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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-046-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2016-01432-BLS2
WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. &
JOHN AND CYNTHIA REED FOUNDATION,
Plaintiffs
vs.
CEDAR HILL RETREAT CENTER, INC. &
BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC.,
Defendants
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANTS’ MOTIONS TO DISMISS
PLAINTIFFS’ AMENDED COMPLAINT
This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Property). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the Property, the defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the Property and the Grantor of the Conservation Restriction. Plaintiffs allege that the Ballou Channing induced the Foundation into making a $ 3 million gift in return for Ballou Channing’s promise to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”).
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This lawsuit was instituted on May 4, 2016. In their original Complaint, plaintiffs asserted the following counts against both defendants: breach of the Gift Agreement (Count I); breach of the Conservation Restriction (Count II); promissory estoppel (Count III); unjust enrichment (Count IV); and violation of Chapter 93A (Count V). The defendants filed motions to dismiss. On December 30, 2016, this Court allowed those motions in part. See Memorandum of Decision and Order dated December 30, 2016 (the 2016 Decision). As to Ballou Channing, this Court dismissed Count II because it no longer owned the Property that was subject to the Conservation Restriction. As to Cedar Hill, this Court dismissed Counts I, III and IV – those counts based on the Gift Agreement –because Cedar Hill was not a party to the Gift Agreement. Count V alleging a violation of Chapter 93A was dismissed as to both defendants.
Six months later, plaintiffs amended their complaint to assert new claims against both defendants and to add back some claims that this Court had previously dismissed. Specifically, the Amended Complaint contains a new claim against both defendants based on the same allegations that were the basis of Counts I, III and IV of the original Complaint, but with a wrinkle: this new claim asserts a breach of what is described as a “Letter Agreement” between the defendants Ballou Channing and Cedar Hill. Plaintiffs say that they only learned of this Letter Agreement as a result of discovery in the case but now claim they are third party beneficiaries entitled to enforce it. As a consequence of this new count for breach of contract (the Letter Agreement), the Amended Complaint added Cedar Hill back to the previously dismissed claims against it of unjust enrichment and promissory estoppel. The Amended Complaint also added Ballou Channing back as a defendant on the claim alleging a breach of the Conservation Restriction, even though this Court in its 2016 Decision had dismissed Ballou Channing as a defendant on that claim. Finally, the Amended Complaint accuses Ballou
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Channing of intentional misrepresentation, an entirely new claim. See Count VI of Amended Complaint.
Defendants now bring a second set of motions to dismiss, targeting these new counts and claims, but also asking this Court to dismiss those counts that I had previously concluded would remain in this case. This Court admits to some frustration in dealing with this latest round of motions which, like the earlier ones, are brought pursuant to Rule 12(b) (6), Mass.R.Civ.P. On one hand, plaintiffs seem intent on circumventing this Court’s earlier decision with new (and ultimately unsupported) theories which needlessly complicate what would seem to be a fairly straightforward case. On the other hand, in moving to dismiss all counts (including those that this Court already declined to dismiss earlier), the defendants make essentially the same arguments they made in connection with their first set of motions. To the extent that they rely on materials beyond the four corners of the Complaint, this Court does not understand why it is important (much less appropriate) to litigate these issues under the standard applicable to Rule 12(b) (6) motions.
Ultimately, this Court concludes that the new claims must be dismissed and the old claims must remain – at least until discovery is complete. The Motions are therefore Allowed in part and Denied in part. Thus, after much expenditure of time and resources, this case is back to where it stood in December 2016: the case survives but only as to those claims that remained in the case after this Court’s 2016 Decision.
BACKGROUND
Because many of the allegations made in the Amended Complaint are the same as those alleged in the original one and are fairly summarized in the 2016 Decision, this Court will not
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rehash all of them here, except to summarize those allegations (including any new ones) that are necessary to place the issues in context.
The Reeds are abutters to the Property, which consists of about twelve acres of land. When Ballou Channing acquired the Property, it had certain restrictions on its use. In 2007 when the Reeds learned that these restrictions were soon to expire, they entered into discussions with Ballou Channing about extending and strengthening the restrictions. Ballou Channing represented that it would take about $ 150,000 a year to preserve and maintain the Property without the need to engage in commercial revenue-generating activity. The Reeds, through the Foundation, agreed to make a $ 3 million gift to Ballou Channing to cover these expenses. On October 17, 2008, a Conservation Restriction was recorded with the Plymouth Registry of Deeds that named Ballou Channing as Grantor and plaintiff Wildands Trust as Grantee.
The following year, Ballou Channing created Cedar Hill, a 501(c)(3) organization, to own and operate the Property. Ballou Channing also filed a Petition with the Supreme Judicial Court seeking approval of a transfer of the Property to Cedar Hill, as required by G.L.c. 214 § 1. Exhibit C to Amended Complaint.1 The Petition alluded to the $ 3 million gift from the Foundation and stated that it was to compensate Ballou Channing “for (i) its loss of development rights; (ii) the expense associated with creating the Conservation Restrictions and operating and maintaining the Property in accordance with such restrictions over the years; (iii) the beneficial impact the Conservation Restrictions have upon the surrounding community; and (iv) the fact that the Conservation Restrictions will encumber the Property in perpetuity.” ¶ 15 of Exhibit C to Amended Complaint. The Petition added, however, that neither Ballou Channing nor the
1 The Amended Complaint states that the Petition was filed “without notice” to the plaintiffs. It does not state that the plaintiffs were unaware of its contents, however.
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Foundation had restricted Ballou Channing’s use of the $ 3 million gift “nor envisioned the fund would be used exclusively for the management of the Property.” Id. The Petition further stated that Ballou Channing and Cedar Hill had entered into a Letter Agreement (attached to the Petition) to ensure that Cedar Hill continued to use the Property in accordance with the terms of the Conservation Restriction. To accomplish those ends, Cedar Hill would receive $ 1.4 million from Ballou Channing. That Petition was subsequently approved and the Property was transferred to Cedar Hill by Quitclaim Deed in October 2009. See Exhibit D to Amended Complaint.
The Letter Agreement referenced in the Petition forms the basis of one of the new claims at issue and is attached to the Amended Complaint as Exhibit A. The parties to it are Ballou Channing and Cedar Hill. The Letter Agreement contains certain “Recitals” which acknowledge, among other things, the Conservation Restriction with Wildlands Trust. The Letter Agreement states that $ 1.4 million is being transferred to Cedar Hill to be used “for the purpose of maintaining, operating and improving the Property in accordance with the Conservation Restriction and this Agreement.” It gives member congregations of Ballou Channing permission to use the Property so long as they comply with the Conservation Restriction. Under a section entitled “Dispute Resolution,” the Letter Agreement sets forth a procedure that Ballou Channing must follow in the event that it “becomes aware of or reasonably suspects” that Cedar Hill is not operating the Property in compliance with the Conservation Restriction. If mediation fails, the parties to the Letter Agreement may bring their dispute to Land Court.
The Amended Complaint alleges that since this transfer, Cedar Hill has engaged in commercial revenue-generating activities on the Property which are in violation of the
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Conservation Restriction. It alleges that Cedar Hill has not used the funds to preserve the Property but that it has rather used some portion of them to promote this commercial activity. Ballou Channing is aware of Cedar Hill’s violations and has refused to take steps to end them. Finally, the Amended Complaint accuses Ballou Channing of intentional misrepresentation, relying on essentially the same allegations that form the basis for plaintiffs’ claim that Ballou Channing breached the Gift Agreement.
DISCUSSION
As a result of the 2016 Decision, this case consisted of essentially two claims. One claim (that involved three separate counts) named Ballou Channing as the sole defendant and was based on allegations relating to its receipt of the $ 3 million gift. The second claim was against Cedar Hill as the sole defendant and alleged breach of the Conservation Restriction, with Wildlands Trust as the sole plaintiff. The Amended Complaint now seeks to reinsert Cedar Hill as a defendant on the first set of claims on the theory that both plaintiffs are third party beneficiaries to the Letter Agreement, and are entitled to enforce its terms against both defendants. The Amended Complaint also seeks to add Ballou Channing back as a defendant on the claim based on a violation of Conservation Restriction and to include the Foundation once again as a plaintiff. This Court concludes that these amendments fail to state a claim on which relief may be granted, for some of the same reasons set forth in its earlier opinion.
A. The Letter Agreement
Count III of the Amended Complaint alleges a breach of the Letter Agreement. Count IV and Count V alleging unjust enrichment and promissory estoppel are based in part on the
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same allegations. 2 This Court concludes neither plaintiff has a legal basis for asserting any rights under the Letter Agreement so that Count III must be dismissed, and Counts IV and Count V surviving only as to Ballou Channing as the recipient of the $ 3 million gift. See fn. 3, supra.
The parties to the Letter Agreement are the defendants Cedar Hill and Ballou Channing. Plaintiffs are not parties to the Letter Agreement nor are they identified as having any rights under it. Plaintiffs claim that they nevertheless have standing to enforce its terms because they are third party beneficiaries to it. This Court disagrees.
The Restatement (Second) Contracts § 304 defines the circumstances under which a nonparty to a contract can claim a right to enforce it as a third party beneficiary: “[a] promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty.” (Emphasis added). Intended beneficiaries are different from “incidental beneficiaries,” who have no right under the contract, even though they may benefit from it. Restatement (Second) Contracts § 315. Section 302 of the Restatement defines the difference between them: one is an intended beneficiary if “(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” As explained in comment (e) of Section 304 of the Restatement, one qualifies as an intended beneficiary “where the promisee clearly manifests an intention to confer on the beneficiary a legal right to enforce the contract.”
In accordance with these principles, this Court must look to the language of the Letter Agreement and the circumstances surrounding it to determine whether either plaintiff here is an
2 They are also based on allegations relating to the Gift Agreement, a claim that remains in this case even after today’s decision. Because of that, Count IV and V will not be dismissed but may be asserted against Ballou Channing only.
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intended third party beneficiary. Anderson v. Fox Hill Village Homeowners Corp, 424 Mass. 365, 366 (1997). If the terms of the contract are clear and unambiguous, then its interpretation – including whether it confers rights on a third party – is a question of law. Although there is no requirement that the intended beneficiary be identified by name in the contract, the intent of the contracting parties to create in that third person a right to enforce the contract must be “clear and definite.” James Family Charitable foundation v. State Street Bank and Trust Co., 80 Mass.App.Ct. 720, 724 (2011), quoting Lakew v. MBTA, 65 Mass.App.Ct. 794, 798 (2006). Thus, even if the contract is ambiguous, there must be some circumstances surrounding the making of the contract that demonstrate in a clear and definitive manner that the parties to the contract intended to create rights in a nonparty to enforce its terms.
In the instant case, there is nothing in the language of the Letter Agreement or in the circumstances surrounding it (as described in the Amended Complaint) which suggest that either Wildlands Trust or the Foundation has the right to enforce its terms. As described in the Petition to the SJC, its purpose was to ensure that, in exchange for Ballou Channing’s transfer of the Property together with certain funds, Cedar Hill would maintain and operate the Property in compliance with the Conservation Restriction. If it did not, then the Letter Agreement spelled out exactly what rights Ballou Channing (not the plaintiffs) had against Cedar Hill. Although the plaintiffs may stand to benefit from the Letter Agreement, they are at best incidental beneficiaries, with no legal basis to pursue either Ballou Channing or Cedar Hill for a breach, assuming that one occurred. Indeed, plaintiffs conceded at a hearing on this Motion that neither plaintiff even knew of the Letter Agreement until discovery in this case.
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B. The Conservation Restriction
Count II alleges a breach of the Conservation Restriction. In its 2016 decision, this Court dismissed this claim to the extent that it was asserted against defendant Ballou Channing, since it no longer owned the Property. It also concluded that only plaintiff Wildlands Trust, not the Foundation, could enforce it. In an apparent effort to circumvent that ruling, plaintiffs have added back both of these parties, ostensibly on the grounds that Cedar Hill is merely an “instrumentality” of Ballou Channing, which still “controls” the Property. The allegations in the Amended Complaint, even construed in the light most favorable to plaintiffs, do not support that.
Cedar Hill is a separate entity which, according the Petition approved by the SJC, is a nonprofit corporation duly registered with the Attorney General. The Amended Complaint alleges no facts to dispute that. According to the Petition and to the Letter Agreement, Cedar Hill was created to take over from Ballou Channing the responsibilities of maintaining the Property, which was conveyed to Cedar Hill after the SJC approved the Petition. The Amended Complaint does not dispute that either. That Cedar Hill had certain contractual obligations to Ballou Channing under the Letter Agreement– or that the Letter Agreement gave Ballou Channing certain rights in the event Cedar Hill did not comply — does not change the fact that these are separate corporate entities. The Amended Complaint does not allege any facts to support the notion that Ballou Channing and Cedar Hill are alter egos, such that these corporate formalities should be ignored. In short, Ballou Channing is not a proper defendant on this claim, for the same reasons that this Court articulated in its 2016 Decision. Nor is the Foundation a proper plaintiff for the reasons set forth in that same decision.
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C. Intentional Misrepresentation
To state a claim for fraudulent misrepresentation, the complaint must allege facts showing that: “(1) the defendant made a misrepresentation of fact; (2) it was made with the intention to induce another to act upon it; (3) it was made with the knowledge of its untruth; (4) it was intended that it be acted upon, and that it was in fact acted upon; and (5) damage directly resulted therefrom.” Equipment & Systems For Industry, Inc. v. Northmeadows Construction Co., Inc. 59 Mass.App.Ct. 931 (2003), quoting Graphic Arts Finishers, Inc. v. Boston Redev. Authority, 357 Mass. 40, 44 (1970). Rule 9(b), Mass.R.Civ.P. requires that a claim of fraud must be alleged with particularity. The Amended Complaint fails to satisfy this heightened pleading standard or allege facts sufficient to support each of the requisite elements. Specifically, it fails to identify a misstatement of existing fact, or to allege that it was made by the defendant with knowledge as to its falsity at the time that it was made.
The misrepresentation claim (Count VI) makes only two allegations that could be at all construed as relating to these two elements. First, it states that Ballou Channing “failed to disclose its plans for the Foundation’s $ 3 million Gift, which plans were wholly inconsistent with the Foundation’s expressed donative intent and the basis on which Wildlands Trust entered into the Conservation Restriction.” ¶ 89 of Amended Complaint. This is vague at best. Moreover, a failure to disclose can form the basis for liability only if one has a duty to disclose, and the Amended Complaint shows no such duty to disclose anything. Whatever obligation the Foundation had to use the money in a certain way is embodied in the Gift Agreement, but breach of a contractual obligation does not amount to fraud. Second, this count states that Ballou Channing affirmatively misrepresented to the Foundation how much it would cost to maintain and preserve the Premises. This is apparently based the following allegation:
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In 2007 and into 2008, in meetings between the Reeds on behalf of the Foundation, and members of the Cedar Hill Committee of Ballou Channing, including several meetings that occurred in the living room of the Retreat Center, Ballou Channing represented to the Foundation that approximately $ 150,000 per year would be required to preserve and maintain the Premises.
Amended Complaint, ¶ 20. It is questionable whether this yearly estimate as to future expenses is a fact at all as opposed to a nonactionable statement of opinion or prediction as to future events. Moreover, the Amended Complaint fails to allege who made this prediction (except in the most general way) or that the speaker knew that it was false when made. These are allegations critical to support a claim as serious as fraud. In sum, this count fails to meet the standard of either Rule 9(b) or of Iannachino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
D. Remaining Claims
In addition to asking this Court to dismiss those claims which are new to the case, the defendants seek dismissal of those claims that the 2016 Decision left in the case. Specifically, Ballou Channing seeks to dismiss that count alleging a breach of the Gift Agreement on the grounds that there is no writing that satisfies the Statute of Frauds. It makes additional arguments as to the claims for unjust enrichment and promissory estoppel, but these arguments are all fact-based and thus not properly decided on a Rule 12(b) (6) motion. As to the Statute of Frauds, this Court already addressed this issue in its 2016 Decision: although it concluded that the plaintiffs could not rely on the Conservation Restriction to satisfy the Statue of Frauds,3 it was persuaded by plaintiffs that, because discovery might very well turn up writings sufficient to comply with the Statute of Frauds, this issue was best resolved by way of a motion for summary judgment. This Court continues to be of that view.
3 Inexplicably, the plaintiffs continue to argue that the Conservation Restriction is sufficient. Reasserting arguments that have already been rejected by this Court, however, is not only improper but does nothing to advance the case and is a waste of judicial and litigation resources.
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Cedar Hill — the sole defendant on the claim alleging a breach of the Conservation Restriction — separately argues that this Court should narrow that claim to the single violation alleged to have occurred on September 8, 2012. This same issue came up on July 13, 2017 in connection with plaintiffs’ Motion to Compel Discovery and defendants’ Motion for a Protective Order. This Court initially agreed with the defendants, but then reconsidered following oral arguments on the instant motions. As explained in a Memorandum of Decision dated October 17, 2017, this Court is now of the view that Count II is not limited to the September 8, 2012 event but also encompasses activities on the Property following that date.
CONCLUSION AND ORDER
For the foregoing reasons, Ballou Channing’s Motion to Dismiss is ALLOWED as to Count II (breach of Conservation Restriction), Count III (breach of Letter Agreement) and Count VI (intentional misrepresentation). It is DENIED as to Count I (breach of the Gift Agreement) and as to Counts III and IV to the extent that these counts are based on the Gift Agreement. As to Cedar Hill’s Motion to Dismiss, it is ALLOWED as to Counts III through V, so that
Only Count II remains as to Cedar Hill and then only to the extent that Count II is asserted by Wildlands Trust.
_________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: November 10, 2017
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Posted by Stephen Sandberg - December 7, 2017 at 9:30 pm

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FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 09-042-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2016-3481 BLS 1
FBT EVERETT REALTY, LLC
vs.
MASSACHUSETTS GAMING COMMISSION
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS
AMENDED COMPLAINT
This is a claim for damages by plaintiff, FBT Everett Realty, LLC (“FBT”), arising from
an alleged taking of property by the Massachusetts Gaming Commission (“Commission”). FBT’s
amended complaint asserts three counts: Count II (“Per Se Taking”), Count III (“Regulatory
Taking”), Count IV (“Impairment of a Contract Right”).1 All three counts claim that as a result of
conduct by the Commission, FBT is entitled to compensation under either the Massachusetts
Declaration of Rights or the United States Constitution, or both. The Commission moves to
dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6).
BACKGROUND
The amended complaint alleges the following facts, accepted for this motion as true.
FBT was the owner of a parcel of land (the “parcel”) in Everett, Massachusetts. On
December 19, 2012, FBT entered into an Option Agreement with Wynn MA, LLC concerning
the possible sale of the parcel to Wynn. Wynn anticipated applying for approval from the
1 Count I of the amended complaint has been dismissed, as described in the Background
section of this memorandum.
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Commission to build and operate a casino gambling facility on the parcel.
Under the Option Agreement, Wynn agreed to pay FBT $ 100,000 per month for the right
to purchase the parcel for $ 75 million in the event that Wynn was awarded the Category 1
destination resort casino license. The Option Agreement granted to Wynn “the option, but not the
obligation, to purchase [the parcel]” from FBT. Amended Complaint, Ex A. In connection with
Wynn’s application to the Commission, FBT agreed to “reasonably cooperate with [Wynn] with
respect to any information it reasonably requires to complete the Casino Application and respond
to any such inquiries throughout the licensing process.” Id.
In November 2011, the Legislature enacted the Massachusetts Gaming Act, which is
codified at G.L. c. 23K. The Act establishes the Commission as the agency to implement and
regulate casino gambling. The Act, and the regulations promulgated thereunder, establish a two
phase application process for a Category 1 license. The first phase is known as the “Request for
Application Phase 1.” In this phase, the applicant is required to make disclosures regarding itself
and affiliates. The Investigations and Enforcement Bureau (“IEB”) of the Commission then
conducts an investigation of the applicant and provides findings and recommendations to the
Commission regarding the suitability of the applicant and its affiliates and business associates.
Only those applicants found suitable to receive a license may proceed to the second phase of the
process, known as Request for Application Phase 2, during which the Commission reviews the
merits of suitable applicants.
In January 2013, Wynn filed an application with the Commission for a license to operate
a Category 1 destination casino resort on the parcel. The IEB began its investigation of the Wynn
application. According to the amended complaint, the Commission did not identify FBT as a
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party subject to investigation and did not request information from FBT. Nevertheless, the IEB
became aware of a recorded telephone conversation between an inmate in state prison (Darin
Bufalino) and Charles Lightbody, a convicted felon. The recording suggested to IEB that
Lightbody had an ownership interest in FBT. The principals of FBT told IEB that Lightbody was
only a former owner of FBT. The investigators at IEB concluded that the principals of FBT were
lying. At that point, the amended complaint alleges, IEB and the Commission decided to impose
a financial penalty on FBT.
The IEB “intentionally embarked on a course of conduct designed to prevent FBT from
receiving any casino-related profit from its contract with Wynn Resorts.” Amended Complaint ¶
36. In October 2013, the IEB told Wynn that it needed to find a “solution” to the FBT issue or
risk a finding that Wynn would be deemed unsuitable to proceed to the next phase of the
application process. The “solution” suggested by IEB was that Wynn force FBT to accept a
dramatic reduction in the purchase price of the parcel so as to remove the “casino premium”
reflected in the $ 75 million price. Wynn then contracted for an appraisal of the parcel assuming
that it could not be used as a casino resort. The appraisal concluded that the parcel was worth $ 35
million, on that assumption.
Wynn informed FBT that the purchase price of the parcel had to be reduced to $ 35
million. Wynn told FBT that it must agree to the price reduction or it would sue FBT on the
theory that it would be FBT’s fault if Wynn were to be found unsuitable.
On November 26, 2013, FBT formally agreed with Wynn to lower the price of the parcel
to $ 35 million. A Ninth Amendment to the Option Agreement was executed to effect the new
price. On January 2, 2015, FBT and Wynn closed on the sale of the parcel for $ 34 million in
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accordance with the Ninth Amendment.2
On November 14, 2016, FBT commenced this action. FBT’s original complaint asserted a
single count against the Commission for intentional interference with contract. On June 7, 2017,
this court (Kaplan, J.) dismissed that count on the ground that the Commission is immune from
suit under the Massachusetts Tort Claims Act because the claim alleged an intentional tort by the
Commission’s employees. FBT then filed, as a matter of right, the amended complaint that is the
subject of this motion. Count I of the amended complaint re-asserts the tortious interference
claim that had been dismissed. Pursuant to the June 7, 2017, order of the court, Count I remains
dismissed for failure to state a claim.
DISCUSSION
A motion to dismiss for failure to state a claim upon which relief may be granted under
Mass. R. Civ. P. 12(b)(6) permits “prompt resolution of a case where the allegations in the
complaint clearly demonstrate that the plaintiff’s claim is legally insufficient.” Harvard Crimson,
Inc. v. President & Fellows of Harvard Coll., 445 Mass. 745, 748 (2006). To survive a motion
to dismiss, a complaint must set forth the basis for the plaintiff’s entitlement to relief with “more
than labels and conclusions.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). At the pleading stage, Mass. R. Civ. P.
12(b)(6) requires that the complaint set forth “factual ‘allegations plausibly suggesting (not
merely consistent with)’ an entitlement to relief . . . .” Id., quoting Bell Atl. Corp., 550 U.S. at
557. The court must, however, accept as true the allegations of the complaint and draw every
2 The closing of the sale is not alleged in the amended complaint. The public record
showing the deed as recorded in the Middlesex County Registry is attached to defendant’s
memorandum. It does not appear that FBT contests this fact.
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reasonable inference in favor of the plaintiff. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674,
676 (2011). With respect to a statute of limitations defense at the Rule 12(b)(6) stage, the facts in
the complaint must “clearly reveal that the action was commenced beyond the time constraints of
the statute of limitations.” Epstein v. Seigel, 396 Mass. 278, 279 (1985).
The Commission contends that Counts II and III of the amended complaint, alleging a
wrongful taking of FBT’s property for which FBT seeks compensation, is barred by the
applicable statute of limitations. Even if those claims were not barred by the statute of
limitations, the Commission avers that the claims must be dismissed because the uncontested
facts show that FBT is not entitled to relief. Likewise, FBT’s claim under the Contract Clause of
the United States Constitution (Count IV) fails on the facts alleged.
Statute of Limitations
In the amended complaint, FBT acknowledges that the Commission has no power of
eminent domain. Nevertheless, FBT avers that it possessed a property interest to sell the parcel
for a price reflecting its highest and best use, i.e. a casino resort (“the property interest”) and that
the property interest was destroyed by the Commission. The property interest is monetized at $ 40
million – – the difference between the original option price ($ 75 million) and the price after
removing the casino premium from the valuation ($ 35 million). FBT seeks compensation for the
destruction of its property interest in Counts II and III. FBT expressly claims that it is proceeding
on those Counts pursuant to G.L. c. 79, § 10. Section 10 applies when the taking or damage “was
not effected by or in accordance with a formal vote or order of the board of officers of a body
politic or corporate duly authorized by law.” Id. Such a taking is known as a taking in pais ( the
section is labeled “Damages for injuries to property caused by acts in pais”) or as “inverse
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condemnation.” Gilbert v. City of Cambridge, 932 F. 2d 51, 64, cert. den. 502 U.S. 866 (1991).
Counts II and III allege an unconstitutional taking under the Massachusetts Declaration of
Rights. The Commission argues, and FBT appears to concede, that G. L. c. 79 “embodies rights
guaranteed under art. 10 of the Declaration of Rights,” Bromfield v. Treasurer & Receiver Gen.,
390 Mass. 665, 671 n.11 (1983), and “creates a comprehensive scheme that defines the rights and
obligations of parties involved in property takings.” Locator Services Group., Ltd. v. Treasurer
& Receiver Gen., 443 Mass. 837, 854 (2005). Thus, c. 79 provides the applicable procedure and
statute of limitations for claims for compensation under the Declaration of Rights resulting from
a taking by eminent domain or by a taking in pais. The question becomes which section of c. 79
provides the statute of limitations for FBT’s claim of taking in pais under § 10 of c. 79 ?
The Commission answers that question by contending that § 10 contains its own statute
of limitations. The section provides that “a petition for an award of damages under this section
may be filed within one year.” The Commission notes that a panel of the Appeals Court, in an
unpublished, Rule 1:28, decision, held that a claim for compensation for a taking in pais under
§ 10 is barred when the claim was not asserted in Superior Court until more than one year after
the claim arose. Grasso v. City of New Bedford, 55 Mass. App. Ct. 1116, 2002 WL 31039718 at
*12 – *13 (2002)(unpublished opinion), rev. den., 438 Mass. 1102 (2002). The Commission also
cites three Superior Court decisions applying the one year statute of limitations for claims based
on a taking in pais under § 10. Nicolopoulos v. Town of Dracut, 2007 WL 4958813
(2007)(noting distinction between eminent domain statute of limitations of three years in § 16,
from the taking in pais limitation period of one year in § 10); Hurton v. Puorro, 20 Mass. L.
Rptr. 501, 503 (2006); Govoni v. Town of Acushnet, 1995 WL 1146894 (1995)(applying § 16 to
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eminent domain claim, but § 10 to taking in pais claim).
The alleged destruction of FBT’s property interest occurred on January 2, 2015, when the
sale of the parcel occurred, or earlier, on November 26, 2013, when FBT entered into the Ninth
Amendment to the Option Agreement. This action was filed on November 14, 2016, more than
one year after both of those dates. Thus, the Commission asserts that Counts II and III are
untimely and must be dismissed.
FBT maintains that it is § 16 of c. 79, not § 10, that provides the applicable statute of
limitations period for its claim. Section 16 states that “[a] petition for the assessment of damages
under section fourteen may be filed within three years after the right to such damages has
vested.” Section fourteen provides, in turn, that “[a] person entitled to an award of his damages
under this chapter . . . , whether a petition has or has not been filed or award made under section
six, seven, nine or ten, may petition for the assessment of such damages to the superior court . . .
.” FBT contends that it is petitioning under § 14 by the commencement of this action. Thus, a
three year statute of limitations should apply.
FBT cites a Superior Court decision for its argument that a three year statute of
limitations should apply. In Meldon v. Town of Barnstable, 2006 WL 200100234 (2006) the
court acknowledged that the claim at issue involved a taking in pais under § 10. The court
focused on the word “award” in § 10 and concluded that the one year limitation period in § 10
referred to the time by which a person could petition “the appropriate body politic as to what it
determines is voluntarily to be paid to the property owner.” Id. at *2. If the person wishes to go to
Superior Court, he may proceed under § 14. Id. FBT argues that this interpretation of the statutes
makes sense because § 14 expressly notes that the petition for assessment of damages filed in
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Superior Court may be filed “whether a petition has or has not been filed or award made under
section . . . ten . . . .” To apply the one year limitation of § 10 to FBT’s petition to Superior Court,
FBT contends, would make the reference to § 10 in § 14 superfluous.
It is a well-settled canon of statutory interpretation that, where possible, a court should
construe the various provisions of a statute in harmony with one another. The Locator Services
Group, Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837, 859 (2005). In doing so, I find that it
is the three year statute of limitations in § 16 that governs FBT’s claims in Counts II and III. I
reach this conclusion respectfully noting the Rule 1:28 decision of the panel in Grasso, but
recognizing that such decision is not binding precedent. I am more persuaded by the decision of
the Superior Court judge in Meldon.
Section 10 provides the remedy for a person aggrieved by a taking in pais. The section
provides that if “the injury was caused by or on behalf of the commonwealth . . . the officer or
board of officers under whose direction or control the injury was caused shall award damages
upon the petition of any person entitled thereto.” Id. Thus, § 10 anticipates an administrative
finding by the governmental body to award damages. When a later sentence in § 10 references “a
petition for an award of damages therefor under this section”, id. (emphasis added), it appears to
be referencing the petition to the board of officers who caused the injury. That petition must be
filed within one year. Section 10 makes no express reference to a petition or an action in
Superior Court.
This interpretation harmonizes §10 with §14. Section 14 provides the express remedy of
going to Superior Court. Section 14 provides that remedy to a person entitled to an award of
damages “under this chapter.” Id. “Under this chapter” means, of course, all sections of the
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chapter, including the sections for eminent domain takings as well as for takings in pais. See
Gilbert, 932 F. 2d at 64 (recognizing that § 14 provides the remedy in Superior Court for in pais
taking under § 10). Moreover, § 14 expressly allows a petition to Superior Court “whether a
petition has or has not been filed or award made under section six, seven, nine or ten.” Id.
(Emphasis added). That language suggests that a person entitled to an award of damages may, or
may not, opt for the administrative remedy provided in § 10 to petition the taking authority.
Regardless, the petitioner may go to Superior Court for an assessment of damages.
Having concluded that FBT’s claim in this court for damages as a result of a taking in
pais is governed by § 14 of c. 79, the analysis moves to § 16 of that chapter. Section 16 provides
that “[a] petition for the assessment of damages under section fourteen may be filed within three
years after the right to such damages has vested.” As described above, FBT entered into the
Ninth Amendment to the Option Agreement on November 26, 2013. It was on that date that FBT
suffered the alleged taking or destruction of the casino premium. Because this action was filed on
November 14, 2016, a date within three years of Ninth Amendment, the action is timely.
Jurisdictional Question
The conclusion that FBT’s claims in Counts II and III are brought pursuant to § 14 of
c. 79 raises another set of issues that may have jurisdictional consequences. Section 14 provides
that the petition to the Superior Court for assessment of damages must be filed in the “county in
which the property taken or injured was situated.” Id. A question arises as to where FBT’s
“property interest” is situated. FBT is located in Cambridge, Middlesex County. If the alleged
property interest arises from the land that is the subject of the Option Agreement, then the
9
property interest appears to be situated in Everett, Middlesex County.3 These issues were not
addressed by the parties in their memoranda submitted in connection with this motion to dismiss.
As a result, I defer action on the Gaming Commission’s motion to dismiss. The
jurisdictional questions must be addressed before going further with regard to the Commission’s
substantive grounds for dismissal. Where is FBT’s claimed property interest situated? May the
requirement that the petition for assessment of damages be filed in the “county in which the
property taken or injured was situated” be waived or is it a mandate of exclusive, subject matter,
jurisdiction? Also, if jurisdiction is required to be founded upon a petition filed in Middlesex
County, what is the effect, particularly with respect to the application of the statute of limitations,
of FBT’s filing of its claims in Suffolk County? May the action now be transferred to Middlesex
County? If a new action is required to be filed in Middlesex County, should that complaint
“relate back” to the date of filing of this action? The fundamental questions of subject matter
jurisdiction must be answered before a definitive ruling is made on the Commission’s motion to
dismiss.
3 A review of the Option Agreement attached to the amended complaint, including
Exhibit B, raises the possibility that some portion of the Land may be in Boston, Suffolk County.
This must be addressed by the parties.
10
CONCLUSION
As described above, I find FBT’s amended complaint is brought under, and governed by,
§ 14 of c. 79. As a result, a question of subject matter jurisdiction arises. I request that the parties
address in supplemental memoranda of not more than twenty pages the issues I have raised
concerning jurisdiction. These memoranda shall be filed and served at the same time. The
memoranda are due by no later than December 7, 2017. In the meantime, action on the
Commission’s motion to dismiss is deferred.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: November 7, 2017
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Posted by Stephen Sandberg - December 6, 2017 at 2:35 am

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Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-034-17)

1
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2016-01432-BLS2
WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. &
JOHN AND CYNTHIA REED FOUNDATION,
Plaintiffs
vs.
CEDAR HILL RETREAT CENTER, INC. &
BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC.,
Defendants
MEMORANDUM OF DECISION ON PLAINTIFFS’ MOTION
FOR RECONSIDERATION OR CLARIFICATION
On July 13, 2017, the parties were before this Court on the Plaintiffs’ Motion to Compel Discovery and the Defendants’ Motion for a Protective Order. Defendants argued that the discovery sought was beyond the scope of what was at issue in this lawsuit and that the plaintiffs’ requests were unduly burdensome and amounted to harassment. This Court denied the motion from the bench, with only a brief explanation of its reasons by way of a margin note. Plaintiffs now move to reconsider and/or clarify this Court’s earlier ruling.
Although initially skeptical of this request, this Court is now convinced that clarification is indeed required. Although plaintiffs are not entitled to the broad discovery they had originally sought (which was unnecessary and unduly burdensome), this Court was wrong to deny any discovery sought by their Motion to Compel. It is also apparent that the parties may have interpreted that earlier order almost as if it were a dispositive motion and that the discovery ruling meant that certain parts of plaintiffs’ Complaint were not properly before this Court. This Court did not anticipate or intend that and now wishes to correct that misimpression. The
2
Motion to Reconsider is therefore ALLOWED, with the following offered by way of explanation.
This is an action seeking to enforce a Conservation Restriction (CR) imposed on real property located in Duxbury, Massachusetts (the Premises). The parties to the CR are the plaintiffs Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the defendant Cedar Hill Retreat Center Inc., (Cedar Hill). In its Amended Complaint, 1 Wildlands Trust alleges that Cedar Hill is engaging in “commercial revenue generating activities…as well as other activities that are violative of the Conservation Restriction.” ¶ 7 of Amended Complaint; see also ¶48-50. In its Motion for a Protective Order (and again in opposing the Motion to Reconsider), Cedar Hill took the position that Wildlands Trust’s ability to complain of Cedar Hill’s activities on the Premises is far narrower – that is, that it is limited to a single event in September 8, 2012 when there was a wedding reception on the Premises. This did not involve a complaint that the Premises were being used to generate revenue.
In denying the plaintiffs’ Motion to Compel, this Court was of the view that a single violation was enough to entitle the plaintiffs to the equitable relief they sought, so that discovery that went beyond the September 8, 2012 incident was unnecessary. Because that violation was more narrowly drawn, however, the relief would not extend to revenue generating activities even if plaintiffs could prove that such activity violated the CR. Thus, to proceed simply on the basis of the September 2012 violation would not settle the dispute among the parties.
Cedar Hill argues that there is a legal impediment to Wildlands Trust seeking broader relief. It relies on Section IVA and IVF of the CR. Those provisions require that Wildlands Trust give notice to Cedar Hill of any claimed violation and that before resorting to court to seek
1 Although there is currently pending a motion to dismiss some counts in this Amended Complaint, the claim alleging breach of the Conservation Restriction is not the target.
3
equitable relief, the parties must mediate the dispute. Following the September 8, 2012 incident, Wildland notified Cedar Hill of the alleged violation, and (as required by the CR) mediation of the dispute began and continued over the next couple of years. During that time period, additional notices were sent by plaintiffs’ counsel that did raise complaints about the Premises being used for revenue generating activities, thus going beyond that which was at issue in the September 2012 event. Throughout this time period, a mediator was available to the parties, but his efforts were unsuccessful. On February 26, 2016, Wildlands Trust counsel sent a letter to counsel for Cedar Hill that cited the failed mediation and outlined the various violations that it alleges had taken place on the Property. See Exhibit F to Amended Complaint. Cedar Hill takes the position that only the September 8, 2012 is properly before the Court, since the other alleged violations have not been subject to mediation. This Court disagrees.
Clearly, the defendants were put on notice of the other activities that Wildlands Trust regards as a violation, including those activities that generated revenues. This Court understands that, strictly speaking, each and every event did not generate a notice and a separate and distinct mediation. However, activities that post-dated the original notice in 2012 occurred at a time when mediation was ongoing and was the subject of correspondence between the parties and their lawyers. The purpose of the mediation was to encourage the parties to try first to resolve their differences among themselves before they resorted to litigation. That purpose has been fulfilled.
Returning then to the discovery dispute, this Court now agrees with Wildlands Trust that it is entitled to find out more about what happened on the Premises, but also concludes that such discovery should be strictly circumscribed. Events occurring before September 8, 2012 would not seem to be particularly relevant nor could they be the basis for equitable relief, since the
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mediation triggered by the September 2012 event had not yet begun. Apparently there have been over 300 events on the premises since 2012. The cost of third party discovery, including depositions of those involved in those events, would be quite expensive, harassing and in this Court’s view, entirely unnecessary, since there are other more efficient ways of determining the type of activity that occurred. Moreover, plaintiffs will be entitled to equitable relief provided that they show that the activity violates the terms of the CR; that there were a dozen violations of a similar nature or a hundred of them would seem to be largely irrelevant.
At the end of the hearing on the Motion to Reconsider, plaintiffs’ counsel made a proposal that in this Court’s view makes sense and that it now adopts: Cedar Hill shall produce for deposition a 30(b)(6) witness who has most familiarity with activities at the Premises since September 2012. This Court imposes an eight hour time limit on this deposition. In addition, Cedar Hill should be required to produce the spreadsheet of activities that it has maintained in the ordinary course of its business; although a partial spreadsheet has been produced, it was apparently incomplete and not a business record.
This Court does not envision any discovery beyond that. In particular, Wildlands Trust may not use contact information related to users of the Premises to notice any individual’s deposition without leave of court. This Court also does not see the need at this point for any third party discovery. As already stated, the number of violations is far less important than the nature of the activity conducted at the Premises. Plaintiffs should proceed with discovery with that in mind.
_______________________________ Janet L. Sanders
Justice of the Superior Court
Dated: October 16, 2017
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Posted by Stephen Sandberg - November 4, 2017 at 4:56 am

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Fortress, Inc. v. Massachusetts Emergency Management Agency (Lawyers Weekly No. 09-025-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2014-3904 BLS 1
FORTRESS, INC.
vs.
MASSACHUSETTS EMERGENCY MANAGEMENT AGENCY
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT
The sole theory of defendant’s motion for summary judgment is that plaintiff, Fortress,
Inc., did not qualify for special consideration of its bid for a contract because its principal place
of business was not in Massachusetts. If Fortress did not qualify for special consideration, its
claim for breach of contract against defendant, Massachusetts Emergency Management Agency
(“MEMA”), based on losing the bid, fails.
Whether Fortress’s principal place of business was in Massachusetts is the subject of
approximately 25 numbered paragraphs of the parties’ Joint Statement of Undisputed Facts
(“JSUF”). Notwithstanding the title of the JSUF suggesting that the facts are undisputed, at least
15 of those paragraphs are expressly disputed, either by MEMA or by Fortress. Thus, the issues
before the court are (a) whether the disputed paragraphs of the JSUF are properly supported as
required under Superior Court Rule 9A, and (b) whether the existence of the dispute is material
such that summary judgment must be denied.
This case arises out of a dispute between Fortress and MEMA regarding a Request for
Responses (“RFR”) issued by MEMA in May 2014. The RFR solicited bids to provide Standard
1
Operating Procedure manuals for the Commonwealth’s emergency operations centers. The RFR
indicated that it was targeted to solicit bids from small businesses participating in the
Commonwealth’s Small Business Purchasing Program (“SBPP”). The RFR stated that MEMA
intended “to evaluate bid responses from and to award a contract to a SBPP-participating
business(es) who submit a bid that meets or exceeds the solicitation criteria only.” If no SBPP
qualified vendors submitted a responsive bid, MEMA reserved the right to award the contract to
a non-SBPP business.
Fortress submitted a bid to the RFR as a SBPP qualified vendor. Fortress had previously
registered as a SBPP qualified vendor through an online form on the website of the
Commonwealth’s Operational Services Division (“OSD”). MEMA, however, awarded the
contract to a different vendor who was not qualified as a SBPP vendor. MEMA determined that
Fortress was not qualified as a SBPP vendor because its principal place of business was not in
Massachusetts. When Fortress’s bid was evaluated as a non-SBPP bid, it scored lower than the
winning bid of a different non-SBPP vendor.
MEMA moves for summary judgment on the single ground that Fortress did not qualify
as a SBPP vendor. Absent such qualification, MEMA argues that Fortress’s claim fails. The
reason Fortress does not qualify, according to MEMA, is because Fortress’s principal place of
business was not in Massachusetts.
The SBPP was established in 2010 by Executive Order No. 523. According to the
Executive Order, the purpose of the SBPP is “to support the existence and growth of small
businesses which meet the [SBPP]’s eligibility requirements by providing them with special
consideration within the Commonwealth’s procurement process for goods and services required
2
by state agencies.” The Executive Order authorized OSD to adopt and enforce policies to define
the parameters of the SBPP, including qualifying guidelines and definitions. OSD published
criteria for qualification that included, among other things, that the business have “its principal
place of business in Massachusetts.” According to testimony offered by MEMA, in May 2014,
OSD published a glossary of terms that defined “principal place of business” as “the location of
the head office of a business where the books are kept and/or management works.” MEMA,
however, did not provide for the record the publication in which the glossary allegedly appears.
Fortress disputes that OSD’s definition was published or in effect when Fortress applied for and
was listed as a SBPP vendor. According to the testimony of the CEO of Fortress, when Fortress
applied for SBPP certification he understood that the term “principal place of business” meant
“where the corporation’s books and records were kept or where the major decisions, business
decisions are made.”
While the definition of principal place of business is in dispute, the dispute is not
material. Both definitions are stated in the disjunctive. That is, both definitions reference where
the books of the company are kept or where either “management works” or “where the major
decisions are made.” Thus, if the jury concludes that Fortress’s management works in
Massachusetts or makes major decisions here, it would be justified to conclude that in 2014, at
the time of the bid, the principal place of business of Fortress was in Massachusetts.
MEMA concedes that the CEO of Fortress, Mr. Samano, testified that in 2014,
approximately 95% of Fortress’s business was in Massachusetts. JSUF ¶41. Yet MEMA disputes
JSUF ¶46, – – the statement by Fortress that “Ninety-five percent of Fortress’ business takes
place in Massachusetts or concerns Massachusetts-based clients.” MEMA disputes that statement
3
because “[t]he phrases “business takes place” or “concerns Massachusetts-based clients” are
vague characterizations, not fact.” Upon review, I find that JSUF ¶ 46 reflects precisely the
testimony of Mr. Samano regarding the facts of his business in 2014. MEMA offers no evidence
to the contrary.
It is true, as MEMA points out, that in 2014, Fortress was a Texas corporation with a
corporate headquarters in Mr. Samano’s home in Round Rock, Texas. The officers of Fortress,
Mr. Samano and his wife, lived in Texas. Fortress’s bank account was established through a
Texas address. But it is also true that in 2014, Fortress had an office in Massachusetts in an
employee’s home. Fortress had employees in Massachusetts and paid Massachusetts payroll
taxes. All of Fortress’s clients, with the exception of one, were Massachusetts state or local
agencies or private companies. Perhaps most relevant to the conclusion that a dispute exists with
respect to a material fact is the testimony by Mr. Samano. He testified that as the manager of
Fortress he worked in Massachusetts and made the major business decisions of the company in
Massachusetts. MEMA offers no testimony to the contrary.
In sum, there exists a genuine issue in dispute over the key factual question of MEMA’s
motion: Was Fortress’s principal place of business in Massachusetts, as defined or understood by
the parties? Consequently, MEMA’s motion for summary judgment is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
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Date: October 13, 2017
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Posted by Stephen Sandberg - November 3, 2017 at 11:02 am

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Gallagher v. Cerebral Palsy of Massachusetts, Inc., et al. (Lawyers Weekly No. 11-117-17)

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

16-P-1152                                       Appeals Court

SUSAN GALLAGHER  vs.  CEREBRAL PALSY OF MASSACHUSETTS, INC., & others.[1]

No. 16-P-1152.

Norfolk.     April 6, 2017. – September 13, 2017.

Present:  Green, Blake, & Lemire, JJ.

MassHealth.  Massachusetts Wage Act.  Labor, Overtime compensation, Failure to pay wages.  Independent Contractor Act.  Regulation.  Practice, Civil, Motion to dismiss, Summary judgment.

Civil action commenced in the Superior Court Department on December 10, 2015. read more

Posted by Stephen Sandberg - September 13, 2017 at 6:36 pm

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Massachusetts Bay Transportation Authority v. Boston and Maine Corporation, et al. (Lawyers Weekly No. 12-124-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 17-00153-BLS1
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY
vs.
BOSTON AND MAINE CORPORATION & others1
MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF MASSACHUSETTS BAY TRANSPORTATION AUTHORITY’S
PARTIAL MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS
Plaintiff, Massachusetts Bay Transportation Authority (MBTA), filed this action for
declaratory and injunctive relief against defendants, Boston and Maine Corporation, Springfield
Terminal Railway Company, and Pan Am Southern LLC (referred to collectively as “Pan Am”).
The dispute involves the implementation of positive train control (PTC), a safety system aimed at
preventing train accidents. Pan Am alleged eleven counterclaims against the MBTA. MBTA
now moves to dismiss three of the counterclaims pursuant to Mass. R. Civ. P. 12(b)(6). The
three counterclaims allege misrepresentation (Count VIII), promissory/equitable estoppel (Count
IX), and violation of G.L. c. 93A, § 11 (Count X). For the reasons stated below, the MBTA’s
motion to dismiss is allowed.
BACKGROUND
The facts as revealed by Pan Am’s counterclaims are as follows.
The MBTA is a body politic and corporate and a political subdivision of the
1 Springfield Terminal Railway Company and Pan Am Southern LLC.
Commonwealth of Massachusetts. It operates bus, subway, commuter rail, and ferry systems in
and around Boston, Massachusetts. The Pan Am defendants operate freight lines over tracks
that, in some instances, are owned and/or used by the MBTA.
Since 2010, Pan Am worked closely and cooperatively with the MBTA to plan and
prepare for the implementation of PTC on tracks over which both parties operate. The parties
worked to comply with a 2008 federal mandate requiring that PTC be implemented on certain
rail lines, including lines that carry certain minimum levels of passenger traffic. PTC is designed
to prevent train-to-train collisions, derailments resulting from excessive speed, and other types of
accidents. Generally, PTC uses a combination of on-board and rail-side technology to track and
control train movements on the rail lines outfitted with this technology. In this dispute, the rail
lines affected include both MBTA-owned trackage, over which Pan Am operates freight trains
pursuant to a reserved freight easement, and Pan Am-owned trackage, over which the MBTA
initiated and expanded commuter rail operations at the end of 2016.
According to Pan Am, under federal law, PTC must be implemented on the rail lines at
issue because the MBTA operates passenger trains on them. Absent the MBTA’s use of these
rail lines, no PTC system is required. In addition, freight trains may not operate on tracks
handling passenger traffic that are required to have PTC unless those freight trains are equipped
with a PTC system that is compatible with the commuter rail’s PTC system.
After the federal government imposed the 2008 PTC requirements, Pan Am alleges that
the MBTA agreed that the MBTA would implement a dual-type PTC system on the jointly used
tracks. The MBTA wanted to use Advanced Civil Speed Enforcement System (ACSES) PTC, a
type of PTC that Amtrak uses on some MBTA tracks, but is generally not used for freight
-2-
operations. Throughout the country, freight rail operators almost exclusively use Interoperable
Electronic Train Management System (I-ETMS) PTC, a different type of PTC that is allegedly
more sophisticated and dynamic. Interstate freight trains exclusively equipped with I-ETMS
PTC are not able to pass over jointly used trackage if the MBTA only implements ACSES PTC.
Thus, it is alleged that the MBTA acknowledged that it needed to outfit the jointly used trackage
with I-ETMS PTC so that the MBTA’s own operations would not unduly interfere with Pan
Am’s operations.
In a 2010 filing with the Federal Railroad Administration, the MBTA described its plans
to implement a dual ACSES and I-ETMS PTC system. In 2010, Pan Am and the MBTA
discussed and agreed that the MBTA would implement a dual-type PTC system at the MBTA’s
expense. According to Pan Am, the MBTA was obligated to implement a dual-type PTC system
under a 1976 Deed and a 2011 Trackage Rights Agreement, which mandate that the MBTA is
responsible for ensuring, at the MBTA’s expense, that the MBTA’s services or operations do not
interfere with or impede Pan Am’s operations.
In reliance on the MBTA’s plans to implement a dual system, Pan Am waived a Capacity
Study as an accommodation to the MBTA. The study would have cost hundreds of thousands of
dollars and taken months to complete. A Capacity Study, however, would have demonstrated the
need for a dual PTC system to accommodate the MBTA’s commuter rail services without
unreasonably interfering with Pan Am’s freight services.
In July of 2014, the MBTA and Pan Am entered into an “Agreement for Pan Am
Southern to Support the MBTA Wachusett Extension Project.” This agreement detailed certain
construction necessary for the initiation of new commuter rail service on the Fitchburg commuter
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rail line called the Wachusett extension. The agreement referenced the parties’ intention to
memorialize the final details of an agreed upon PTC system in a 2014 PTC agreement. Shortly
thereafter, the parties memorialized the final details of the PTC system in a 2014 PTC Agreement
in which the MBTA committed to install both an ACSES and I-ETMS PTC system on shared
trackage, as necessary, to allow both passenger and freight trains to operate without undue
interference. The MBTA’s General Manager, Beverly A. Scott, and the MBTA’s General
Counsel, Paige Scott Reed, signed the 2014 PTC Agreement. Both individuals expressly
represented to Pan Am that approval by the MBTA’s Board was not required. The 2014 PTC
Agreement provided for, among other things, “the installation of an ACSES PTC wayside system
on all portions of the jointly used rail lines, installation of an I-ETMS PTC wayside system on
certain specified sections of the jointly used rail lines, and the equipping of a specified number of
. . . [Pan Am’s] locomotives with ACSES compatible on-board systems and a specified number
of . . . [Pan Am’s] locomotives with I-ETMS compatible on-board systems.” Counterclaims at
34.
After signing the 2014 PTC Agreement and until late 2016, the MBTA and Pan Am
worked cooperatively towards implementing the terms of the agreement. After the MBTA
completed construction work on the Wachusett extension, on September 30, 2016, Pan Am
permitted the MBTA to initiate limited commuter rail service on the new line (two round trips
per day). The MBTA planned to offer full commuter rail service shortly thereafter.
On October 26, 2016, however, once the MBTA initiated limited service and publicly
announced its planned expansion of the Wachusett extension, the MBTA “made an abrupt and
stunning reversal.” Counterclaims at 22, 39. Despite the 2014 PTC Agreement and public
-4-
representations, the MBTA announced to Pan Am that it was disavowing the 2014 PTC
Agreement. The MBTA refused to install the I-ETMS PTC system on shared trackage. The
MBTA sought to install only the ACSES PTC system, which means, according to Pan Am, that it
will be unable to use the shared trackage without substantial and prohibitive interference, delays,
and costs.
Pan Am asserts contract claims against the MBTA seeking to require the MBTA to install
both the I-ETMS and ACSES PTC systems on the shared trackage. Under the 2014 PTC
Agreement, the MBTA’s obligations are express and specific. Pan Am also asserts that the
MBTA’s obligation to implement the I-ETMS system exists independently from the 2014 PTC
Agreement. More specifically, Pan Am points to a 1976 Deed and a 2011 Trackage Rights
Agreement, which Pan Am explains in detail in its counterclaims. See Counterclaims at 23-38.
On November 21, 2016, over Pan Am’s objections, the MBTA expanded commuter rail
service on the Wachusett extension to include twenty-six daily round trip passenger trains. The
MBTA continues to refuse to install a dual PTC system on the shared tracks at issue, but
allegedly retains benefits of providing commuter rail service on the Wachusett extension.
The MBTA asserts that it is not bound by the 2014 PTC Agreement because its Board is
entitled, as a matter of law, to disavow the 2014 PTC Agreement. After the MBTA filed this
action for declaratory and injunctive relief seeking a declaration that the contracts do not bind the
MBTA to install dual systems, Pan Am filed eleven counterclaims against the MBTA. Pan Am
asserts contract claims arguing that the MBTA is bound by the 1976 Deed, the 2011 Trackage
Rights Agreement, and the 2014 PTC Agreement to perform. As an alternative, if the
agreements are unenforceable, Pan Am asserts that the MBTA is liable to perform pursuant to its
-5-
counterclaims alleging misrepresentation (Count VIII), promissory/equitable estoppel (Count
IX), and violation of G.L. c. 93A, § 11 (Count X). Those counterclaims are the subject of the
MBTA’s motion.
ANALYSIS
To survive a motion to dismiss, the counterclaimant’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level . . . [based] on the assumption that all
the allegations in the . . . [counterclaims] are true (even if doubtful in fact) . . . .” Iannacchino v.
Ford Motor Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,
1964-1965 (2007). In other words, “[w]hile a complaint [alleging counterclaims] attacked by a
. . . motion to dismiss does not need detailed factual allegations . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions
. . . .” Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp., 127 S. Ct. at 1966. Dismissal
under Mass. R. Civ. P. 12(b)(6) is proper where a reading of the counterclaims establishes
beyond doubt that the facts alleged do not support a cause of action which the law recognizes,
such that the counterclaims are legally insufficient. See Nguyen v. William Joiner Center for the
Study of War and Social Consequences, 450 Mass. 291, 295 (2007).
Estoppel (Count IX)
In Count IX, Pan Am claims that it reasonably relied, to its detriment, on the MBTA’s
repeated representations and promises that it would pay for and install a dual PTC system. The
MBTA, however, argues that the estoppel claim must be dismissed because estoppel cannot
apply to a claim against the government. As a governmental body, the MBTA asserts that its
agents, even its General Manager and General Counsel, cannot bind the MBTA, absent Board
-6-
approval. Pan Am argues that the MBTA is mischaracterizing its estoppel counterclaim and
explains that the counterclaim “is premised on its detrimental and good faith reliance on
MBTA’s representations that MBTA would implement I-ETMS on the jointly used tracks when
Pan Am agreed to the Wachusett Infrastructure Agreement, when it agreed not to insist upon
MBTA’s completion of a capacity study, and when it agreed to permit MBTA to commence
commuter rail service on the Wachusett Extension without having conducted a capacity study.”
Defendants’ Opposition at 10.
“Circumstances that may give rise to an estoppel are (1) a representation intended to
induce reliance on the part of a person to whom the representation is made; (2) an act or omission
by that person in reasonable reliance on the representation; and (3) detriment as a consequence of
the act or omission.” Bongaards v. Millen, 440 Mass. 10, 15 (2003). All three elements of
estoppel must be present, and the party asserting estoppel has a heavy burden to prove all three
elements. Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 28
(2006). “[T]he reliance of the party seeking the benefit of estoppel must have been reasonable.”
Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 125 (1992). “But the doctrine of
estoppel is not applied except when to refuse it would be inequitable.” Cleaveland v. Malden
Sav. Bank, 291 Mass. 295, 297 (1935), quoting Boston & Albany R.R. v. Reardon, 226 Mass.
286, 291 (1917) (“In order to work an estoppel it must appear that one has been induced by the
conduct of another to do something different from what otherwise would have been done and
which has resulted to his harm and that the other knew or had reasonable cause to know that such
consequence might follow”).
Massachusetts courts, however, “have been ‘reluctant to apply principles of estoppel to
-7-
public entities where to do so would negate requirements of law intended to protect the public
interest.’” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. at 30,
quoting Phipps Prods. Corp. v. Massachusetts Bay Transp. Auth., 387 Mass. 687, 693 (1982).
“[T]he rule against applying estoppel to the sovereign continues almost intact where a
government official acts, or makes representations, contrary to a statute or regulation designed to
. . . ensure some . . . legislative purpose.” McAndrew v. School Comm. of Cambridge, 20 Mass.
App. Ct. 356, 361 (1985). The public’s interest in seeing that a governmental agency of the
Commonwealth adheres to legislative policies “overrides any equitable considerations.” Phipps
Prods. Corp. v. Massachusetts Bay Transp. Auth., 387 Mass. at 693. “A common thread
underlying . . . [the] reluctance . . . [of courts] to apply principles of estoppel to public entities
has been the idea that deference to legislative policy should trump individual acts or statements
of a government official that may be contrary to such policy. Otherwise, protections afforded the
public interest are thwarted.” Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448
Mass. at 30-31.
In Massachusetts, public officials cannot make binding contracts without express
authority. Dagastino v. Commissioner of Correction, 52 Mass. App. Ct. 456, 458 (2001).
Authority to bind their governmental employer exists only to the extent conferred by the
controlling statute. Id. Entities that deal with a government agency, such as Pan Am, must
therefore “take notice of limitations upon that agency’s contracting power and cannot recover
upon a contract which oversteps those limitations.” Id. Under G.L. c. 161A, §§ 3(f) & 3(k), the
Legislature gave the MBTA’s Board, and not its managers, the authority to enter into contracts
and to provide for the construction and modification of mass transportation resources. The
-8-
counterclaim does not allege that the MBTA’s Board approved the 2014 PTC Agreement.
Pan Am’s claim of equitable estoppel fails on the element requiring reasonable reliance.
As a matter of law, Pan Am could not have reasonably relied on representations by the MBTA’s
employees as to their authority to enter into a contract binding the MBTA. Harrington v. Fall
River Hous. Authy., 27 Mass. App. Ct. 301, 309 (1989) (holding that “as matter of law” reliance
on representations of government employees is unreasonable). The Appeals Court in Harrington
quoted the following passage from the U.S. Supreme Court in Heckler v. Community Health
Servs., Inc., 467 U.S. 51, 63-64 (1984): “[T]hose who deal with the Government are expected to
know the law and may not rely on the conduct of government agents contrary to law . . . .”
Harrington v. Fall River Hous. Authy., 27 Mass. App. Ct. at 309. “In Massachusetts, also, one
relies at his peril on representations by a government official concerning legal requirements.” Id.
Consequently, Pan Am cannot rely on the doctrine of estoppel to force the MBTA to comply with
the PTC commitments or to recover damages from the MBTA. See Phipps Prods. Corp. v.
Massachusetts Bay Transp. Auth., 387 Mass. at 693-694 (refusing to apply estoppel to MBTA in
connection with the sale of a building). See also United States Leasing Corp. v. Chicopee, 402
Mass. 228, 229-232 & n.4 (1988) (refusing to apply estoppel, concluding that under city charter,
contract required mayoral approval; thus, contract executed and approved by school
superintendent and city solicitor could be disavowed). Accordingly, Pan Am’s estoppel
counterclaim in Count IX must be dismissed.
Misrepresentation (Count VIII)
The MBTA also moves to dismiss Pan Am’s misrepresentation counterclaim in Count
-9-
VIII.2 Pan Am asserts that the MBTA, through its General Manager and General Counsel,
negligently misrepresented their authority to bind the MBTA to an agreement to install a dualtype
PTC on jointly used track. Pan Am contends that the MBTA knew that Pan Am would rely
on the representations of the General Manager and General Counsel. Therefore, Pan Am
contends that it justifiably relied to its detriment on the MBTA’s negligent misrepresentations.3
“In order to recover for negligent misrepresentation a plaintiff must prove that the
defendant (1) in the course of his business, (2) supplied false information for the guidance of
others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those
others (5) by their justifiable reliance on the information, and that he (6) failed to exercise
reasonable care or competence in obtaining or communicating the information.” Gossels v. Fleet
Nat’l Bank, 453 Mass. 366, 371-372 (2009).
As can be seen, Pan Am faces, again, the question of whether, as a matter of law, it could
justifiably and reasonably rely on representations of employees of a governmental body as to
their authority to enter into a contract binding the MBTA. As described previously,
Massachusetts law holds that such reasonable or justifiable reliance cannot be established, as a
matter of law, when a party is contracting with a governmental body.
The MBTA also argues that Pan Am cannot repackage its contract claim as a tort claim
2 Pan Am is not proceeding on a claim for intentional misrepresentation in Count VIII.
Instead, it seeks to assert a claim for negligent misrepresentation.
3 The MBTA also argues that Pan Am’s negligent misrepresentation claim should be
dismissed for lack of presentment under the Massachusetts Tort Claims Act, G.L. c. 258. Under
G.L. c. 258, § 4, however, the Massachusetts Tort Claims Act’s presentment requirements do not
apply to counterclaims. See G.L. c. 258, § 4 (“The provisions of this section shall not apply to
such claims as may be asserted by third-party complaint, cross claim, or counter-claim . . . ”).
-10-
based on negligent misrepresentation. “[F]ailure to perform a contractual duty does not give rise
to a tort claim for negligent misrepresentation . . . Plaintiffs who are unable to prevail on their
contract claims may not repackage the same claims under tort law.” Cumis Ins. Soc’y, Inc. v.
BJ’s Wholesale Club, Inc., 455 Mass. 458, 474 (2009). “[F]ailure to perform a contractual
obligation is not a tort in the absence of a duty to act apart from the promise made.” Anderson v.
Fox Hill Village Homeowners Corp., 424 Mass. 365, 368 (1997). Pan Am either has an
enforceable contract or it does not. If it does not, Pan Am cannot obtain enforcement of the
contract by asserting that the MBTA’s employees were negligent. Consequently, Pan Am’s
negligent misrepresentation counterclaim in Count VIII is dismissed.
Chapter 93A (Count X)
Finally, the MBTA moves to dismiss Pan Am’s Chapter 93A counterclaim in Count X.
In Count X, Pan Am claims that the MBTA violated G.L. c. 93A, § 11 because it was acting in
the course of trade or commerce when its employees misrepresented their authority with respect
to the implementation of PTC. Pan Am asserts that the MBTA’s conduct, as alleged in their
counterclaims, was unfair and deceptive. The MBTA argues that Count X should be dismissed
because: (1) the MBTA is not a suable “person” under Chapter 93A and (2) the conduct at issue
did not involve the MBTA engaging in trade or commerce. Pan Am argues, among other things,
that whether the MBTA was engaged in trade or commerce under Chapter 93A is a factual
inquiry that should not be decided on a motion to dismiss. Because it is clear, as a matter of law,
that the MBTA’s conduct was not in the context of trade or commerce, the motion to dismiss
must be granted.
Under Chapter 93A, “[u]nfair methods of competition and unfair or deceptive acts or
-11-
practices in the conduct of any trade or commerce are hereby declared unlawful.” G.L. c. 93A, §
2(a). See G.L. c. 93A, § 1(b) (defining “trade” and “commerce” as, “the advertising, the offering
for sale, . . . the sale, rent, lease or distribution of any services and any property, tangible or
intangible, real, personal or mixed . . . and any other article, commodity, or thing of value
wherever situate, and shall include any trade or commerce directly or indirectly affecting the
people of this commonwealth”). Under G.L. c. 93A, § 11, “[a]ny person who engages in the
conduct of any trade or commerce and who suffers any loss of money or property, real or
personal, as a result of the use or employment by another person who engages in any trade or
commerce of an unfair method of competition or an unfair or deceptive act or practice declared
unlawful by section two . . . may, as hereinafter provided, bring an action in the superior court
. . . .” A “person” under the statute, “shall include, where applicable, natural persons,
corporations, trusts, partnerships, incorporated or unincorporated associations, and any other
legal entity.” G.L. c. 93A, § 1(a).
“[T]he proscription in Section 2 of ‘unfair or deceptive acts or practices . . .’ must be read
to apply to those acts or practices which are perpetrated in a business context.” See Poznik v.
Massachusetts Med. Professional Ins. Ass’n, 417 Mass. 48, 50-53 (1994) (holding that
Massachusetts Medical Professional Insurance Association, a nonprofit joint underwriting
association established by Legislature, was not engaged in trade or commerce and was not
subject to suit under Chapter 93A),4 quoting Lantner v. Carson, 374 Mass. 606, 611 (1978).
4 After the Supreme Judicial Court’s decision in Poznik, the Legislature amended the
applicable statutes to include “any joint underwriting association established pursuant to law” as
a “person” under G.L. c. 176D, § 1. Wheatley v. Massachusetts Insurers Insolvency Fund, 465
Mass. 297, 300 (2013). The court subsequently determined that joint underwriting associations
were subject to a consumer action under Chapter 93A. Id.
-12-
“The question whether a transaction occurs in a business context must be determined by the facts
of each case.” Poznik v. Massachusetts Med. Professional Ins. Ass’n, 417 Mass. at 52. Courts
consider “the nature of the transaction, the character of the parties and their activities, and
whether the transaction was motivated by business or personal reasons.” All Seasons Servs., Inc.
v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 271 (1993).
In this case, the MBTA cannot be subject to a claim for violation of Chapter 93A because
it was not engaged in trade or commerce when it engaged with Pan Am concerning the 2008
federal mandate regarding PTC. All of the conduct alleged in Pan Am’s counterclaims involves
the parties’ efforts to comply with the 2008 federal mandate regarding PTC, including their
negotiations as to how they would achieve such compliance. The MBTA was acting at all times
in furtherance of its statutory mission to provide mass transportation services to the public. Its
compliance with the federal mandate was necessary to further this mission. See Bretton v. State
Lottery Comm’n, 41 Mass. App. Ct. 736, 738-739 (1996) (concluding that State Lottery
Commission was not a “person” engaged in “trade or commerce” for purposes of Chapter 93A).
See also Rodriguez v. Massachusetts Bay Transp. Auth., 33 Mass. L. Rptr. 418, *14 (Mass.
Super. Ct. Mar. 31, 2016) (Kaplan, J.) (concluding that MBTA is not engaged in trade or
commerce when it performs its statutorily mandated task of providing mass transit services to
public). Because the MBTA’s activities were driven by legislative mandate, not by “business or
personal objectives,” Chapter 93A does not apply. Bretton v. State Lottery Comm’n, 41 Mass.
App. Ct. at 739. See Peabody N.E., Inc. v. Marshfield, 426 Mass. 436, 440 (1998) (“This court .
. . has repeatedly held that c. 93A does not apply to parties motivated by ‘legislative mandate, not
business or personal reasons’”)(citation omitted). For these reasons, Pan Am’s Chapter 93A
-13-
counterclaim against the MBTA must be dismissed.
CONCLUSION
Plaintiff Massachusetts Bay Transportation Authority’s Partial Motion to Dismiss
Defendants’ Counterclaims is ALLOWED. The Pan Am Defendants’ Counterclaims in Count
VIII (misrepresentation), Count IX (promissory/equitable estoppel), and Count X (violation of
G.L. c. 93A, § 11) are DISMISSED.
By the Court,
______________________________
Edward P. Leibensperger
Justice of the Superior Court
Dated: August 18, 2017
-14- read more

Posted by Stephen Sandberg - September 7, 2017 at 1:36 am

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New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)

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-654                                        Appeals Court

NEW BEDFORD EDUCATORS ASSOCIATION  vs.  CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]).

No. 16-P-654.

Middlesex.     May 4, 2017. – August 23, 2017.

Present:  Trainor, Vuono, & Sullivan, JJ.

Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review.  Declaratory ReliefMandamusBoard of EducationCommonwealth, Education.  EducationSchool and School CommitteeLabor, Public employment. read more

Posted by Stephen Sandberg - August 23, 2017 at 2:33 pm

Categories: News   Tags: , , , , , , , , , , , , ,

Riva v. Massachusetts Parole Board (Lawyers Weekly No. 10-136-17)

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-12270

JAMES RIVA  vs.  MASSACHUSETTS PAROLE BOARD.

August 18, 2017.

Supreme Judicial Court, Superintendence of inferior courts.  Parole.  Practice, Criminal, Discovery.

The petitioner, James Riva, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3.  We affirm.

Riva is currently serving a life sentence for second degree murder.  After the parole board (board) denied him parole in January, 2015, he filed a complaint in the Superior Court seeking certiorari review and a declaratory judgment in connection with claimed constitutional violations that occurred in the course of the proceedings before the board.  The board’s motion to dismiss the complaint was allowed as to the declaratory judgment claim but denied as to the certiorari claim.  Riva’s subsequently-filed motion to compel discovery was initially denied, but, on Riva’s motion for reconsideration, the motion judge indicated that the motion was allowed “to the extent that the administrative record shall reflect the evidence relied upon by the parole board to issue its decision.”  Riva then filed a “motion for relief,” which also pertained to certain discovery.  After this motion was denied, Riva filed his G. L. c. 211, § 3, petition in the county court.  In the petition, he argued that his case could not proceed in the trial court without the requested discovery.  The single justice denied the petition without a hearing. read more

Posted by Stephen Sandberg - August 18, 2017 at 11:39 pm

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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

  1. 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 read more

Posted by Stephen Sandberg - August 4, 2017 at 9:01 am

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Rodriguez v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-099-17)

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-942                                        Appeals Court

RAQUEL RODRIGUEZ[1]  vs.  MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

No. 16-P-942.

Suffolk.     April 7, 2017. – July 31, 2017.

Present:  Grainger, Sullivan, & Kinder, JJ.[2]

Massachusetts Bay Transportation Authority, Contract.  Railroad.  Contract, What constitutes, Offer and acceptance.  Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on November 10, 2015. read more

Posted by Stephen Sandberg - July 31, 2017 at 10:44 pm

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