Calabria v. Calabria (Lawyers Weekly No. 11-087-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1397 Appeals Court SAKTI CALABRIA vs. PETER J. CALABRIA, JR. No. 16-P-1397. Bristol. May 31, 2017. – July 13, 2017. Present: Green, Wolohojian, & Ditkoff, JJ. Divorce and Separation, Child support, Modification of judgment. Parent and Child, Child support. Complaint for divorce filed in the Bristol Division of the Probate and Family Court Department on March 13, 2009. A complaint for modification, filed on July 16, 2014, was heard by Anthony R. Nesi, J. Charles M. Landry for the father. GREEN, J. The defendant father appeals from those portions of a judgment of the Probate and Family Court that increased his child support payments retroactive to the date his income increased, which was before the plaintiff mother filed her complaint for modification.[1] We conclude that, in the circumstances of this case, in which the parties expressly provided for retroactive adjustment of child support in their separation agreement, and where the adjustment fosters the best interest of the couple’s minor child and does not derogate from the purposes of G. L. c. 119A, § 13, such a retroactive award was within the judge’s equitable authority. We accordingly affirm the judgment. Background. In the separation agreement between the parties, dated April 28, 2010, and merged as to alimony and child support into the judgment of divorce nisi entered the same day, the parties included the following provision regarding child support: “The parties agree that upon any change in his or her employment or income he or she shall immediately notify mother/father of the change, the child support will be reviewed. “The Wife is currently unemployed. The Husband’s income has been cut in half. Both parties are obligated to notify the other upon any change of employment or salary status. Parties agree to immediately seek to modify the child support obligation and said modification to be retroactive to the change of employment or salary date. Parties shall also exchange by March 15th of each year, any and all W-2’s; 1099’s or other documents evidencing income earned or received.” (Emphasis supplied.) At the time of the divorce, and pursuant to the separation agreement, the father was obliged to pay child support in the amount of $ 416 per semimonthly pay period. On February 28, 2013, the mother filed […]
City of Boston v. Boston Police Patrolmen’s Association (Lawyers Weekly No. 10-118-17)
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-12077 CITY OF BOSTON vs. BOSTON POLICE PATROLMEN’S ASSOCIATION. Suffolk. December 5, 2016. – July 12, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Arbitration, Confirmation of award, Authority of arbitrator. Municipal Corporations, Police. Police, Discharge. Public Employment, Police, Termination. Public Policy. Civil action commenced in the Superior Court Department on July 22, 2013. The case was heard by Dennis J. Curran, J. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge (Geoffrey R. Bok also present) for the plaintiff. Alan H. Shapiro (John M. Becker also present) for the defendant. HINES, J. This is an appeal from a judgment of the Superior Court confirming an arbitrator’s award reinstating a Boston police officer terminated for using a choke hold in arresting an unarmed suspect for disorderly conduct and making false statements in the ensuing departmental investigation. The arbitrator found that the officer, David Williams, had applied a choke hold, but that the choke hold had not actually choked the citizen, that the force was reasonable in the circumstances, and that the officer’s subsequent characterization of events was thus truthful. Accordingly, the arbitrator ruled that the city of Boston (city) lacked just cause to terminate Williams, and ordered his reinstatement with back pay. In July, 2013, the city filed a complaint in the Superior Court to vacate the arbitrator’s award. The court dismissed the complaint in June, 2015, and the city appealed. We granted the city’s application for direct appellate review. Because the award neither exceeds the arbitrator’s authority nor violates public policy, and because we are not free to vacate it where no underlying misconduct was found, we affirm. Background. a. Facts. On January 18, 2012, the city discharged Williams based on specifications arising from a disorderly conduct arrest on March 16, 2009. The specifications were use of excessive force, in violation of Boston police department rule 304 on use of nonlethal force, and untruthfulness in the subsequent investigation, in violation of rule 102, § 23, on truthfulness. Chosen by mutual agreement of the city and the Boston Police Patrolmen’s Association (union) pursuant to a collective bargaining agreement (CBA), an arbitrator held three days of hearings, concluded that the city had proved neither charge, and ordered Williams’s reinstatement […]
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Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)
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-1158 Appeals Court ESSEX REGIONAL RETIREMENT BOARD vs. JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2] No. 16-P-1158. Essex. March 8, 2017. – July 12, 2017. Present: Grainger, Blake, & Neyman, JJ.[3] Public Employment, Retirement, Forfeiture of pension. Police, Retirement. Pension. Constitutional Law, Public employment, Excessive fines clause. County, Retirement board. Practice, Civil, Action in nature of certiorari. District Court, Appeal to Superior Court. Civil action commenced in the Superior Court Department on July 14, 2015. The case was heard by James F. Lang, J., on motions for judgment on the pleadings. Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow. GRAINGER, J. The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow. The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4). We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4). We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background. We summarize the procedural history and the underlying relevant facts which are undisputed. In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department. At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service. Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point. After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan. He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car. The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs. Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt. He began screaming […]
Shulman v. Tosi (Lawyers Weekly No. 12-087-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION 16-01268-C FREDERICK I. SHULMAN vs. LINDA TOSI, personal representative[1] MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS In his complaint in this action, plaintiff Frederick I. Shulman claims damages from the estate of Velia N. Tosi (“the Estate”). Shulman contends that his former employers, Velia Tosi (“Velia”)[2] and her husband, Carlos Tosi (“Carlos”), promised to pay him a sum of money upon the last of them to die. Shulman alleges that after Carlos and later Velia died, Linda Tosi (“Linda”), the executrix of the Velia’s Estate, refused to pay the money allegedly promised. Shulman filed this action against Linda on October 7, 2016, one day shy of the one year anniversary of Velia’s death. In it, Shulman alleges breach of contract, quantum meruit, and breach of the implied covenant of good faith and fair dealing. Linda moves to dismiss under Mass. R. Civ. P. Rule 12(b)(6) for failure to state a claim, contending that this action is governed by a one-year statute of limitations contained in G. L. c. 190B, § 3-803(a) of the Massachusetts Uniform Probate Code, which requires a creditor of a deceased to file and serve an action within one year of a decedent’s death, and that Shulman did not file this action and serve her within that period.[3] In response, Shulman argues that the one-year statute of limitations contained in § 3-803 does not apply because he is not a creditor of the Tosis but rather is a creditor of the Estate. On May 23, 2017, the Court convened a hearing on Linda’s motions and requested, and received, post-hearing filings on May 26 and May 31, 2017. In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, Linda’s motion is ALLOWED. FACTS Because it is evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court will accept as true all factual allegations in the complaint and all reasonable inferences that may be drawn in the plaintiff’s favor. See, e.g., Berish v. Bornstein, 437 Mass. 252, 267 (2002); Nader v. Citron, 372 Mass. 96, 98 (1977). Shulman began working with the Tosi family in 1966 as an assistant to Carlos, and later served as property manager for Tosi family real estate holdings. Id. at ¶¶6-9. In total, Shulman worked for Carlos and Velia for some 41 years, and a close, family-like relationship developed among Shulman, Carlos and Velia. Id. at ¶13. Shulman did not have any form of retirement plan with the Tosi family businesses. Id. at ¶17. At a party celebrating Shulman’s […]
Commonwealth v. Muller (Lawyers Weekly No. 10-117-17)
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-11176 COMMONWEALTH vs. CHRISTIAN MULLER. Worcester. December 9, 2016. – July 11, 2017. Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ. Homicide. Armed Assault with Intent to Murder. Armed Home Invasion. Firearms. Mental Impairment. Insanity. Intoxication. Evidence, Insanity, Intoxication. Practice, Criminal, Capital case, Instructions to jury, Argument by prosecutor. Indictments found and returned in the Superior Court Department on August 23, 2007. The cases were tried before Richard T. Tucker, J. Deirdre L. Thurber for the defendant. Susan M. Oftring, Assistant District Attorney, for the Commonwealth. HINES, J. During an armed home invasion of an apartment in Dudley, the defendant, Christian Muller, and an accomplice[1] shot and killed two of the occupants and critically wounded a third. After a jury trial, the defendant was convicted of two counts of murder in the first degree, on the theories of deliberate premeditation and felony-murder,[2] armed assault with intent to murder, armed home invasion and unlawful possession of a firearm. At trial, the defendant admitted that he had shot the victims; his primary defense was that he lacked criminal responsibility because of mental illness and cocaine addiction. On appeal, the defendant argues that (1) the jury instruction on criminal responsibility and voluntary intoxication was erroneous because it failed to comply with Commonwealth v. Berry, 457 Mass. 602 (2010), S.C., 466 Mass. 763 (2014), and Commonwealth v. DiPadova, 460 Mass. 424 (2011); (2) certain of the other jury instructions were fatally flawed; and (3) the prosecutor’s closing argument was improper. We affirm the convictions and decline to grant relief pursuant to G. L. c. 278, § 33E. Background. 1. The trial. We summarize the facts as the jury could have found them, reserving additional details for later discussion. The Commonwealth’s case. On the evening of July 8, 2007, Joanne Mercier was in her bedroom in the third-floor apartment that she shared with her brother, Aaron Bash, in Dudley. Bash was asleep in his bedroom and their friend, Denise Johnston, was sleeping on a sofa in the living room. Shortly after midnight on July 9, the defendant and Marc Letang kicked down the back door and entered the apartment with their guns drawn.[3] The men walked through the kitchen and entered Mercier’s bedroom, asking where Bash was. After Mercier told them that Bash […]
Beninati, et al. v. Borghi, et al. (Lawyers Weekly No. 12-086-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 12-1985 BLS2 Consolidated with NO. 13-1772 BLS2 ELIZABETH BENINATI and JOSEPH MASOTTA, Plaintiffs, vs. STEVEN BORGHI, et al. Defendants MEMORANDUM OF DECISION AND ORDER ON VARIOUS MOTIONS This is an action primarily derivative in nature brought on behalf of fourteen limited liability companies that operate health clubs under the trade name “Work out World” in the New England area (collectively, WOW New England or WOW). Following a jury waived trial, this Court on July 9, 2014 issued findings and rulings that ultimately resulted in a $ 4.1 million award of damages to the plaintiffs on those counts against the defendants alleging breach of fiduciary duty (the July 2014 Decision). As to the count against the defendant Harold Dixon alleging a violation of G.L.c. 93A §11, this Court ruled that he could not be held liable under that statute as a matter of law. The plaintiffs appealed from that ruling. In a rescript opinion dated October 24, 2016, the Appeals Court affirmed the judgment in all respects except for this Court’s ruling on the 93A claim against Dixon. Beninati v. Borghi, 90 Mass.App.Ct. 556 (2016). It remanded the case for further proceedings. The case is now before the Court on two sets of motions. The first set of motions addresses the question of Dixon’s liability under G.L.c. 93A. As to that issue, plaintiffs have 2 moved for further findings and more specifically ask this Court to conclude that the 93A violation was willful and knowing, warranting multiple damages. Dixon has filed an opposition and has further asked to supplement the trial record. The second set of motions concerns the extent to which the defendants Steven and Linda Borghi should be required to contribute to the damages award on the non-93A claims. These motions also raise the question of whether and to what extent this Court can or should take steps to prevent the Borghis, as members of WOW England, from sharing in the award of 93A damages. This Court will discuss each set of motions in turn. A. Liability of Dixon under G.L.c. 93A The fact findings underlying this Court’s July 2014 Decision were extensive. They detailed a course of conduct whereby Dixon, a businessman with no prior experience in the fitness industry, allied himself with the defendants Steven and Linda Borghi, both members of WOW New England, to open a chain of competing health clubs in the same geographic area operated through Dixon-controlled entities (collectively, Blast). Dixon accomplished this, with the Borghis’ assistance, by misappropriating WOW’s confidential information, using WOW’s resources, and engaging in other activity that promoted the interest of Blast at the expense of WOW New England. […]
Commonwealth v. Jordan (Lawyers Weekly No. 11-085-17)
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-1251 Appeals Court COMMONWEALTH vs. MICHAEL AARON JORDAN.[1] No. 16-P-1251. Suffolk. May 9, 2017. – July 6, 2017. Present: Agnes, Massing, & Lemire, JJ. Cellular Telephone. Practice, Criminal, Motion to suppress, Warrant, Affidavit. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Warrant, Affidavit, Probable cause. Probable Cause. Indictments found and returned in the Superior Court Department on February 20, 2015. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J. An application for leave to prosecute an interlocutory appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Lefteris K. Travayiakis for the defendant. MASSING, J. Ahmir Lee was shot to death on Boylston Street, near Copley Square in Boston, on the night of August 22, 2013. The investigation of the murder focused on the defendant, Michael Aaron Jordan. On December 30, 2013, the police obtained a search warrant directing the defendant’s cellular telephone service provider, Metro PCS (provider), to produce “records regarding cell site tower locations, call details, incoming/outgoing text messages, subscriber information, cell sites and GPS records” associated with the defendant’s telephone number for the six-week period surrounding the date of the homicide. About one year later, a grand jury issued an indictment charging the defendant with murder, G. L. c. 265, § 1, and carrying a firearm without a license, G. L. c. 269, § 10(a). Acting on the defendant’s motion to suppress, a Superior Court judge entered an order suppressing all cell site location information (CSLI),[2] text messages, and contact information obtained from the provider. The judge reasoned that the affidavit in support of the search warrant failed to establish probable cause that the defendant committed the murder or that any information from the defendant’s cellular telephone would provide evidence of the murder. The judge denied the motion insofar as it sought the suppression of “subscriber information” and “call details,” noting that such information does not implicate constitutionally protected privacy interests. The Commonwealth obtained leave to pursue an interlocutory appeal from the suppression order. See Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). We affirm in part and reverse in part. Background. Our […]
Commonwealth v. Martin (Lawyers Weekly No. 11-084-17)
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-403 Appeals Court COMMONWEALTH vs. DEQUAN MARTIN. No. 15-P-403. Suffolk. April 1, 2016. – July 6, 2017. Present: Meade, Wolohojian, & Maldonado, JJ. Marijuana. Practice, Criminal, Motion to suppress. Threshold Police Inquiry. Probable Cause. Search and Seizure, Threshold police inquiry, Exigent circumstances, Probable cause, Pursuit, Emergency. Constitutional Law, Search and seizure, Investigatory stop, Probable cause. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 12, 2012. After transfer to the Central Division of the Boston Municipal Court Department, a pretrial motion to suppress evidence was heard by Michael J. Coyne, J., and the case was heard by Thomas C. Horgan, J. Chase A. Marshall for the defendant. Kathryn Leary, Assistant District Attorney, for the Commonwealth. MALDONADO, J. In this case, we consider whether the warrantless entry by police into a residence was justified where the entry was made while chasing the defendant, who fled from police during a stop for a civil infraction of marijuana possession. Concluding that these circumstances do not give rise to any exigency that would authorize the police to follow the defendant into a residence, we reverse. Background. On April 11, 2012, at about 8:50 P.M., two undercover Boston police officers, while patrolling the Dorchester section of Boston, approached a legally parked vehicle in which sat three males. The vehicle was “consumed with smoke” and condensation had formed on the rear windshield. The defendant was seated in the front passenger seat. As the officers approached the vehicle, the defendant opened the door and stepped outside. Smoke emanated from the vehicle, and the officers were struck by a “strong” odor of burnt marijuana. One of the officers, Officer Beliveau, who had experience and training in drug related crimes, was approaching the passenger side and ordered the defendant to get back inside the vehicle. The defendant sat back in the front passenger seat but his legs protruded outside the vehicle through the door. Beliveau repeated his command, and the defendant repositioned himself fully into the vehicle. “[I]n the passenger compartment of that door,” Beliveau then observed a small plastic glassine bag, a copper grinder (commonly used to break up marijuana so that it could be more easily rolled into cigarettes), and cigar wrappers. “[G]reen leafy […]
NTV Management, Inc. v. Lightship Global Ventures, LLC, et al. (Lawyers Weekly No. 12-080-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION NO. 2016-0327-BLS1 NTV MANAGEMENT, INC. vs. LIGHTSHIP GLOBAL VENTURES, LLC and KENT PLUNKETT MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT AND PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT ON COUNT I OF ITS COMPLAINT This case arises out of a Consulting and Advisory Services Agreement (the Agreement) between the plaintiff, NTV Management, Inc. (NTV) and the defendant Lightship Global Ventures, LLC (Lightship). The defendant, Kent Plunkett, founded a company, Salary.Com, Inc., which, following a series of acquisitions, became a division of IBM. Plunkett and a colleague formed Lightship for the purpose of reacquiring Salary.Com from IBM. The Agreement, while containing some one-off terms, was in effect a non-exclusive brokerage agreement pursuant to which NTV would be due a commission if it found financing for the acquisition and a lesser fixed sum for introducing “at least ten qualified sources of capital.” Lightship did acquire Salary.com, but not with equity or debt partners introduced to the deal by NTV. NTV, nonetheless, alleges that it is due fees under the Agreement and damages for a variety of other wrongful conduct on the part of the defendants. It has pled its complaint in seven counts: breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, unjust enrichment, deceit, a violation of Chapter 93A, violations of the Uniform Fraudulent Transfer Act, and a count to reach and apply stock or assets of Salary.com (although curiously it has not 2 named Salary.com, or the entity that presently owns it, as a defendant). Apparently, concerned about matching NTV’s imaginative pleading measure for measure, the defendants have asserted five counterclaims against NTV: breach of a duty of confidentiality, breach of contract, defamation, misrepresentation, and tortious interference with contractual or business relations. These counterclaims are not the subject of a motion now before the court. The case is before the court on the defendants’ motion for summary judgment dismissing all the claims asserted against them, and NTV’s cross-motion for summary judgment on part of its breach of contract claim. For the reasons that follow, the defendants’ motion is Allowed, in part, and Denied, in part, and NTV’s motion is Denied. FACTS Based on the summary judgment record, the following facts are undisputed or viewed in the light most favorable to the non-moving party. Salary.com was founded by Plunkett in 1999. It became a public company in 2007, and then was acquired by a firm called Kenexa, Inc. in 2010. In 2012, Kenexa was acquired by IBM, after which Salary.com was operated as a division of that company or an IBM affiliate. In 2014, IBM informed Plunkett that it was […]
Walker, et al. v. Boston Medical Center Corp., et al. (Lawyers Weekly No. 12-081-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2015-01733-BLS1 KAMYRA WALKER and another,1 1 Anne O’ Rourke 2 MDF Transcription, LLC and Richard J. Fagan. on behalf of themselves and other similarly situated vs. BOSTON MEDICAL CENTER CORP. and others 2 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BOSTON MEDICAL CENTER CORP.’S MOTION FOR SUMMARY JUDGMENT In March 2014, defendant Boston Medical Center, Corp. (BMC) learned that another health care provider had inadvertently accessed a BMC patient’s medical information on a website maintained by defendant MDF Transcriptions, LLC (MDF), a medical transcription company used by both BMC and thisother provider. It sent a letter to all its patients who had records that had been transcribed by MDF informingthem that there might have been unauthorized access to their medical information. After receiving this letter, the plaintiffs Kamyra Walker and Anne O’Rourke,filedthisputative classaction against BMC, MDF, and Richard Fagan, MDF’s owner and manager. They assertthat the defendants are liableto them, and all other similarly situated BMC patients,for failing to ensure that their medical information was kept confidential. The case is before the court on BMC’smotionfor summary judgment. BMCargues, among other things, that the plaintiffs lack standing to maintain the claims asserted2 against it.3 For the reasons that follow, the motion isALLOWED. 3 BMC also argues that the complaint fails to state a claim on which relief may be granted. Having found that the plaintiffs lack standing to bring their claims, the court does not reach this issue. 4 “FTP, or file transfer protocol, is a protocol for exchanging files over any computer network that supports the TCP/IP protocol (such as the Internet or an intranet). SRI Int’l Inc. v. Internet Sec. Sys., 647 F. Supp. 2d 323, 332 n.2 (D. Del. 2009). 5 Plaintiffs note that JosephCumillus, BMC’s 30(b)(6) deponent, stated in his deposition: “it was concerning to me that this information was on an FTP site that wasn’t password protected.” The court understands this to refer BACKGROUND For several years, certain BMC medical practices used MDF to transcribe their physicians’ audio recordedpatientnotes. The transcriptions were available through a “file transfer protocol” (FTP or .ftp) site maintained by MDF.4 On March 4, 2014, Pam Bronson of Access Sports Medicine(ASM), anotherMDF customer, telephoned BMC. She informed BMC that she saw a BMC transcription record when she accessed MDF’s transcription portalusing her ASM user name and password. In response, BMC contacted MDF,and MDF took down the FTP site. Shortly thereafter, BMC terminated its relationship with MDF and notified patients, including the plaintiffs, of what had occurred. The notification letter sent to the plaintiffs informed them that their patient records from office visits with physicians “were inadvertently made accessible to […]