Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Weekly No. 10-109-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12182 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573 vs. SEX OFFENDER REGISTRY BOARD (and a consolidated case[1]). Suffolk. February 7, 2017. – June 23, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Internet. Civil action commenced in the Superior Court Department on November 21, 2014. A motion for preliminary injunction was heard by Gregg J. Pasquale, J., and the case was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Civil action commenced in the Superior Court Department on June 22, 2015. A motion for a preliminary injunction was heard by Heidi E. Brieger, J. A proceeding for interlocutory review was allowed in the Appeals Court by Judd J. Carhart, J. The Supreme Judicial Court granted an application for direct appellate review. Andrew S. Crouch for John Doe, Sex Offender Registry Board No. 326573, & another. John P. Bossé for the defendant. Dana Goldblatt, for Committee for Public Counsel Services, amicus curiae, submitted a brief. GANTS, C.J. In Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616 (2014), we permanently enjoined the Sex Offender Registry Board (SORB) “from publishing on the Internet the registry information of any individual who was finally classified as a level two sex offender on or before July 12, 2013, unless the individual is subsequently reclassified a level two or level three sex offender.” SORB contends in these two cases that, when it unsuccessfully seeks after July 12, 2013, to reclassify a level two sex offender as a level three sex offender, the individual is reclassified a level two sex offender for purposes of Moe, and SORB may therefore publish the individual’s registry information on the Internet. We disagree. We conclude that, under Moe, a sex offender is “reclassified” only where a hearing officer allows SORB’s motion to increase his or her classification based on new information indicating an increased risk of sexual recidivism, not, as here, where the hearing officer denied SORB’s motion for reclassification and retained the earlier level two classification. We therefore remand these cases to the Superior Court for the issuance of a permanent injunction barring publication of each plaintiff’s registry […]
Mount Vernon Fire Insurance Company v. Visionaid, Inc. (Lawyers Weekly No. 10-108-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12142 MOUNT VERNON FIRE INSURANCE COMPANY vs. VISIONAID, INC.[1] Suffolk. December 5, 2016. – June 22, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. Insurance, Insurer’s obligation to defend. Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Kenneth R. Berman (Heather B. Repicky also present) for the defendant. James J. Duane, III (Scarlett M. Rajbanshi also present) for the plaintiff. The following submitted briefs for amici curiae: Marshall Gilinsky for United Policyholders. Laura Foggan, of the District of Columbia, & Rosanna Sattler for American Insurance Association & others. Michael F. Aylward for American International Group, Inc., & another. GAZIANO, J. In this case we are called upon to answer three certified questions from the United States Court of Appeals for the First Circuit involving the scope of an insurer’s duty to defend, and whether that duty extends to a counterclaim brought by the insured. For the reasons that follow, we conclude that where an insurance policy provides that the insurer has the “duty to defend any claim” initiated against the insured, the insurer’s duty to defend does not require it to prosecute affirmative counterclaims on behalf of its insured.[2] Facts and prior proceedings. We recite the facts based on the United States District Court judge’s memorandum of decision, the decision by the United States Court of Appeals for the First Circuit, and the undisputed documents in the record. Visionaid, Inc. (Visionaid),[3] is a manufacturer of lens cleaning and eye safety products. It purchased an employment practices liability insurance policy from Mount Vernon Fire Insurance Company (Mount Vernon), which covered, among other things, wrongful termination claims brought against Visionaid from May, 2011, through May, 2012. As relevant here, the policy imposed two duties on Mount Vernon with respect to any wrongful termination claim brought against Visionaid. The policy provided that Mount Vernon had “the right and duty to defend any Claim to which this insurance applies,” and that it was obligated to “pay one hundred percent (100%) of the Defense Costs for the [covered] Claim” up to the policy limit. Under the terms of the policy, “Claim” was defined as “any proceeding initiated against [Visionaid] . . . seeking to hold [Visionaid] responsible for […]
Commonwealth v. George (Lawyers Weekly No. 10-107-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12173 COMMONWEALTH vs. RICHARD GEORGE. Worcester. December 8, 2016. – June 21, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Sex Offender. Constitutional Law, Sex offender. Due Process of Law, Sex offender, Substantive rights. Evidence, Sex offender, Expert opinion, Relevancy and materiality. Witness, Expert. Civil action commenced in the Superior Court Department on October 11, 2013. The case was tried before Beverly J. Cannone, J. The Supreme Judicial Court granted an application for direct appellate review. David B. Hirsch for the defendant. Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth. HINES, J. After a jury trial in the Superior Court, the defendant, Richard George, was determined to be a sexually dangerous person (SDP) pursuant to G. L. c. 123A. In accordance with the statute, the judge committed the defendant to the Massachusetts Treatment Center (treatment center) for an indeterminate period of from one day to life. The defendant filed a timely appeal challenging the commitment on the grounds that (1) a diagnosis of antisocial personality disorder (ASPD) is a constitutionally inadequate basis for commitment as an SDP; and (2) the judge erroneously admitted expert opinion testimony on the likelihood of reoffense and the results of the Static-99R risk assessment tool. We allowed the defendant’s application for direct appellate review to clarify the relevance of an ASPD diagnosis in the sexual dangerousness calculus. We conclude that an ASPD diagnosis is a sufficient predicate for sexual dangerousness so long as other evidence establishes a nexus between that condition and the factors warranting confinement to a secure facility. Also, we discern no error in the judge’s evidentiary rulings requiring reversal. Therefore, we affirm the judgment and order for the defendant’s civil commitment to the treatment center as an SDP. Background. 1. Pretrial proceedings. In October, 2013, the Commonwealth filed a petition pursuant to G. L. c. 123A, § 12, seeking an adjudication that the defendant is an SDP. In April, 2014, a Superior Court judge found probable cause to believe that the defendant is an SDP and committed him to the treatment center for examination and diagnosis. Two qualified examiners[1] submitted reports, opining that the defendant is an SDP within the meaning of G. L. c. 123A, § 1. The trial on the Commonwealth’s petition commenced in September, 2015. The trial. […]
Commonwealth v. Jones (Lawyers Weekly No. 10-106-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12027 COMMONWEALTH vs. MAURICE JONES. Suffolk. January 10, 2017. – June 20, 2017. Present: Gants, C.J., Lenk, Hines, & Budd, JJ. Homicide. Jury and Jurors. Practice, Criminal, Jury and jurors, Empanelment of jury, Challenge to jurors, Hearsay, Instructions to jury. Evidence, Identity, Consciousness of guilt, Hearsay. Constitutional Law, Self-incrimination. Indictments found and returned in the Superior Court Department on June 26, 2013. The cases were tried before Linda E. Giles, J., and a motion to set aside the verdict was heard by her. James L. Sultan (Kerry A. Haberlin also present) for the defendant. Matthew T. Sears, Assistant District Attorney (Julie Sunkle Higgins, Assistant District Attorney, also present) for the Commonwealth. LENK, J. The defendant was convicted by a Superior Court jury of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty in connection with the shooting death of Dinoriss Alston on April, 17, 2012.[1] The identity of the shooter was the central issue at trial. On appeal, the defendant challenges the sufficiency of the evidence, and also asserts a number of errors in the trial proceedings. He maintains that the judge erred in failing to require the Commonwealth to explain its peremptory challenge of a prospective juror; improperly allowed the admission of evidence as to the defendant’s refusal to go to the hospital to be shown to the surviving witness and as to a police radio broadcast describing the shooter; incorrectly instructed the jury that circumstantial evidence would suffice while failing to instruct that mere presence was not enough; and improperly limited the defendant’s cross-examination of a Commonwealth witness. The defendant asserts also that he received ineffective assistance of counsel and requests relief under G. L. c. 278, § 33E. We conclude that, while the evidence at trial was not by any means overwhelming, it was sufficient to sustain the defendant’s convictions. The judge’s failure to require an explanation of the prosecutor’s peremptory challenge of a prospective juror who is African-American, however, requires the convictions be vacated. We address other claimed errors only insofar as they may recur at any new trial. Background. Because the defendant challenges the sufficiency of the evidence, we discuss in some detail the facts the jury could have found. The shooting. On the afternoon of April 17, […]
ABCD Holdings, LLC v. Hannon, et al. (Lawyers Weekly No. 12-068-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01840-BLS2 ____________________ ABCD HOLDINGS, LLC v. PATRICK J. HANNON, SOFIA GAGUA, and PATRICK J. (“P.J.”) HANNON and Others1 ________________________________________ PATRICK J. HANNON v. ABCD HOLDINGS, LLC; ABC&D RECYCLING, INC.; WARE REAL ESTATE, LLC; TRI COUNTY RECYCLING, INC.; and GEORGE McLAUGHLIN, III ____________________ MEMORANDUM AND ORDER DENYING MOTION TO DISMISS COUNTERCLAIMS AND THIRD-PARTY CLAIMS Plaintiff ABCD Holdings, LLC, (“Holdings”) has sued Patrick J. Hannon in part to enforce Hannon’s personal guaranty of one-half of the amount that Holdings loaned to Ware Real Estate, LLC (“Ware”) and ABC&D Recycling, Inc (“Recycling”). Holdings claims that Hannon is liable under his limited guaranty to repay $ 109,879.50 (half the original loan amount) plus reasonable collection costs. In response, Hannon has asserted various counterclaims and third-party claims alleging, in essence, that George McLaughlin deliberately prevented Ware and Recycling from repaying what they owed under their note by using Holdings to take control of Ware and Recycling and then transferring their assets and business operatings to a new entity called Tri County Recycling, Inc. (“Tri County”). The parties sued by Hannon—i.e., McLaughlin, Holdings, Ware, Recycling, and Tri County—have moved to dismiss Hannon’s claims. They claim that Hannon’s claims are all barred by a release executed by the Chapter 7 trustee of Hannon’s bankruptcy estate. In addition, Tri County asserts that the allegations against it do not state viable claims even if the claims were not barred by the release. The Court concludes that these arguments are without merit. It will therefore DENY the motion to dismiss Hannon’s counterclaims and third-party claims. 1 Reach and Apply Defendants J. Derenzo Co.; J. Derenzo Construction Company, Inc.; Sofia Gagua; RHR, LLC; Patrick J. (“P.J.”) Hannon; Similar Soils, Inc.; Immanuel Corp.; Agritech, Inc.; and L-5, Inc. – 2 – 1. Settlement Agreement and Release. Hannon filed a petition under Chapter 11 of the United States Bankruptcy Code on May 3, 2012. That bankruptcy case was converted to a Chapter 7 or liquidation proceeding on January 2, 2013. The bankruptcy trustee sued Bright Horizon, LLC (“Bright Horizon”) and The McLaughlin Brothers, P.C. (“McLaughlin Bros.”) to recover various payments Hannon had made to them. In May 2015 the bankruptcy trustee entered into a settlement agreement in which George McLaughlin, Bright Horizon, and McLaughlin Bros. agreed to pay the bankruptcy estate $ 45,000. In exchange, the trustee released all claims “whether known or unknown” that the estate or Hannon may have against George McLaughlin, Bright Horizon, McLaughlin Bros., or “any entity owned by any of” them. The settlement agreement states that it is releasing such claims “to the Trustee’s full authority to waive such claims.” McLaughlin asserts that he owns Holdings, Recycling, Ware, and Tri County, […]
Commonwealth v. Widener (Lawyers Weekly No. 11-079-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1743 Appeals Court COMMONWEALTH vs. JAMES L. WIDENER. No. 15-P-1743. Plymouth. April 13, 2017. – June 15, 2017. Present: Kafker, C.J., Grainger, & Kinder, JJ. Firearms. Practice, Criminal, Motion to suppress, Required finding, Witness, Sentence. Evidence, Immunized witness, Prior conviction. Witness, Immunity. Assault and Battery by Means of a Dangerous Weapon. Indictments found and returned in the Superior Court Department on March 25, 2011. A pretrial motion to suppress evidence was heard by Raymond P. Veary, Jr., J., and the cases were tried before Angel Kelley Brown, J. Timothy St. Lawrence for the defendant. Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth. KINDER, J. Following a jury trial in the Superior Court, the defendant was convicted of unlawful possession of a firearm, G. L. c. 269, § 10(a); unlawful possession of ammunition, G. L. c. 269, § 10(h); unlawful possession of a large capacity feeding device, G. L. c. 269, § 10(m); and unlawful possession of a loaded firearm, G. L. c. 269, § 10(n).[1] The indictments further alleged that the defendant previously had been convicted of three violent crimes or serious drug offenses subjecting him to enhanced sentencing pursuant to the armed career criminal act (ACCA), G. L. c. 269, § 10G(c). At a later jury-waived trial on the sentencing enhancement charges, the trial judge found the defendant guilty of the subsequent offender allegations related to his convictions of unlawful possession of a firearm and unlawful possession of ammunition based on three predicate offenses. Consequently, pursuant to the ACCA, he was sentenced to a consolidated mandatory minimum term of imprisonment of not less than fifteen years and not more than fifteen years and one day. On appeal, the defendant claims (1) his motion to suppress the firearm and the ammunition should have been allowed, (2) the evidence was insufficient to sustain his convictions, and (3) the evidence was insufficient to prove that he had three prior qualifying convictions under the ACCA. The motion to suppress properly was denied, and we conclude that the evidence was sufficient to sustain the underlying convictions. However, we vacate the sentence imposed pursuant to the ACCA and remand for resentencing for the reasons that follow. Background. 1. Motion to suppress. In the fall of 2010, members of a law enforcement task force identified the defendant as a suspect in a series of commercial property […]
Aqua King Fishery, LLC v. Conservation Commission of Provincetown (Lawyers Weekly No. 11-081-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1366 Appeals Court AQUA KING FISHERY, LLC vs. CONSERVATION COMMISSION OF PROVINCETOWN. No. 16-P-1366. Barnstable. April 13, 2017. – June 16, 2017. Present: Kafker, C.J., Grainger, & Kinder, JJ. Shellfish. Municipal Corporations, By-laws and ordinances, Conservation commission, Shellfish. Wetlands Protection Act. Fisheries. Civil action commenced in the Superior Court Department on February 13, 2015. Motions for judgment on the pleadings and a special motion to dismiss counterclaims were heard by Gary A Nickerson, J. Stephen M. Ouellette for the plaintiff. Gregg J. Corbo for the defendant. GRAINGER, J. Aqua King Fishery, LLC (Aqua King), the owner of the commercial fishing vessel Sentinel, appeals from a judgment of the Superior Court entered pursuant to an order denying, in part, its motion for judgment on the pleadings. At issue is Aqua King’s failure to obtain a permit from the conservation commission of Provincetown (commission) for the use of hydraulic dredge fishing gear in its commercial sea clam fishing operation on areas of the ocean floor near Provincetown’s shore. Aqua King contends that the activity at issue is controlled by the Division of Marine Fisheries (DMF) and is thus exempt from municipal and other State regulations. Aqua King consequently sought to reverse the enforcement order issued by the commission.[1] Aqua King also appeals from the judge’s partial allowance of the commission’s cross motion for judgment on the pleadings with respect to its counterclaim based on an asserted violation of § 40 of the Wetlands Protection Act, G. L. c. 131 (WPA).[2] In its cross appeal, the commission, Provincetown’s local authority enforcing the WPA and regulations of the Department of Environmental Protection (DEP), appeals from the judge’s rulings that (1) denied its motion for judgment on the pleadings insofar as he concluded that article 8 of the Provincetown wetlands by-law was unenforceable, and (2) denied its request for imposition of a $ 25,000 fine, the maximum penalty allowed under the WPA. We address the judge’s rulings in the context of the limited scope of judicial review applicable to an agency decision challenged, as is the case here, by a petition for certiorari pursuant to G. L. c. 249, § 4.[3] Judicial review of an agency decision in the nature of certiorari “allows a court to ‘correct only a substantial error of law, […]
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Commonwealth v. Saywhan (Lawyers Weekly No. 11-080-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1098 Appeals Court COMMONWEALTH vs. BENJAMIN B. SAYWAHN, JR. No. 16-P-1098. Hampden. April 13, 2017. – June 15, 2017. Present: Kafker, C.J., Grainger, & Kinder, JJ. Firearms. Search and Seizure, Protective sweep. Constitutional Law, Search and seizure. Complaint received and sworn to in the Springfield Division of the District Court Department on February 4, 2016. A pretrial motion to suppress evidence was heard by William P. Hadley, J. An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth. Thomas C. Maxim for the defendant. KAFKER, C.J. During a protective sweep of the home of the defendant, Benjamin B. Saywahn, Jr., conducted during the execution of a warrant for his arrest, police discovered a firearm. The defendant was subsequently charged with possession of a firearm and ammunition without an identification card, G. L. c. 269, § 10(h), improper storage of a firearm, G. L. c. 140, § 131L(a) & (b), and receiving stolen property, G. L. c. 266, § 60.[1] The defendant moved to suppress “the fruits of the sweep” on the ground that the protective sweep was not justified by the officers’ reasonable belief that a dangerous individual in the home posed a threat to the officers. The motion judge agreed and granted the motion. The Commonwealth appeals pursuant to Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), claiming that the protective sweep was justified.[2] We affirm. Background. “We summarize the pertinent facts from the judge’s findings on the motion to suppress, supplemented where appropriate by uncontroverted testimony from the suppression hearing.” Commonwealth v. Matos, 78 Mass. App. Ct. 156, 157 (2010) (quotation omitted). On February 1, 2016, a warrant issued in the State of Connecticut for the defendant’s arrest. Because the defendant resided in Springfield, a member of the Windsor, Connecticut police department contacted Detective Christopher Bates of the Springfield police department with regard to the warrant. Detective Bates learned that the defendant was wanted in connection with a shooting that had occurred during the course of a marijuana sale in Windsor. He learned that the victim, the defendant, and an unidentified third person were involved in […]
Geanacopoulos v. Philip Morris USA Inc. (Lawyers Weekly No. 12-070-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 9884CV06002-BLS1 ____________________ THOMAS GEANACOPOULOS, on behalf of himself and a class v. PHILIP MORRIS USA INC. ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR DISPOSITION OF RESIDUAL FUNDS Judge Leibensperger found after a lengthy bench trial that, “for more than twenty-eight years until 1999,” Philip Morris USA, Inc., “knowingly and willfully marketed Marlboro Lights as a cigarette less harmful or safer than Marlboro Reds without sufficient evidence to substantiate that claim.” Judge Leibensperger concluded that in so doing Philip Morris deliberately deceived Massachusetts consumers in violation of G.L. c. 93A. He awarded statutory damages of $ 25 per class member, or an estimated total of $ 4,942,500, plus prejudgment interest. The parties then entered into a settlement agreement to govern the distribution of this award to eligible class members. Philip Morris paid $ 15,273,815 to fund the settlement. Given the number of class members who have been identified, the parties expect that residual funds totaling roughly $ 6.8 million will be left in the settlement fund after the distribution of the statutory damages plus interest to each class member and the payment of all authorized expenses. Plaintiffs have asked the Court to approve distribution of the residual funds. The distribution of such residual funds in a class action is governed by Mass. R. Civ. P. 23(e). It provides that any such residual funds “shall be disbursed [a] to one or more nonprofit organizations or foundations (which may include nonprofit organizations that provide legal services to low income persons) which support projects that will benefit the class or similarly situated persons consistent with the objectives and purposes of the underlying causes of action on which relief was based, or [b] to the Massachusetts IOLTA Committee to support activities and programs that promote access to the civil justice system for low income residents of the Commonwealth of Massachusetts.” Rule 23(e)(2). This rule is similar in aim to common law cy pres doctrine, which governs the disposition of property dedicated for – 2 – charitable purposes where the original purposes had become impossible or impracticable.1 In their original motion, Plaintiffs asked that $ 1.6 million be distributed to each of four non-profit organizations or sets of programs—the Campaign for Tobacco-Free Kids, the Massachusetts General Hospital Tobacco 21 and CEASE Programs, the University of Massachusetts Medical School Center for Tobacco Treatment and Research and Training, and Northeastern University’s Public Health Advocacy Institute—and that any remaining residual funds (which Plaintiffs estimated would amount to roughly $ 383,500) be distributed to the Massachusetts IOLTA Committee. After the Massachusetts IOLTA Committee objected to this proposal, the Plaintiffs and the Committee agreed upon an alternative recommendation. Plaintiffs and the Committee now […]
The Gillette Company v. Provost, et al. (Lawyers Weekly No. 12-071-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1584CV00149-BLS2 ____________________ THE GILLETTE COMPANY v. CRAIG PROVOST, JOHN GRIFFIN, WILLIAM TUCKER, DOUGLAS KOHRING, and SHAVELOGIC, INC. ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION TO REPORT SUMMARY JUDGMENT DECISION PURSUANT TO RULE 64 In prior rulings, the Court dismissed or granted partial summary judgment against all of The Gillette Company’s claims. Most recently the Court decided that the remaining Defendants are entitled to summary judgment on Gillette’s claims that four of its former employees helped ShaveLogic, Inc., develop a new disposable cartridge shaving razor using Gillette’s confidential information. The only remaining claims to be decided are ShaveLogic’s counterclaims that Gillette intentionally interfered with prospective business relations and violated c. 93A, by threatening to bring and then filing baseless legal claims in an attempt to keep ShaveLogic from entering the market for so-called wet-shaving products. When the Court granted partial summary judgment in Defendants’ favor on Gillette’s “confidential information” claims, it did not enter separate and final judgment under Mass. R. Civ. P. 54(b) because doing so would be inconsistent with the appellate courts’ strong policy against piecemeal appeals.1 Gillette therefore has no right to appeal the Court’s interlocutory decision granting partial summary judgment in Defendants’ favor on what had been Gillette’s remaining claims.2 Gillette has now asked the Court to report its summary judgment decision for interlocutory appellate review under Mass. R. Civ. P. 64(a). The Court will DENY this request for the reasons discussed below. 1 See Long v. Wichett, 50 Mass. App. Ct. 380, 388-404 (2000) (separate judgment held inconsistent with “bedrock policy against premature and piecemeal appeals”). 2 See Morrissey v. New England Deaconess Ass’n—Abundant Life Communities, Inc., 458 Mass. 580, 594 (2010) (in absence of separate and final judgment, “no appeal can be taken from a trial judge’s partial ‘judgment’ on a claim prior to entry of a final judgment disposing of all claims against all parties to the action”). – 2 – Rule 64(a) authorizes a trial court to report an interlocutory order to the appeals court for immediate review. However, “[s]uch a report should be reserved for novel and difficult issues, the appellate decision of which may expedite resolution of the case.” Morrison v. Lennett, 415 Mass. 857, 859 (1993). “Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing.” Globe Newspaper Co. v. Massachusetts Bay Transp. Auth. Ret. Bd., 412 Mass. 770, 772 (1992), quoting John Gilbert Jr. Co. v. C.M. Fauci Co., 309 Mass. 271, 273 (1941). Gillette argues that the summary judgment decision in this case turned […]