Rc International Temp Services, Inc. v. Coliseum Companies, Inc.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-247

RC INTERNATIONAL TEMP SERVICES, INC.

vs.

COLISEUM COMPANIES, INC.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, RC International Temp Services, Inc. (RC

International), appeals from a judgment of dismissal, without

prejudice, entered for lack of prosecution. RC International

argues that the judge erred in dismissing the case and in

denying the plaintiff's "Motion to Appoint Receiver." We

affirm.

Background. In April 2018, RC International, a temporary

employment agency, filed its first amended complaint2 against the

defendant, Coliseum Companies, Inc. (Coliseum), an operator of

commercial laundry facilities in Massachusetts. RC

International alleged, inter alia, that it provided "temporary

1 Doing business as Bay State Linen.

2 RC International filed its original complaint on March 26,
2018.
workers" for employment at Coliseum; Coliseum agreed to pay RC

International the "cost" of each temporary worker; the cost of

each temporary worker included compliance with each worker's

"legally mandated wages" (including but not limited to minimum

and overtime wages, unemployment, workers' compensation, and

Federal Insurance Contributions Act tax obligations); Coliseum's

payments to RC International were insufficient to pay for the

workers' legally mandated wages; and, as a result, Coliseum

"prevented [RC International] from satisfying those obligations

and has given rise to outstanding claims against [RC

International and other temporary employment agencies] for

certain sums and for potential penalties." In other words,

because of Coliseum's breaches of its contract and obligations,

RC International could not pay the temporary workers what they

were owed and thus those workers have claims against RC

International.3

At some later date in 2018, RC International's sole owner

and officer, who is subject to Massachusetts criminal

proceedings and Federal immigration restrictions, moved to the

Dominican Republic. RC International's counsel has not had any

3 At the hearing on the motion to dismiss and motion to appoint a
receiver, counsel for RC International further represented,
inter alia, that it filed suit to "get compensation for the
asset which was converted," the asset being RC International's
temporary workers that Coliseum allegedly stole from RC
International.

2
contact with him since he left the United States. On June 28,

2019, RC International was "dissolved by Court Order or by the

[Secretary of the Commonwealth]." Although the parties engaged

in limited discovery in 2019 and early 2020, discovery and

litigation halted in or around February or March of 2020. Per

the case tracking order, the discovery deadline passed on March

16, 2020, and the summary judgment deadline passed on May 14,

2020. Neither party moved to extend the case tracking order or

other deadlines. The case remained dormant, in effect, until

the parties received a notice to appear for a pretrial

conference to be held on November 15, 2021.

On November 10, 2021, counsel for RC International filed a

"Request to Cancel the Nov. 15, 2021 Pre-Trial Conference As No

Pre-trial Memo Can be Drafted; Alternatively a Request for

Remote Hearing." That motion represented as follows: Robert

Carrion, the sole and controlling officer of RC International,

was in the Dominican Republic, subject to ongoing Massachusetts

criminal proceedings and Federal immigration restrictions, and

"highly unlikely" to return to the United States; counsel for RC

International has thus been "unable to obtain any engagement,

information or instructions regarding [RC International's]

litigation of this matter and has been unable to prepare a pre-

trial memo"; and Carrion "has been unable or unwilling to

communicate with [RC International's] attorney on the matters at

3
issue, and under these circumstances [counsel for RC

International] must serve . . . a Motion to Withdraw." On

December 13, 2021, Coliseum filed a motion to dismiss the

plaintiff's action with prejudice for failure to prosecute under

Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). The next

day, RC International filed a motion to appoint a receiver. A

Superior Court judge scheduled a conference pursuant to Mass. R.

Civ. P. 16, as amended, 466 Mass. 1401 (2011).4 On December 16,

2021, following a hearing on both motions, the judge denied the

motion to appoint a receiver and allowed the motion to dismiss

without prejudice.

Discussion. 1. Appointment of receiver. RC International

argues that the judge erred in denying its motion to appoint a

receiver because a dissolved corporation continues its corporate

existence and may continue its litigation and wind up its

business and affairs. See G. L. c. 156D, §§ 14.05, 14.21. See

also G. L. c. 155, § 52. The claim is unavailing.

"A receivership is an equitable remedy designed to protect

and preserve the assets of a corporate debtor for those

creditors who the court ultimately decides are entitled to them"

4 Although the record is unclear, it appears that the motion to
dismiss and the motion to appoint a receiver were discussed at a
status conference or pretrial conference held in mid-November,
at which the judge instructed the parties to file their
respective motions prior to December 16, 2021.

4
(citation omitted). Charlette v. Charlette Bros. Foundry, Inc.,

59 Mass. App. Ct. 34, 45 (2003). "Generally, the appointment of

a receiver rests in the sound discretion of the court." Lopez

v. Medford Community Center, Inc., 384 Mass. 163, 169 (1981),

quoting Falmouth Nat'l Bank v. Cape Cod Ship Canal Co., 166

Mass. 550, 568 (1896). "It is equally clear, however, that the

remedy is sparingly invoked. A decree appointing a receiver

'can often have irreversible and far-reaching consequences for

the (entity placed in receivership) and others. Therefore,

particular care must be exercised by a judge in order to

ascertain that facts exist which justify, and in the judge's

discretion require, the appointment of a temporary or permanent

receiver.'" Lopez, supra, quoting George Altman, Inc. v. Vogue

Internationale, Inc., 366 Mass. 176, 179 (1974). See Perez v.

Boston Hous. Auth., 379 Mass. 703, 733 (1980) (receivership

always characterized as remedy of "last resort"); 12 C.A.

Wright, A.R. Miller, & R.L. Marcus, Federal Practice and

Procedure § 2983, at 18 (2014) (receiverships under Fed. R. Civ.

P. 66 are "an extraordinary remedy that should be employed with

the utmost caution and granted only in cases of clear necessity

to protect plaintiff's interests in the property"). In

addition, "receivership is not meant to determine or confer

liability on the corporation or order payment of debts. Rather,

receivership is a prophylactic measure to protect assets, in the

5
event that a particular creditor can prove that the corporation

is liable on a debt" (Emphasis deleted). Charlette, supra at

46.

With these standards in mind, we need not dwell at length

on the claim. RC International sought the appointment of a

receiver for itself. As discussed, RC International had been

dissolved and had no active officer, owner, or -- as far as the

pleadings and record show -- shareholders. Furthermore, RC

International represented that a receiver would be needed should

it somehow ultimately succeed in litigation that had come to a

halt, and in which RC International, by its own admission, had

no engagement, information, or instructions to proceed. RC

International cites no precedent or authority, from any

jurisdiction, where a receiver has been appointed in a scenario

like the present one, much less a case where a judge was found

to have abused her discretion for failing to appoint a receiver

in such a situation. In these circumstances, and on the limited

record before us, we cannot say that the denial of the motion to

appoint a receiver was arbitrary, capricious, or fell outside of

the reasonable range of alternatives. See L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014). Thus, there was no abuse of

discretion.

2. Dismissal. RC International also contends that the

judge abused her discretion by dismissing the first amended

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complaint, without prejudice, for lack of prosecution. We

disagree, albeit for reasons somewhat different than those

relied on by the judge. See Lopes v. Commonwealth, 442 Mass.

170, 181 (2004), quoting Gabbidon v. King, 414 Mass. 685, 686

(1993) ("We may affirm the judgment on 'any ground apparent on

the record that supports the result reached in the [trial]

court'").

As stated above, counsel for RC International was "unable

to obtain any engagement, information or instructions regarding

[RC International's] litigation of this matter and has been

unable to prepare a pre-trial memo," and could not proceed in

the litigation without the appointment of a receiver.5 Having

represented to the judge that without the appointment of a

receiver it could not even file a pretrial conference report,

much less answer ready for trial or proceed with the litigation,

RC International violated Mass. R. Civ. P. 16 as well as the

judge's order.6 See Mass. R. Civ. P. 41 (b) (2) ("On motion of

5 Asked at oral argument why it did not refile its complaint
where the dismissal of the case was without prejudice, counsel
for RC International responded, in essence, that even assuming
RC International could somehow renew the litigation, it would
ultimately need the appointment of a receiver to pursue and
successfully conclude the litigation.

6 Although the December 16, 2021, hearing before the judge
appears to have been scheduled as both a pretrial conference and
a motion hearing, the docket and record before us are somewhat
unclear. That notwithstanding, it is undisputed that in
response to the judge's pretrial orders, counsel for RC

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the defendant, with notice, the court may, in its discretion,

dismiss any action for failure of the plaintiff . . . to comply

with these rules or any order of court"). Contrast Dewing v.

J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 471 (1991) ("A

plaintiff who has completed all the discovery . . . who

manifests an intention to go to trial, and who is merely

awaiting the scheduling of a trial date . . . need do no more

and, indeed, as a practical matter can do no more, to accelerate

the case for trial").

In addition, where the judge did not abuse her discretion

in denying the motion to appoint a receiver, we likewise cannot

say that she abused her discretion in dismissing the case

without prejudice in light of RC International's representations

that it could not otherwise proceed. See Mass. R. Civ. P. 41

(b) (2). In these circumstances, the decision of the Superior

Court judge "did not rest on whimsy, caprice, or arbitrary or

idiosyncratic notions." Bucchiere v. New England Tel. & Tel.

Co., 396 Mass. 639, 642 (1986). Thus, under the unique facts

International represented that it was unable to move forward
without the appointment of a receiver, had no "engagement,
information or instructions" regarding the litigation, was
unable to prepare a pretrial memorandum, and could not comply
with Mass. R. Civ. P. 16. Even assuming, arguendo, that there
was no violation of rule 16, the judge did not err in dismissing
the case for the reasons further stated herein.

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and posture of this case, and on the limited record before us,

we discern no error or abuse of discretion.

Judgment affirmed.

By the Court (Neyman, Shin &
Hodgens, JJ.7),

Clerk

Entered: February 23, 2023.

7 The panelists are listed in order of seniority.

9