Suny v. KCP Advisory Group, LLC

• Court: Court of Appeals for the First Circuit
• Decided: August 19, 2025
• Docket: 23-1800
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1800

ANN SUNY,*

Plaintiff, Appellee,

v.

KCP ADVISORY GROUP, LLC,

Defendant, Appellant,

BI 40 LLC; EF, LLC; ROBERT EISENSTEIN,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Barron, Chief Judge, Thompson and Montecalvo, Circuit Judges.

Nicole L. Carnevale, with whom Allen N. David and Peabody & Arnold LLP were on brief, for appellant. David R. Suny, with whom McCormack Suny, LLC was on brief, for appellee.

August 19, 2025

* Pursuant to Fed. R. App. P. 43(a)(1), Ann Suny was substituted to replace Sue T. Frost as Appellee in this action after Frost's death on May 1, 2024. MONTECALVO, Circuit Judge. This interlocutory appeal

concerns whether a court-appointed receiver is entitled to

quasi-judicial immunity. Specifically, whether quasi-judicial

immunity bars claims based on allegations that the receiver,

appointed to manage a senior-living and memory-care facility,

carried out a "resident dumping" scheme that led to residents'

wrongful removal. Sue T. Frost formerly was a resident of Wood

Haven Senior Living ("Wood Haven"), which operated as a memory-care

facility in Tewksbury, Massachusetts. She alleged that Wood

Haven's court-appointed receiver, Defendant KCP Advisory Group,

LLC ("KCP"), conspired with other named defendants to unlawfully

evict residents from the facility, including Frost. To execute

the scheme, defendants falsely claimed that the Tewksbury Fire

Department had ordered an emergency evacuation of the facility.

After she was transferred to a different facility, Frost

sued KCP in federal court in the District of Massachusetts. KCP

moved to dismiss the counts brought against it, arguing, in part,

that it was entitled to absolute quasi-judicial immunity. The

district court granted in part and denied in part KCP's motion.

KCP appeals that order, arguing that the district court erred in

concluding that immunity did not bar all of Frost's counts against

KCP. Because we conclude that quasi-judicial immunity does bar

each of Frost's claims against KCP, we reverse the portion of the district court's judgment denying KCP's motion to dismiss Counts

II, VI, VII, XI, and XIII.

I. Background1

A. Factual Background

Wood Haven was a 50-unit memory-care facility located in

Tewksbury, Massachusetts. On May 3, 2021, Frost signed a residency

agreement to secure a private room in the "300 wing" of the

facility and moved in soon after. The agreement required that

Wood Haven give Frost thirty days' notice if it intended to

terminate her tenancy. Massachusetts law further required that

assisted-living facilities, like Wood Haven, provide ninety days'

notice to residents before ceasing operations. See 651 CMR

12.03(10)(a), amended by emergency regulation 1479 Mass. Reg. 55

(Sept. 7, 2022).2

On June 9, 2021, Massachusetts's Executive Office of

Elder Affairs (the "EOEA") placed a moratorium on Wood Haven

enrolling new residents due to the facility's violations of EOEA

regulations. The situation further deteriorated in November 2021

when the EOEA suspended Wood Haven's certification as an

1Because this appeal stems from a district court's order on a motion to dismiss, we accept all well-pleaded factual allegations in Frost's complaint as true. Nystedt v. Nigro, 700 F.3d 25, 30 (1st Cir. 2012). On September 7, 2022, the regulation was amended to increase 2

the required notice from ninety to 120 days. assisted-living facility. In response, BI 40, LLC ("BI 40") -- a

company that had financed Wood Haven's continued

operations -- filed an emergency motion in the U.S. District Court

for the District of Massachusetts requesting that KCP be appointed

as receiver for the facility.

On December 9, 2021, Judge Patti Saris held a hearing on

BI 40's motion, which was attended by representatives for the EOEA,

EF, LLC ("EF"),3 BI 40, and KCP.4 During the hearing, and in

response to Judge Saris's expressed concern for Wood Haven's

vulnerable residents, BI 40's counsel assured the court that "the

standard of care to the residents [would be] maintained." Soon

thereafter Judge Saris entered an order (the "Receivership Order")

appointing KCP as receiver, which contained the following

pertinent provisions:

Subject to the Budget . . . and its fiduciary duties, the Receiver shall have and may exercise the following powers . . .

[to] manage, operate, preserve[,] and maintain the Receivership Assets as a prudent person would, including, without limitation, the power to enter into, terminate[,] or negotiate contracts and make repairs or alterations to the Receivership Assets that the Receiver in its business judgment reasonably believes necessary to pursue the Objectives. . . .

3 EF, LLC managed Wood Haven's operations during the relevant time period. 4 Wood Haven residents, including Frost, and their families were not present at, and were never informed of, this proceeding. [to] take all such actions necessary to transact business with the Facility’s existing residents, including entering into, amending, terminating[,] or otherwise modifying any lease or contract with an existing resident. . . .

[to] hire, fire, select, and retain employees of [Wood Haven] as the Receiver deems reasonable or necessary to preserve and maintain the value of the Receivership Assets, including as necessary or desirable to provide appropriate quality patient care. . . .

Upon entry of the order, KCP took control of Wood Haven

and retained EF to continue managing the facility's operations.

The complaint further alleges that Robert Eisenstein, an EF

representative and named defendant, acted as the facility's

executive director.

On January 13, 2022, around five weeks after KCP's

receivership began, a water pipe burst at Wood Haven, damaging the

300 wing of the facility where Frost lived. The damage rendered

Frost's room and proximate portions of the facility unlivable, but

Frost and other impacted residents were able to be relocated to

other habitable rooms within the facility. Notably, around the

time that the burst pipe caused water damage to Frost's room,

residents also complained that the facility's heating system was

malfunctioning, leaving the interior so cold that residents had to

don extra layers of clothing to stay warm. The EOEA was alerted

to these concerns, but the agency "declined to recognize the

situation at the Facility as an emergency." Despite the EOEA's determination, within four days of

the water pipe bursting, Wood Haven's management had decided to

close the facility. To do so, however, KCP first needed to remove

Wood Haven's residents. Management therefore began contacting

other care facilities to request that they accept the transfer of

Wood Haven's residents. In these calls, and in communications on

or around January 18 with residents and their legal

representatives, Wood Haven representatives asserted that the

transfer was necessary because the Tewksbury Fire Department had

ordered an emergency evacuation of the facility. In one such

letter from Robert Eisenstein, he reiterated that Wood Haven was

"under orders [of the Tewksbury Fire Department] to have all [its]

residents out of the building by [the following day] Wednesday[,]

January 19, 2022." In fact, no such order existed.

It was also during that time period, on or around

January 17, that the facility's management repeated its

misrepresentation about the emergency evacuation order to the

EOEA. But it was not until January 18, when the EOEA met with the

Tewksbury Fire and Building Departments, that the agency

discovered that there was no evacuation order. Later that day,

the EOEA ordered Wood Haven to stop its efforts to relocate

residents at least until residents were notified that no evacuation

order had been issued. Wood Haven, however, disregarded that

direction, declined to notify residents or their representatives that no evacuation order existed, and, on January 19, proceeded to

remove approximately twenty residents from the facility, including

Frost.

On January 24, the EOEA informed residents and their

representatives that there had been no evacuation order and that

the facility had not complied with the EOEA's prescribed corrective

measures.

B. Procedural History

Frost filed the operative complaint -- the Third Amended

Complaint -- on May 18, 2023 in the U.S. District Court for the

District of Massachusetts asserting a number of state and

common-law claims against KCP, BI 40, EF, and Eisenstein. KCP

moved to dismiss the counts against it, arguing, in part, that the

counts were barred by the doctrine of absolute quasi-judicial

immunity.5

On August 29, 2023, the district court allowed in part

and denied in part KCP's motion. The district court found that

absolute quasi-judicial immunity barred claims "based on imperfect

or negligent performance of receivership responsibilities" but not

those alleging "that [KCP] lacked jurisdiction to evict Frost, did

so contrary to law and contract, and in bad faith." Specifically,

5 BI 40 also moved to dismiss Frost's counts brought against it, but this appeal addresses only those counts brought against KCP. the order denied KCP's motion to dismiss as to Count II (violation

of Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A);

Count VI (intentional infliction of emotional distress); Count VII

(civil conspiracy); Count XI (fraud); and Count XIII (breach of

fiduciary duty).6 KCP timely appealed.

II. Standard of Review

We review the appeal of the district court's denial of

absolute quasi-judicial immunity at the motion to dismiss stage

de novo. See Penate v. Kaczmarek, 928 F.3d 128, 135 (1st Cir.

2019). In doing so, "we accept as true all well-pleaded facts

alleged in the complaint and draw all reasonable inferences

therefrom in the pleader's favor." Nystedt v. Nigro, 700 F.3d 25,

30 (1st Cir. 2012) (quoting Santiago v. Puerto Rico, 655 F.3d 61,

72 (1st Cir. 2011)).

III. Discussion7

On appeal, KCP contends that the district court erred in

holding that KCP was not entitled to absolute quasi-judicial

6 In Frost's responsive brief, she asserted that we should "sua sponte reverse the District Court's decision to dismiss the Counts alleging other intentional misconduct" including Counts I, III, IV, V, and XII. Frost, however, did not otherwise attempt to develop an argument to support this contention or, for that matter, explain what authority we would have to do so, thereby waiving the argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by developed argumentation, are deemed waived."). 7 The counts at issue in this appeal allege violations of state law, and our exercise of supplemental jurisdiction over those counts requires us to apply state substantive law to them. See immunity as to all of Frost's counts. Immunity attaches, KCP

argues, because the acts that give rise to Frost's surviving counts

are judicial in nature and within its jurisdiction as receiver.

Although KCP invokes the doctrine of quasi-judicial immunity as a

defense to Frost's claims, we begin our analysis with the doctrine

from which it derives.

A. Judicial and Quasi-Judicial Immunity

The doctrine of absolute judicial immunity for judges

seeks to ensure that judges, "in exercising the authority vested

in [them], shall be free to act upon [their] own convictions,

without apprehension of personal consequences to [themselves]"

from lawsuits filed by disappointed litigants. Bradley v. Fisher,

80 U.S. 335, 347 (1871); see also Butz v. Economou, 438 U.S. 478,

512 (1978). To achieve that aim, it bars all claims against judges

for acts done "in the exercise of their judicial functions." Butz,

438 U.S. at 508 (quoting Bradley, 80 U.S. at 347). However, the

mere fact that some act was performed by a judge does not alone

render the act part of the judicial function. Rather, whether

immunity applies depends on the nature of the functions performed

and "the effect that exposure to particular forms of liability

Nystedt, 700 F.3d at 30. Here, however, "[t]here are only minute distinctions between the [Massachusetts and federal] bodies of immunity law," id., and the parties do not assert that any of those distinctions are implicated in this case. Therefore, "we rely interchangeably on federal and state precedents with respect to the scope of quasi-judicial immunity." Id. would likely have on the appropriate exercise of those functions."

Forrester v. White, 484 U.S. 219, 224 (1988). In other words,

absolute judicial immunity protects only "truly judicial" -- i.e.,

adjudicative -- acts, and not "administrative, legislative, or

executive functions that judges may on occasion be assigned by law

to perform." Id. at 227.

Quasi-judicial immunity, as the name suggests, is an

outgrowth of judicial immunity created to address the fact that

certain judicial functions are performed by nonjudicial actors.

It has two recognized applications. First, it applies to

non-judges who act in a judicial capacity, meaning that they

"exercise a discretionary judgment" in helping to resolve disputes

between parties. Antoine v. Byers & Anderson, Inc., 508 U.S. 429,

436 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 423 n.20

(1976)); see also Nystedt, 700 F.3d at 30-31. Said differently,

it extends to persons who, "irrespective of their title, perform

functions essentially similar to those of judges . . . in a

setting similar to that of a court." Bettencourt v. Bd. of

Registration in Med. of Mass., 904 F.2d 772, 782 (1st Cir. 1990)

(emphases omitted) (citing Butz, 438 U.S. at 511–17).

So, as when addressing questions of judicial immunity,

quasi-judicial immunity will not attach if, for example, the

function performed is not "truly judicial." Forrester, 484 U.S.

at 227–28. Additionally, even for actions that are judicial in nature, immunity will not attach to acts "taken in the complete

absence of all jurisdiction." Mireles v. Waco, 502 U.S. 9, 12

(1991); Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989).

Second, quasi-judicial immunity has been extended to

persons who "carr[y] out the orders of an appointing judge." Cok,

876 F.2d at 3 (citing Kermit Constr. Corp. v. Banco Credito Y

Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir. 1976)). Thus, a person

who "faithfully and carefully carries out" the court's order may

invoke the immunity. Kermit Constr. Corp., 547 F.2d at 3. In

contrast, immunity will not attach if the person "perform[s] acts

which are clearly outside the scope of their jurisdiction." Cok,

876 F.2d at 3 (citing Demoran v. Witt, 781 F.2d 155, 158 (9th Cir.

1986)); see also Brooks v. Clark Cnty., 828 F.3d 910, 917–18 (9th

Cir. 2016) (denying absolute quasi-judicial immunity where

official "acted beyond the scope of [the judge]’s express and

implied instructions").

B. Application

Before the district court, KCP appears to have argued

that it was entitled to the first type of quasi-judicial immunity.

Motion to Dismiss Second Amended Complaint at 9, Frost v. BI 40

LLC, 2023 WL 6307530 (D. Mass. Aug. 29, 2023) (No. 22-cv-11005).

Frost appears to have proceeded on this understanding, so too the

district court, given its analysis of whether KCP's acts were taken

"in complete absence of all jurisdiction." Frost, 2023 WL 6307530, at *4. On appeal, KCP accordingly argues it is entitled to

quasi-judicial immunity because it contends that its acts were

judicial in nature and not taken in the absence of all

jurisdiction. Because we conclude, for reasons we will explain,

that KCP is entitled to immunity on this basis, we do not address

whether KCP would be entitled to the type of quasi-judicial

immunity that attaches to parties carrying out court orders.

We begin our analysis by considering KCP's alleged acts

and the nature of the function that they served. Frost's complaint

alleges that KCP's acts include "engag[ing] in a conspiracy to

resident dump, participat[ing] in the commission of a fraud by

misrepresenting the reason why residents were evacuated,

violat[ing] the EOEA's orders, and breach[ing] its fiduciary

duties." While those are the specific alleged acts, precedent

instructs that we must look to the function performed by said acts

and ask whether it "is a function normally performed by a judge."

Mireles, 502 U.S. at 12. For example, in Mireles, although the

defendant judge was alleged to have directed officers to bring a

person to his courtroom with excessive force (something he lacked

authority to do), the Supreme Court explained that it was necessary

to look at the underlying function -- ordering someone brought

before the court -- and ask whether that function was judicial in

nature. Id. at 11–12. Thus, our inquiry here is whether KCP's particular acts

"relat[e] to a general function normally performed by a judge."

Id. at 13. Here, each of KCP's alleged acts of malfeasance relate

to its effort to remove residents from an unsafe facility subject

to a receivership. That function, we think, is comparable to a

court exercising its equitable powers to take control of a

distressed asset and conducting an analogous evacuation due to

unsafe conditions. Indeed, we think it beyond dispute that Judge

Saris had the authority to order residents removed from the

facility. And, if she had, she would have been immune from claims

related to that act because she would have been acting in her

"judicial capacity," id. at 12, and "exercising the authority

vested in h[er]," Bradley, 80 U.S. at 347, related to a matter

within her jurisdiction. That the immunity would attach if a judge

performed a similar function supports finding that the function is

indeed judicial in nature and that KCP, as receiver, is likewise

entitled to immunity. For, as we have explained, declining to

extend the immunity would render receivers "lightning rod[s] for

harassing litigation." Kermit Constr. Corp., 547 F.2d at 3.

Having found that Frost's claims relate to a judicial

function, quasi-judicial immunity will bar her counts unless KCP

acted in "absence of all jurisdiction." Mireles, 502 U.S. at 12.

We have no trouble concluding that KCP did not act absent

jurisdiction here as the Receivership Order granted KCP the power to "manage . . . the Receivership Assets as a prudent person

would." Facilitating the removal of residents due to unsafe

conditions falls within this broad grant of authority. See

Mireles, 502 U.S. at 12–13.

IV. Conclusion

Because the underlying function served by KCP's specific

alleged acts was judicial in nature, and because KCP did not act

in absence of jurisdiction, KCP is entitled to quasi-judicial

immunity as to counts arising from those acts. We therefore

reverse the district court's denial of KCP's motion to dismiss as

to Counts II, VI, VII, XI, and XIII. Each party shall bear their

own appellate costs and fees.