Posts tagged "Motor"

Wright, et al. v. Balise Motor Sales Company, et al. (Lawyers Weekly No. 12-042-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03477-BLS2 ____________________ DEREK WRIGHT and NATHANIEL TOWSE, on behalf of themselves and all others similarly situated v. BALISE MOTOR SALES COMPANY and Others1 ____________________ MEMORANDUM AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS AND MOTION FOR A MORE DEFINITE STATEMENT Derek Wright previously sold cars at Balise Hyundai in Hyannis, Massachusetts, for Cape Hy, Inc. Nathaniel Towse sold cars in West Springfield, Massachusetts for Balise Motor Sales Company. Wright and Towse claim that they are owed unpaid overtime, Sunday premium pay, and minimum wages. They assert a variety of statutory claims as well as common law claims for breach of contract and unjust enrichment or quantum meruit. They seek to assert the same claims on behalf of a putative class of similarly situated salespeople. Defendants have moved to dismiss the four common law claims and to compel a more definite statement as to the scope of the putative class. The Court will allow the partial motion to dismiss but deny the motion for a more definite statement. The Court concludes that Defendants are entitled to dismissal of the common law claims because the facts alleged in the complaint do not plausibly suggest that Defendants entered into an implied contract to pay hourly wages of any kind. Instead, the complaint indicates that the parties understood that all salespeople would be paid commissions only. The existence of an implied contract to pay commissions bars Plaintiffs’ claims for unjust enrichment or quantum meruit. 1. Motion to Dismiss. To survive a motion to dismiss under Mass. R. Civ. P. 12(b)(6), a complaint must allege facts that, if true, would “plausibly suggest[] … an entitlement to relief.” Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). For the purpose of deciding the pending motion 1 Cape Hy, Inc.; James E. Balise, Jr.; William Peffer; Steven M. Mitus; and Allen Thomalla. – 2 – to dismiss, the Court must assume that the factual allegations in the complaint and any reasonable inferences that may be drawn in Plaintiffs’ favor from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011). In so doing, however, it must “look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). 1.1. Implied Contract Claim. In Count VI, Plaintiffs claim that Defendants breach an implied contract with Plaintiffs by failing […]

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Posted by Massachusetts Legal Resources - April 27, 2017 at 2:13 am

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Callahan v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-122-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-475                                        Appeals Court   ELEANOR CALLAHAN  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1]     No. 15-P-475.   Suffolk.     February 1, 2016. – September 12, 2016.   Present:  Cohen, Carhart, & Kinder, JJ.     Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide.  Registrar of Motor Vehicles, Revocation of license to operate.  License.  Administrative Law, Decision.       Civil actions commenced in the Superior Court Department on March 31, 2011, and January 21, 2014.   After consolidation, the case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion to dismiss was also heard by him.     Martin P. Desmery for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for the defendants.     COHEN, J.  The plaintiff sought judicial review of a decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) denying her application for reinstatement of her driver’s license.  On cross motions for judgment on the pleadings, a judge of the Superior Court ruled in favor of the board, and the plaintiff appealed to this court.  The plaintiff argues that the board erred in determining that her 1989 conviction of “driving while ability is impaired,” in violation of the New York State Vehicle Traffic Law (VTL), is “substantially similar” to a Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), thereby subjecting her to lifetime revocation of her driver’s license as a result of her subsequent conviction of motor vehicle homicide while OUI.  The plaintiff also argues that the board lacked the authority to reconsider an earlier decision granting her a restricted, hardship license.  For the reasons that follow, we affirm. Background.  The relevant facts are drawn from the administrative record and are not disputed.  On October 30, 1988, the plaintiff was charged in Lewisboro, New York, with driving while intoxicated per se, pursuant to VTL § 1192.2; driving while intoxicated, pursuant to VTL § 1192.3; and driving left of the pavement marking, pursuant to VTL § 1126a.  These charges were resolved on January 23, 1989, when the plaintiff pleaded guilty to the lesser charge of “driving while ability is […]

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Posted by Massachusetts Legal Resources - September 12, 2016 at 7:09 pm

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Burke v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, et al. (Lawyers Weekly No. 11-121-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-117                                        Appeals Court   JOSEPH L. BURKE  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1]     No. 15-P-117.   Suffolk.     March 16, 2016. – September 12, 2016.   Present:  Cohen, Katzmann, & Blake, JJ.     Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide.  License.  Registrar of Motor Vehicles, Revocation of license to operate.  Administrative Law, Agency’s interpretation of statute.  Statute, Construction, Retroactive application.       Civil action commenced in the Superior Court Department on December 9, 2013.   The case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by him.     Brian K. Wells for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants.     KATZMANN, J.  In this appeal, we are again asked to consider whether a lifetime suspension is appropriate for a driver who, after having committed an operating under the influence (OUI) offense, causes a fatality in the course of a second OUI offense.  Plaintiff Joseph Burke appeals from a judgment of the Superior Court upholding a decision of the defendant Board of Appeal on Motor Vehicle Liability Policies and Bonds (Board) that affirmed the denial by the Registrar of Motor Vehicles (registrar) of Burke’s application for reinstatement of his driver’s license pursuant to G. L. c. 90, § 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well as the registrar’s permanent revocation of that license, on the basis that Burke’s second drunk driving offense resulted in a fatality.[2]  We affirm. Background.  On February 27, 2000, Burke, was arrested for OUI after a motor vehicle accident in Rehoboth.  On May 1, 2000, Burke admitted to sufficient facts for a finding of guilty of OUI in connection with the February incident but received the benefit of a continuance without a finding of guilty (CWOF) for one year until May 1, 2001, during which time he was placed on probation.  The terms of his probation included a 180-day loss of license and an assignment to an alcohol education program. On August 6, 2000, while still on probation with his license suspended as a result of the incident the previous February, Burke drove a […]

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Posted by Massachusetts Legal Resources - September 12, 2016 at 3:34 pm

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Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (and two companion cases) (Lawyers Weekly No. 10-130-15)

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-11818   ALFREDO TIRADO  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS (and two consolidated cases[1]). Norfolk.  Worcester.  Suffolk.     May 5, 2015. – July 28, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Motor Vehicle, License to operate.  License.  Registrar of Motor Vehicles, Revocation of license to operate.  Carrier, License.  Practice, Criminal, Conviction, Admission to sufficient facts to warrant finding, Continuance without a finding.       Civil action commenced in the Superior Court Department on January 3, 2013.   The case was heard by Kenneth J. Fishman, J., on a motion for judgment on the pleadings.   Civil action commenced in the Superior Court Department on February 28, 2013.   The case was heard by Robert B. Gordon, J., on a motion for judgment on the pleadings.   Civil action commenced in the Superior Court Department on March 28, 2013.   The case was heard by Judith Fabricant, J., on a motion for judgment on the pleadings.   After consolidation of the cases in the Appeals Court, the Supreme Judicial Court granted an application for direct appellate review.   David R. Marks, Assistant Attorney General, for the defendants. Dana Alan Curhan for Scott Channing. Ryan E. Alekman, for Alfredo Tirado, was present but did not argue. Cornelius J. Madera, III, for John J. Kelly, was present but did not argue. William A. Quade, for United States Department of Transportation Federal Motor Carrier Safety Administration, amicus curiae, submitted a brief.     SPINA, J.  In these consolidated appeals, we are asked to determine if a defendant’s admission to sufficient facts to warrant a finding of guilty and a judge’s continuance of the case without a finding (CWOF) constitute a “conviction” as that term is defined in G. L. c. 90F, § 1,[2] governing the licensure of commercial drivers.  Judges in the Superior Court determined that it did not and vacated the decisions of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) upholding the suspension of the commercial drivers’ licenses (CDLs) at issue by the registrar of motor vehicles (registrar).  The board and the registrar appealed.  The Appeals Court consolidated the three appeals, and we granted the parties’ joint application for direct appellate review.  As we explain, we […]

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Posted by Massachusetts Legal Resources - July 28, 2015 at 6:11 pm

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Scheffler v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-113-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑1616                                       Appeals Court   THOMAS SCHEFFLER  vs.  BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS.     No. 12‑P‑1616.      September 16, 2013.   Board of Appeal on Motor Vehicle Liability Policies and Bonds.  Registrar of Motor Vehicles.  Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence.       The plaintiff, Thomas Scheffler, appeals from a decision by a judge of the Superior Court allowing the motion of the defendant, the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board), for judgment on the pleadings.  The board’s decision affirmed the Registrar of Motor Vehicles’ (registrar) determination that the plaintiff’s assignment, in Connecticut, to a pretrial alcohol education program following his arrest in that State on what amounts to operating under the influence of intoxicating liquor (OUI) was a “like offense” within the meaning of G. L. c. 90, § 24, and that the Connecticut offense should be added to the plaintiff’s driving history.[1]     1.  Background.  On April 24, 2009, the plaintiff was arrested and charged with operating under the influence of liquor, in violation of Conn. Gen. Stat. § 14-227a (2013).[2]  Following the plaintiff’s successful completion of a pretrial alcohol education diversion program, see Conn. Gen. Stat. § 54-56g (2013), the Connecticut charge was dismissed.  However, Connecticut suspended the plaintiff’s license for six months as a result of his refusal to comply with a breathalyzer test.   On June 18, 2009, the plaintiff received notification from the registrar that his license would be suspended, beginning July 18, 2009, for one year based on the Connecticut OUI charge.  Later, the registrar learned that the plaintiff’s license was suspended in Connecticut for the breathalyzer refusal and not OUI.  However, the plaintiff’s Massachusetts driving record reflects the Connecticut incident for both the breathalyzer refusal and the OUI dismissal, as well as his successful completion of the alcohol education program.  The plaintiff appealed to the board, and on December 28, 2010, the board upheld the registrar’s decision to add the Connecticut incident to the plaintiff’s driving history.   A Superior Court judge affirmed the board’s decision, concluding that the registrar’s actions were proper.   2.  Discussion.  Our review does not “extend to examining the weight of the evidence to determine whether the Superior Court’s decision — either upon its own findings of […]

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Posted by Massachusetts Legal Resources - September 17, 2013 at 5:24 pm

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