America’s Test Kitchen Inc. v. Kimball, et al. (Lawyers Weekly No. 09-033-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03325-BLS2 ____________________ AMERICA’S TEST KITCHEN INC., as the Sole General Partner of America’s Test Kitchen Limited Partnership v. CHRISTOPHER KIMBALL and Others1 ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS TO COMPEL PRODUCTION OF DOCUMENTS Christopher Kimball, Melissa Baldino, Christine Gordon, and Deborah Broide used to work for America’s Test Kitchen on a television cooking show and on related programming and publications distributed through various media. This lawsuit concerns and arises from their development of a competing business. ATK brought suit first. Kimball and CPK Media, LLC, asserted counterclaims. The Court will refer to America’s Test Kitchen, Inc., and America’s Test Kitchen Limited Partnership as the “ATK Parties” and to Defendants as the “CPK Media Parties.” The parties have filed cross-motions to compel the production of documents withheld under a claim of privilege or litigation work product. The party asserting that a particular set of documents is protected from disclosure by the attorney-client privilege or the work product doctrine has the burden of proving that contention. See Commissioner of Revenue v. Comcast, 453 Mass. 293, 304 & 315 (2009); Hanover Ins. Co. v. Rapo & Jepsen Ins. Services, Inc., 449 Mass. 609, 619-620 (2007). The Court will allow the ATK Parties’ motion to the extent that it seeks production of any disputed communications with Matthew Sutton or those disputed communications with William Thorndike that are not protected by the work product doctrine. It will deny the ATK Parties’ motion to the extent that it seeks production of protected work product in communications with Thorndike, or the production of any disputed communications with Melissa Baldino or Thomas Hagopian. And it will deny the CPK Media Parties’ motion in its entirety, as to communications with ATK’s public relations consultants, with its lawyers, or among its board members. 1 CPK Media, LLC; Melissa Baldino; Christine Gordon; Deborah Broide; CPK Holdco, LLC; and William Thorndike. – 2 – 1. The ATK Parties’ Motion to Compel. 1.1. Matthew Sutton. The CPK Media Parties have withheld communications with Mr. Sutton regarding legal advice sought by or provided to CPK Media LLC on the ground that those communications are protected by the attorney-client privilege. They argue that (i) this privilege protects confidential communications that share legal advice with a client’s employee who is needed to understand or implement that advice, or that concern information known to the employee that is needed to inform or formulate requests for legal advice; (ii) the same is true regarding similar communications with someone who is the functional equivalent of an employee; (iii) Sutton was the functional equivalent of an employee of CPK Media LLC and was involved in seeking and making sense of legal advice for […]
Ressler v. Deutsche Bank Trust Company Americas, et al. (Lawyers Weekly No. 11-148-17)
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-1711 Appeals Court MONIKA M. RESSLER vs. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & others.[2] No. 16-P-1711. Dukes. October 4, 2017. – December 1, 2017. Present: Agnes, Sacks, & Lemire, JJ. Mortgage, Foreclosure, Assignment. Real Property, Mortgage. Assignment. Trust, Trustee’s authority. Practice, Civil, Motion to dismiss, Attorney’s fees, Frivolous action. Civil action commenced in the Superior Court Department on July 7, 2016. A motion to dismiss was heard by Mitchell H. Kaplan, J. Glenn F. Russell, Jr., for the plaintiff. Robert M. Mendillo for Deutsche Bank Trust Company Americas & another. Grace C. Ross, pro se, amicus curiae, submitted a brief. SACKS, J. The plaintiff Monika M. Ressler (the borrower) appeals a Superior Court judgment dismissing her complaint for declaratory and other relief based on her claim that the defendant Deutsche Bank Trust Company Americas, trustee of Residential Accredit Loans Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS18 (Deutsche Bank) had acquired her mortgage in violation of a governing pooling and service agreement, making its foreclosure on her mortgage invalid. Because the borrower’s various arguments are either squarely barred by precedent or border on the frivolous, we affirm. Although we deny Deutsche Bank’s request that, as a sanction for a frivolous appeal, we award attorney’s fees and costs against the borrower and her counsel jointly and severally, we caution counsel here that such a sanction is within an appellate court’s authority and is more likely to be imposed if counsel fails to heed warnings against repetitive pursuit of unmeritorious appeals.[3] Background. We review the sufficiency of the borrower’s complaint de novo, taking as true its factual allegations and drawing all reasonable inferences in her favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). “[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). In doing so, we consider, among other things, exhibits attached to the complaint. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). In 2006 the borrower took a $ 500,000 mortgage loan from Lendia, Inc. (the lender), giving the lender a promissory note for that amount and a mortgage on her property in West Tisbury to secure […]
Turra v. Deutsche Bank Trust Company Americas, trustee, et al. (Lawyers Weekly No. 10-020-17)
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-12075 SANDRO TURRA vs. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & another.[2] January 30, 2017. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage. The plaintiff, Sandro Turra, commenced this action against Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC (Deutsche Bank), seeking a declaration that Deutsche Bank’s foreclosure of the mortgage on his home was invalid and seeking to quiet title to the property. A judge in the Superior Court allowed Deutsche Bank’s motion to dismiss the complaint, and Turra appealed.[3] The appeal raises a single issue: whether a foreclosing mortgagee’s failure to comply with G. L. c. 244, § 15A, by failing to send the postforeclosure notices required by the statute, renders the foreclosure void. We conclude, as did the trial court judge, that it does not, and we therefore affirm. Background. On April 3, 2007, Turra executed a mortgage on the property in question to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee.[4] The lender was Homecomings Financial, LLC. On August 12, 2010, MERS assigned the mortgage to Deutsche Bank. Then, on November 8, 2010, Deutsche Bank, through its servicing agent GMAC Mortgage, LLC, notified Turra that he was in default under the terms of the mortgage. Deutsche Bank subsequently foreclosed on the home on January 15, 2013. In April, 2013, Deutsche Bank commenced a summary process action against Turra in the District Court. Turra then commenced this action in the Superior Court, where his motion to transfer the summary process action and consolidate it with this case was allowed. In response to Deutsche Bank’s motion to dismiss his complaint, Turra argued, among other things, that the foreclosure was void because Deutsche Bank failed to strictly comply with the power of sale as set forth in G. L. c. 183, § 21, and further regulated by G. L. c. 244, §§ 11-17C. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011) (Ibanez). In particular, Turra argued that Deutsche Bank failed to comply with G. L. c. 244, § 15A, which provides that “a mortgagee conveying title to mortgaged premises pursuant to the provisions of this chapter shall, within thirty days of taking possession or conveying title, notify . . . the office of the assessor or collector of taxes of the municipality in which the premises are located and […]