of that amended complaint by email.! FCI Cayman’s counsel indicated that it was unwilling and not authorized to waive any defenses at this juncture, including to service of process. /d., [4 4-5, Exh. A. FCI Cayman is an entity under the laws of the Cayman Islands and is located in the Cayman Islands. FCI Cayman contends that it has a number of meritorious defenses to the ' Foley Hoag does not represent FCI Cayman in this Connecticut action, nor is it even aware of that action. Date Filed 5/2/2023 12:15 PM Superior Court - Suffolk Docket Number 2384CV00033 Amended Complaint under Mass. R. Civ. P. 12(b) that it intends to assert, including insufficient service of process under the Hague Convention and lack of personal jurisdiction over it in Massachusetts. In light of the fact that its counsel was just engaged, counsel needs time to assess those defenses and others, and prepare a motion and accompanying papers. As basis for its refusal, Plaintiffs lead counsel contends that service of process was proper under the Massachusetts Rules of Civil Procedure and the Hague Convention. Leonetti Decl., 45, Exh A. Whether or not Plaintiff is correct is beside the point, and FCI Cayman should not be forced to give up what may be meritorious defenses at this juncture. It is improper under the Massachusetts Rules of Civil Procedure, the Rules of Professional Responsibility, and Massachusetts practice generally for Plaintiff to attempt to leverage concessions in exchange for what is a routine request for an extension of time by lawyers who have only just been engaged. See, e.g., Mass. R. Civ. P. 1 (“They [these rules] should be construed, administered and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding”). This is not the first time that Plaintiff's lead law firm has refused reasonable requests for an extension of time. For instance, in a case in the Western District of Kentucky, in which Plaintiff's lead law firm here was also the lead firm, and which concerned similar causes of action as those made here, Plaintiffs lead law firm refused a request by defendant’s counsel (who had similarly just been retained) for a 31 day extension to respond to the complaint unless the defendant waived certain defenses under Rule 12, forcing defense counsel to seek redress from the court. See Estate of Naomi Pressma, By Its Executor, Conrad Pressma v. ITM Twentyfirst Services, LLC, et al., Civil Action No. 3:21-CV-00034-BJB-LLK (W.D. Ky.) (Docket Entry No. 6). This refusal repeated in another action in the District of Delaware. See Date Filed 5/2/2023 12:15 PM Superior Court - Suffolk Docket Number 2384CV00033 Estate of Gloria Tofias v. Wells Fargo Bank, N.A. et al., 1:23-cv-00184-MN-JLH (D. Del.) (Docket Entry No. 5). In both instances, the courts granted the motion for an extension of time, and the Kentucky Federal Court in particular admonished Plaintiff's lead law firm for its refusal to agree to this modest extension request. Pressma v. ITM, Civil Action No. 3:21-CV-00034- BJB-LLK (W.D. Ky Feb. 22, 2021) (“Counsel should bear in mind that the just, speedy, and inexpensive determination of civil suits, FRCP 1, depends on collegial and reasonable dealings between officers of the court, in a manner that limits rather than expands the need for judicial supervision.”); see also Leonetti Decl., § 6, Exh. B. FCI Cayman understands that the Pressma case was dismissed against all defendants for lack of personal jurisdiction and the plaintiff voluntarily dismissed the Tofias case after the defendant filed a motion to dismiss based on, inter alia, lack of Article III standing and lack of personal jurisdiction. Whether or not those defenses are equally present here is not a matter for decision at this time, but nor should FCI Cayman be forced to waive any defenses at this time, when it believes it may have a meritorious motion to dismiss that would resolve this action. WHEREFORE, FCI Cayman respectfully requests that the Court extend for 30 days, until June 1, 2023, its time to respond to the Amended Complaint, and grant such other, further, and different relief as this Court deems just and appropriate. Date Filed 5/2/2023 12:15 PM Superior Court - Suffolk Docket Number 2384CV00033 Respectfully Submitted, FINANCIAL CREDIT INVESTMENT ILL SPV-A (CAYMAN), LP. By its attorneys, /s/ Kenneth S. Leonetti ee Kenneth S. Leonetti, BBO #629515 kleonetti@foleyhoag.com Roseanna K. Loring, BBO # 703637 rloring@foleyhoag.com Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 (617) 832-1000 Dated: May 2, 2023 Date Filed 5/2/2023 12:15 PM Superior Court - Suffolk Docket Number 2384CV00033 CERTIFICATE OF SERVICE Thereby certify that on May 2, 2023, I caused a true and correct copy of the foregoing document to be served by email and first-class mail on counsel of record for Plaintiff, Matthew C. Welnicki, Kenney and Sams, P.C., 114 Turnpike Road, Southborough, MA 01772, mewelnicki@kslegal.com. /s/ Kenneth S. Leonetti Kenneth S. Leonetti, BBO #629515