Kelly v. Waters Corporation, et al. (Lawyers Weekly No. 09-013-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-00064-BLS1 DOUGLAS M. KELLY vs. WATERS CORPORATION & another1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS Plaintiff, Douglas M. Kelly, filed this action against defendants, Waters Corporation and NuGenesis Technologies Corporation (referred to collectively as “NuGenesis”). The dispute involves Kelly’s claim that NuGenesis owes him millions of dollars in compensation related to software he created, developed, and later sold to NuGenesis. Kelly asserts the following five claims against NuGenesis in his Complaint: fraud (Count I), breach of contract (Count II), violation of Chapter 93A (Count III), audit and accounting (Count IV), and piercing the corporate veil (Count V). NuGenesis now moves to dismiss all claims pursuant to Mass. R. Civ. P. 12(b)(6). For the reasons stated below, NuGenesis’s motion to dismiss is allowed. BACKGROUND The facts as revealed by Kelly’s Complaint and the documents referenced in the Complaint are as follows. Kelly, a professional computer software developer and distributor, is a resident of Spring Lake, New Jersey. Waters is a Delaware corporation with a principal place of business in 1 NuGenesis Technologies Corporation. Milford, Massachusetts. In February 2004, Waters acquired NuGenesis and assumed all of NuGenesis’s liabilities and contractual obligations to Kelly. Complaint at para. 2. NuGenesis is a Delaware corporation with a principal place of business in Milford. It has operated as a wholly owned subsidiary of Waters since February of 2004. From 1987 to 1999, Kelly developed the computer software product lines called TriRidian, also known as Archive, and VP Office. Kelly designed Archive to meet the needs of companies obligated to comply with regulations promulgated by the Food and Drug Administration (FDA) in 1997, that specified the criteria that had to be met for the FDA to accept electronic records/signatures as the equivalent of paper records/signatures from drug makers and other FDA-regulated industries. Archive also allows users to collect and store raw data from laboratory instruments and retrieve the data on demand by FDA inspection teams. VP Office allows lab users to work directly with data from laboratory instruments using Microsoft Office’s Word and Excel products. NuGenesis was founded in 1997. In 1999, NuGenesis was still a start-up company that had one viable product, UNIFY & VISION (UV), an efficiency tool that performed the same function as VP Office. NuGenesis executives wanted to present the company to underwriters and potential investors as a two-product software company. They approached Kelly about developing and selling Archive and VP Office. NuGenesis represented to Kelly that it was well qualified and had sufficient financial, personnel, sales, and technical resources. Kelly asserts in his Complaint that NuGenesis lacked these resources to develop and sell Archive or VP Office. NuGenesis, […]
Commonwealth of Massachusetts ex rel. Kelly, et al. v. Novartis Pharmaceuticals Corporation, et al. (Lawyers Weekly No. 12-098-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2016-03107-BLS1 COMMONWEALTH OF MASSACHUSETTS, EX REL., ALLISON KELLY AND FRANK GARCIA vs. NOVARTIS PHARMACEUTICALS CORPORATION & Others1 1 Novartis Corporation and Genentech, Inc. 2 The District Court’s order actually dismissed the state claims with prejudice, notwithstanding its declination of jurisdiction over them. The First Circuit reversed that part of the District Court’s decision. It observed that while the District Court could have dismissed the state claims based on the same reasoning applied to the federal claims had it retainedjurisdiction, once it declined jurisdiction, it was required to dismiss the state claims MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS RELATORS’ FIRST AMENDED COMPLAINT Allison Kelly and Frank Garcia (Relators) brought qui tam actions against Genentech, Inc. (Genentech) and Novartis Pharmaceuticals Corporation (Novartis) in federal district court in Massachuesetts under the Federal False Claims Act (FCA), 31 U.S.C. § 3729 et seq., the Massachusetts False Claims Act (MFCA), G. L. c. 12, § 5B(a)(1)-(10), and several other analogous state statutes. The federal claims asserted in their complaints were dismissed by the District Court for failure to plead the alleged fraud with the specificity required by Fed. R. Civ. P. 9(b). See U.S. ex rel. Garcia v. Novartis Pharm. Corp.,91 F. Supp. 3d 87 (D. Mass. 2015). The dismissal was affirmed by the First Circuit Court of Appeals. See U.S. ex. rel. Kelly v. Novartis Pharm. Corp.,827 F. 3d 5 (1stCir. 2016) (Kelly). While the Relators’ FCA claims were dismissed with prejudice, their state claims were dismissed without prejudice because the District Court declined to exercise supplemental jurisdiction over them.2 The Relators then filed 2 without prejudice. Kelly, 827 F. 3d at 16. 3 Novartis Corporation is also a named defendant, but the Relators did not serve that company with a summons and complaint or the Amended Complaint, so the case is dismissed as to it. 4 Because the court concludes that the Relators have not complied with Rule 9(b), it will not consider the defendants’ arguments that the Amended Complaint should also be dismissed because the“public disclosure” bar applies or because the Relators failed to file the Amended Complaint under seal. thequi tam action against Genentech and Novartis now before the Superior Court alleging claims underthe MFCA.3 As with their previous federal complaints, the Relators allege that the defendants, who jointly marketed the asthma medication Xolair, providedillegal kickbacks to certain Massachusetts doctors, which caused the doctors to prescribe Xolair to Massachusetts Medicaid patients and submit false reimbursement claims for the drug to Medicaid. The defendants now move to dismiss the Relator’s First Amended Complaint (Amended Complaint) contending, among other grounds, that the Relators have again failed […]
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Commonwealth v. Kelly (and 11 companion cases) (Lawyers Weekly No. 10-026-15)
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 SJC-11616 COMMONWEALTH vs. AMANDA KELLY (and eleven companion cases[1]). Plymouth. October 7, 2014. – February 20, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Assault or Battery for the Purpose of Intimidation. Civil Rights. Practice, Criminal, Instructions to jury, Duplicative convictions, Lesser included offense. Indictments found and returned in the Superior Court Department on August 14, 2008. The cases were tried before Paul E. Troy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kirsten A. Zwicker Young (Glen A. Tagliamonte with her) for Amanda Kelly. Meghan E. Tafe Vadakekalam for Christopher M. Bratlie. Thomas C. Foley for Kevin P. Shdeed. Kristin Freeman, Assistant District Attorney, for the Commonwealth. Steven M. Freeman, Melissa Garlick, Lauren A. Jones, & Seth M. Marnin, of New York, & Michael N. Sheetz & Adam S. Gershenson, for Anti-Defamation League & others, amici curiae, submitted a brief. SPINA, J. This case arises from events that transpired shortly after midnight on June 12, 2008, during a house party in Marshfield where multiple guests, who are Caucasian, committed acts of physical violence against Tizaya Robinson, who is African-American. Following a jury trial in the Superior Court, the defendant, Amanda Kelly, was convicted of, among other offenses, a violation of civil rights with bodily injury, G. L. c. 265, § 37, and assault and battery for the purpose of intimidation resulting in bodily injury, G. L. c. 265, § 39 (b).[2] Her codefendants, Christopher M. Bratlie and Kevin P. Shdeed, each were convicted of a violation of civil rights without bodily injury, and assault and battery for the purpose of intimidation without bodily injury. Bratlie also was convicted of assault and battery as a lesser included offense of assault and battery by means of a dangerous weapon (shod foot), and assault and battery. All three defendants appealed their convictions to the Appeals Court, and we transferred their cases to this court on our own motion. Principal among the several claims of error is the defendants’ contention that the judge failed to instruct the jury properly that in order to convict the defendants of assault and battery for the purpose of intimidation, the jury must find that race was a “substantial factor” motivating the commission of the unlawful conduct. We conclude that […]
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