In Anesthesia Associates, Judge Salinger rejected the plaintiff’s motion for a preliminary injunction because, in essence, the motion constituted a premature creditor’s bill.
The plaintiff alleged that the defendant owed $2 million in past anesthesia services and that the defendant was making preferential payments to other entities. The plaintiff sought to enjoin the defendant from transferring or encumbering any assets or making payments of any funds— except for paying wages to its employees, paying its lawyers, or paying rent, utility, and tax bills.
Citing Cavadi v. DeYeso, 458 Mass. 615 (2011), Judge Salinger explained that the plaintiff’s “request to tie up [the defendant’s] funds and other assets is essentially a ‘nonstatutory action to reach and apply’ that used to be known as a ‘creditor’s bill.’” Judge Salinger further explained that a plaintiff can obtain a creditor’s bill only if the plaintiff is a judgment creditor. And therein laid the problem. “Since Plaintiffs are not yet judgment creditors of [the defendant], the Court may not exercise its general equity jurisdiction to temporarily grant injunctive relief in the nature of creditors’ bill attachment,” Judge Salinger ruled.
Judge Salinger also supported his ruling on a separate ground. “Since [the plaintiff] has made no factual showing of likely irreparable harm other than assertions made solely on ‘information and belief,’” Judge Salinger wrote, “it has failed to meet its burden of proving that it will suffer irreparable harm without the proposed injunction. It is therefore not entitled to obtain preliminary injunctive relief.”
Anesthesia Associates of Massachusetts, PC v. Plexus Anesthesia Services of Massachusetts, PC
February 20, 2018
- Senior Editor, Co-Chair, Business Litigation Practice Group