Cannonball Fund, Ltd., et al. v. Dutchess Capital Management, LLC, et al. (Lawyers Weekly No. 11-094-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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         12‑P‑876                                   Appeals Court   CANNONBALL FUND, LTD., & others[1]  vs.  DUTCHESS CAPITAL MANAGEMENT, LLC, & others.[2]     No. 12‑P‑876. Suffolk.     January 17, 2013.  ‑  August 2, 2013. Present:  Cypher, Rubin, & Wolohojian, JJ.   Limitations, Statute of.  Practice, Civil, Statute of limitations, Dismissal, Standing.  Jurisdiction, Personal, Long‑arm statute, Nonresident.  Corporation, Derivative action.  Fiduciary.  Partnership, Fiduciary duty.  Negligence, Causation.  Due Process of Law, Jurisdiction over nonresident.  Contract, Implied covenant of good faith and fair dealing, Performance and breach.       Civil action commenced in the Superior Court Department on June 21, 2011.   Motions to dismiss were heard by Judith Fabricant, J.       John F. Hagan, Jr., of Illinois, for the plaintiffs. Sanford F. Remz for Sullivan Bille, P.C. Matthew Iverson for Dutchess Capital Management, LLC, & others.   WOLOHOJIAN, J.  This is the second suit brought individually and derivatively by investors in two “feeder” hedge funds against those who controlled or were involved in the operation of the feeder and master funds[3] and a related entity, against one feeder fund’s accounting firm, and against the administrator of both feeder funds.  The plaintiffs previously filed a substantially similar case in the Delaware Court of Chancery.  After four of the defendants moved to dismiss the Delaware claims for lack of personal jurisdiction, the plaintiffs voluntarily dismissed the Delaware suit in its entirety.  Almost eight months later, the plaintiffs then filed this case in the Superior Court.   The primary issue on appeal is whether the plaintiffs are entitled to the benefit of the Massachusetts savings statute, G. L. c. 260, § 32, which permits claims that were timely when originally filed to be refiled (despite the subsequent running of the limitations period) within one year after being dismissed “for any matter of form.”  We conclude that voluntary dismissals are not per se excluded from the scope of the savings statute.  We also conclude, however, that the record does not establish that all the claims dismissed in the Delaware action were dismissed for a matter of form.  Those claims that were not dismissed for a matter of form were properly dismissed by the Superior Court judge as untimely.  Those claims for which a sufficient question of fact was raised in the Superior Court, at least at the pleading stage, as to whether they were voluntarily dismissed in the Delaware action […]

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