On February 01, 2016 a
Motion-Secondary
was filed
involving a dispute between
The Lowell Five Cent Savings Bank,
and
Polak, Frank M.,
Yenoh Corporation,
for Contract / Business Cases
in the District Court of Middlesex County.
Preview
Ah
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT
DOCKET NO: 1681CV00282
LOWELL FIVE CENT SAVINGS BANK
Plalnift~
’
vs
YENOH CORPORATION AND .
™ stendants Aled wav ows] PPG
vs
A-TUCARD SELF STORAGE LLC AND Pear Cer
TUCARD LLC
Reach-And-Apply Defendants
ee Serer
MEMORANDUM OF REACH-AND-APPLY DEFENDANTS,
TUCARD LLC AND A-TUCARD SELF STORAGE LLC.
IN SUPPORT OF ITS MOTION TO DISMISS VERIFIED COMPLAINT
aa MOTION TO DISMISS VERIFIED COMPLAINT
Now come the Reach-And-Apply Defendants, Tucard LLC and A-Tucard Self Storage
LLC (hereinafter collectively “Tucard”), and respectfully submit the following:
BACKGROUND TO CLAIM
This is an action based upon review of the allegations contained in the Plaintiff's Verified
Complaint wherein the Lowell Five Cent Savings Bank (the Bank) seeks to enforce the payment
terms of a construction loan it provided to the Defendants on February 18, 2014 (See Paragraphs
7-10 of Verified Complaint). The construction loan was intended to finance the construction ofa
pre-school and a separate Subway and Honey Dew franchise operation (See Paragraph 11 of
* Verified Complaint). It is further alleged that during construction of the project the Defendants
incurred cost over-runs and eventually defaulted under the payment terms of and performance
obligations of the loan and remain in default (See Paragraphs 16-17 of Verified Complaint).
The Verified Complaint further alleges that the Defendants hold a 50% membership
interest in Tucard (See Paragraph 22 of Verified Complaint). The Bank contemporaneously with
the filing of its Complaint acquired an Injunction against the Defendant Frank Polak individuallyww
»
which prohibited him from “selling, assigning, conveying, encumbering, transferring or in any
way disposing of any of his membership interests in Tucard LLC and A-Tucard Self Storage
LLC (See Docket Entry #7).
The Bank has never obtained any injunctive relief against Tucard nor has Tucard evern
been served with a Summons and Complaint notwithstanding that it has at all relevant times
continuously operated its business at 76-100 Pleasant Street, Dracut, Massachusetts 's being the
address as alleged in the Verified Complaint (See Paragraph 5). !
BASIS FOR REQUESTED DISMISSAL OF THE COMPLAINT
Mass.R.Civ.P. 4(j) provides as follows:
G) Summons: Time Limit for Service
“Ifa service of the Summons and Complaint is not made upon a defendant within
90 days after the filing of the Complaint and the party on whose behalf such
Service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed as to that defendant without
Prejudice upon the court's own initiative with notice to such party or upon such
motion,”
The burden is on the Bank to show “good cause” as to why service was not made within
the time period required by the rule, Sherman v Stanley Works, 30 Mass App Ct 951. 953.
(1991). “Good cause is a stringent standard requiring diligent albeit unsuccessful effort to
complete within the period of time prescribed by the rule”. Commissioner of Rev v. Carrigan, 45
Mass App Ct 309, 311 (1998) quoting from Sherman v. Stanley supra
“The focus of the court's inquiry (as to good cause) is the reasonableness and diligence of
counsel’s effort to effect service within the time required”. Id at 312 quoting from Sherman v.
Stanley Works supra. Here the Bank can provide no explanation to support a good cause claim
where it has failed to perfect service upon Tucard in excess of 950 days since the date of service
where Tucard has continually and openly operated its business at 76-100 Pleasant Street, Dracut,
Massachusetts which is the address the Plaintiff identifies in its Verified Complaint (See
Paragraph 5)
The Federal Rule of governing the required timing for service of the Summons and
Complaint upon a defendant is identical to the applicable Massachusetts rule except the Federal
ee
' Please reference the Affidavit of. Joseph J. DiCarlo, Jr. filed herewith in support of the included factual statements.Rule provides for 120 days.? The only example of “good cause” provided by the legislature
history of the federal rule is the obvious one of a defendants evasion of service Weiu v. State
763 F 2d 370, 371 (9" Civ, 1985). There is nothing in the record nor does Tucard anticipate that
any such evidence will be interposed by the Bank in its Opposition to this Motion that Tucard
took any steps to evade service of the Summons and Complaint nor is there any evidence in the
record that the Bank’s counsel ever requested an extension of time for service under
Mass.R.Civ.P. 6(b) which in accordance to the dicta in Davis-Wilson v. Hilton Hotels Corp. 106
FRD, 505 (1985) is some evidence of lack of due diligence.
CONCLUSION
WHEREFORE as a result of the unexcused failure of the Bank to serve the Reach-And-
Apply Defendants, Tucard LLC and A-Tucard Self Storage LLC, they request that Judgment for
Dismissal enter on their behalf in this matter.
TUCARD LLC and
A-TUCARD SELF STORAGE LLC
By their Attorney
AW OFFICE QF JOHN J. HARTIGAN, P.C.
BBO# 224390
97 Centra , Sui
owelt MA 01852
Tel: (978) 441-0054
jay@hartiganiaw.net
Dated: October 16,2018
ee
? Please see Federal Rule of Civil Procedure 4(j)
Preview
Ah COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DEPARTMENT DOCKET NO: 1681CV00282 LOWELL FIVE CENT SAVINGS BANK Plalnift~ ’ vs YENOH CORPORATION AND . ™ stendants Aled wav ows] PPG vs A-TUCARD SELF STORAGE LLC AND Pear Cer TUCARD LLC Reach-And-Apply Defendants ee Serer MEMORANDUM OF REACH-AND-APPLY DEFENDANTS, TUCARD LLC AND A-TUCARD SELF STORAGE LLC. IN SUPPORT OF ITS MOTION TO DISMISS VERIFIED COMPLAINT aa MOTION TO DISMISS VERIFIED COMPLAINT Now come the Reach-And-Apply Defendants, Tucard LLC and A-Tucard Self Storage LLC (hereinafter collectively “Tucard”), and respectfully submit the following: BACKGROUND TO CLAIM This is an action based upon review of the allegations contained in the Plaintiff's Verified Complaint wherein the Lowell Five Cent Savings Bank (the Bank) seeks to enforce the payment terms of a construction loan it provided to the Defendants on February 18, 2014 (See Paragraphs 7-10 of Verified Complaint). The construction loan was intended to finance the construction ofa pre-school and a separate Subway and Honey Dew franchise operation (See Paragraph 11 of * Verified Complaint). It is further alleged that during construction of the project the Defendants incurred cost over-runs and eventually defaulted under the payment terms of and performance obligations of the loan and remain in default (See Paragraphs 16-17 of Verified Complaint). The Verified Complaint further alleges that the Defendants hold a 50% membership interest in Tucard (See Paragraph 22 of Verified Complaint). The Bank contemporaneously with the filing of its Complaint acquired an Injunction against the Defendant Frank Polak individuallyww » which prohibited him from “selling, assigning, conveying, encumbering, transferring or in any way disposing of any of his membership interests in Tucard LLC and A-Tucard Self Storage LLC (See Docket Entry #7). The Bank has never obtained any injunctive relief against Tucard nor has Tucard evern been served with a Summons and Complaint notwithstanding that it has at all relevant times continuously operated its business at 76-100 Pleasant Street, Dracut, Massachusetts 's being the address as alleged in the Verified Complaint (See Paragraph 5). ! BASIS FOR REQUESTED DISMISSAL OF THE COMPLAINT Mass.R.Civ.P. 4(j) provides as follows: G) Summons: Time Limit for Service “Ifa service of the Summons and Complaint is not made upon a defendant within 90 days after the filing of the Complaint and the party on whose behalf such Service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without Prejudice upon the court's own initiative with notice to such party or upon such motion,” The burden is on the Bank to show “good cause” as to why service was not made within the time period required by the rule, Sherman v Stanley Works, 30 Mass App Ct 951. 953. (1991). “Good cause is a stringent standard requiring diligent albeit unsuccessful effort to complete within the period of time prescribed by the rule”. Commissioner of Rev v. Carrigan, 45 Mass App Ct 309, 311 (1998) quoting from Sherman v. Stanley supra “The focus of the court's inquiry (as to good cause) is the reasonableness and diligence of counsel’s effort to effect service within the time required”. Id at 312 quoting from Sherman v. Stanley Works supra. Here the Bank can provide no explanation to support a good cause claim where it has failed to perfect service upon Tucard in excess of 950 days since the date of service where Tucard has continually and openly operated its business at 76-100 Pleasant Street, Dracut, Massachusetts which is the address the Plaintiff identifies in its Verified Complaint (See Paragraph 5) The Federal Rule of governing the required timing for service of the Summons and Complaint upon a defendant is identical to the applicable Massachusetts rule except the Federal ee ' Please reference the Affidavit of. Joseph J. DiCarlo, Jr. filed herewith in support of the included factual statements.Rule provides for 120 days.? The only example of “good cause” provided by the legislature history of the federal rule is the obvious one of a defendants evasion of service Weiu v. State 763 F 2d 370, 371 (9" Civ, 1985). There is nothing in the record nor does Tucard anticipate that any such evidence will be interposed by the Bank in its Opposition to this Motion that Tucard took any steps to evade service of the Summons and Complaint nor is there any evidence in the record that the Bank’s counsel ever requested an extension of time for service under Mass.R.Civ.P. 6(b) which in accordance to the dicta in Davis-Wilson v. Hilton Hotels Corp. 106 FRD, 505 (1985) is some evidence of lack of due diligence. CONCLUSION WHEREFORE as a result of the unexcused failure of the Bank to serve the Reach-And- Apply Defendants, Tucard LLC and A-Tucard Self Storage LLC, they request that Judgment for Dismissal enter on their behalf in this matter. TUCARD LLC and A-TUCARD SELF STORAGE LLC By their Attorney AW OFFICE QF JOHN J. HARTIGAN, P.C. BBO# 224390 97 Centra , Sui owelt MA 01852 Tel: (978) 441-0054 jay@hartiganiaw.net Dated: October 16,2018 ee ? Please see Federal Rule of Civil Procedure 4(j)