On March 30, 2018 a
William Christina, Catherine Christina's Memorandum in support of emergency motion for protective order
was filed
involving a dispute between
Christina, Catherine,
Christina, William,
and
Advanced Modular Concepts, Llc,
Bradley, Jay,
Brockway, Brian,
Brown, Justin,
Dephillips, Victor,
Finn, Mark K.,
Glancy, Jack,
Landri, Craig,
Marsala, Paul,
Martin, Gary,
Pfs Corporation,
Raup, Harold,
Signature Building Systems Of Pa, Llc,
Steimling, Tony,
Summit Modular Builders, Inc.,
Wells, Randall G.,
Wenner, Richard,
for Contract / Business Cases
in the District Court of Essex County.
Preview
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 1877CV00506
WILLIAM CHRISTINA and CATHERINE CHRISTINA,
Plaintiffs,
Vv.
PFS CORPORATION D/B/A PFS TECO,
Defendant,
and
SIGNATURE BUILDING SYSTEMS OF PA, LLC, et al.
Defendants/Third-Party Plaintiffs,
Vv.
MARK K. FINN D/B/A THE HUNTER GROUP, et al.
Third-Party Defendants.
CONSOLIDATED WITH CIVIL ACTION NO. 1977CV1161
WILLIAM CHRISTINA and CATHERINE CHRISTINA,
Plaintiffs,
Vv.
MARK K. FINN D/B/A THE HUNTER GROUP,
Defendant/Third Party Plaintiff,
V.
SIGNATURE BUILDING SYSTEMS OF PA, LLC, et al.
Third-Party Defendants.
EMERGENCY FILING
IMMEDIATE REVIEW REQUESTED
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY
MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF RICHARD
B TENVENUE SCHEDULE
aS
N R D FOR FEBRUARY
SBA 8, 2024
BANE 8g NOT PROCEED
LU LENGE EROCEED
The plaintiffs, William and Catherine Christina (the “Christinas”) hereby move for
protective order that a deposition scheduled by counsel for defendant Signature Building Systems
PA, LLC, (hereinafter “Signature”) not proceed on February 8, 2024, and that the deposition not
proceed thereafter without counsel for Signature consulting other counsel regarding their available
dates and providing the notice required by Mass. R. Civ. P. 30(b). In this matter, on February 2,
2024 counsel for Signature scheduled the deposition of a non-party witness, Richard Bienvenue,
for six days later on February 8 despite being informed that counsel for the Christinas was
unavailable that day. A copy of the notice dated February 2, 2024 and scheduling the deposition
for the morning of February 8, 2024, is attached hereto.
This motion filed and relief is requested on an emergency basis because of the timing of
the improper and unprofessional conduct of counsel for Signature, who has exhibited inexcusably
hostile conduct toward the Christinas designed to harass and intimidate them and increase their
costs in pursuing relief in this case. In this instance, counsel for Signature went through the motions
of asking all attorneys for their availability in deposing the third-party witness Richard Bienvenue,
but then picked a date acceptable to the other defendants but unavailable for the plaintiffs’ counsel.
Conduct by counsel for Signature not only blatantly runs afoul of the minimum notice
requirements in Rules 6(d) and 30(b) of the Massachusetts Rules of Civil Procedure, it resumes
conscious efforts to bully and harass the Christinas and increase their costs of litigation by creatin gz
discovery disputes that would never arise if counsel for Signature were acting in good faith. These
tactics by counsel for Signature began early in this case with calling the Christinas names such as
“despicable” and “disgusting” in legal memoranda and emails. Now counsel for Signature has
returned using that same language while accusing the Christinas in essentially every email where
they attempt to coordinate scheduling issues of “stall tactics” and “obstructing” discovery.
This current dispute is one of at least three pending discovery disputes created by counsel
for Signature, the other two of which are following the Rule 9A process and likely will be before
this court after a full briefing within a week or so.
1
This emergency dispute began with events starting on Monday, January 29, 2004. Counsel
for Signature informed all parties he was noticing Mr. Bienvenue’s deposition for February 20,
2024, a date in compliance with the advance notice requirements of Rules 6(d) and 30(b).
However, contrary to custom, counsel for Signature did not consult with the Christinas counsel
regarding availability on that date, saying instead that he would serve a subpoena the next day
unless he receives an objection from counsel. Christinas counsel did not object to the date noticed.
On February 1, counsel for Signature sent email correspondence to all counsel informing
them that Mr. Bienvenue was unavailable on February 20 and asking for counsel’s availability on
five alternative dates: February 14, 15, 21, 26, and 27. All counsel responded with their
availability. The Christinas counsel stated that of the dates offered, the dates of February 21 and
26 were available. Signature’s counsel then sent email correspondence saying that there was “no
consensus among the dates” and offered two additional eligible dates under the rules (February 12
and 16), and two dates that were ineligible because less than a week away (February 7 and 8). All
counsel reported they were available and agreeable to February 16 for the deposition to proceed.
Counsel for Signature then began his tirade, sending an email on Friday, February 2 at
12:40 pm accusing the Christinas of stalling and obstruction for not choosing one of the earlier
(and ineligible) dates and threatening that if Mr. Bienvenue were not available on the date offered
by the Christinas counsel, that he would ignore the Christinas and schedule the deposition 'when
the Christinas counsel could not attend. Signature’s counsel further declared that if he decided to
proceed when the plaintiffs were not available, then the plaintiffs could send their own notice and
schedule another time for Mr. Bienvenue”. Late that same day, February 2 at 4:24 p.m.,
counsel
for Signature copied all counsel on an email he sent to Mr. Bienvenue’s attorney, thanking her for
' Tt was clear Signature did not review the dates he circulated with all counsel with Mr.
Bienvenue’s counsel in advance.
? This recourse would be improper and unreasonable with any witness and quite predictably be
met with a motion for a protective order from Mr. Bienvenue’s attorney to prevent him from
being subjected to a second deposition.
coordinating dates and informing her that because Mr. Bienvenue reported he was only available
February 8, the deposition would proceed on that date, and attached the revised deposition notice
that is attached to the motion.
Counsel for the Christinas promptly informed counsel for Signature at 4:57 p-m. that a
hearing in Worcester County Superior Court on February 8 created a conflict preventing him from
attending the deposition that day, that he previously and specifically advised that date was
unavailable, and asked Signature’s counsel to confirm by Monday noon that the deposition would
be rescheduled, or an emergency protective order would be requested. Counsel for Signature
responded by refusing to reschedule the deposition, again accusing the plaintiff's of an attempt to
obstruct discovery. He also made the abjectly false statement that plaintiffs reported being
available on only two days the entire month of February for Mr. Bienvenue’s deposition.> Further,
Signature’s counsel improperly shared his disparaging attacks against plaintiffs’ counsel and the
Christinas by including Mr. Bienvenue’s attorney on his email response.
Mass. R. Civ. P. 30(b) states “a party who wants to depose a person by oral questions must
give written notice to every other party at least 7 days before.”
Mass. R. Civ. P. 6(d) states “whenever a party has the right or is required to do some act
within a prescribed period after the service of a notice...and the notice...is served upon the party
by mail, by email pursuant to Rule 5(b)(1), or otherwise electronically... three (3) days shall be
added to the prescribed period.”
Mass. R. Civ. P. 26(c) states “upon a motion by a party...and for good cause shown, the
court in which the action is pending...may make any order which justice requires to protect a party
3 Simple math shows that at least three dates were offered by the plaintiffs (in addition to the
original February 20 date) in response to a subset of February dates and that there are additional
dates in February that the plaintiffs were never asked to consider.
or a person from annoyance, embarrassment, oppression, or undue burden or expense, including
one or more of the following: ...(2) that the discovery may be had only on specific terms and
conditions, including a designation of the time, place, or manner...”
Counsel for Signature has inexplicably exalted himself above the Massachusetts Rules of
Civil Procedure and scheduled a deposition that is not only invalid for lack of adequate advance
notice, but it is scheduled at a time he knew the plaintiffs’ counsel is unavailable due to a court
hearing. There is no basis for Signature’s counsel declaring that the plaintiffs must accept and be
unrepresented at an invalidly noticed deposition just because Signature’s counsel says So.
The conduct of Signature’s counsel was purposefully disruptive to basic discovery
procedure and in bad faith. He created an unnecessary, frivolous, time consuming and costly
controversy for which he wrongfully and indeed frivolously seeks to blame the plaintiffs. The
blatant inexcusable violation of unambiguous notice requirements of the Massachusetts Rules of
Civil Procedure requiring this emergency motion is sufficient grounds for an order to enter
awarding the plaintiffs costs. Mass. R. Civ. P. 26(c)(3) specifically permits this court to award
expenses incurred by the Christinas in relation to this motion. Indeed, when overlaid by the
intentional conduct of counsel for Signature of ignoring the controlling Rules of Civil Procedure
and common professional courtesies justified by nothing but false accusation of obstruction and
delay by the plaintiffs, this Court must consider an appropriate monetary award to put a stop to it.
WHEREFORE, the Christinas respectfully request this court order that no deposition
proceed on February 8, that the deposition of Mr. Bienvenue be rescheduled at a date in which the
Christinas are available and are given the adequate notice under the Rules of Civil Procedure. The
Christinas also request such other relief as the court considers just and appropriate and provided
by law, including expenses incurred in bringing this emergency motion.
Plaintiffs,
WILLIAM CHRISTINA and
CATHERINE CHRISTINA
i) Ly
atto:
fooscoroa—
“w
Warren D. Hutchison BBO # 246150
Freeman, Mathis & Gary, LLP
60 State Street, Suite 600
Boston, MA 02109
whutchison@fmglaw.com
£s/ Catherine Pappas
Catherine A. Pappas, Esq.
Pappas & Pappas
Old Central Wharf
77 Central Street
Boston, MA 02109
Cpappaslaw@comeast.net
Dated: February 6, 2024
CERTIFICATE OF SERVICE
I, Warren D. Hutchison, hereby certify that on the 6th day of February 2024, I
sent the
foregoing document to all counsel of record by electronic mail to the following:
Seth M. Pasakarnis, Esq. Andrew E, Goloboy, Esq.
Robert J. Kendall, Esq. Goloboy Law LLC
HINCKLEY, ALLEN & SNYDER LLP 900 Cummings Center, Suite 207-V
28 State Street Beverly, MA 01915
Boston, MA 02109 goloboy@goloboylaw.com
Spasakarnis@hinckleyallen.com
John T. Hugo, Esq. Joseph Aronson, Esq.
Joseph S. Bussiere, Esq. Scott Fox, Esq.
Alicia Chouinard, Esq. Kiernan, Trebach, LLP
Manning Gross & Massenberg LLP 40 Court Street, 3rd Floor
125 High Street, 6" Floor Boston, MA 02108
Boston, MA 02110 Jaronson@kiernantrebach.com
Jhugo@mgmlaw.com Sfox@kiernantrebach.com
Jbussiere( miaw.com
achouinard@mgmlaw.com
4s/ Warren D. Hutchison
Warren D. Hutchison
Preview
gas COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 1877CV00506 WILLIAM CHRISTINA and CATHERINE CHRISTINA, Plaintiffs, Vv. PFS CORPORATION D/B/A PFS TECO, Defendant, and SIGNATURE BUILDING SYSTEMS OF PA, LLC, et al. Defendants/Third-Party Plaintiffs, Vv. MARK K. FINN D/B/A THE HUNTER GROUP, et al. Third-Party Defendants. CONSOLIDATED WITH CIVIL ACTION NO. 1977CV1161 WILLIAM CHRISTINA and CATHERINE CHRISTINA, Plaintiffs, Vv. MARK K. FINN D/B/A THE HUNTER GROUP, Defendant/Third Party Plaintiff, V. SIGNATURE BUILDING SYSTEMS OF PA, LLC, et al. Third-Party Defendants. EMERGENCY FILING IMMEDIATE REVIEW REQUESTED PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF RICHARD B TENVENUE SCHEDULE aS N R D FOR FEBRUARY SBA 8, 2024 BANE 8g NOT PROCEED LU LENGE EROCEED The plaintiffs, William and Catherine Christina (the “Christinas”) hereby move for protective order that a deposition scheduled by counsel for defendant Signature Building Systems PA, LLC, (hereinafter “Signature”) not proceed on February 8, 2024, and that the deposition not proceed thereafter without counsel for Signature consulting other counsel regarding their available dates and providing the notice required by Mass. R. Civ. P. 30(b). In this matter, on February 2, 2024 counsel for Signature scheduled the deposition of a non-party witness, Richard Bienvenue, for six days later on February 8 despite being informed that counsel for the Christinas was unavailable that day. A copy of the notice dated February 2, 2024 and scheduling the deposition for the morning of February 8, 2024, is attached hereto. This motion filed and relief is requested on an emergency basis because of the timing of the improper and unprofessional conduct of counsel for Signature, who has exhibited inexcusably hostile conduct toward the Christinas designed to harass and intimidate them and increase their costs in pursuing relief in this case. In this instance, counsel for Signature went through the motions of asking all attorneys for their availability in deposing the third-party witness Richard Bienvenue, but then picked a date acceptable to the other defendants but unavailable for the plaintiffs’ counsel. Conduct by counsel for Signature not only blatantly runs afoul of the minimum notice requirements in Rules 6(d) and 30(b) of the Massachusetts Rules of Civil Procedure, it resumes conscious efforts to bully and harass the Christinas and increase their costs of litigation by creatin gz discovery disputes that would never arise if counsel for Signature were acting in good faith. These tactics by counsel for Signature began early in this case with calling the Christinas names such as “despicable” and “disgusting” in legal memoranda and emails. Now counsel for Signature has returned using that same language while accusing the Christinas in essentially every email where they attempt to coordinate scheduling issues of “stall tactics” and “obstructing” discovery. This current dispute is one of at least three pending discovery disputes created by counsel for Signature, the other two of which are following the Rule 9A process and likely will be before this court after a full briefing within a week or so. 1 This emergency dispute began with events starting on Monday, January 29, 2004. Counsel for Signature informed all parties he was noticing Mr. Bienvenue’s deposition for February 20, 2024, a date in compliance with the advance notice requirements of Rules 6(d) and 30(b). However, contrary to custom, counsel for Signature did not consult with the Christinas counsel regarding availability on that date, saying instead that he would serve a subpoena the next day unless he receives an objection from counsel. Christinas counsel did not object to the date noticed. On February 1, counsel for Signature sent email correspondence to all counsel informing them that Mr. Bienvenue was unavailable on February 20 and asking for counsel’s availability on five alternative dates: February 14, 15, 21, 26, and 27. All counsel responded with their availability. The Christinas counsel stated that of the dates offered, the dates of February 21 and 26 were available. Signature’s counsel then sent email correspondence saying that there was “no consensus among the dates” and offered two additional eligible dates under the rules (February 12 and 16), and two dates that were ineligible because less than a week away (February 7 and 8). All counsel reported they were available and agreeable to February 16 for the deposition to proceed. Counsel for Signature then began his tirade, sending an email on Friday, February 2 at 12:40 pm accusing the Christinas of stalling and obstruction for not choosing one of the earlier (and ineligible) dates and threatening that if Mr. Bienvenue were not available on the date offered by the Christinas counsel, that he would ignore the Christinas and schedule the deposition 'when the Christinas counsel could not attend. Signature’s counsel further declared that if he decided to proceed when the plaintiffs were not available, then the plaintiffs could send their own notice and schedule another time for Mr. Bienvenue”. Late that same day, February 2 at 4:24 p.m., counsel for Signature copied all counsel on an email he sent to Mr. Bienvenue’s attorney, thanking her for ' Tt was clear Signature did not review the dates he circulated with all counsel with Mr. Bienvenue’s counsel in advance. ? This recourse would be improper and unreasonable with any witness and quite predictably be met with a motion for a protective order from Mr. Bienvenue’s attorney to prevent him from being subjected to a second deposition. coordinating dates and informing her that because Mr. Bienvenue reported he was only available February 8, the deposition would proceed on that date, and attached the revised deposition notice that is attached to the motion. Counsel for the Christinas promptly informed counsel for Signature at 4:57 p-m. that a hearing in Worcester County Superior Court on February 8 created a conflict preventing him from attending the deposition that day, that he previously and specifically advised that date was unavailable, and asked Signature’s counsel to confirm by Monday noon that the deposition would be rescheduled, or an emergency protective order would be requested. Counsel for Signature responded by refusing to reschedule the deposition, again accusing the plaintiff's of an attempt to obstruct discovery. He also made the abjectly false statement that plaintiffs reported being available on only two days the entire month of February for Mr. Bienvenue’s deposition.> Further, Signature’s counsel improperly shared his disparaging attacks against plaintiffs’ counsel and the Christinas by including Mr. Bienvenue’s attorney on his email response. Mass. R. Civ. P. 30(b) states “a party who wants to depose a person by oral questions must give written notice to every other party at least 7 days before.” Mass. R. Civ. P. 6(d) states “whenever a party has the right or is required to do some act within a prescribed period after the service of a notice...and the notice...is served upon the party by mail, by email pursuant to Rule 5(b)(1), or otherwise electronically... three (3) days shall be added to the prescribed period.” Mass. R. Civ. P. 26(c) states “upon a motion by a party...and for good cause shown, the court in which the action is pending...may make any order which justice requires to protect a party 3 Simple math shows that at least three dates were offered by the plaintiffs (in addition to the original February 20 date) in response to a subset of February dates and that there are additional dates in February that the plaintiffs were never asked to consider. or a person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ...(2) that the discovery may be had only on specific terms and conditions, including a designation of the time, place, or manner...” Counsel for Signature has inexplicably exalted himself above the Massachusetts Rules of Civil Procedure and scheduled a deposition that is not only invalid for lack of adequate advance notice, but it is scheduled at a time he knew the plaintiffs’ counsel is unavailable due to a court hearing. There is no basis for Signature’s counsel declaring that the plaintiffs must accept and be unrepresented at an invalidly noticed deposition just because Signature’s counsel says So. The conduct of Signature’s counsel was purposefully disruptive to basic discovery procedure and in bad faith. He created an unnecessary, frivolous, time consuming and costly controversy for which he wrongfully and indeed frivolously seeks to blame the plaintiffs. The blatant inexcusable violation of unambiguous notice requirements of the Massachusetts Rules of Civil Procedure requiring this emergency motion is sufficient grounds for an order to enter awarding the plaintiffs costs. Mass. R. Civ. P. 26(c)(3) specifically permits this court to award expenses incurred by the Christinas in relation to this motion. Indeed, when overlaid by the intentional conduct of counsel for Signature of ignoring the controlling Rules of Civil Procedure and common professional courtesies justified by nothing but false accusation of obstruction and delay by the plaintiffs, this Court must consider an appropriate monetary award to put a stop to it. WHEREFORE, the Christinas respectfully request this court order that no deposition proceed on February 8, that the deposition of Mr. Bienvenue be rescheduled at a date in which the Christinas are available and are given the adequate notice under the Rules of Civil Procedure. The Christinas also request such other relief as the court considers just and appropriate and provided by law, including expenses incurred in bringing this emergency motion. Plaintiffs, WILLIAM CHRISTINA and CATHERINE CHRISTINA i) Ly atto: fooscoroa— “w Warren D. Hutchison BBO # 246150 Freeman, Mathis & Gary, LLP 60 State Street, Suite 600 Boston, MA 02109 whutchison@fmglaw.com £s/ Catherine Pappas Catherine A. Pappas, Esq. Pappas & Pappas Old Central Wharf 77 Central Street Boston, MA 02109 Cpappaslaw@comeast.net Dated: February 6, 2024 CERTIFICATE OF SERVICE I, Warren D. Hutchison, hereby certify that on the 6th day of February 2024, I sent the foregoing document to all counsel of record by electronic mail to the following: Seth M. Pasakarnis, Esq. Andrew E, Goloboy, Esq. Robert J. Kendall, Esq. Goloboy Law LLC HINCKLEY, ALLEN & SNYDER LLP 900 Cummings Center, Suite 207-V 28 State Street Beverly, MA 01915 Boston, MA 02109 goloboy@goloboylaw.com Spasakarnis@hinckleyallen.com John T. Hugo, Esq. Joseph Aronson, Esq. Joseph S. Bussiere, Esq. Scott Fox, Esq. Alicia Chouinard, Esq. Kiernan, Trebach, LLP Manning Gross & Massenberg LLP 40 Court Street, 3rd Floor 125 High Street, 6" Floor Boston, MA 02108 Boston, MA 02110 Jaronson@kiernantrebach.com Jhugo@mgmlaw.com Sfox@kiernantrebach.com Jbussiere( miaw.com achouinard@mgmlaw.com 4s/ Warren D. Hutchison Warren D. Hutchison