Posts tagged "Weekly"

J.C. v. J.H. (Lawyers Weekly No. 11-119-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

15-P-1612                                       Appeals Court

J.C.  vs.  J.H.[1]

No. 15-P-1612.

Essex.     November 14, 2016. – September 14, 2017.

Present:  Sullivan, Maldonado, & Neyman, JJ.

Civil Harassment.  Harassment PreventionProtective OrderStatute, Construction.  Evidence, Intent, Presumptions and burden of proof.  Practice, Civil, Burden of proof, Presumptions and burden of proof.  Firearms.

Complaint for protection from harassment filed in the Lynn Division of the District Court Department on October 14, 2014. read more

Posted by Stephen Sandberg - September 14, 2017 at 4:04 pm

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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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

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

Commonwealth v. Ecker (Lawyers Weekly No. 11-118-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

15-P-653                                        Appeals Court

COMMONWEALTH  vs.  JOHN ECKER.

No. 15-P-653.

Hampden.     June 5, 2017. – September 13, 2017.

Present:  Sullivan, Henry, & Shin, JJ.

Practice, Criminal, Motion to suppress, Instructions to jury. Constitutional Law, Imprisonment, Freedom of speech and press.  MaliceCriminal HarassmentHarassment PreventionStalkingAttempt.

Indictments found and returned in the Superior Court Department on March 5, 2014. read more

Posted by Stephen Sandberg - September 13, 2017 at 3:01 pm

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Commonwealth v. Owens (Lawyers Weekly No. 11-116-17)

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

14-P-1868                                       Appeals Court

COMMONWEALTH  vs.  TERRY LYNN OWENS.

No. 14-P-1868.

Suffolk.     October 4, 2016. – September 11, 2017.

Present:  Kafker, C.J., Trainor, & Henry, JJ.[1]

Controlled Substances.  Constitutional Law, Search and seizure, Probable cause.  Search and Seizure, Exigent circumstances, Securing of premises, Expectation of privacy, Probable cause, Protective sweep, Warrant.  Probable Cause.  Practice, Criminal, Motion to suppress, Warrant. read more

Posted by Stephen Sandberg - September 11, 2017 at 4:30 pm

Categories: News   Tags: , , , ,

Town of Chelmsford, et al. v. Newport Materials, LLC, et al. (Lawyers Weekly No. 12-126-17)

COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 1681CV03455
TOWN OF CHELMSFORD1 & another2
vs.
NEWPORT MATERIALS, LLC & others3
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS NEWPORT
MATERIALS, LLC AND 540 GROTON ROAD, LLC’S MOTION TO DISMISS
The Town of Chelmsford (“Chelmsford”) and its fire chief, Gary Ryan (“Chief Ryan”),
bring this appeal pursuant to G. L. c. 40A, § 17, challenging a decision by the Town of Westford
(“Westford”) and the Westford Planning Board (the “Board”) granting defendants Newport
Materials, LLC and 540 Groton Road, LLC (collectively, the “Newport Parties”) special permits
for the construction and operation of an asphalt manufacturing plant (the “Project”) on a piece of
property located in Westford, near the Chelmsford line (the “Property”). The matter is now
before the court on the Newport Parties’ motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1)
based on the plaintiffs’ alleged lack of standing, as well as Mass. R. Civ. P. 12(b)(6). Because
the court agrees that the plaintiffs lack standing to bring this appeal, the Newport Parties’ motion
to dismiss is ALLOWED.4
1 By and through its Board of Selectmen
2 Gary Ryan, in his capacity as Chief of the Chelmsford Fire Department
3 540 Groton Road, LLC; Dennis J. Galvin, Mathew Lewin, Darrin Wizst, Michael J. Green, and
Kate Hollister, as members of the Westford Planning Board; and the Town of Westford, by and
through its Board of Selectmen
4 Because the court allows the motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction, the court does not reach the Newport Parties’ arguments that the
plaintiffs’ complaint must be dismissed pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief may be granted.
BACKGROUND
The Newport Parties own the Property, which is located at 540 Groton Road, in
Westford, Massachusetts. The Property is an industrially-zoned, 115.52 acre lot. Ninety-two of
those acres are in Westford, while the remaining twenty-three are in Chelmsford. The location
of the proposed Project is entirely within the Westford portion of the Property. The Newport
Parties do not propose to alter any portion of the Property located in Chelmsford.
There is no allegation that Chelmsford itself owns land abutting the Property. The Property is
abutted on the west by the Fletcher Quarry, an active and operational quarry since the 1800s that
has no objection to the Project; on the south by Route 40; on the north by vacant industrial land;
and on the east by U.S. Route 3, industrial properties and a single residence located at 263
Groton Road in Chelmsford. None of the abutting industrial properties, nor the owner of the
single residence, is a party to any litigation involving the Project.
In 2009, the Newport Parties filed applications with the Board seeking the special permits
necessary to operate an asphalt manufacturing plant on the Property. Seven years of
administrative proceedings and litigation between the Newport Parties, Westford, and the Board
followed. The central issue in dispute was whether the Project qualified as “light
manufacturing” as defined by the Westford Zoning Bylaw (the `Bylaw”). 5 After the Board
denied their initial applications, the Newport Parties appealed to the Land Court, which
remanded the matter back to the Board. After further unfavorable proceedings before the Board
5 The Bylaw defines “light manufacturing” as: “fabrication, assembly, processing or packaging
operations employing only electric or other substantially noiseless and inoffensive motor power,
utilizing hand labor or quiet machinery and processes, but subject, however, to the following
conditions: any light manufacturing business, the conduct of which may be detrimental to the
health, safety or welfare of persons working in or living near the proposed location of such
manufacturing, including, without limiting the generality of the foregoing, special danger of fire
or explosion, pollution of waterways, corrosive or toxic fumes, gas, smoke, soot, dust or foul
odors and offensive noise and vibrations, is expressly prohibited.”
0)
and the Westford Zoning Board of Appeals, the Newport Parties appealed again to the Land
Court. This time, the Newport Parties, Westford, and the Board entered into mediation and were
able to reach a settlement. The settlement resolved the litigation and required the issuance of a
Special Permit for Major Commercial Project (“MCP special permit”), which the Board had
previously voted against, subject to numerous conditions. On September 27, 2016, the Newport
Parties, Westford, and the Board signed a settlement agreement and filed an Agreement for
Judgment with the Land Court that incorporated an MPC special permit for the proposed project
and the settlement agreement. The Land Court issued an Order Allowing the Agreement for
Judgment to Enter subject to certain modifications on October 24, 20156, and issued a Revised
Order which entered the Agreement for Judgment as originally filed by the parties on November
9, 2016. As required by the Revised Order, Westford filed the MCP special permit with the
Westford Town Clerk on November 14, 2016.
The MCP special permit states that the project will include “a hot mix asphalt (HMA)
drum mix plant, a hot oil heater, oil and asphalt storage tanks and a rock crushing plant.”
According to the MCP special permit, components of the asphalt plant operation will include,
among other things: four 200-ton silos (sixty-eight feet in height) that allow the hot asphalt to
load into trucks that pull underneath; a tank farm with two 30,000-gallon indirect fired asphalt
cement vertical tanks with unloading pumps (thirty-six feet in height); a HYCGO Gencor 100
hot oil heater with expansion tank stand; two 31,000-gallon fire cisterns; and one 10,000-gallon
above-ground storage tank for Number 2 fuel oil.
Condition 5 of the MCP special permit, entitled “Fire and Life Safety and Hazardous
Materials,” imposes twenty-one specific safety-related conditions on the Newport Parties.
Among other things, it requires the Newport Parties to provide: a foam cart on the Property
throughout the lifetime of the operation of the plant, for firefighting purposes; “OSHA’s
confined space training for the Westford and Chelmsford Fire Department staff on an annual
basis and … re-certification for Westford and Chelmsford employees as needed over the lifetime
of the asphalt plant’s operation;” “a detailed briefing to representatives of the Westford and
Chelmsford Fire Departments, as designated by the respective Fire Chiefs, with regard to spill
containment procedures;” and access for the Westford and Chelmsford fire chiefs to “conduct an
inspection of the plant on an annual basis” relating to such spill containment procedures. The
plaintiffs’ complaint alleges that neither Chelmsford nor its fire department was contacted by the
defendants regarding either the imposition of the condition requiring briefings on spill
containment procedures or the additional training. Condition 5 does not, however, unilaterally
impose obligations on the Chelmsford Fire Department (which was not a party the settlement) to
attend these trainings and briefings; it only imposes obligations on the Newport Parties to
“provide” them.
The plaintiffs allege that the Project is inherently dangerous and poses a risk of fire
because it will involve the use and storage of highly flammable and explosive materials, and that
Chelmsford may be called to provide emergency aid to Westford should a fire occur.
Chelmsford and Westford, along with sixteen other communities, are signatories to the District 6
Fire Chiefs Association Mutual Aid Agreement for Joint Fire, Rescue and Ambulance Service
(the “Mutual Aid Agreement”), dated July 1, 2008. While the plaintiffs’ complaint alleges that
the Mutual Aid Agreement “requires Chelmsford to provide support as needed” in emergencies,
the Mutual Aid Agreement itself is not so explicit. It does not specifically state the
circumstances under which Chelmsford would be called to assist Westford or whether
Chelmsford is the first of the seventeen other signatories to be called when Westford needs
4
assistance. The Mutual Aid Agreement provides that “[a]ssistance shall be rendered according to
the procedures set forth in the Operational Plan developed and agreed to by all parties to this
agreement,” but the Operational Plan is not included in the exhibits before the court and its terms
are not otherwise described in the pleadings. According to the complaint, mutual aid responses
by the Chelmsford Fire Department to Westford have increased significantly in the past two
years, with five responses in 2013, two in 2014, thirteen in 2015, and at least thirteen in 2016.
Although the allegations of the complaint are not entitled to a presumption of truth or even to be
viewed in the light most favorable to the plaintiffs (see infra), for purposes of this motion, the
court assumes that Chelmsford has provided assistance to Westford pursuant to the Mutual Aid
Agreement as described in the complaint and will continue to do so in the future.
DISCUSSION
A. Standard of Review
A motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) for lack of standing (or other
lack of subject matter jurisdiction) may be based solely on the facts alleged in the complaint or
on additional evidence submitted by the moving party. If the motion is not supported by
additional evidence, it “presents a `facial attack’ based solely on the allegations of the
complaint” and the court must assume the truth of those allegations for the purpose of deciding
whether it has subject matter jurisdiction to hear the plaintiffs claim. Callahan v. First
Congregational Church of Haverhill, 441 Mass. 699, 709 (2004), quoting Hiles v. Episcopal
Diocese of Massachusetts, 437 Mass. 505, 516 n.13 (2002). If, however, the moving party
submits “documents and other materials outside the pleadings” in an attempt to “contest the
accuracy (rather than the sufficiency) of the jurisdictional facts pleaded by the plaintiff,” the
court must “address the merits of the jurisdictional claim by resolving the factual disputes
between the plaintiff and the defendants.” Id. at 710-711. Where the defendant makes such a
5
“factual challenge,” the factual allegations in the complaint are not presumed to be true, id. at
711, and the evidence submitted regarding subject matter jurisdiction is “not viewed in the light
most favorable to the non-moving party.” Wooten v. Crayton, 66 Mass. App. Ct. 187, 190 n.6
(2006).
Here, the defendants attach several exhibits to their motion, thus presenting a “factual
challenge” to the plaintiffs’ jurisdictional allegations. As a result, the allegations of the
complaint are not entitled to a presumption of truth and the evidence submitted in connection
with the motion need not be viewed in the light most favorable to the plaintiffs. In this case,
however, even if the court were to limit its analysis to the allegations of the complaint and
presume them to be true, the court would reach the same conclusion that the plaintiffs lack
standing to pursue their claims. 6
B. Standing under G. L. c. 40A, § 17
Standing is a jurisdictional prerequisite to proceeding with an appeal under G. L. c. 40A,
§ 17. 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012).
A plaintiff may demonstrate standing in one of two ways: by establishing that they are a “person
aggrieved” by a decision of a zoning board of appeals or special permitting authority; or (2) by
demonstrating that they are a “municipal officer or board” with “duties relating to the building
code or zoning within the same town as the subject land. “7 G. L. c. 40A, § 17; Planning Bd. of
6 The plaintiffs’ reliance on Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), for the
proposition that, in defending the motion to dismiss, they need only show “factual allegations
enough to raise a right to relief above the speculative level,” is misplaced, as the Iannacchino
standard applies to motions brought pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a
claim, not motions brought pursuant to Mass. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction.
7 Because the plaintiffs do not own land either abutting the Property or directly across the street
from the Property, they are not entitled to a presumption that they are persons aggrieved. See
Marashlian, 421 Mass. at 721-722. See also G. L. c. 40A, § 11 (defining “parties in interest”
Marshfield v. ZoningBd. of Appeals of Pembroke, 427 Mass. 699, 703 (1998). The plaintiffs
bear the burden of proving standing. 81 Spooner Road, LLC, 461 Mass. at 701, citing
Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 34-35 (2006). For the reasons
explained below, the court concludes that the plaintiffs have no standing as either “person[s] aggrieved” or “municipal officer[s] or board[s]” under G. L. c. 40A, § 17.
C. Plaintiffs Are Not “Persons Aggrieved”
“A plaintiff is a `person aggrieved’ if he suffers some infringement of his legal rights.”
Marashlian v. Zoning 13d. of Appeals of Newburyport, 421 Mass. 719, 721 (1996), citing Circle
Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949). “Of particular
importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that
the Zoning Act is intended to protect, either explicitly or implicitly.” 81 Spooner Road, LLC,
461 Mass. at 700. See Dwyer v. Gallo, 73 Mass. App. Ct. 292, 295 (2008) (“To succeed, the
[plaintiffs] must show that the zoning relief granted adversely affected them directly and that
their injury is related to a cognizable interest protected by the applicable zoning law. “). “[T]he
term `person aggrieved’ should not be read narrowly,” Marashlian, 421 Mass. at 721, but
“[a]ggrievement requires a showing of more than minimal or slightly appreciable harm.” Kenner
v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 120 (2011). “The injury must be more
than speculative.” Marashlian, 421 Mass. at 721. “The adverse effect on a plaintiff must be
substantial enough to constitute actual aggrievement such that there can be no question that the
plaintiff should be afforded the opportunity to seek a remedy. To conclude otherwise would
entitled to notice of public hearing under zoning law as including “owners of land directly
opposite [subject property] on any public or private street”).
7
choke the courts with litigation over myriad zoning board decisions where individual plaintiffs
have not been, objectively speaking, truly and measurably harmed.” Kenner, 459 Mass. at 122.
The plaintiffs contend they “have alleged harms to their legal interests relating to the
dangers inherent in the use and storage of the highly flammable and explosive materials that will
be used by the [Newport Parties] in the operation of the proposed asphalt plant.” They claim this
is an interest the Bylaw is intended to protect because the Bylaw states that the purpose of its
restriction of “light manufacturing” uses is to protect the “health, safety or welfare of persons
working in or living near the proposed location of such manufacturing.” The plaintiffs argue that
if there is a fire on the Property, the Chelmsford Fire Department may be called to assist pursuant
to the Mutual Aid Agreement, putting Chelmsford firefighters within the class of persons
working at the Property which the Bylaw intends to protect. They claim they have a legal
interest in protecting the health and safety of Chelmsford’s firefighters and that “[t]his legal
interest is directly tied to the interests the Bylaw seeks to protect.”
As evidence of the risk of fire, explosion and chemical contamination associated with the
Project, the plaintiffs point to several of the safety requirements imposed by the MCP special
permit, including that the Newport Parties must have a foam cart on the Property for firefighting
purposes, and must provide OSHA confined space training and briefings on spill containment
procedures to the Westford and Chelmsford fire departments. The fact that the MCP special
permit conditions address fire and contaminant risks posed to the Westford and Chelmsford fire
departments, they argue, is evidence that “such risk is inherent and obvious in the operation of an
asphalt manufacturing facility, and is not in any way speculative.”
The court disagrees, and concludes that the plaintiffs’ alleged harms to their legal
interests are too speculative and remote to qualify them as “aggrieved parties” with standing to
8
pursue an appeal under G. L. c. 40A, § 17. 8 See Sweenie v. A.L. Prime Energy Consultants, 451
Mass. 539, 545-546 (2008) (plaintiff abutters were not “persons aggrieved” with standing to
challenge gas station’s removal and replacement of underground storage tanks where alleged
aggrievement was based on “purely speculative” fear that removal of tanks could potentially
contaminate their drinking water wells); DaRosa v. Ackerman, 2011 WL 6210377 (Mass. Land
Ct. Dec. 5, 2011) (plaintiff abutters were not “persons aggrieved” with standing to challenge
defendants’ plan to build addition to home where plaintiffs’ concerns that building addition close
to plaintiffs’ home would pose greater risk of spreading hypothetical fire were “purely
speculative”); Brooks v. Board of Appeals of Chelmsford, 2010 WL 2681956, *5 (Mass. Land
Ct. July 7, 2010) (plaintiff abutters whose property was used for industrial purposes were not
“persons aggrieved” with standing to challenge zoning decision approving affordable residential
housing development where plaintiffs’ alleged “harms” that project’s residents would object to
ongoing industrial use on plaintiffs’ properties and generalized harms of public safety were
“speculative at best”); Bullen v. Velarde, 2009 WL 1843616 (Mass. Land Ct. June 29, 2009) .
(plaintiff neighbors were not “persons aggrieved” with standing to challenge neighbor’s
installation of septic system where argument that proposed septic tank might fail due to improper
use, overuse, or improper maintenance was too speculative). The fact that Chelmsford and
Westford are parties to a Mutual Aid Agreement that may result in Chelmsford assisting
Westford if there is a fire at the Project does not confer standing on Chelmsford to challenge
Westford’s decision to issue the MCP special permit and allow the Project to move forward. The
defendants have submitted as Exhibit 18 to their motion an affidavit from Thomas J. Klem, a fire
8 For purposes of this ruling, the court assumes, without deciding, that the plaintiffs have alleged
a right or interest G. L. c. 40A and the Bylaw are intended to protect.
6
protection engineer, in which Mr. Klem avers that the Project poses no special or unique danger
of fire or explosion, will meet or exceed Massachusetts code requirements, and will have
adequate fire protection. The plaintiffs, meanwhile, have failed to put forth evidence that the
Project poses a special risk of fire or contamination, pointing only to the MCP special permit
conditions specifically aimed at safety and fire prevention. The existence of these conditions
does not lead to the conclusion that the Project is inherently dangerous or poses a unique risk of
fire or.spill of contaminants. If anything, the myriad of conditions imposed by the MCP special
permit support the conclusion that the Project, as permitted, is as safe as any “light
manufacturing” use permitted by the Bylaw.
Even if the court accepted as true the plaintiffs’ allegations that the Project poses a
special risk of fire or contaminant spill, the plaintiffs would still lack standing. To grant the
plaintiffs standing on grounds that the Chelmsford Fire Department might have to provide
emergency aid to Westford if a fire occurs at the Project would impermissibly broaden and dilute
the meaning of “person aggrieved.” While the term “person aggrieved” is not to be construed
narrowly, Marashlian, 421 Mass. at 721, it must be construed in a way that requires a real,
nonspeculative injury, so as to avoid “chok[ing] the courts with litigation over myriad zoning
board decisions where individual plaintiffs have not been, objectively speaking, truly and
measurably harmed.” Kenner, 459 Mass. at 122. Sixteen other communities are signatories to
the Mutual Aid Agreement involved here and there are, presumably, many more such
agreements between other communities in the Commonwealth. See G. L. c. 48, § 59A
(permitting cities, towns and fire districts throughout Commonwealth to authorize their fire
departments to go to aid of other communities for extinguishing fires and rendering other
emergency assistance). To conclude that the plaintiffs have standing here would be to grant any
10
community that is a party to a mutual aid agreement the right to challenge another signatory
community’s decision to allow any number of potential uses within its borders, e.g., a large
wood-framed apartment building, that might catch fire and result in the need for support pursuant
to the mutual aid agreement. Such a result would be inconsistent with how Massachusetts court
have defined the term “person aggrieved.” See Kenner, 459 Mass. at 120-122; Marashlian, 421
Mass. at 721; Dwyer. 73 Mass. App. Ct. at 295.
D. Plaintiffs Do Not Have Standing as Municipal Officers or Boards
Section 17 of G. L. c. 40A grants standing only to municipal officers or boards “that have
duties relating to the building code or zoning within the same town as the subject land.”
Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 703 (1998)
(“Marshfield”). Marshfield, which considered whether the planning board of one town had
standing to challenge a zoning decision regarding land in an adjacent town, is controlling. Id. at
702. In that case, Marshfield’s planning board sought to challenge a Pembroke zoning decision
allowing a cinema complex to be built along the main access route between Marshfield and the
principal highway. Id. at 700. Despite its observation that the project would “have a greater
impact on the health, safety, and general welfare of the inhabitants of Marshfield than on their
counterparts on Pembroke,” the Supreme Judicial Court held that Marshfield’s planning board
had no standing to challenge the decision. Id. The Court concluded that for a municipal officer
or board to have standing, it not only must have duties to perform in relation to the building code
or zoning, but those duties must relate to the same town as the land at issue. Id. at 703.
Observing that the Ҥ 17 grant of standing to municipal officers and boards is exceptional in that
it does not require any showing of injury to a legally protected interest,” the Court reasoned that
“the provision must be construed narrowly so as to minimize the class of parties who have
11
suffered no legal harm, yet `can compel the court to assume the difficult and delicate duty of
passing upon the validity of the acts of a coordinate branch of government.” Id. at 702, quoting
Ginther v. Commissioner of Ins., 427,Mass. 319, 322 (1998). As a result, the Court concluded
that the Legislature had not intended G. L. c. 40A, § 17 “to grant standing to the planning board
of one town to challenge a decision of another town’s zoning board.” Id.
Here, neither Chief Ryan nor Chelmsford’s Selectmen “have duties relating to the
building code or zoning within the same town as the subject land.” Id. at 703. The Mutual Aid
Agreement solely provides for fire departments to aid each other in extinguishing fires and
rendering other emergency assistance. It does not provide for a fire chief or department in one
community to have any rights or duties with respect to the building code or zoning in any of the
other signatory communities. If Marshfield’s planning board (the primary duties of which relate
to zoning) has no standing as a municipal board to challenge a neighboring town’s decision to
allow significant development along the main road between Marshfield and the highway, a fire
chief (whose primary duties are unrelated to zoning) cannot have standing as a municipal officer
to challenge the decision of Westford and the Board to allow the Newport Parties’ Project to go
forward. See id. Construing the statute narrowly, as Marshfield requires, compels the
conclusion that G. L. c. 40A, § 17’s grant of standing to municipal officers and boards does not
confer standing to the plaintiffs here to pursue the claims raised in their complaint.
ORDER
For the foregoing reasons, the Newport Parties’ motion to dismiss pursuant to Mass. R.
Civ. P. 12(b)(1) is ALLOWED.
Dated: September 6, 2017 Kathe M. Tuttman
Justice of the Superior Court
12 read more

Posted by Stephen Sandberg - September 8, 2017 at 8:32 pm

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Dever v. Ward, et al. (Lawyers Weekly No. 11-114-17)

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-817                                        Appeals Court

JAMES DEVER  vs.  DAVID L. WARD & others.[1]

No. 16-P-817.

Plymouth.     May 3, 2017. – September 7, 2017.

Present:  Green, Massing, & Shin, JJ.

“Anti-SLAPP” StatuteConstitutional Law, Right to petition government, Retroactivity of judicial holding.  Practice, Civil, Motion to dismiss.  Abuse of Process.

Civil action commenced in the Superior Court Department on June 9, 2015. read more

Posted by Stephen Sandberg - September 7, 2017 at 7:30 pm

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Ceruolo v. Garcia, et al. (Lawyers Weekly No. 11-115-17)

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-1443                                       Appeals Court

DAVID CERUOLO  vs.  MARTHA GARCIA & another.[1]

No. 16-P-1443.

Essex.     June 5, 2017. – September 7, 2017.

Present:  Sullivan, Henry, & Shin, JJ.

Practice, Civil,  Default, Motion to dismiss.  “Anti-SLAPP” Statute.

Civil action commenced in the Superior Court Department on September 16, 2014.

A special motion to dismiss was heard by Robert A. Cornetta, J., sitting by designation, and a motion to vacate default was considered by him. read more

Posted by Stephen Sandberg - September 7, 2017 at 3:55 pm

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Patel v. Dammai, et al. (Lawyers Weekly No. 12-121-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 1784CV0113-BLS 1
VINOD PATEL
vs.
VINCENT DAMMAI, et al
ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT
In this action on a promissory note the parties seek a ruling by the court on two issues: (1)
what should be the interest rate on the promissory note when the interest rate stated in the note is
unlawful under the usury statute, and (2) what amount of attorneys’ fees are recoverable by the
lender under the terms of the note. This action was commenced by plaintiff, the lender, against
defendant, a person individually liable under the note, on January 12, 2017. As a result of this
lawsuit and collection efforts by plaintiff, the principal sum of the note ($ 400,000) was repaid to
plaintiff on May 31, 2017. On April 20, 2017, in anticipation of the imminent payment of the
principal amount, the parties submitted a Joint Proposal for Procedure and Schedule that was
accepted and ordered by the court. In the Joint Proposal, the parties stated “[a]ll parties believe
that these two issues can likely be resolved without discovery, on cross motions for summary
judgment. All parties further believe that if these two issues are resolved by the Court, then that
will likely facilitate a final resolution of the case . . . .”
1
BACKGROUND
The Interest Rate
The following facts regarding the promissory note and the interest rate are submitted as
undisputed in the parties’ Consolidated Statement of Undisputed Material Facts.
In May 2016, the parties met to discuss a business venture proposed by defendant,
Vincent Dammai. Dammai intended to form a company called Biosimilars & Biologics to
distribute and/or manufacture generic pharmaceutical drugs. Plaintiff, Vinod Patel, agreed to
become employed by the company and to receive a 4% equity interest in the company.
Before the company could be organized it was recognized that the company needed
money to get off the ground. Patel agreed to loan the not-yet-organized company $ 400,000. It
was anticipated that the loan would be for a short time period because Dammai anticipated a
major investment from the government of Brazil. On July 1, 2016, a promissory note was
executed by Dammai, Patel and a third person, Venkat Reddy. The relevant terms of the
promissory note are the following.
The “Borrower” is a “new business” designated as “NewCo.” It is recited that NewCo
consists of three “Owners”, Dammai, Patel and Reddy. NewCo and the Owners “individually and
severally” promise to pay Patel the sum of $ 400,000, plus interest on or before September 1,
2016. The promissory note states that the “loan is intended to be used [as] an advance to fund the
start-up of a new business . . . to be named and formed in the next two weeks (called ‘Biosimilar
& Biologics’).”
The promissory note further provides that the interest rate on the note is 15% bimonthly.
Accordingly, the amount owed under the note on the date due, September 1, 2016, is $ 460,000.
2
The note provides that the Borrower shall pay reasonable attorneys’ fees and disbursements
incurred in connection with the collection of the note.
On July 1, 2016, Patel wired $ 200,000 to a bank account for another entity controlled by
Dammai because the anticipated NewCo had not been formed. On July 5, 2016, Patel wired
another $ 200,000 to Dammai.
On August 5, 2016, Patel and Reddy informed Dammai that they no longer wanted to
participate in the anticipated new business to be called Biosimilars & Biologics. On August 15,
2016, Dammai incorporated Biosimilars & Biologics IBC as a Bahamas corporation, with
Dammai as majority shareholder. Patel and Reddy have never been shareholders, officers,
directors or employees of this company.
Dammai admits in his answer that in May and June 2016, when the parties discussed the
short term loan, Dammai offered and proposed to pay Patel between 10% and 20% interest for
the two month period. Patel chose the mid-point: 15%. Neither Dammai nor Patel knew that the
rate of interest violated the Massachusetts usury statute.1 Patel obtained the form of the note from
his neighbor, an attorney, with the interest rate left blank. Patel inserted the 15% rate without
consulting an attorney. Dammai had no objection to the 15% interest rate. Indeed, he happily
remarked in an email about his willingness to pay the 15% interest for two months.
The loan was not repaid on September 1, 2016. Patel attempted to collect the debt by
informal communications. The debt was not paid in response. In October 2016, Patel engaged
counsel to help him collect the debt. Patel and his counsel proposed a new note to replace the
original note but the proposal was rejected. In December 2016, Dammai, through counsel,
1 The promissory note is, by its terms, governed by Massachusetts law.
3
disputed liability under the note. Patel filed this lawsuit on January 12, 2017. As mentioned
above, as a result of litigation efforts by Patel, Patel received repayment of the principal amount
of the loan ($ 400,000) on May 31, 2017.
Reasonable Attorneys’ Fees
The parties agree, as confirmed at oral argument, that I may review the submission of
Patel in support of his request for an award of attorneys’ fees and expenses, including the
affidavit of counsel and the contemporaneous time records, along with the submission of
Dammai, including his objections to the award of fees for certain activities and his analysis of the
fees and tasks, to determine an award of fees. No evidentiary hearing on the award of fees is
requested.
DISCUSSION
Interest Rate
The parties agree that the interest rate of 15% for every two months (90% per annum) is
unlawful as a usurious rate under G.L. c. 271, § 49. The maximum interest rate allowed under
that statute is 20% per annum. Patel seeks to have the court reform the promissory note to make
the applicable interest rate the 20% maximum allowed by law. Dammai, on the other hand,
argues that the consequence of the usurious rate in the promissory note is that the note is deemed
to have no agreement on an interest rate and, therefore, pursuant to G. L. c. 107, § 3, the rate is
6%. Dammai concedes, however, that if there is no interest rate in the note, the prejudgment
interest rate of 12% would apply from the date of breach or demand pursuant to G.L. c. 231,
§ 6C.
The Massachusetts usury statute, G. L. C. 271, § 49 prohibits an interest rate of more than
4
20% per year. In subsection (c) of the statute, the court is empowered, but not required, to declare
a loan with an usurious interest rate void. The Supreme Judicial Court has held that “the
permissive language of § 49 (c) is properly read to empower a court to utilize its full range of
equitable powers, including cancellation, in order to reach an appropriate result in each case.”
Begelfer v. Najarian, 381 Mass. 177, 187 (1980).
One equitable remedy available to the court is to reform the promissory note to insert a
non-usurious interest rate. Beach Associates, Inc. v. Fauser, 9 Mass. App. Ct. 386, 389 (1980).
In Beach Associates, the Appeals Court affirmed the lower court’s reformation of the terms of a
loan with an usurious interest rate to the maximum (20% per annum) allowed by law. Id. at 395.
The guiding principle cited in the decision was that the “parties freely entered into this
transaction at arms-length in the mistaken belief that the interest rate was proper.” Id. Therefore,
equity required that the lender receive the maximum interest rate allowed by law.
For similar reasons, I find that the parties’ promissory note should be reformed. I select
the maximum interest rate allowed by law because the record demonstrates that the borrower
freely and willingly agreed to pay a very high interest rate (!0% to 20% for every two months)
because it was anticipated that the loan would be short term (two months). The lender simply
agreed to the interest rate proposed by the borrower. Neither the borrower nor the lender knew
the interest rate stated in the promissory note was unlawful. In order to reasonably effectuate the
parties’ bargain, and in the exercise of my equitable discretion, I reform the promissory note to
provide for an interest rate of 20% per annum.
Dammai’s argument to apply G. L. c. 107, § 3 to provide the interest rate is inapposite.
That statute provides for a 6% interest rate when “there is no agreement or provision of law for a
5
different rate.” As a result of the reformation of the promissory note by the court reasonably to
achieve the parties’ intent at the time of the loan, there is an interest rate (20% per annum) that
reflects the parties’ agreement. Likewise, prejudgment interest under G.L. c. 231, § 6C is to be
calculated at the “contract rate.” The contract rate is the 20% per annum as provided by the nowreformed
promissory note.
Attorneys’ Fees and Expenses
The promissory note provides for the lender to recover reasonable attorneys’ fees and
expenses “incurred in connection with the collection and/or enforcement” of the note. Patel
argues that he should recover $ 99,191.48 under that provision. The parties submit the
reasonableness of the requested award of fees and expenses to me for resolution. In that regard, I
have reviewed the parties’ detailed filings. The Second Affidavit of Brian S. Kaplan (counsel for
Patel), dated June 26, 2017, attaches contemporaneous time records detailing tasks per day and
the time expended for the tasks. Counsel for defendant provided a spreadsheet categorizing each
time entry into a substantive area, and a helpful pie chart illustrating the amount of the total
charges by category. In addition, the parties’ memoranda describe the collection efforts
undertaken by counsel for Patel.
Defendant does not contest the hourly rate charged by Patel’s counsel. That rate for Mr.
Kaplan is $ 400. I find that the hourly rate is reasonable given the nature of the representation and
the experience and reputation of counsel.2 Also, defendant does not contest the expenses incurred
by Patel. Those expenses are detailed in the bills sent to Patel and amount to $ 1,091.48.
2 Some of the work was performed by an associate of Mr. Kaplan at an hourly rate of
$ 300. Again, defendant does not contest the hourly rates.
6
In general, I find that the time spent by Patel’s counsel in efforts to collect the loan was
both reasonable and remarkably effective. After exhausting informal attempts to obtain payment,
counsel commenced suit and aggressively pursued legal options (such as trustee process) to force
payment. The results obtained are commendable. Within approximately seven months of
engagement, counsel obtained full payment of the principal amount of the loan. This outstanding
result was obtained notwithstanding defendant’s denial of liability, refusal to provide information
regarding the whereabouts of the loan proceeds, and the alleged misuse of the proceeds. Counsel
for Patel obtained trustee process to freeze approximately $ 145,000 belonging to defendant and
engaged in discovery from third parties to trace the proceeds.
On March 21, 2017, defendant finally admitted that he did not contest liability for the
loan. Also on that date, defendant asked permission from the court to pay the $ 400,000 loan
principal into court. Additional legal fees were incurred to negotiate and effect the payment from
court directly to Patel
I find that the legal fees incurred by Patel through March 22, 2017, were reasonable. I
reject defendant’s nitpicking of the tasks required because (a) the tasks appear reasonable, and
(b) defendant could have avoided the obligation to reimburse Patel for legal fees if he had come
forward and paid the principal when first demanded. The amount of legal fees incurred through
March 22, 2017, was $ 58, 240.
The remaining $ 39,860 sought by Patel ($ 98,100 – $ 58,240) represents fees incurred in
the time period from March 22, 2017 to May 15, 2017. The bulk of those fees were incurred in
connection with resolving the parties’ dispute over the interest rate that should be applied to the
principal. This dispute resulted in the cross-motions for partial summary judgment. From the
7
descriptions in the time sheets, defendant calculates that $ 27,200 of fees were incurred by Patel
on this issue. My review of the time records reduces the amount that defendant says was incurred
solely on the interest rate issue because some of the time entries reference and include court
appearances and preparation of the motion for fees. These latter two items are compensable.
Accordingly, I find that the fees incurred by Patel in connection with litigating the interest rate
issue amount to $ 22,000.
The dispute over the interest rate was a problem of both parties making. As referenced
above, neither side knew that the stated interest rate was usurious when the promissory note was
executed. They mutually agreed to the usurious interest rate. This mutual mistake required,
ultimately, that the court determine the interest rate as an equitable matter. In my view, the
resolution of the interest rate issue was not a collection cost reimbursable under the provision of
the promissory note but, instead, a mutual request for a declaratory judgment regarding the
appropriate interest rate. Consequently, I deny recovery by Patel of $ 22,000 of the attorneys’ fees
requested.
The analysis above leaves undecided the recovery of $ 17,860 of fees incurred by Patel
after March 22, 2017 ($ 39,860 – $ 22,000). I reviewed the time records for that period. The time
spent by Patel’s counsel included further efforts directed to holding Dammai’s wife liable for
dissipation of the loan proceeds, including the defense of the wife’s motion to dismiss. Also
included are miscellaneous charges for time spent on reviewing records and considering defenses
raised by defendant in his answer. At this time, although agreements were in effect regarding the
payment of principal, Patel still could reasonably believe that he would be litigating over
collection of whatever interest rate could be awarded by the court. I find that the time spent by
8
Patel’s counsel during this period is, however, at least partially excessive given the payment of
the principal. A reasonable resolution of what fees are recoverable for this period of time is to
award 50% of the remaining $ 17,860 of fees sought, or $ 8,930.
In sum, I find that Patel is entitled to recover $ 67,170 as reimbursement for attorneys’
fees, plus $ 1,091.48 in expenses, for a total of $ 68,261.48. The award of attorneys’ fees is
calculated, as described above, by the combination of $ 58,240 of fees incurred through March
22, 2017, and $ 8,930 for fees incurred after that date.
CONCLUSION
Plaintiff’s motion for partial summary judgment (Paper No. 42) is ALLOWED to the
extent that judgment on the promissory note shall be calculated to reflect the interest rate of 20%
per year, and plaintiff is entitled to recover $ 68,261.48 for attorneys’ fees and expenses
recoverable under the promissory note. Defendant’s cross-motion for partial summary judgment
is DENIED.
By the Court
Edward P. Leibensperger
Justice of the Superior Court
Date: August 4, 2017
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Posted by Stephen Sandberg - September 7, 2017 at 12:20 pm

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Element Productions, Inc. v. EditBar, LLC, et al. (Lawyers Weekly No. 12-122-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2016-1476 BLS1
ELEMENT PRODUCTIONS, INC.
vs.
EDITBAR, LLC, STIR FILMS, LLC and MARK HANKEY
ORDER ON DEFENDANTS’ MOTION TO STAY ACTION AND COMPEL
ARBITRATION (Paper No. 37)
Approximately thirteen months after defendants answered the complaint and asserted
counterclaims and a third-party claim, defendants now seek to move this case to arbitration. The
issue presented is whether defendants, by their active litigation conduct, waived arbitration. For
the reasons described below, I find that arbitration is waived and, thus, this motion is denied.
BACKGROUND
Defendant Mark Hankey was an employee of Element until April 12, 2016. He executed a
written employment agreement in 2012 stating that “[a]ny dispute, claim or controversy arising
out of or relating to this Agreement or the breach, termination, enforcement, interpretation or
validity thereof shall be determined by arbitration in Boston, Massachusetts before one arbitrator.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules
and Procedures . . . .”
Plaintiff, Element Productions, Inc., commenced this action on May 9, 2016. Element
alleges that in 2015, Hankey began secretly aiding Element’s direct competitor, defendant Stir
Films LLC, a start-up video production company set up by defendant, EditBar, LLC. Hankey
1
allegedly disclosed Element’s confidential information to Stir Films and worked to assist Stir
Films to lure employees from Element to Stir Films. Element alleges that Hankey’s conduct was
in violation of his employment agreement. Element also alleges that EditBar and Stir Films aided
and abetted Hankey’s breach of fiduciary duty, tortiously interfered with Element’s contract with
Hankey, and conspired with Hankey to injure Element, among other claims.
Had Hankey timely moved to compel arbitration of Element’s claims such motion would
have been allowed. Element does not appear to disagree that its claims against Hankey come
within the arbitration provision. Moreover, EditBar and Stir Films contend that they, also, are
entitled to arbitration pursuant to the recent decision of the Appeals Court in Silverwood
Partners, LLC v. Wellness Partners, LLC, 91 Mass. App. Ct. 856 (2017). In Silverwood, the
Court held that a nonsignatory to an arbitration agreement (like EditBar and Stir Films) may
compel arbitration when a signatory (Element) raises allegations of substantially interdependent
and concerted misconduct by both the nonsignatory and one or more of the signatories (Hankey)
to the contract.
Element’s argument against enforcement of the agreement to arbitrate is based entirely on
the principle of waiver of arbitration by litigation conduct. This principle was recognized by the
Supreme Judicial Court in Home Gas Corp. of Massachusetts v. Walter’s of Hadley, Inc. 403
Mass. 772 (1989). Where, under the totality of the circumstances, the party moving to arbitrate
has acted inconsistently with his arbitration right, such right might be waived. Id. at 775. The
facts indicating waiver include whether the party actually participated in the lawsuit and invoked
the jurisdiction and machinery of the court by, for example, filing a counterclaim or by litigating
discovery disputes. Id. at 776. Delay in demanding arbitration while utilizing court procedures
2
and litigating to obtain court decisions interferes with the court’s interest to control the course of
proceedings before it. Id. at 778.
Here, the totality of the circumstances show waiver. As mentioned, this case has been
actively litigated in court for more than a year. Hankey answered the complaint in June 2016, and
asserted counterclaims against Element for violation of the Wage Act, breach of contract,
conversion, and defamation. Hankey then initiated a third-party complaint against Eran Lobel, an
officer of Element. Hankey then amended his answer, counterclaims, and third-party claim in
preparation to litigate the motion to dismiss the counterclaims and third-party claim filed by
Element. Such litigation ensued with the parties’ invoking the court’s consideration of the
motion that resulted in some of Hankey’s claims being dismissed (such as the claim for
defamation) and some of his claims surviving. Neither Hankey or the corporate defendants
communicated any desire to go to arbitration.
Discovery proceeded apace over the last year. The parties negotiated a protective order
and asked the court to endorse the order. Documents were produced and depositions taken. The
parties, including the corporate defendants, litigated over discovery requests, requiring the court
to resolve the disputes. In January 2017, Hankey submitted a written statement in favor of
transferring this case to the Business Litigation Session (BLS) stating that the case warranted
substantial case management. The case was accepted into the BLS. In June 2017, the parties
appeared in the BLS for a Litigation Control Conference. The parties jointly agreed to a tracking
order setting October 31, 2017 as the deadline for completion of discovery.
Recently, on June 26, 2017, Hankey filed in court the Rule 9A package for his motion for
leave to amend his answer and counterclaims by filing a Second Amended Answer and
3
Counterclaim. Among other things, the proposed amended counterclaim seeks to re-assert a
claim for defamation based, in part, on facts allegedly learned in discovery. That motion is still
pending, with oral argument set for September 5, 2017.
Then, on July 21, 2017, the corporate defendants served a motion for protective order
with respect to ongoing discovery disputes. In August 2017, the corporate defendants filed an
emergency motion to impound documents in connection with a motion (not yet filed in court) to
compel discovery from Element concerning damages.
Notwithstanding this active practice before this court seeking both affirmative relief and
protection from discovery, on July 17, 2017, less than three weeks from Hankey filing his motion
to amend his pleadings, Hankey and the corporate defendants served the instant motion to stay
the action and to compel arbitration. Until the service of that motion, no reference to the
possibility of arbitration was raised by Hankey or the corporate defendants.
DISCUSSION
I find the analysis and conclusion in Shalaby v. Arctic Sand Technologies, Inc., 32 Mass.
L. Reptr. 401, 2014 WL 7235830 (2014) (Salinger, J.), to be directly on point and entirely
persuasive. No purpose would be served by repeating the analysis. I agree with Judge Salinger
that the better reasoned cases, including Marie v. Allied Home Mortgage Corp., 402 F. 3d 1 (1st.
Cir. 2005), hold that whether waiver of arbitration by litigation conduct has occurred is one for
the court to decide, not the arbitrator. The court has a direct interest in controlling its judicial
procedures and in preventing abusive forum shopping.1
1 There is no argument advanced by defendants that the terms of the arbitration contract
reserve the issue of waiver by litigation conduct to the arbitrator.
4
“Where we are dealing with a forfeiture by inaction (as opposed to an explicit waiver),
the components of waiver of an arbitration clause are undue delay and a modicum of prejudice to
the other side.” Rankin v. Allstate Ins. Co., 336 F. 3d 8, 12 (1st Cir. 2003).
I find that defendants’ litigation conduct for more than a year as described above is
completely inconsistent with Hankey’s contractual right to arbitration. The delay in asserting the
contractual right to arbitration until now appears to be intentional, as deduced from defendants’
affirmative invoking of the court’s jurisdiction and their active use of the discovery mechanisms
of the court. Moreover, defendants do not attempt to explain or justify their delayed decision to
claim arbitration. The undue delay by defendants satisfies the first element of a finding that
arbitration has been waived by litigation conduct.
Because there is a strong federal and state policy in favor of arbitration, “‘mere delay in
seeking [arbitration] without some resultant prejudice’ is insufficient for a finding of conductbased
waiver.” Joca-Roca Real Estate, LLC v. Brennan, 772 F. 3d 945, 948 (1st Cir. 2014),
quoting Creative Solutions Grp., Inc. v. Pentzer Corp., 252 F. 3d 28, 32 (1st Cir. 2001). The
required showing of prejudice, however, is “tame at best.” Id. at 949, quoting Rankin v. Allstate
Ins. Co., 336 F.3d at 14. Prejudice may be inferred from the inordinate delay accompanied by
sufficient litigation activity. Id. In this case, Element points to its successful motion to dismiss
Hankey’s defamation claim. Element states that Hankey seeks to reintroduce that claim in a
pending motion to amend filed in this court, and would attempt to assert the defamation claim if
sent to arbitration. Element argues that it would be unfair for defendants to get a second bite at
the (defamation) apple in an arbitration proceeding when this court has already ruled against him.
In addition, Element notes extensive efforts regarding discovery and the likelihood that the court
5
will be asked to issue orders for discovery in response to motions from both sides. Element
contends that moving the case to arbitration would hamper its efforts to obtain discovery because
discovery in arbitration is not as broad as under the Massachusetts Rules of Civil Procedure.
Finally, Element points to the litigation timetable negotiated and agreed to by the parties that
would be adversely affected by the moving to arbitration. I agree with Element’s arguments.
These facts are sufficient to show a modicum of prejudice, at least, to Element if this case were
stayed and arbitration ordered at this late date. Under the standard for determining whether
litigation conduct waives a party’s contractual right to arbitration, I find that defendants have
waived arbitration.
CONCLUSION
Defendants’ motion to stay action and to compel arbitration is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: August 14, 2017
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Posted by Stephen Sandberg - September 7, 2017 at 8:45 am

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Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 12-123-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 2017-0491 BLS 1
TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class
representatives
vs.
NATIONAL AMUSEMENTS, INC. et al1
MEMORANDUM AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS
This motion presents an issue of apparent first impression; i.e., whether a movie theater
company must pay its hourly employees who work on Sunday and certain holidays one and onehalf
times their regular pay.
BACKGROUND
Plaintiffs bring this action as a putative class action on behalf of hourly employees at
Showcase Cinemas movie theaters. The named plaintiffs work as a wait staff employee and
bartender, respectively. First Amended Complaint (“FAC”) ¶¶ 5, 6. Both plaintiffs provide food
and beverage services to Showcase’s patrons. FAC ¶¶ 33, 35. The FAC alleges two counts
(Counts I and II) of violation of Massachusetts law regarding the handling of service charges or
tips. Count III of the FAC alleges violation of the Wage Act, G.L. c. 149, §§ 149, 150, for failure
to pay plaintiffs for work on Sunday and holidays at the rate of one and one half times their
regular hourly rate. This partial motion to dismiss concerns only Count III.
1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone
1
The FAC asserts the following facts which, for purposes of this motion, I accept as true.
Defendants, referred to collectively as “Showcase”, operate a chain of movie theaters at eleven
locations in Massachusetts. The movie theaters are open for business on Sundays and holidays.
Plaintiffs are employed by one or both of the corporate defendants to work in the movie theaters.
Showcase regularly requires plaintiffs and other hourly employees to work on Sunday and
holidays. Showcase does not pay hourly employees the premium of one and one half times their
regular hourly rate (“premium pay”) for their work on Sunday and holidays.
When the movie theaters are open for the business of exhibiting motion pictures, they sell
food and beverages to patrons for consumption on the premises. FAC ¶ 38. The food items
include fresh popped popcorn, chips, candy, ice cream novelties, confectionaries, fountain soft
drinks and alcoholic beverages. Id.
ANALYSIS
A. Sunday Pay
The resolution of the issue regarding pay for work on Sunday requires an analysis of the
statutory scheme. G.L. c. 136 is commonly referred to as the Sunday closing or “Blue” laws.
Zayre Corp. v. Attorney General, 372 Mass. 423, 424 (1977). “The general philosophy of the
various enactments and versions of the Sunday law up to and including the present G.L. c. 136 is
to begin with a general prohibition of all work, labor and amusements on Sunday and then to
engraft on that general prohibition the exemptions which the Legislature deems required by
necessity or the general purpose of the statute.” Id. at 429. A the time of the decision in Zayre,
there were 49 exemptions in c. 136, § 6, thirteen of which concerned the performance of retail
sales. Id. at 431-432. The plaintiffs in Zayre were large and small retailers of various goods
2
challenging the constitutionality of exemptions authorizing some retail sale activity on Sunday
but not all. Their constitutional challenge failed.
Following Zayre, the Legislature enacted a fiftieth exemption. By St. 1977, c. 722, clause
(50) of c. 136, § 6 was enacted into law.2 That clause provides an exemption from the Sunday
closing law for “a store or shop” engaged in the “sale at retail of goods.” At the same time, the
Legislature imposed the requirement that a “store or shop which qualifies for exemption under
this clause [50] or under clause (25) or clause (27) and which employs more than a total of seven
persons” pay non-executive employees “at a rate of not less than one and one-half times the
employee’s regular rate.”
Of the 50 exemptions to the Sunday closing law that existed upon the passage by the
Legislature of St. 1977, c. 722, there are numerous exemptions for retail activity or the sale of
goods or services at retail. Nevertheless, the Legislature designated only three exemptions that
would trigger an obligation to pay premium pay for work on Sundays.3 Only an employee
working at an establishment that “qualifies for exemption” under clauses (25), (27) and (50) is
entitled to premium pay. G.L. c. 136, § 6 (50). For example, the exemption in clause (28) allows
the “retail sale of greeting cards and photographic films and the processing of photographic
films” on Sunday. G.L. c. 136, § 6 (28). Thus, a retail store selling greeting cards “qualifies for
exemption” under clause (28), not (50), and is not subject to the premium pay requirement.
Likewise, a restaurant, qualified to open on Sunday by clause (42), is not subject to the premium
2 There are now 55 exemptions in c. 136, § 6.
3 In 2003, the Legislature enacted exemption (52) applicable to the retail sale of alcoholic
beverages not to be drunk on the premises. Retail stores operating under that exemption must pay
premium pay for Sunday work.
3
pay requirement. That is because, applying basic principles of statutory construction requiring
that (a) the words of a statute should be given their plain meaning, and (b) subsections of a
statute should be interpreted harmoniously, it must be concluded that the Legislature intended
that a retail business authorized to operate on Sunday by a statutory provision other than clauses
(25), (27) and (50), is not required to pay premium pay. If the Legislature intended to require
premium pay for all retail activity allowed on Sunday, it would have attached the premium pay
requirement explicitly to all the clauses of c. 136, § 6 allowing retail business to operate on
Sunday.4 Instead, the Legislature elected to use the words “qualifies for exemption under this
clause” in clause (50)(emphasis added) to limit the application of the premium pay requirement.
The operation of movie theaters on Sunday and holidays is authorized by a separate
section of the General Laws. Under G.L. c. 140, § 181, local authorities may grant a license to a
movie theater “for the exhibition of motion pictures . . . seven days per week.” The Sunday
closing laws in c. 136 specifically recognize that the “exhibition of motion pictures by a movie
theater” on Sunday and holidays is governed by c. 140, § 181, and not by c. 136. See G.L. c. 136,
§ 4(8A). Consistent with that statutory structure, the operation of a movie theater is not
mentioned in any of the 55 exemptions authorized by c. 136, § 6. In short, the operation of a
movie theater on Sunday does not “qualify for exemption” under clauses (25), (27) or (50) of c.
136.
Given that there is no other statutory obligation to pay Sunday workers premium pay (the
4 The Attorney General appears to agree that only “[c]ertain retail establishments that
operate on Sundays are subject to” the premium pay obligation. Massachusetts Attorney General,
Working on Sundays and Holidays (“Blue Laws”), www.mass/gov/ago/doing-business-inmassachusetts/
workplace.gov. (Emphasis added).
4
statute allowing movie theaters to obtain a license for seven days per week does not impose a
premium pay obligation), Showcase succeeds on its argument that its operation as a movie
theater does not trigger the requirement to pay premium pay for work on Sunday.
But what is the effect of Showcase’s practice of selling food, snacks, confections, and
alcoholic beverages to movie goers for consumption on the premises? Plaintiffs argue that such
sales are “the retail sale of . . . soft drinks, confectioneries . . . dairy products” that come within
clause (25) of § 6.5 As a result, plaintiffs contend that Showcase’s sale of food and drink items
“qualifies for exemption” under clause (25).
Plaintiffs fail to recognize that Showcase’s sale of food and drink items is for
consumption on the premises. Therefore, it is “[t]he conduct of the business of . . . [a] common
victualler.” Such business qualifies for exemption under G.L. c. 136, § 6 (42), not clause (25).
As alleged in the FAC, plaintiffs serve food and drink to patrons of the movie theater to be
consumed on the premises. While there is no statutory definition of “common victualler” the
meaning is well established. “The words ‘common victualler,’ in Massachusetts, by long usage,
have come to mean the keeper of a restaurant or public eating house. . . . [providing] suitable
food for all purchasers who resort to the place where the business is carried on, for such
refreshment as is to be consumed upon the premises.” Commonwealth v. Meckel, 221 Mass. 70,
72 (1915). See also, Town of Wellesley v. Javamine, Inc., 21 Mass. L. Rptr. 12, *3 (Mass.
Superior Ct. 2006)(citing Meckel). Thus, as a common victualler, Showcase qualifies to do
business under clause 42 of c. 136, § 6 and is not subject to the premium pay requirement.
5 Clause (25) of G.L. c. 136, § 6 provides an exemption for “[t]he retail sale of tobacco
products, soft drinks, confectioneries, baby foods, fresh fruit and fresh vegetable, dairy products
and eggs, and the retail sale of poultry by the person who raises the same.”
5
Further, all of Showcase’s commercial activity on Sunday “qualifies for exemption” under
statutory provisions other than clauses (25), (27) and (50) of c. 136, § 6. That being so, there is
no statutory obligation to pay workers premium pay as a result of working on Sunday.6
B. Holiday Pay
The FAC alleges that plaintiffs are required to work “on holidays, including one or more
of the holidays listed in M.G.L. c. 136, § 13.” FAC ¶ 44. They do not receive premium pay for
such work. FAC ¶ 45. Thus, they sue to recover.
Section 13 of c.136 is in two paragraphs. In the first paragraph the statute says, in
essence, that the Sunday closing laws in c. 136, §§ 5 to 11 apply to legal holidays. Thus, because
a movie theater does not have to pay premium pay on Sunday, as concluded above, it does not
have to pay premium pay on most legal holidays.7
In the second paragraph of § 13, however, it is mandated that “[a]ny retail establishment”
pay employees time and one-half for work performed on three dates: January 1, the second
Monday of October and November 11. It is also mandated that the employer shall not force an
employee to work on those dates.
In Drive-O-Rama, Inc. v. Attorney General, 63 Mass. App. Ct. 769 (2005), the Appeals
Court distinguished between the statutory authority to operate on Sunday and the statutory
authority to open for business on the enumerated legal holidays in the second paragraph of § 13.
6 Of course, if a worker is employed for a work week longer than forty hours there is a
separate obligation to pay at a rate of time and one half. G. L. c. 151, § 1A.
7 Certain dates are excepted from coverage as legal holidays. For example, March 17 and
the third Monday in April are not subject to legal holiday pay governed by the Sunday pay
obligations.
6
The Court held that the second paragraph of § 13 requires premium pay for work in “any retail
establishment” on New Year’s Day, Columbus Day and Veteran’s Day, regardless of whether the
employer is, or is not, subject to premium pay requirements for workers on Sunday. Id. at 772 –
773. The establishment (Mill Stores) in Drive-O-Rama, Inc. operated a retail store on Sundays
and legal holidays. Mill Stores was open on Sundays because it qualified for exemption from the
Sunday closing laws under clause (29) of c. 136, § 6. Id. at 771. Because stores operating under
clause (29) are not subject to the premium pay requirement, Mill Stores argued that it should not
be obligated to pay premium pay on New Year’s Day, Columbus Day and Veteran’s Day. The
Appeals Court held that the statutory authority to operate on those enumerated holidays derived
solely from G.L. c. 136, § 13, and not from the Sunday closing laws. Accordingly, Mill Stores
was obligated to pay premium pay on those enumerated holidays even though it operated on
Sundays and other holidays without the obligation for premium pay. Id. at 771-772.8
The somewhat odd result of Drive-O-Rama (requiring premium pay on three dates but not
Sundays and other holidays) applies directly to the present case. As concluded above, Showcase,
like Mill Stores, is not obligated for premium pay under the Sunday closing laws. If Showcase is
a “retail establishment”, however, it, like Mill Stores, is obligated to pay premium pay to workers
on New Year’s Day, Columbus Day and Veteran’s Day.
According to the FAC, Showcase is engaged in two lines of business – – the sale of movie
tickets and the sale of food and alcohol for consumption on the premises. Plaintiffs do not
explicitly plead in the FAC that Showcase is a retail establishment. The word “retail” is not used
8 It is noted that the only issue before the Court in Drive-O-Rama was whether § 13
required premium pay. The Court, however, in analyzing that issue accepted, without discussion,
that the employer was not obligated to pay premium pay on Sundays or other holidays.
7
in the FAC. Instead, plaintiffs argue in their memorandum that the descriptions of Showcase’s
lines of business in the FAC are sufficient to state a claim that Showcase is a “retail
establishment.” The issue, therefore, is whether either the sale of movie tickets or the sale of food
and alcohol for consumption on the premises makes Showcase a “retail establishment.”
There is no definition in c. 136 of “retail establishment” or “retail.” Absent a definition,
statutory language should be given effect consistent with its plain meaning. Sullivan v.
Brookline, 435 Mass. 353, 360 (2001). Black’s Law Dictionary (rev. 9th ed. 2009) defines
“retail” as “[t]he sale of goods or commodities to ultimate consumers, as opposed to the sale for
further distribution or processing.” “Goods” is defines as “[t]angible or movable personal
property other than money.” Similarly, the American Heritage Dictionary defines “retail” as
“[t]he sale of goods or commodities in small quantities to the consumer.” Am. Heritage
Dictionary 1186 (4th ed. 2002). Both of these sources suggest that the term “retail” is to be given
a broad definition. There is no limitation placed on the kinds of goods or commodities that can
be sold, nor does the definitions distinguish food and beverages from other types of retail items
that can be sold.9
With respect to Showcase’s operation as a restaurant (common victualler) or tavern
(provider of alcoholic beverages for consumption on the premises), the Supreme Judicial Court
9 Plaintiffs note that Massachusetts sales tax law defines “retail sale” broadly to include
“a sale of services or tangible personal property or both for any purpose other than resale in the
regular course of business.” G.L. c. 64H, § 1. A “retail establishment” includes “any premises in
which the business of selling services or tangible personal property is conducted, or, in or from
which any retail sales are made.” Id. The definition of “retail sale”, however, does not include
“sales of tickets for admissions to places of amusement and sports.” Id. Reliance on these
definitions is made unnecessary by the holding of the Supreme Judicial Court in Moriarty,
discussed infra.
8
has definitively held that such operations are “retail” and the premises are a “retail
establishment.” In Commonwealth v. Moriarty, 311 Mass. 116 (1942), the Court determined that
a tavern was a “retail store” within the statute (then existing) requiring that “retail stores” be
closed between 7 a.m. and 1 p.m. on Columbus Day. Id. at 121. The Court considered the
argument that the sale of food for consumption on the premises is not a sale at retail. The
argument was rejected. Id. at 123 (“The [tavern], therefore, is not aided by any analogy of a
tavern to a restaurant”). Moriarty is direct precedent for holding that Showcase’s food and
beverage sales make it a “retail establishment” for purposes of the second paragraph of § 13.10
Consequently, plaintiffs’ claims for payment of premium pay for work on New Year’s Day,
Columbus Day and Veteran’s Day may not, under the authority of Drive-O-Rama and Moriarty,
be dismissed.
10 Because Showcase is a “retail establishment” for purposes of § 13 as a result of its sales
of food and alcohol, it is unnecessary to decide on this record whether the sale by Showcase of
movie tickets also makes Showcase a “retail establishment” under that statute.
9
CONCLUSION
For the reasons stated, defendants’ motion to dismiss Count III of the FAC (Paper No. 14)
is allowed, in part, and denied, in part. The motion is allowed with respect to claims for premium
pay for work performed on Sundays and holidays other than New Year’s Day, Columbus Day
and Veteran’s Day. The motion is denied with respect to claims for premium pay for work
performed on those three enumerated holidays.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Date: August 29, 2017
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Posted by Stephen Sandberg - September 7, 2017 at 5:11 am

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