Posts tagged "Transportation"

Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-017-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR PRELIMINARY INJUNCTION This lawsuit arises from the imminent expiration of a 15-year license agreement under which Clear Channel Outdoor, Inc., has been operating billboards on property owned by the Massachusetts Bay Transportation Authority. The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards after the current license expires. The MBTA received bids from Outfront Media LLC, which agreed to enter into a six-month license, and Clear Channel, which refused to accept a term that short. The MBTA disqualified Clear Channel. It then awarded a six-month license to Outfront Media. The MBTA brought this suit seeking declarations that its request for responses was lawful, Clear Channel is not entitled to enforce its right of first refusal, and Clear Channel is contractually obligated to transfer the disputed billboards as well as whatever permits are needed to operate the billboards to the MBTA. Clear Channel has asserted counterclaims alleging that the MBTA breached the existing contract by offering a new license on terms that are not commercially reasonable and by not allowing Clear Channel to exercise its contractual right of first refusal, and that Clear Channel therefore has no contractual obligation to transfer the billboard structures to the MBTA at the end of the current license term. The MBTA now seeks a preliminary injunction that would bar Clear Channel from interfering with any use of the billboards on MBTA property, or terminating or otherwise disposing of its existing permits for billboards on MBTA property. Clear Channel seeks a preliminary injunction that would bar the MBTA from proceeding with the new license it has issued to Outfront Media or otherwise interfering with Clear Channel’s ownership of billboard structures and associated permits. The Court will ALLOW the MBTA’s motion and DENY Clear Channel’s motion. – 2 – 1. Legal Background. 1.1. The Public Interest in MBTA Advertising Revenues. The MBTA is a governmental entity, established by the Legislature as a “political subdivision of the commonwealth” that consists of 65 cities and towns within the MBTA’s service area. G.L. c. 161A, § 2 (political subdivision) & § 1 (defining the cities and towns within the “area constituting the authority”). The MBTA is now governed by the board of directors of the Massachusetts Department of Transportation. Id. § 3. “The MBTA’s essential function is to provide mass transportation services” in the greater Boston metropolitan area. See Massachusetts Bay Transp. Auth. v. City of Somerville, 451 Mass. 80, 86 (2008). The MBTA obtains most of its operating funds from taxes […]

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Posted by Massachusetts Legal Resources - March 2, 2018 at 2:57 am

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Massachusetts Bay Transportation Authority v. Clear Channel Outdoor, Inc. (Lawyers Weekly No. 09-006-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00268-BLS2 ____________________ MASSACHUSETTS BAY TRANSPORTATION AUTHORITY v. CLEAR CHANNEL OUTDOOR, INC. ____________________ MEMORANDUM AND ORDER DENYING CLEAR CHANNEL’S MOTION FOR A TEMPORARY RESTRAINING ORDER In 2003 the Massachusetts Bay Transportation Authority granted Clear Channel Outdoor, Inc., a 15-year license to operate billboards on MBTA property. That license will expire in early March 2018.1 The MBTA recently issued a request for responses by parties willing to enter into a six month license to operate the same billboards beginning after the Clear Channel license expires. The MBTA received bids from Outfront Media LLC, which agreed to enter into a six-month license, and Clear Channel, which refused to accept a term that short. The MBTA disqualified Clear Channel. It intends to award a six-month license to Outfront Media. The MBTA brought this action. It seeks declarations that its recent request for responses is lawful, Clear Channel is not entitled to enforce a right of first refusal contained in its 2003 license, and neither of these disputes is subject to the arbitration clause in the 2003 license. It also seeks certain preliminary injunctive relief to enforce terms of the parties’ existing license. The parties agreed upon a schedule for the filing of cross-motions for a preliminary injunction, with a hearing on those motions now scheduled for February 22. Clear Channel has filed an emergency motion seeking a temporary restraining order that would bar the MBTA from taking any steps to license its billboards to or contract with Outfront Media, or from “interfering in any way with Clear Channel’s rights in the billboards themselves or the permits necessary to operate those billboards.” The Court will DENY this motion for a TRO because Clear Channel has not met its burden of showing that it is entitled to the requested relief. “A preliminary 1 The parties have submitted two different versions of their license. One states that it terminates on March 3, the other says March 5. – 2 – injunction [or a TRO] is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs [have] made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). Clear Channel has not yet made such a showing. 1. Clear Channel Has Asserted No Claims. Clear Channel’s request for injunctive relief is premature because Clear Channel has not asserted any counterclaims or any other kind of affirmative claim against the MBTA. To obtain preliminary injunctive relief, “the applicant must show a likelihood of success on the merits […]

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Posted by Massachusetts Legal Resources - February 2, 2018 at 1:04 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 […]

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Posted by Massachusetts Legal Resources - September 7, 2017 at 1:36 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.   A motion to dismiss was heard by Mitchell H. Kaplan, J.     Thomas G. Shapiro (Robert Richardson & Edward C. Cumbo also present) for the plaintiff. David S. Mackey (Christina S. Marshall also present) for the defendant.     KINDER, J.  In this case we address whether a public transportation authority breaches a contract with its commuter rail customers when extraordinary winter storms interrupt the service schedule.  For the reasons that follow, we conclude that in the circumstances presented here, it does not.  Accordingly we affirm the judgment of dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a breach of contract claim. On April 22, 2015, the plaintiff, Raquel Rodriguez, brought this action against the Massachusetts Bay Transportation Authority (MBTA) and its commuter rail operator, Keolis Commuter Services, LLC (Keolis), on behalf of a putative class of purchasers of monthly rail passes in January, February, and March, 2015.  The complaint alleged that the MBTA commuter rail service suffered severe delays and cancellations during the record-setting snowstorms of 2015.  Rodriguez claimed that these service disruptions were in breach of the MBTA’s implied contract “to provide timely, reliable commuter rail service . . . for January, February and March of 2015.”  In a comprehensive written decision, a Superior Court judge allowed the MBTA’s motion to dismiss.  Among other things, the judge concluded that even if the MBTA had some form of contractual obligation to its monthly pass holders, “the complaint fails to allege an essential element of a breach of contract claim:  an agreement between the parties on a material term of the contract at issue.”  This appeal followed.[3] Background.  We summarize the allegations in the operative complaint and the items appearing in the record of the case.  See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).  The MBTA is charged by statute with providing commuter rail and subway service in eastern Massachusetts.  G. L. c. 161A, §§ 1 and 2.  The MBTA provides service […]

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Posted by Massachusetts Legal Resources - July 31, 2017 at 10:44 pm

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A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-052-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.                                                                                             SUPERIOR COURT                                                          CIVIL ACTION 1684CV05562     A.L. PRIME ENERGY CONSULTANT, INC.   vs.   MASSACHUSETTS BAY TRANSPORTATION AUTHORITY     RESERVIATION AND REPORT OF AN INTERLOCUTORY ORDER TO THE APPEALS COURT     This action arises out of a contract between the plaintiff, A.L. Prime Energy Consultant, Inc. (Prime), and the defendant, Massachusetts Bay Transportation Authority (MBTA) for the supply of Ultra Low Sulfur Diesel Fuel (ULSDF) (the Supply Contract), and the unilateral termination of the Supply Contract by the MBTA.  Prime asserts, among other claims, that the MBTA breached the Supply Contract by terminating it before its end date. Factual Background Prime was awarded the Supply Contract on July 1, 2015, after a public bidding process. It was to continue for a period of two years.  The Supply Contract contained a so-called “termination for convenience” provision that states: Termination for Convenience. The Authority [MBTA] may, in its sole discretion, terminate all or any portion of this Agreement or the work required hereunder, at any time for its convenience and/or for any reason by giving written notice to the Contractor [Prime] thirty (30) calendar days prior to the effective date of termination or such other period as is mutually agreed upon in advance by the parties. If the Contractor  is not in default or in breach of any material term or condition of this Agreement, the Contractor shall be paid its reasonable, proper and verifiable costs in accordance with generally accepted government contracting principals as set forth in the Federal Acquisition Regulations, including demobilization and contract closeout costs, and profit on work performed and Accepted up to the time of termination to the extent previous payments made by the Authority to the Contractor have not already done so.  Such payment shall be the Contractor’s sole and exclusive remedy for any Termination for Convenience, and upon such payment by the Authority to the Contractor, the Authority shall have no further obligation to the Contractor. The Authority shall not be responsible for the Contractor’s anticipatory profits or overhead costs attributable to unperformed work.   On July 12, 2016, the MBTA terminated the Supply Contract pursuant to the termination for convenience clause quoted above.  In its complaint, Prime alleges that the sole reason for the MBTA’s exercise of the termination for convenience clause was that it had learned that it could obtain ULSDF at a cheaper price from another vendor.  It contends that an agency’s right to invoke termination for convenience clauses is limited by principles of bad faith and abuse of discretion and, under these principles, a government agency is not permitted to cancel a contract solely to enable it to purchase the same […]

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Posted by Massachusetts Legal Resources - May 10, 2017 at 5:04 am

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A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-052-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.                                                                                             SUPERIOR COURT                                                          CIVIL ACTION 1684CV05562     A.L. PRIME ENERGY CONSULTANT, INC.   vs.   MASSACHUSETTS BAY TRANSPORTATION AUTHORITY     RESERVIATION AND REPORT OF AN INTERLOCUTORY ORDER TO THE APPEALS COURT     This action arises out of a contract between the plaintiff, A.L. Prime Energy Consultant, Inc. (Prime), and the defendant, Massachusetts Bay Transportation Authority (MBTA) for the supply of Ultra Low Sulfur Diesel Fuel (ULSDF) (the Supply Contract), and the unilateral termination of the Supply Contract by the MBTA.  Prime asserts, among other claims, that the MBTA breached the Supply Contract by terminating it before its end date. Factual Background Prime was awarded the Supply Contract on July 1, 2015, after a public bidding process. It was to continue for a period of two years.  The Supply Contract contained a so-called “termination for convenience” provision that states: Termination for Convenience. The Authority [MBTA] may, in its sole discretion, terminate all or any portion of this Agreement or the work required hereunder, at any time for its convenience and/or for any reason by giving written notice to the Contractor [Prime] thirty (30) calendar days prior to the effective date of termination or such other period as is mutually agreed upon in advance by the parties. If the Contractor  is not in default or in breach of any material term or condition of this Agreement, the Contractor shall be paid its reasonable, proper and verifiable costs in accordance with generally accepted government contracting principals as set forth in the Federal Acquisition Regulations, including demobilization and contract closeout costs, and profit on work performed and Accepted up to the time of termination to the extent previous payments made by the Authority to the Contractor have not already done so.  Such payment shall be the Contractor’s sole and exclusive remedy for any Termination for Convenience, and upon such payment by the Authority to the Contractor, the Authority shall have no further obligation to the Contractor. The Authority shall not be responsible for the Contractor’s anticipatory profits or overhead costs attributable to unperformed work.   On July 12, 2016, the MBTA terminated the Supply Contract pursuant to the termination for convenience clause quoted above.  In its complaint, Prime alleges that the sole reason for the MBTA’s exercise of the termination for convenience clause was that it had learned that it could obtain ULSDF at a cheaper price from another vendor.  It contends that an agency’s right to invoke termination for convenience clauses is limited by principles of bad faith and abuse of discretion and, under these principles, a government agency is not permitted to cancel a contract solely to enable it to purchase the same […]

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Posted by Massachusetts Legal Resources - May 8, 2017 at 8:52 pm

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A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-027-17)

  COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.SUPERIOR COURT CIVIL ACTION 1677CV01366 A.L. PRIME ENERGY CONSULTANT, INC. vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS In July 2016, defendant Massachusetts Bay Transportation Authority (MBTA) terminated its two-year fuel supply agreement with plaintiff A.L. Prime Energy Consultant, Inc. (Prime). The MBTA explained that thetermination was made pursuant to its exercise of a contractual right that permitted termination for convenience.The MBTA terminated the contract in order to take advantage of cost savings it believed it could achieve by purchasing fuel through the Commonwealth’s existing statewide fuel contract.  Prime alleges that the MBTA abused its discretion when it invoked the termination for convenience provision and that therefore the MBTA is liable for breach of contract and breach of the covenant of good faith and fair dealing.  The matter is now before the Court on the MBTA’s motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6).  For the reasons that follow, the motion is DENIED. BACKGROUND The following facts are drawnfrom the allegationsin Prime’s complaint, which are accepted as true for the purposes of this motion, the exhibits attached to the complaint, and matters of public record appropriate for judicial notice.  SeeSchaer v. Brandeis Univ., 432 Mass. 2   474, 477 (2000); Waterson v. Page, 987 F.2d 1, 3-4 (1stCir. 1993).1 1 At the hearing on the motion, the Court asked the parties to agree on a stipulated statement of facts regarding whether and to what extent the Commonwealth’s statewide fuel contract was in effect during the relevant periodand available to the MBTA. The parties were not able to do so.  Nevertheless, in lieu of the joint statement, the MBTA submitted a Supplemental Statement of Facts in Support of its Motion to Dismiss. The Court accepts some of the facts set outin the statement in this background sectionbecause they are found either in the complaint, its exhibits, public records, or Massachusetts acts and regulations. 2 The ULSD delivery locations for the MBTA arewithin zone 1. 3 The MBTA initially awarded the contract to Sprague Oil but Prime successfully appealed the award.  Because of the delay resulting from the appeal, Prime’s first delivery was made on September 1, 2015.  The MBTA agreed that the two-year contract period originally scheduled to begin on July 1, 2015 would begin on September 1, 2015. On January 15, 2015, the MBTA’s Materials Management Department issued an Invitation for Bids (IFB) for the supply of Ultra Low SulfurDiesel Fuel (ULSD).  The IFB provided that the contract would have a two-year term. A few months later, the Operation Services Division of the Commonwealth’s Executive Office of Administration and Finance (OSD), which is responsible for establishing […]

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Posted by Massachusetts Legal Resources - March 31, 2017 at 8:34 pm

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Coren-Hall v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-015-17)

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-300                                        Appeals Court   ALEXIS D. COREN-HALL[1]  vs.  MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.     No. 16-P-300.   Suffolk.     December 13, 2016. – February 23, 2017.   Present:  Milkey, Massing, & Sacks, JJ.     Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal, Summary judgment.  Massachusetts Tort Claims Act.  Notice, Claim under Massachusetts Tort Claims Act.  Massachusetts Bay Transportation Authority, General manager.       Civil action commenced in the Superior Court Department on May 16, 2012.   The case was heard by Peter M. Lauriat, J., on a motion for summary judgment, and a motion for reconsideration was considered by him.   Amy Bratskeir (Jonathan P. Feltner also present) for the defendant. Albert E. Grady for the plaintiff.     SACKS, J.  The defendant, Massachusetts Bay Transportation Authority (MBTA), appeals from a Superior Court order denying its renewed motion for summary judgment on plaintiff Alexis D. Coren-Hall’s tort claim under the Massachusetts Tort Claims Act, G. L. c. 258.  The MBTA’s motion asserted that Coren-Hall had failed to make presentment of her claim to the MBTA’s “executive officer,” as required by G. L. c. 258, § 4.  The judge denied the motion on the ground that, although Coren-Hall had not made presentment to the MBTA’s executive officer, the executive officer nevertheless had “actual notice” of the claim.  We conclude that the MBTA’s motion should have been allowed.[2] Background.  Coren-Hall alleged that on May 10, 2010, she was injured when a negligently driven MBTA bus struck a vehicle that she was in the process of entering.  After she filed suit on May 16, 2012, the MBTA’s answer asserted, as an affirmative defense, that she had failed to make proper presentment of her claim as required by G. L. c. 258, § 4.  In July, 2015, the MBTA filed a renewed motion for summary judgment on that basis.[3]  Under G. L. c. 258, § 4, a tort claim against a public employer must be presented to its “executive officer,” defined in G. L. c. 258, § 1, inserted by St. 1978, c. 512, § 15, as its “nominal chief executive officer or board,”[4] within two years after the cause of action arose.  The MBTA’s motion asserted that, although Coren-Hall had timely mailed notice of her claim to the MBTA “Claims Department,” she had never sent such notice to the executive officer.  The judge denied the MBTA’s motion, and this appeal followed.[5] Discussion.  The parties’ […]

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Posted by Massachusetts Legal Resources - February 23, 2017 at 6:43 pm

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Trychon v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-124-16)

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-1316                                       Appeals Court   STEPHEN TRYCHON  vs.  MASSACHUSETTS BAY TRANSPORATION AUTHORITY.     No. 15-P-1316.   Suffolk.     May 16, 2016. – September 15, 2016.   Present:  Agnes, Massing, & Kinder, JJ.     Massachusetts Bay Transportation Authority.  Practice, Civil, Motion to dismiss.  Employment, Termination, Retaliation.     Civil action commenced in the Superior Court Department on February 11, 2014.   A motion to dismiss was heard by Heidi E. Brieger, J.     Kevin G. Powers for the plaintiff. Jeffrey A. Dretler for the defendant.     AGNES, J.  In this appeal, we must determine the legal sufficiency of Stephen Trychon’s complaint charging the Massachusetts Bay Transportation Authority (MBTA) with violations of G. L. c. 149, § 185, the Massachusetts public employee whistleblower statute (whistleblower statute).  A Superior Court judge allowed the MBTA’s motion, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint.[1]  We conclude that Trychon has stated a plausible claim for relief.  See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).  Accordingly, we reverse the judgment. Standard of review.  We review the order dismissing the complaint de novo, accepting the truth of all factual allegations and drawing all reasonable inferences in Trychon’s favor.  See Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 754 (2014).  A complaint is sufficient to withstand a motion to dismiss if the factual allegations “plausibly suggest” an entitlement to relief, raising the right to relief “above the speculative level.”  Harrington v. Costello, 467 Mass. 720, 724 (2014), quoting from Iannacchino, supra.  See Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974).  The factual content is sufficient if it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 23 (1st Cir. 2014), quoting from Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “it . . . raise[s] a reasonable expectation that discovery will reveal evidence [of the alleged misconduct].”  Lopez v. Commonwealth, 463 Mass. 696, 712 (2012), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In conducting the “context-specific” inquiry required by the plausibility standard, we must “draw on [our] judicial experience and common sense.”  Lopez, supra, quoting from Ashcroft, supra at 679.  “The critical question is whether the claim, viewed holistically, is made plausible by ‘the cumulative effect of the factual allegations’ […]

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Posted by Massachusetts Legal Resources - September 15, 2016 at 3:08 pm

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Regency Transportation, Inc. v. Commissioner of Revenue (Lawyers Weekly No. 10-004-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11873   REGENCY TRANSPORTATION, INC.  vs.  COMMISSIONER OF REVENUE.       Suffolk.     November 5, 2015. – January 6, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Taxation, Sales and use tax, Abatement.  Constitutional Law, Taxation, Commerce clause, Interstate commerce.  Interstate Commerce.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court granted an application for direct appellate review.     Matthew A. Morris (Richard L. Jones with him) for the taxpayer. Marikae G. Toye (Joseph J. Tierney with her) for the Commissioner of Revenue. Elizabeth J. Atkinson, of Virginia, & Andrew J. Fay & Patrick E. McDonough, for Massachusetts Motor Transportation Association & others, amici curiae, submitted a brief.     CORDY, J.  Regency Transportation, Inc. (Regency), appeals from a decision of the Appellate Tax Board affirming in part the denial of an abatement of the motor vehicle use tax assessed against it under G. L. c. 64I, § 2.  We granted Regency’s application for direct appellate review to decide whether an unapportioned use tax imposed on Regency’s interstate fleet of vehicles violates the commerce clause of the United States Constitution. For the reasons discussed herein, we conclude it does not.[1] 1.  Background.  The essential facts are not disputed.  Regency is a Massachusetts S corporation that operates a freight business with terminals in Massachusetts and New Jersey.  Regency is licensed by the Interstate Commerce Commission as an interstate carrier to operate a fleet of tractors and trailers.  The Regency fleet carries and delivers goods throughout the eastern United States. Throughout the tax periods at issue, Regency maintained its corporate headquarters in Massachusetts, as well as four warehouses and a combined maintenance facility and terminal location which it used for repairing and storing vehicles in its fleet.  Regency also operated five warehouses in New Jersey and two combined maintenance facility and terminal locations there.  Regency performed thirty-five per cent of the maintenance and repair work on its fleet at its Massachusetts locations and thirty-five per cent of the work at its New Jersey locations, with the remainder being performed by third parties.  All vehicles in the Regency fleet entered into Massachusetts at some point during the tax periods at issue, and during these same periods Regency employed between sixty-three and eighty-three per cent of its workforce in the Commonwealth.      […]

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Posted by Massachusetts Legal Resources - January 6, 2016 at 3:38 pm

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