Durling v. BI 40 LLC et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________________________________
)
JOANNE MACAULAY, as representative )
of GEORGE N. SALIE, JR., 	)
)
Plaintiff, 	)
)
v. 	) 	Civil Action
) 	No. 23-cv-11966-PBS
BI 40 LLC; EF, LLC d/b/a 	)
EISENSTEIN, FLAHERTY & ASSOCIATES; )
KCP ADVISORY SERVICES, LLC; and 	)
PAUL VALENTINE, 	)
)
Defendants. 	)
__________________________________ )
)
KAREN TEHAN, as representative of 	)
BERNICE WASTLER, 	)
)
Plaintiff, 	)
)
v. 	) 	Civil Action
) 	No. 23-cv-11967-PBS
BI 40 LLC; EF, LLC d/b/a 	)
EISENSTEIN, FLAHERTY & ASSOCIATES; )
KCP ADVISORY GROUP, LLC; and PAUL 	)
VALENTINE, 	)
)
Defendants. 	)
)
)
CAROLYN TAYLOR, as representative 	)
of NORMA GRIMSTAD, 	)
)
Plaintiff, 	)
)
v. 	) 	Civil Action
) 	No. 23-cv-11997-PBS
BI 40 LLC; EF, LLC d/b/a 	)
EISENSTEIN, FLAHERTY & ASSOCIATES; )
KCP ADVISORY GROUP, LLC; and PAUL 	)
VALENTINE, 	)
)
Defendants. 	)
)
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____________________________________________________________________________________
)
CATHY CARTER, as representative of )
MARIA REIS, 	)
)
Plaintiff, 	)
) 	Civil Action
v. 	) 	No. 23-cv-11998-PBS
)
BI 40 LLC; KCP ADVISORY GROUP, 	)
LLC; and PAUL VALENTINE, 	)
)
Defendants. 	)
)
)
JUDY DURLING, as executor of the 	)
estate of CAROLINA CHRISTENSON, 	)
)
Plaintiff, 	)
)
v. 	) 	Civil Action
) 	No. 23-cv-12642-PBS
BI 40 LLC; EF, LLC d/b/a 	)
EISENSTEIN, FLAHERTY & ASSOCIATES; )
KCP ADVISORY GROUP, LLC; and PAUL 	)
VALENTINE, 	)
)
Defendants. 	)
)
)
ROSARIA TROKEY, on behalf of 	)
herself and as executor of the 	)
estate of PASQUALE PICARELLA, 	)
)
Plaintiff, 	)
)
v. 	) 	Civil Action
) 	No. 23-cv-12652-PBS
BI 40 LLC; EF, LLC d/b/a 	)
EISENSTEIN, FLAHERTY & ASSOCIATES; )
KCP ADVISORY GROUP, LLC; and PAUL 	)
VALENTINE, 	)
)
Defendants. 	)
)
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ORDER
October 15, 2026
Saris, J.
These 	six 	civil 	actions 	arise 	from 	the 	receivership,
evacuation, and closure of Wood Haven Senior Living (“Wood Haven”),
a 	memory 	care 	assisted 	living 	facility 	in 	Tewksbury,
Massachusetts. Wood Haven’s troubles spawned a number of lawsuits
filed 	by 	former 	residents, 	by 	the 	owners 	and 	operators 	of 	the
facility, 	and 	by 	a 	lender 	to 	the 	owners. 	Both 	this 	Court 	and 	the
First 	Circuit 	have 	issued 	lengthy 	decisions 	in 	these 	cases 	that
describe 	the 	events 	leading 	to 	Wood 	Haven’s 	receivership 	and
evacuation and the legal disputes that followed. See, e.g., BI 40
LLC v. Ironshore Specialty Ins. Co., 152 F.4th 226 (1st Cir. 2025);
Suny 	v. 	KCP 	Advisory 	Grp., 	LLC, 	152 	F.4th 	25 	(1st 	Cir. 	2025);
Tewksbury 	Living 	Grp., 	LLC 	v. 	KCP 	Advisory 	Grp., 	LLC, 	No. 	25-cv-
10130, 	2026 	WL 	539761 	(D. 	Mass. 	Feb. 	26, 	2026), 	appeal 	filed,
No. 26-1316 (1st Cir. Apr. 1, 2026); BI 40 LLC v. Tewksbury Living
Grp., LLC, 766 F. Supp. 3d 245 (D. Mass. 2025).
In 	the 	lawsuits 	currently 	before 	the 	Court, 	representatives
of 	six 	former 	Wood 	Haven 	residents 	(“Plaintiffs”) 	bring 	various
state-law 	claims 	against 	the 	lender 	to 	the 	facility’s 	owners 	and
operators, 	Defendant 	BI 	40 	LLC 	(“BI 	40”); 	the 	court-appointed
receiver that took control of the facility’s operations and assets,
Defendants 	KCP 	Advisory 	Group, 	LLC 	and 	Paul 	Valentine 	(together,
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“KCP”); and the company that managed day-to-day operations at the
facility 	under 	KCP’s 	direction, 	Defendant 	EF, 	LLC 	d/b/a
Eisenstein, Flaherty & Associates (“EF”). Plaintiffs seek damages
for harms arising from Wood Haven’s hasty evacuation of the elderly
residents 	in 	January 	2022. 	KCP 	and 	EF 	now 	move 	to 	dismiss 	these
six lawsuits under Federal Rule of Civil Procedure 12(b)(6) on the
basis 	that 	the 	claims 	against 	them 	are 	barred 	by 	quasi-judicial
immunity. See Doe v. City of Boston, 145 F.4th 142, 149 (1st Cir.
2025) 	(describing 	standard 	for 	motion 	to 	dismiss 	under 	Rule
12(b)(6)).1
The 	First 	Circuit 	recently 	addressed 	KCP’s 	entitlement 	to
quasi-judicial 	immunity 	in 	another 	action 	arising 	from 	the 	Wood
Haven 	receivership 	brought 	by 	a 	former 	resident. 	See 	Suny, 	152
F.4th 	at 	26. 	The 	First 	Circuit 	explained 	that 	there 	are 	“two
recognized 	applications” 	of 	quasi-judicial 	immunity. 	Id. 	at 	30.
First, 	quasi-judicial 	immunity 	protects 	“persons 	who,
‘irrespective 	of 	their 	title, 	perform 	functions 	essentially
similar 	to 	those 	of 	judges . . . 	in 	a 	setting 	similar 	to 	that 	of
a 	court.’” 	Id. 	(alteration 	in 	original) 	(quoting 	Bettencourt 	v.
Bd. 	of 	Registration 	in 	Med., 	904 	F.2d 	772, 	782 	(1st 	Cir. 	1990)).
This 	type 	of 	immunity 	does 	“not 	attach” 	when 	“the 	function
performed is not ‘truly judicial’” or when the relevant conduct is
1 The parties agree that the relevant factual allegations and legal
claims are materially identical across the six lawsuits.
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“taken 	in 	the 	complete 	absence 	of 	all 	jurisdiction.” 	Id. 	(first
quoting 	Forrester 	v. 	White, 	484 	U.S. 	219, 	227 	(1988); 	and 	then
quoting 	Mireles 	v. 	Waco, 	502 	U.S. 	9, 	12 	(1991) 	(per 	curiam)).
Second, 	“persons 	who 	‘carr[y] 	out 	the 	orders 	of 	an 	appointing
judge’” 	are 	entitled 	to 	quasi-judicial 	immunity, 	unless 	they
perform 	“acts 	which 	are 	clearly 	outside 	the 	scope 	of 	their
jurisdiction.” 	Id. 	(alteration 	in 	original) 	(quoting 	Cok 	v.
Cosentino, 876 F.2d 1, 3 (1st Cir. 1989) (per curiam)).
The 	First 	Circuit 	then 	assessed 	KCP’s 	argument 	that, 	as 	a
receiver, 	it 	was 	protected 	by 	quasi-judicial 	immunity 	from 	the
former resident’s claims that it engaged in an unlawful scheme to
remove Wood Haven’s residents from the facility. See id. Applying
only the first type of quasi-judicial immunity, see id., the First
Circuit 	asked 	“whether 	KCP’s 	particular 	acts 	‘relat[ed] 	to 	a
general 	function 	normally 	performed 	by 	a 	judge.’” 	Id. 	at 	31
(quoting 	Mireles, 	502 	U.S. 	at 	13). 	The 	First 	Circuit 	found 	that
KCP’s “effort to remove residents from an unsafe facility subject
to 	a 	receivership” 	was 	“comparable 	to 	a 	court 	exercising 	its
equitable 	powers 	to 	take 	control 	of 	a 	distressed 	asset 	and
conducting an analogous evacuation due to unsafe conditions.” Id.
And 	if 	a 	judge 	had 	“order[ed] 	residents 	removed 	from 	the
facility . . . , she would have been immune from claims related to
that 	act.” 	Id. 	The 	First 	Circuit 	thus 	concluded 	that 	the 	claims
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“relate[d] to a judicial function” and, as KCP “did not act absent
jurisdiction,” KCP was entitled to quasi-judicial immunity. Id.
Suny 	compels 	the 	conclusion 	that 	quasi-judicial 	immunity
protects 	KCP 	from 	the 	six 	lawsuits 	currently 	at 	issue. 	Suny
expressly 	held 	that 	KCP 	is 	immune 	from 	claims 	related 	to 	the
evacuation 	of 	residents 	from 	Wood 	Haven, 	see 	id., 	and Plaintiffs
do not dispute that all of their claims against KCP relate to the
evacuation. 	Plaintiffs’ 	arguments 	that 	quasi-judicial 	immunity
does not protect KCP from these lawsuits boil down to a contention
that 	Suny 	was 	wrongly 	decided. 	For 	example, 	Plaintiffs 	emphasize
that 	while 	the 	order 	appointing 	KCP 	as 	a 	receiver 	generally
protects 	KCP 	from 	personal 	liability 	“for 	any 	actions 	taken
pursuant to this Order or carrying out the Receiver’s duties,” the
order 	“except[s] 	. 	. 	. 	claims 	which 	arise 	from 	the 	willful
misconduct of such person.” Dkt. 29, Ex. 1 ¶ 22.2 “The same point
could 	have 	been 	made 	in 	Suny, 	however, 	and 	the 	First 	Circuit 	did
not indicate that this language in the receivership order created
an 	exception 	to 	KCP’s 	quasi-judicial 	immunity 	for 	performing
2 Plaintiffs also point to a Massachusetts statutory provision that
states 	that 	“a 	receiver 	appointed 	under 	[Massachusetts 	General
Laws 	Chapter 	111, 	§ 	72N] 	. 	. 	. 	shall 	be 	liable 	in 	his 	personal
capacity 	for 	gross 	negligence 	or 	intentional 	wrongdoing.” 	Mass.
Gen. 	Laws 	ch. 	111, 	§ 	72S. 	This 	provision 	is 	inapposite. 	KCP 	was
appointed 	as 	a 	receiver 	not 	under 	§ 	72N 	but 	rather 	pursuant 	to
this 	Court’s 	inherent 	equitable 	powers. 	See 	United 	States 	v.
Quintana-Aguayo, 	235 	F.3d 	682, 	686 	& 	n.8 	(1st 	Cir. 	2000) 	(per
curiam).
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judicial functions.” Tewksbury Living, 2026 WL 539761, at *2. This
Court 	is 	bound 	to 	follow 	Suny’s 	broad 	understanding 	of 	quasi-
judicial immunity and its specific holding that KCP is immune from
claims related to the evacuation of Wood Haven. See Eulitt ex rel.
Eulitt 	v. 	Me., 	Dep’t 	of 	Educ., 	386 	F.3d 	344, 	349 	(1st 	Cir. 	2004)
(“Until a court of appeals revokes a binding precedent, a district
court 	within 	the 	circuit 	is 	hard 	put 	to 	ignore 	that 	precedent
unless it has unmistakably been cast into disrepute by supervening
authority.”), abrogated on other grounds by, Carson ex rel. O.C. v.
Makin, 596 U.S. 767 (2022).
EF 	argues 	that 	it 	is 	entitled 	to 	the 	same 	quasi-judicial
immunity 	as 	KCP 	because 	it 	acted 	as 	KCP’s 	agent 	during 	the
evacuation 	that 	underlies 	Plaintiffs’ 	claims. 	As 	this 	Court 	has
previously explained, “courts generally extend a receiver’s quasi-
judicial immunity to its agents because the receiver’s protection
‘would be meaningless if it could be avoided by simply suing’ the
agents.” Tewksbury Living, 2026 WL 539761, at *2 (quoting Chua v.
Ekonomou, 	1 	F.4th 	948, 	955 	(11th 	Cir. 	2021)). 	Plaintiffs 	contend
that 	they 	have 	alleged 	claims 	based 	on 	EF’s 	pre-receivership
conduct 	for 	which 	quasi-judicial 	immunity 	would 	not 	apply, 	but 	a
review 	of 	the 	complaint 	makes 	clear 	that 	their 	claims 	against 	EF
all 	relate 	to 	the 	evacuation 	of 	Wood 	Haven 	that 	occurred 	during
the 	receivership. 	And 	despite 	Plaintiffs’ 	arguments 	to 	the
contrary, 	the 	complaint 	does 	not 	plausibly 	allege 	that 	EF 	was
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acting solely as the agent of BI 40 rather than KCP in connection
with 	the 	evacuation 	or 	that 	EF’s 	alleged 	tortious 	conduct 	was
outside the scope of its agency relationship with KCP. See MacAulay
ex rel. Salie v. BI 40 LLC, et al., No. 23-cv-11966, Dkt. 7 ¶ 159
(D. Mass. Nov. 2, 2023) (alleging that EF “acted . . . 	as an agent
of 	the 	Receiver” 	with 	respect 	to 	the 	evacuation); 	id. 	¶ 	198
(alleging 	that 	the 	“Receiver, 	by 	and 	through 	its 	agents, 	the 	EF
Parties, made false statements to” the plaintiff). EF is therefore
also protected by quasi-judicial immunity from the six lawsuits at
issue.3
Accordingly, KCP and EF’s motion to dismiss is ALLOWED.
SO ORDERED.
/s/ PATTI B. SARIS__________
Hon. Patti B. Saris
United States District Judge
3 In their opposition to the motion to dismiss, Plaintiffs ask for
leave 	to 	amend 	if 	the 	Court 	finds 	their 	allegations 	insufficient
to support a claim that is not barred by quasi-judicial immunity.
“[S]uch a ‘passing request for contingent leave to file an amended
complaint,’ especially when made as a part of an ‘opposition to a
motion to dismiss, is insufficient’ to make a proper [Federal Rule
of Civil Procedure] 15(a) motion.” United States ex rel. Solano v.
Barton Assocs., Inc., 177 F.4th 315, 324 (1st Cir. 2026) (quoting
Fisher v. Kadant, Inc., 589 F.3d 505, 510-11 (1st Cir. 2009)). The
request 	is 	also 	untimely, 	as 	Plaintiffs 	have 	long 	been 	aware 	of
the 	holding 	in 	Suny. 	The 	Court 	therefore 	does 	not 	grant 	leave 	to
amend.
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