Posts tagged "International"

CRA International, Inc. v. Painter (Lawyers Weekly No. 12-039-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02417-BLS2 ____________________ CRA INTERNATIONAL, INC. v. DONALD J. PAINTER ____________________ MEMORANDUM AND ORDER ALLOWING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO DISMISS COUNTERCLAIM This lawsuit arises from CRA International, Inc.’s short-lived employment of Donald J. Painter. CRA seeks a declaration that, because Mr. Painter worked for CRA for less than a year, Painter is contractually obligated to repay his $ 30,000 signing bonus and a $ 900,000 loan, pay all interest that has accrued on that loan, and reimburse CRA for reasonable attorneys’ fees and expenses incurred to collect that loan. Painter asserts that his employment agreement and promissory note were induced by intentional fraud or negligent misrepresentations and are therefore “invalid” and unenforceable. He also asserts a counterclaim for fraud and seeks leave to amend facts alleged in his counterclaim. The Court concludes that CRA is entitled to the dismissal of Painter’s counterclaim and that Painter’s proposed amendment of his counterclaim would be futile. It also concludes that, given the facts admitted by Painter in his answer and the failure of his fraud in the inducement defense, CRA is entitled to judgment in its favor on its claim for declaratory judgment. The Court will allow CRA’s motion for judgment on the pleadings and to dismiss Painter’s counterclaim, deny Painter’s motion to amend his counterclaim, deny CRA’s motion to strike Painter’s jury demand as moot, and order the entry of a declaratory judgment in CRA’s favor. 1. CRA’s Motion to Dismiss the Counterclaim. Painter’s counterclaim for fraud fails as a matter of law because it does not allege any facts plausibly suggesting that CRA made a false statement of material fact to Painter or that CRA failed to disclose some material information that it had a duty to disclose. See generally Lopez v. Commonwealth, 463 Mass. 696, 701 (2012) (to survive a motion to dismiss under Mass. R. Civ. P. 12(b)(6), a complaint or counterclaim must allege facts that, if true, would “plausibly suggest[] … an entitlement to relief”) (quoting Iannacchino v. Ford – 2 – Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Painter’s proposed amendment to his counterclaim would be futile for the same reasons. 1.1. The Counterclaim Fails to Allege Any Fraud with Particularity. A claim of fraudulent inducement must be alleged with particularity in accord with Mass. R. Civ. P. 9(b). See VMS Realty Inv., Ltd. v. Keezer, 34 Mass. App. Ct. 119, 119-120 (1993). This rule “heightens the pleading requirements placed on plaintiffs who allege fraud and deceit.” Equipment & Systems for Industry, Inc. v. NorthMeadows Constr. Co., Inc., 59 Mass. App. Ct. 931, 932 […]

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Posted by Massachusetts Legal Resources - April 27, 2017 at 9:23 am

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International Brotherhood of Electrical Workers Local No. 129 Benefit Fund v. Tucci, et al. (and eight companion cases) (Lawyers Weekly No. 10-038-17)

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-12137   International Brotherhood of Electrical Workers LOCAL NO. 129 BENEFIT FUND[1]  vs.  JOSEPH M. TUCCI & others[2] (and eight consolidated cases[3]).       Suffolk.     November 7, 2016. – March 6, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Corporation, Stockholder’s derivative suit, Merger, Sale of assets, Valuation of stock, Board of directors.  Practice, Civil, Class action, Dismissal.       Civil actions commenced in the Superior Court Department on October 15, October 16, October 19, October 20, October 23, October 28, and October 29, 2015.   After consolidation, a motion to dismiss was heard by Edward P. Leibensperger, J.   The Supreme Judicial Court granted an application for direct appellate review.     Jason M. Leviton (Michael G. Capeci, of New York, & Joel A. Fleming also present) for International Brotherhood of Electrical Workers Local No. 129 Benefit Fund & others. Thomas J. Dougherty (Kurt Wm. Hemr also present) for Joseph M. Tucci & others. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Ian D. Roffman & Matthew J. Connolly, for Associated Industries of Massachusetts, amicus curiae, submitted a brief.     BOTSFORD, J.  In these consolidated cases, shareholders of a publicly traded corporation claim that a merger transaction proposed by the board of directors will result in the effective sale of the corporation for an inadequate price.  The question we consider is whether they may bring that claim directly against the board members, or must bring it as a derivative claim on behalf of the corporation.  We answer that the claim must be brought derivatively.[4] Background.  The plaintiffs appeal from the dismissal of their first amended class action complaint (complaint)[5] alleging breaches of fiduciary duty by the board of directors of EMC Corporation (EMC) arising from a merger between EMC and Denali Holding Inc. and Dell Inc. (collectively, Dell).  At the time that they commenced these actions, the plaintiffs were shareholders of EMC; the proposed merger would result in the shareholders receiving a cash payment in exchange for their EMC stock.  The plaintiffs’ complaint alleges that they bring the actions on behalf of a class consisting of “all other shareholders of EMC . . . who are or will be deprived of the opportunity to maximize the value of their shares of EMC […]

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Posted by Massachusetts Legal Resources - March 6, 2017 at 3:54 pm

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Service Employees International Union, Local 509, et al. v. Auditor of the Commonwealth, et al. (Lawyers Weekly No. 10-186-16)

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-12126   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509, & others[1]  vs.  AUDITOR OF THE COMMONWEALTH & others.[2]       Suffolk.     September 6, 2016. – December 9, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Privatization Act.  Auditor.  Commissioner of Mental Health.  Public Welfare, Department of Health and Human Services.  Mental Health.  Practice, Civil, Action in nature of certiorari.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 8, 2016.   The case was reported by Spina, J.     Ian O. Russell (Katherine D. Shea & James F. Lemond with him) for the plaintiffs. Bryan F. Bertram, Assistant Attorney General (Daniel J. Hammond, Assistant Attorney General, with him) for the defendants.     LENK, J.  The plaintiffs, Service Employees International Union, Local 509 (SEIU), the Massachusetts Nurses Association, and the American Federation of State, County and Municipal Employees, Council 93, challenge a decision by the Auditor of the Commonwealth approving a proposed privatization contract pursuant to G. L. c. 7, §§ 52-55 (Pacheco Law).  The Pacheco Law establishes “[p]rocedures that agencies must follow when beginning the bidding process for and entering into a privatization contract.”  Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783, 786 (2000) (MBTA).  The Auditor of the Commonwealth must review all privatization proposals to determine if they comply with the Pacheco Law.  Id. In January, 2016, the Department of Mental Health (DMH) submitted a proposal to the Auditor that would privatize certain of its State-run mental health services.  Under the terms of the proposal, the Massachusetts Behavioral Health Partnership (MBHP), a privately owned State-wide mental health provider, would take over from DMH the provision of mental health services in the Southeast region of Massachusetts.  In March, 2016, the Auditor issued a written decision concluding that DMH’s privatization proposal met the requirements of the Pacheco Law, specifically, that the privatization was procured properly, that it would not result in a net cost to the Commonwealth, and that it would not cause a decline in the quality of mental health services provided in the Southeast region.  The plaintiffs then filed a petition in the nature of certiorari in the county court, seeking review of the Auditor’s decision.  A single justice reserved and reported the matter to the full court. We conclude that the […]

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Posted by Massachusetts Legal Resources - December 9, 2016 at 9:37 pm

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Service Employees International Union, Local 509 v. Department of Mental Health, et al. (Lawyers Weekly No. 11-180-16)

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-12035   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509  vs.  DEPARTMENT OF MENTAL HEALTH & others.[1]     Suffolk.     September 6, 2016. – November 22, 2016.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Privatization Act.  Commissioner of Mental Health.  Commonwealth, Contracts.  Contract, Validity.  Public Employment.  Laches.  Practice, Civil, Judgment on the pleadings.       Civil action commenced in the Superior Court Department on February 15, 2012.   Following review by this court, 469 Mass. 323 (2014), the case was heard by Janet L. Sanders, J., on motions for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Ian O. Russell (Katherine D. Shea with him) for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for Department of Mental Health. Carl Valvo & Ariel G. Sullivan, for Advocates, Inc., & others, were present but did not argue. Mark G. Matuschak & Robert Kingsley Smith, for Pioneer Institute, Inc., were present but did not argue. Anita S. Lichtblau & Robert E. Cowden, III, for Massachusetts Council of Human Services Providers, Inc., & others, amici curiae, submitted a brief.     LENK, J.  This is the second time that the plaintiff labor union appeals from dismissal of the declaratory judgment action it first brought against the Department of Mental Health (DMH or agency) in 2012.  Service Employees International Union, Local 509 (SEIU or union) maintains that certain contracts DMH made in 2009 with private vendors are “privatization contracts” subject to the requirements of the Pacheco Law, G. L. c. 7, §§ 52-55.  The Pacheco Law establishes certain prerequisites that agencies must meet when seeking to enter into privatization contracts. Because DMH had determined that the subject contracts were not privatization contracts, however, it did not comply with those statutory prerequisites.  In bringing this action, the union seeks, among other things, a declaration invalidating the contracts on the basis of G. L. c. 7, § 54 (§ 54), which provides that no privatization contract “shall be valid” where an agency did not follow the necessary procedures. In our previous decision in this case, Service Employees Int’l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 324 (2014) (SEIU I), we rejected DMH’s contention that the union lacked standing to challenge, in a declaratory judgment action, the agency’s unilateral determination that the contracts were not […]

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Posted by Massachusetts Legal Resources - November 22, 2016 at 9:45 pm

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City of Springfield v. Local Union No. 648, International Association of Firefighters, AFL-CIO (Lawyers Weekly No. 11-107-15)

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   13-P-1691                                       Appeals Court   CITY OF SPRINGFIELD  vs.  LOCAL UNION NO. 648, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO. No. 13-P-1691. Hampden.     September 11, 2014. – August 13, 2015.   Present:  Trainor, Rubin, & Sullivan, JJ.   Fire Fighter, Appointment.  Arbitration, Fire fighters, Authority of arbitrator, Damages.  Labor, Fire fighters, Arbitration, Civil service, Damages.  Civil Service, Fire fighters, Appointment.  Contract, Collective bargaining contract.  Damages, Back pay.       Civil action commenced in the Superior Court Department on December 14, 2011.   The case was heard by John S. Ferrara, J., on motions for judgment on the pleadings; a motion for reconsideration was heard by him; and entry of a final judgment was ordered by him.     Albert R. Mason for the plaintiff. Joseph G. Donnellan for the defendant.      RUBIN, J.  The city of Springfield (city) appeals from a judgment of the Superior Court confirming a labor arbitration award issued in favor of a public employee union representing firefighters, Local 648, International Association of Firefighters, AFL-CIO (union).  We affirm. Background.  Because the arbitration award incorporated by reference certain legal conclusions of the Civil Service Commission (commission), we first summarize the commission proceedings, followed by the arbitration proceedings.  Under the civil service law, G. L. c. 31, in order to fill a vacant position, the city may appoint either a “permanent” replacement, or, if the vacancy or the position is temporary, a “temporary” replacement.  See G. L. c. 31, §§ 6-8.  In either event, the appointment must be made through the detailed procedural steps set out in the civil service law. As the commission ultimately found, for an extended period of time the city’s appointments to vacant positions in the fire department did not comply with the above requirements.  Rather, in 2009 and 2010, the city filled certain vacancies in its fire department not by promoting firefighters, but by making extended appointments of firefighters to higher-ranking civil service positions on an “acting” basis.  These firefighters were paid additional out-of-grade compensation pursuant to the terms of art. 31 of the collective bargaining agreement (CBA) between the union and the city.  Even with this additional out-of-grade amount, their compensation and other benefits fell short of that set forth in the CBA for the positions in which they were serving.  The city’s justification for this discrepancy was that the firefighters were serving only on an “acting” basis. […]

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Posted by Massachusetts Legal Resources - August 13, 2015 at 8:37 pm

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Ramos, et al. v. International Fidelity Insurance Company (Lawyers Weekly No. 11-073-15)

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   13-P-1305                                       Appeals Court   JESSICA RAMOS & others[1]  vs. INTERNATIONAL FIDELITY INSURANCE COMPANY (and two companion cases[2]). No. 13-P-1305. Hampden.     September 8, 2014. – July 9, 2015.   Present:  Trainor, Rubin, & Sullivan, JJ. Bail.  Consumer Protection Act, Unfair or deceptive act, Vicarious liability, Surety.  Agency, Agent’s contract, Liability of agent, Scope of authority or employment.  Contract, Performance and breach, Surety, Damages.  Judgment, Interest.  Damages, Breach of contract, Interest.  Interest.  Practice, Civil, Summary judgment, Interest.  Surety.       Civil actions commenced in the Superior Court Department on September 2, 2010, November 17, 2010, and January 3, 2011.   After consolidation, the cases were heard by Richard J. Carey, J., on motions for summary judgment, and the entry of judgment was directed by Constance M. Sweeney, J.     Peter A. Slepchuk (Peter Slepchuk, Jr., with him) for the plaintiffs. Thomas F. McGuire & Michael J. Serduck for the defendant.     RUBIN, J.  The plaintiffs commenced these actions against the defendant, International Fidelity Insurance Company (IFIC), to recover cash collateral and certain bail bond insurance premiums collected from each of them by IFIC’s agent William Fiore, who is now deceased.  On cross motions for summary judgment, the motion judge allowed the plaintiffs’ motions on their counts alleging breach of contract, and also allowed IFIC’s motions on the counts alleging a violation of G. L. c. 93A.  The plaintiffs, with the exception of Ashley M. Keyes, appeal from the dismissal of their 93A claims, and the defendant appeals from the allowance of the plaintiffs’ motions on the breach of contract claims.  The defendant also appeals from the calculation of prejudgment interest. Background.  William Fiore worked as a bail bondsman in Hampden and Berkshire Counties.  It is undisputed that Fiore acted as an agent for IFIC, a New Jersey corporation.  IFIC is a successor to Atlas Bonding Agency with whom Fiore had an “Agency Contract.”  While that agreement was in effect, Fiore was authorized to act as Atlas’s — and then IFIC’s — agent for the soliciting and writing of bail bonds.  Fiore had been approved and registered by the Administrator of Bail as a professional bondsman for the Commonwealth of Massachusetts and was authorized to act as an agent for the defendant.  That approval and registration were in effect at all times relevant to this case. Fiore was supplied by IFIC with powers […]

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Posted by Massachusetts Legal Resources - July 9, 2015 at 11:22 pm

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Service Employees International Union, Local 509 v. Department of Mental Health (Lawyers Weekly No. 10-138-14)

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; SJCReportersjc.state.ma.us   SJC-11544   SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509  vs.  DEPARTMENT OF MENTAL HEALTH.       Suffolk.     April 7, 2014. – August 15, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Privatization Act.  Commissioner of Mental Health.  Auditor. Declaratory Relief.  Practice, Civil, Declaratory proceeding, Standing, Parties, Failure to join party.   Civil action commenced in the Superior Court Department on February 15, 2012.   The case was heard by Merita A. Hopkins, J., on a motion for judgment on the pleadings.   The Supreme Judicial Court granted an application for direct appellate review.     Alfred Gordon O’Connell for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. Gerald A. McDonough, for the Auditor of the Commonwealth, amicus curiae, submitted a brief.     LENK, J.  The plaintiff, Service Employees International Union, Local 509 (union), appeals from an order of a Superior Court judge dismissing its complaint for declaratory judgment pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint, the union alleged that the Department of Mental Health (DMH) violated the Massachusetts privatization statute, G. L. c. 7, §§ 52-55 (Pacheco Law), by entering into contracts with private entities to obtain services substantially similar to those performed by members of the union, but failing to comply with relevant statutory obligations.  DMH filed an answer as well as a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974).  After a hearing, the judge granted DMH’s motion, which she treated as a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974).  The judge determined that the union lacked both direct and associational standing to seek declaratory relief and, additionally, that the union’s failure to join necessary parties constituted a separate jurisdictional bar requiring dismissal.  The judge did not err in declining to consider the union’s complaint on the basis of its failure to name all necessary parties.  However, because we conclude that the union has direct standing to seek a declaratory judgment under G. L. c. 231A that would invalidate the contracts at issue, we remand the case to the Superior Court for the limited purpose of allowing the union to seek leave to amend […]

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Posted by Massachusetts Legal Resources - August 15, 2014 at 8:41 pm

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American International Insurance Company v. Robert Seuffer GmbH & Co. KG (Lawyers Weekly No. 10-081-14)

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‑11418   AMERICAN INTERNATIONAL INSURANCE COMPANY[1]  vs.  ROBERT SEUFFER GMBH & CO. KG. Middlesex.     January 7, 2014.  ‑  May 14, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Jurisdiction, Personal.  Practice, Civil, Affirmative defense, Waiver, Retroactivity of judicial holding.  Waiver.  Retroactivity of Judicial Holding.       Civil action commenced in the Superior Court Department on December 16, 2009.   A motion for summary judgment was heard by Douglas H. Wilkins, J.   A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J., and the case was reported by him to the Appeals Court.  The Supreme Judicial Court granted an application for direct appellate review.     Patricia E. Antezana, of Pennsylvania (Meghan M. Sullivan with her) for the defendant. John E. O’Brien, Jr., for the plaintiff.       LENK, J.  The question before us is whether a party may be deemed to have forfeited by its conduct the defense of lack of personal jurisdiction despite having timely asserted that defense in a responsive pleading pursuant to Mass. R. Civ. P. 12 (h) (1), as appearing in 450 Mass. 1403 (2008).  American International Insurance Company (AIIC) filed a complaint in the Superior Court against Robert Seuffer GmbH & Co. KG (Seuffer), alleging various theories of products liability.  In its answer, Seuffer raised the defense of a lack of personal jurisdiction, but did not move to dismiss the case on that basis.  See Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974).  Instead, it pursued litigation on the merits for over eighteen months before filing a motion for summary judgment that was predicated largely on the jurisdictional defense.  A Superior Court judge denied the motion, ruling both that while Seuffer did not have the minimum contacts with Massachusetts necessary for personal jurisdiction, its conduct amounted to a waiver of the defense, and that genuine issues of material fact existed as to the merits which precluded the entry of summary judgment.  Seuffer appeals from that order. We conclude that, where a party raises the defense of lack of personal jurisdiction in a responsive pleading, the party’s subsequent conduct may in some circumstances result in a forfeiture of that defense.  The determination whether a party’s conduct will cause it to forfeit the right to contest the court’s jurisdiction is fact specific and must be made […]

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Posted by Massachusetts Legal Resources - May 14, 2014 at 11:44 pm

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Diamond Group, Inc. v. Selective Distribution International, Inc. (Lawyers Weekly No. 11-139-13)

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‑864                                        Appeals Court   Diamond Group, Inc.  vs.  Selective Distribution International, Inc. No. 12‑P‑864. Middlesex.     January 8, 2013.  ‑  November 25, 2013. Present:  Graham, Grainger, & Sikora, JJ.   Jurisdiction, Personal, Long‑arm statute, Forum non conveniens.  Constitutional Law.  Due Process of Law.       Civil action commenced in the Superior Court Department on October 19, 2009.   A motion to dismiss was heard by Daniel M. Wrenn, J.     Scott P. Fink for the plaintiff. Leonard M. Singer for the defendant.       SIKORA, J.  This appeal presents a question of the jurisdiction of the Massachusetts courts over a business corporation located exclusively in New York State.  The plaintiff, Diamond Group, Inc. (Diamond), is a wholesale distributor of perfume products; its sole business location lies in Newton, Massachusetts.  The defendant, Selective Distribution International, Inc. (Selective), is a distributor of fragrances, cosmetics, and beauty aids and accessories to retailers; its sole location lies in Jericho (Long Island), New York.  Diamond brought suit against Selective in Superior Court for nonpayment for goods sold and delivered.  It alleged that, over a period of twenty-one months, it had sold perfume products to Selective of a value of $ 995,692.35, but that Selective had failed to pay a balance due of $ 529,689.70.  Diamond pleaded claims of breach of contract, quantum meruit entitlement, and unfair or deceptive conduct within the meaning of G. L. c. 93A, §§ 2 and 11.  If proven, the wrongful nonpayment for more than half a million dollars worth of perfume would constitute conduct in fragrante delicto. However, this appeal does not require a decision of that ultimate question.  It requires instead the determination whether the Massachusetts courts have jurisdiction to entertain the claim.  In response to Diamond’s complaint, Selective moved under Mass.R.Civ.P. 12(b)(2), 365 Mass. 754 (1974), to dismiss for lack of personal jurisdiction or, alternatively, forum non conveniens.  After supplementation of the allegations of the verified complaint by affidavits and appended exhibits by both parties, and after submission of extensive memoranda of law, a judge of the Superior Court concluded that Massachusetts courts lacked personal jurisdiction over Selective and entered judgment of dismissal.  For the following reasons, we now reverse.   Background.  These undisputed facts emerge from the verified complaint, the parties’ affidavits, and their attached exhibits.  Each of the corporate parties in this case is primarily a one-man […]

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Posted by Massachusetts Legal Resources - November 25, 2013 at 5:56 pm

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Depianti, et al. v. Jan-Pro Franchising International, Inc. (Lawyers Weekly No. 10-112-13)

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     SJC‑11282   GIOVANI DEPIANTI & others[1]  vs.  JAN-PRO FRANCHISING INTERNATIONAL, INC.     Suffolk.     February 5, 2013.  ‑  June 17, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Labor, Wages.  Massachusetts Wage Act.  Independent Contractor Act.  Contract, Franchise agreement, Employment.  Statute, Construction.  Attorney General.  Administrative Law, Exhaustion of remedies.       Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.     Shannon Liss-Riordan (Stephen S. Churchill with her) for the plaintiffs. Jeffrey M. Rosin (Christopher M. Pardo with him) for the defendant. Benjamin B. Reed & James C. Rubinger, of Virginia, for International Franchise Association, amicus curiae, submitted a brief. Catherine Ruckelshaus, of New York, Eunice Hyunhye Cho, of California, & Audrey Richardson for Brazilian Immigrant Center & others, amici curiae, submitted a brief.       LENK, J.  Giovani Depianti, a janitorial cleaning services franchisee, along with franchisees from other States, filed this putative class action in the United States District Court for the District of Massachusetts against the defendant, Jan‑Pro Franchising International, Inc. (Jan‑Pro). Depianti alleges, inter alia, that Jan‑Pro misclassified him as an independent contractor, see G. L. c. 149, § 148B, and committed various wage law violations.  A judge of the United States District Court for the District of Massachusetts certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): “[1.]  Whether a plaintiff’s failure to exhaust administrative remedies pursuant to [G. L. c. 149, § 150,] by filing a complaint with the Attorney General deprives a court of jurisdiction to consider the plaintiff’s claims under [G. L. c. 149, §§ 148, 148B, and 150,] and under [G. L. c. 151, §§ 1 and 1A].   “[2.]  Whether and how to apply the ‘right to control test’ for vicarious liability to the franchisor-franchisee relationship. . . .   “[3.]  Whether a defendant may be liable for employee misclassification under [G. L. c. 149, § 148B,] where there was no contract for service between the plaintiff and defendant.”   We answer the first question, “No.”  We answer the second question, “Yes,” with further discussion concerning the application of the “right to control test” to the franchisor-franchisee relationship.  We answer the third question, “Yes.”[2]   1.  Background.  Jan‑Pro is a Massachusetts corporation “in the business of operating and franchising comprehensive cleaning and maintenance businesses.”  It sells […]

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Posted by Massachusetts Legal Resources - June 18, 2013 at 1:05 am

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