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COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS. SUPERIOR COURT DEPARTMENT
CIVILACTION NO. 1885-CV-01028 - D
BRADLEY SMALL,
Plaintiff and Defendant in Counterclaim
FOULED
)
)
)
)
) JUN 24 2000
)
)
ATTEST: De MA,
CLERK
ve
FLOWRITE VALVE SERVICE, INC. and
MICHAEL J. HUNCHARD,
Defendants and Plaintiffs in Counterclaim
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO COMPEL
ANSWERS TO INTERROGATORIES (MRCP Rule 37(a))
Pursuant to the provisions of Massachusetts Rules of Civil Procedure, Rule 37(a), the
Defendants/Plaintiffs in Counterclaim Flowrite Valve Service, Inc. (“Flowrite”) and Michael J.
Hunchard (“Hunchard”) have respectfully requested this Court to issue an order compelling
Plaintiff/Defendant in Counterclaim Bradley Small (“Small”) to answer Interrogatory Nos. 15,
20 and 21 as propounded in their First and Second Sets of Interrogatories to Bradley Small.
None of these Interrogatories was objected to by Small as being beyond the scope of permissible
discovery. Each of these Interrogatories is intended to elicit information relevant, indeed.
essential to the allegations in the Counterclaim, which include violation by Small of a signed
covenant not to compete, breach of fiduciary duty by Small, unjust enrichment and violation of
Massachusetts General Laws c. 93A. Flowrite and Hunchard furnished the same information to
Small in his discovery to them.
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S14Interrogatory No. 15:
Interrogatory No. 15: Please identify the total gross revenues received by (Hydrus
Control Solutions, Inc.) from contro] valve installation and
all related service and repair work in 2016, 2017, 2018 and 2019.
Response No. 15: I do not know. My tax documents show gross revenues, but I do
not break these down by service, materials, labor, and other
items separately. I would need to examine each invoice
separately and then calculate this on a per invoice basis, which
would be incredibly burdensome or impossible going back to
years for which records no longer exist. Even doing this for
recent years would be a significant task.
Argument
In his alleged Response to Interrogatory No. 15, Small admits that the requested information
exists in his tax records, but claims it would be “incredibly burdensome” to provide it. In fact, it
would not be burdensome at all. Flowrite and Hunchard asked for simple numbers: gross
revenues from control valve installation and all related service and repair work (emphasis
supplied). They did not ask for a breakdown by service, labor, repairs or anything else. Just
simple numbers, which Small admitted he has, with no tax returns or documents. Small is
running a business and presumably filing tax returns. It defies belief that he does not know how
much money he took in. Small distorted Defendants’ Interrogatory to make it appear more
complicated than it was, and then basically refused to answer it. It was burdensome as well for
Flowrite and Hunchard to respond to Small’s discovery requests, but they did so.
Massachusetts Rule of Civil Procedure 37(a)(3) clearly states that “an evasive or incomplete
answer is to be treated as a failure to answer.” Additionally, under Massachusetts Rule of CivilProcedure 33(c), Small has the option to produce business records sufficient for Defendants to
obtain the information requested in the Interrogatory. Sufficient responses to this Interrogatory
(as well as Interrogatory Nos. 20 and 21) should be easily possible by reference to numbers in
tax summaries and returns, Forms 1099, W-2 and/or K-1.
Flowrite and Hunchard note that Small has admitted signing the Covenant Not to Compete
that forms a basis of the Counterclaim (Answer to Counterclaim, par. 10). Small has admitted
that, approximately ten days before leaving Flowrite in December 2016, he organized a
Massachusetts business corporation called Hydrus Control Solutions, Inc. (“Hydrus”), with
Small as its sole Director and Officer (Answer to Counterclaim, par. 33). He has admitted that
the principal business activity of Hydrus, as stated in its Articles of Organization, is “control
valve installation and service,” which is identical to the principal business activity of Flowrite
(Answer to Counterclaim, pars. 34 and 35). Small has admitted that Hydrus continues to engage
in the work of control valve installation (Answer to Counterclaim, par. 47).
Interrogatory No. 20:
Interrogatory No. 20: In your Response to Interrogatory No. 15, you stated that your
tax documents showed gross revenues (to Hydrus Control
Solutions, Inc.) for some or all of the following years: 2016,
2017 and 2018. Please state the total gross revenues from all
sources received by (Hydrus Control Solutions, Inc.) in
2016, 2017, and 2018.
Response No. 20: Please see my response to Request No. 15, which is incorporated
herein by reference.Argument:
In Interrogatory No. 20, Flowrite and Hunchard simplified Interrogatory No. 15 to make it
even clearer that they were asking only for combined total gross revenues from all sources, not
detailed breakdowns of categories. In addition, Flowrite and Hunchard eliminated their request
for 2019 numbers. The information being requested was or should have been obvious to Small.
He or his attorney could have requested clarification if needed, or provided what they had. But
Small simply repeated his alleged Response to Interrogatory No. 15.
Flowrite and Hunchard refer to and reincorporate their Argument with respect to
Interrogatory No. 15, supra.
Interrogatory No. 21:
Interrogatory No.21: Please state, by year, how much income or other compensation
you received from (Hydrus Control Solutions, Inc.) in 2016,
2017 and 2018.
Response No. 21: Please see my response to Request No. 15, which is incorporated
herein by reference.
Argument
Interrogatory No. 21 is even simpler. It requests no financial information at all from Hydrus
Control Solutions, Inc. It is directed to Small and only Small. It just asks Small to state
three numbers: the total amounts of income or other compensation he derived from Hydrus
Control Solutions, Inc. in 2016, 2017 and 2018. Once again, Small simply repeated his non-
answer to Interrogatory No. 15.Flowrite and Hunchard refer to and reincorporate their Argument with respect to Interrogatory
No. 15, supra.
The information being requested is relevant, within the scope of discovery, and was not
objected to for any reason other than Small didn’t feel like providing it. It is clear that Small has
no intention of providing any financial information unless ordered to do so. Flowrite and
Hunchard ask this Court to issue that order.
Respectfully submitted,
"Gt
Y o
Richard T. Rook, Esq.
1170 West Street POB 277
Sheldonville, MA 02070
BBO No. 426780
508.523.8356
rooklaw@gmail.com
May 2€_, 2020Certificate of Service
I, Richard T. Rook, attorney for Michael J. Hunchard and Flowrite Valve Service, Inc., hereby
certify under pain of perjury that on May 24 , 2020, 1 served a copy of the foregoing
Memorandum in Support of Defendants’ Motion to Compel Answers to Interrogatories
(MRCP Rule 37(a)) upon all attorneys of record and interested parties by certified and first-class
mail directed to:
Christopher J. Fein, Esq. Hydrus Control Solutions, Inc.
Fein Law Office c/o Bradley Small, President
50 Braintree Hill Office Park 12 Mooreland Drive
Suite 302 Uxbridge, MA 01569
Braintree, MA 02184
Lthece-
Aichard T. Rook, Esq.
Dated: May 2, 2020
-6-
Preview
e COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS. SUPERIOR COURT DEPARTMENT CIVILACTION NO. 1885-CV-01028 - D BRADLEY SMALL, Plaintiff and Defendant in Counterclaim FOULED ) ) ) ) ) JUN 24 2000 ) ) ATTEST: De MA, CLERK ve FLOWRITE VALVE SERVICE, INC. and MICHAEL J. HUNCHARD, Defendants and Plaintiffs in Counterclaim MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO COMPEL ANSWERS TO INTERROGATORIES (MRCP Rule 37(a)) Pursuant to the provisions of Massachusetts Rules of Civil Procedure, Rule 37(a), the Defendants/Plaintiffs in Counterclaim Flowrite Valve Service, Inc. (“Flowrite”) and Michael J. Hunchard (“Hunchard”) have respectfully requested this Court to issue an order compelling Plaintiff/Defendant in Counterclaim Bradley Small (“Small”) to answer Interrogatory Nos. 15, 20 and 21 as propounded in their First and Second Sets of Interrogatories to Bradley Small. None of these Interrogatories was objected to by Small as being beyond the scope of permissible discovery. Each of these Interrogatories is intended to elicit information relevant, indeed. essential to the allegations in the Counterclaim, which include violation by Small of a signed covenant not to compete, breach of fiduciary duty by Small, unjust enrichment and violation of Massachusetts General Laws c. 93A. Flowrite and Hunchard furnished the same information to Small in his discovery to them. -1- S14Interrogatory No. 15: Interrogatory No. 15: Please identify the total gross revenues received by (Hydrus Control Solutions, Inc.) from contro] valve installation and all related service and repair work in 2016, 2017, 2018 and 2019. Response No. 15: I do not know. My tax documents show gross revenues, but I do not break these down by service, materials, labor, and other items separately. I would need to examine each invoice separately and then calculate this on a per invoice basis, which would be incredibly burdensome or impossible going back to years for which records no longer exist. Even doing this for recent years would be a significant task. Argument In his alleged Response to Interrogatory No. 15, Small admits that the requested information exists in his tax records, but claims it would be “incredibly burdensome” to provide it. In fact, it would not be burdensome at all. Flowrite and Hunchard asked for simple numbers: gross revenues from control valve installation and all related service and repair work (emphasis supplied). They did not ask for a breakdown by service, labor, repairs or anything else. Just simple numbers, which Small admitted he has, with no tax returns or documents. Small is running a business and presumably filing tax returns. It defies belief that he does not know how much money he took in. Small distorted Defendants’ Interrogatory to make it appear more complicated than it was, and then basically refused to answer it. It was burdensome as well for Flowrite and Hunchard to respond to Small’s discovery requests, but they did so. Massachusetts Rule of Civil Procedure 37(a)(3) clearly states that “an evasive or incomplete answer is to be treated as a failure to answer.” Additionally, under Massachusetts Rule of CivilProcedure 33(c), Small has the option to produce business records sufficient for Defendants to obtain the information requested in the Interrogatory. Sufficient responses to this Interrogatory (as well as Interrogatory Nos. 20 and 21) should be easily possible by reference to numbers in tax summaries and returns, Forms 1099, W-2 and/or K-1. Flowrite and Hunchard note that Small has admitted signing the Covenant Not to Compete that forms a basis of the Counterclaim (Answer to Counterclaim, par. 10). Small has admitted that, approximately ten days before leaving Flowrite in December 2016, he organized a Massachusetts business corporation called Hydrus Control Solutions, Inc. (“Hydrus”), with Small as its sole Director and Officer (Answer to Counterclaim, par. 33). He has admitted that the principal business activity of Hydrus, as stated in its Articles of Organization, is “control valve installation and service,” which is identical to the principal business activity of Flowrite (Answer to Counterclaim, pars. 34 and 35). Small has admitted that Hydrus continues to engage in the work of control valve installation (Answer to Counterclaim, par. 47). Interrogatory No. 20: Interrogatory No. 20: In your Response to Interrogatory No. 15, you stated that your tax documents showed gross revenues (to Hydrus Control Solutions, Inc.) for some or all of the following years: 2016, 2017 and 2018. Please state the total gross revenues from all sources received by (Hydrus Control Solutions, Inc.) in 2016, 2017, and 2018. Response No. 20: Please see my response to Request No. 15, which is incorporated herein by reference.Argument: In Interrogatory No. 20, Flowrite and Hunchard simplified Interrogatory No. 15 to make it even clearer that they were asking only for combined total gross revenues from all sources, not detailed breakdowns of categories. In addition, Flowrite and Hunchard eliminated their request for 2019 numbers. The information being requested was or should have been obvious to Small. He or his attorney could have requested clarification if needed, or provided what they had. But Small simply repeated his alleged Response to Interrogatory No. 15. Flowrite and Hunchard refer to and reincorporate their Argument with respect to Interrogatory No. 15, supra. Interrogatory No. 21: Interrogatory No.21: Please state, by year, how much income or other compensation you received from (Hydrus Control Solutions, Inc.) in 2016, 2017 and 2018. Response No. 21: Please see my response to Request No. 15, which is incorporated herein by reference. Argument Interrogatory No. 21 is even simpler. It requests no financial information at all from Hydrus Control Solutions, Inc. It is directed to Small and only Small. It just asks Small to state three numbers: the total amounts of income or other compensation he derived from Hydrus Control Solutions, Inc. in 2016, 2017 and 2018. Once again, Small simply repeated his non- answer to Interrogatory No. 15.Flowrite and Hunchard refer to and reincorporate their Argument with respect to Interrogatory No. 15, supra. The information being requested is relevant, within the scope of discovery, and was not objected to for any reason other than Small didn’t feel like providing it. It is clear that Small has no intention of providing any financial information unless ordered to do so. Flowrite and Hunchard ask this Court to issue that order. Respectfully submitted, "Gt Y o Richard T. Rook, Esq. 1170 West Street POB 277 Sheldonville, MA 02070 BBO No. 426780 508.523.8356 rooklaw@gmail.com May 2€_, 2020Certificate of Service I, Richard T. Rook, attorney for Michael J. Hunchard and Flowrite Valve Service, Inc., hereby certify under pain of perjury that on May 24 , 2020, 1 served a copy of the foregoing Memorandum in Support of Defendants’ Motion to Compel Answers to Interrogatories (MRCP Rule 37(a)) upon all attorneys of record and interested parties by certified and first-class mail directed to: Christopher J. Fein, Esq. Hydrus Control Solutions, Inc. Fein Law Office c/o Bradley Small, President 50 Braintree Hill Office Park 12 Mooreland Drive Suite 302 Uxbridge, MA 01569 Braintree, MA 02184 Lthece- Aichard T. Rook, Esq. Dated: May 2, 2020 -6-