Gianareles v. Zegarowski (Lawyers Weekly No. 10-052-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11531 PATRICE GIANARELES vs. PATRICIA ZEGAROWSKI & another.[1],[2] March 19, 2014. Supreme Judicial Court, Superintendence of inferior courts. Probate Court, Guardian. Practice, Civil, Appointment of guardian, Relief from judgment. The petitioner, Patrice Gianareles, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3. We affirm. Background. This matter began in the Probate and Family Court in July, 2012, when the respondent sought to have herself appointed as the guardian for the petitioner’s infant child. See G. L. c. 190B, §§ 5-201 et seq. The respondent is the petitioner’s grandmother and the child’s great-grandmother. The child was one year old at the time the respondent commenced the guardianship proceeding; the petitioner was seventeen years old at that time. The respondent was initially appointed as the child’s temporary guardian, with a trial on the question of permanent guardianship scheduled to take place in December, 2012. Before trial, the petitioner — who had turned eighteen years old in the meantime — and the respondent entered into a written stipulation that provided, among other things, that the respondent would be appointed as the child’s permanent guardian. The petitioner also executed a “Notarized Waiver and Consent to Petition for Guardianship of Minor,” by which she purported to consent to the respondent’s appointment as the permanent guardian. The petitioner was not represented by counsel at the time she signed either of these documents, or at any other point in the proceeding up until then. Based on the stipulation and the executed, notarized consent form, the judge issued a final decree appointing the respondent as the child’s permanent guardian. See G. L. c. 190B, § 2-204. In May, 2013, the petitioner, then represented by counsel, filed a petition to remove the respondent as the child’s guardian, see G. L. c. 190B, § 5-212, and a motion for relief from the judgment pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974). She alleged in her rule 60 (b) motion that the judgment was “void for lack of due process because [the petitioner] was not appointed counsel or afforded alternative procedural safeguards to which she was entitled.” The same judge who issued the final decree denied the motion. The petitioner filed a timely notice of appeal from that ruling. Her petition to remove the respondent as […]
Categories: News Tags: 1005214, Gianareles, Lawyers, Weekly, Zegarowski
Commonwealth v. Reddy (Lawyers Weekly No. 11-029-14)
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 13‑P‑155 Appeals Court COMMONWEALTH vs. JESSEN REDDY. No. 13‑P‑155. Essex. December 6, 2013. ‑ March 19, 2014. Present: Grasso, Kafker, & Graham, JJ. Assault and Battery. Abuse Prevention. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, New trial, Instructions to jury. Evidence, Prior misconduct, Court record. Complaint received and sworn to in the Lynn Division of the District Court Department on January 3, 2007. Following review by this court, 76 Mass. App. Ct. 1112 (2010), a motion for a new trial, filed on November 15, 2010, was heard by Michael C. Lauranzano, J. Kathryn Hayne Barnwell for the defendant. Paul Wagoner, Assistant District Attorney, for the Commonwealth. KAFKER, J. The defendant, Jessen Reddy, was convicted of violation of an abuse prevention order under G. L. c. 209A, § 7, and assault and battery under G. L. c. 265, § 13A(a). In this, his second appeal, based on the denial of his motion for new trial, he raises numerous claims of ineffective assistance of counsel, both trial and appellate. The claim of significance concerns trial counsel’s failure to object when the following language from the unredacted abuse prevention order was introduced in evidence and highlighted by the prosecutor in her closing: “THERE IS A SUBSTANTIAL LIKELIHOOD OF IMMEDIATE DANGER OF ABUSE. YOU ARE ORDERED TO IMMEDIATELY SURRENDER to the Lynn Police Department all guns, ammunition, gun licenses . . . .” We conclude that the prosecutor’s particular emphasis on the “substantial likelihood” of abuse language — exploiting the issuing judge’s previous findings regarding both the likelihood of the defendant to abuse the victim as well as the credibility of the victim — to prove violation of the abuse prevention order and the assault and battery was highly prejudicial. We further conclude that defense counsel’s failure to redact this highlighted language from the abuse prevention order and to object to the prosecutor’s emphasis on it in closing constituted ineffective assistance of counsel that created a substantial risk of a miscarriage of justice requiring a reversal of the defendant’s conviction of assault and battery. However, we affirm the conviction of violating the abuse prevention order itself as the evidence was overwhelming that the defendant knew of the terms and conditions of the order, and at least contacted the victim and appeared at her residence in violation of the […]
Theophilopoulos, et al. v. Board of Health of Salem, et al. (Lawyers Weekly No. 11-028-14)
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 13‑P‑100 Appeals Court ARTHUR THEOPHILOPOULOS & others[1] vs. BOARD OF HEALTH OF SALEM & another.[2] No. 13‑P‑100. Essex. October 4, 2013. ‑ March 18, 2014. Present: Cypher, Katzmann, & Maldonado, JJ. Department of Environmental Protection. Solid Waste Management. Municipal Corporations, Board of health. Department of Environmental Quality Engineering. Administrative Law, Regulations, Agency’s interpretation of regulation, Judicial review. Statute, Construction. Civil action commenced in the Superior Court Department on March 18, 2010. The case was heard by Howard J. Whitehead, J., on a motion for judgment on the pleadings, and a motion for reconsideration was also heard by him. Thomas A. Mackie for the intervener. Leonard F. Femino for the defendant. Seth Schofield, Assistant Attorney General, for the Commonwealth. Carl D. Goodman for the plaintiffs. CYPHER, J. The question presented for review is whether the Salem board of health (board) properly classified the joint application of the city of Salem (city) and Northside Carting, Inc. (NCI), as one for a minor modification of a site assignment. On appeal to the Superior Court pursuant to G. L. c. 30A, § 14(7), a judge concluded that it had not, and nullified the decision of the board approving the application.[3] We reverse. History of the site. In June, 1960, the board assigned city-owned land in Salem for use as a refuse incineration plant (site).[4] As was common for the time, the board did not place any capacity or volume limitations in the site assignment. Once the incinerator was built, the city disposed of the ash on site in a landfill. By 1968, incineration and landfilling operations had ceased. No governmental entity at any time thereafter sought to rescind, suspend, or modify the site assignment through the imposition of conditions. On September 9, 1975, the Department of Environmental Quality Engineering (DEQE), the predecessor agency of the Massachusetts Department of Environmental Protection (department), approved the city’s plan to construct a solid waste transfer station at the site.[5] DEQE’S plan approval was subject to five conditions, including a weight-receipt limit of 100 tons of refuse per day.[6] On June 3, 1994, the department approved the city’s application, pursuant to 310 Code Mass. Regs. § 19.023(3) (1992), for a permit by rule, finding that the existing transfer station met the department’s design and operations standards.[7] See 310 Code […]
Commonwealth v. Muniur M., a juvenile (Lawyers Weekly No. 10-051-14)
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‑11552 COMMONWEALTH vs. MUNIUR M., a juvenile. March 18, 2014. Delinquent Child. District Court, Delinquent child. Practice, Criminal, Juvenile delinquency proceeding, Admission to sufficient facts to warrant finding, Plea, New trial. Evidence, Juvenile delinquency, Guilty plea. A District Court judge allowed the juvenile’s motion to vacate his admission to sufficient facts and for a new trial on the ground that the admission was coerced. The Commonwealth appealed, and the Appeals Court reversed. Commonwealth v. Muniur M., 83 Mass. App. Ct. 1132 (2013). We granted the juvenile’s application for further appellate review. Commonwealth v. Muniur M., 466 Mass. 1106 (2013). We now vacate the judge’s order and remand for further proceedings. Background. In 1992, the juvenile, who was fourteen years old, was charged in the juvenile session of the District Court with delinquency by reason of rape of a child with force under G. L. c. 265, § 22A. It was alleged that he digitally raped a female, who was thirteen years old, with whom he attended middle school. The juvenile later admitted to sufficient facts to warrant an adjudication of delinquency on the charge of statutory rape. When he made this admission, his father was pursuing several State and Federal lawsuits against the city of Pittsfield alleging racial discrimination resulting in his termination as a police officer from the Pittsfield police department. A District Court judge ordered that the juvenile submit to a presentence evaluation pursuant to G. L. c. 123, § 15 (e). The evaluator met with the juvenile’s parents separately, with the juvenile alone, and with all three together. The evaluator observed that the juvenile was “very withdrawn, staring out the window and answering questions in barely audible, short responses” when he was in his father’s presence, but “far more animate[d] and responsive” when he was alone. She opined that there was “some underlying depression,” which was probably caused by the strain on his father and family as a result of the pending lawsuits. The father appeared to be so preoccupied with his own legal situation that it was difficult to keep him focused on his son. The mother complained that the father was similarly preoccupied at home. The evaluator recognized that both parents were “appropriately concerned” about the juvenile. They acknowledged that he had engaged in some wrongdoing and indicated that they […]
Commonwealth v. Gray (Lawyers Weekly No. 11-027-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1277 Appeals Court COMMONWEALTH vs. WILLIAM GRAY. No. 12‑P‑1277. Hampden. November 5, 2013. ‑ March 17, 2014. Present: Cypher, Brown, & Fecteau, JJ. Assault and Battery. Practice, Criminal, Bill of particulars, Variance. Evidence, Collateral matter. Due Process of Law, Elements of criminal offense. Indictment found and returned in the Superior Court Department on November 5, 2009. The case was tried before Richard J. Carey, J.; a motion to set aside the verdict was considered by him, and a motion for reconsideration was heard by him. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. Deborah Bates Riordan for the defendant. BROWN, J. After a jury trial in the Superior Court, the defendant was convicted of a single count of assault and battery and was acquitted of extortion by threats, improper use of a credit card, and unarmed robbery. The day after the trial concluded, the defendant moved to set aside the jury’s guilty verdict; the motion was denied. The defendant later moved for reconsideration, and after a nonevidentiary hearing, the trial judge allowed the motion in a written memorandum of decision. The Commonwealth has appealed. The charges arose from an incident that occurred after the victim had consensual sex with the defendant at the defendant’s apartment. Relevant to the single count on which the defendant was convicted, the Commonwealth proffered evidence that showed, after the sex act, at about 4:00 P.M., the victim, at the defendant’s request, drove him to a nearby Friendly’s Restaurant (Friendly’s), where in the parking lot, a disagreement erupted. According to the victim, the defendant demanded payment for the sexual encounter and when the victim refused, the defendant grabbed the registration documents and other paperwork from the glove compartment of the victim’s vehicle. When the victim tried to stop him, the defendant struck him multiple times in the head, breaking the victim’s tooth and cutting his ear. The victim described a series of subsequent events that were the foundation for the additional charges of which the defendant was acquitted. The bill of particulars the Commonwealth provided to the defendant before trial mirrored this version of events as well as the evidence presented to the grand jury. In relation to the assault and battery charge, the document stated that it occurred at “Friendly’s […]
Zullo v. Culik Law P.C., et al. (Lawyers Weekly No. 10-050-14)
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‑11576 JOHN F. ZULLO vs. CULIK LAW P.C. & another.[1] March 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Small claims procedure. John Zullo appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. Zullo commenced an action in the small claims session of the District Court against his former attorney and law firm. Judgment entered for the defendants. Zullo’s petition sought relief from that judgment. We have repeatedly stated that a plaintiff who chooses to proceed in the small claims session waives the right to appeal from any adverse judgment, and likewise is not entitled to invoke this court’s extraordinary power of general superintendence in lieu of an appeal to compel review of the judgment. See Tessema v. Nextel Sys. Corp., 451 Mass. 1007, 1007-1008 (2008); Stevenson v. Mackey, 450 Mass. 1014, 1015 (2007); Pandey v. Ware Div. of the Dist. Court Dep’t, 412 Mass. 1002, 1003 (1992) (“by choosing to pursue their claim as plaintiffs in the small claims session, the plaintiffs waived their right to appeal from any adverse rulings . . . [and] where the plaintiffs chose to pursue the small claims procedure which is ‘not exclusive but an alternative to the formal procedure of the District Court,’ . . . the single justice was warranted in refusing to grant relief under G. L. c. 211, § 3″). As in each of those cases, the single justice here was warranted in declining to grant extraordinary relief. Judgment affirmed. John F. Zullo, pro se. Josef C. Culik for the defendants. [1] Josef C. Culik. Full-text Opinions
Commonwealth v. Pike (Lawyers Weekly No. 10-049-14)
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‑11499 COMMONWEALTH vs. MATTHEW J. PIKE. March 17, 2014. Sex Offender. Sex Offender Registration and Community Notification Act. Evidence, Sex offender. On May 20, 2010, the defendant pleaded guilty to several charges including indecent assault and battery. He was sentenced to two years at a correctional facility, time deemed served, and placed on probation for two years. His conditions of probation included, among other things, that he register as a sex offender pursuant to G. L. c. 6, §§ 178C-178P. He was subsequently charged in a complaint, on July 30, 2010, with failing to register, in violation of G. L. c. 6, § 178H (a), and, following a jury-waived trial, was convicted of that charge. The Appeals Court affirmed the conviction, rejecting the defendant’s argument that the evidence was insufficient and declining to consider his argument that he received ineffective assistance of counsel because he had not first raised the claim in a motion for a new trial. See Commonwealth v. Pike, 83 Mass. App. Ct. 1128 (2013). The case is now before this court on further appellate review. The defendant raises the same two issues here that he did in the Appeals Court: that the evidence is insufficient to support the conviction and that he received ineffective assistance of counsel. To prove that the defendant violated G. L. c. 6, § 178H (a), the Commonwealth must show that, among other things, the defendant failed to notify the Sex Offender Registry Board (board) of a change of address.[1] At trial, the Commonwealth attempted to prove this element of the crime through the testimony of the defendant’s probation officer, Susan McDonough. She testified that she was scheduled to visit the defendant at his home on July 14, 2010, but that she “left a message that [she] would not be able to make that appointment and for him to come into the office. He did not report.” She also stated that on July 21, 2010, she went to the defendant’s home and he was not there. That same day, the defendant left a message on McDonough’s voice mail “that all is good and he [was] staying with a friend.” As a result of these events, McDonough asked for a warrant on July 23, 2010, leading to the issuance of the July 30, 2010, complaint charging the defendant with failing to register […]
Commonwealth v. Dalton (Lawyers Weekly No. 10-048-14)
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‑11429 COMMONWEALTH vs. RYAN DALTON. Suffolk. January 6, 2014. ‑ March 17, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Practice, Criminal, Sentence, Judicial discretion. Statute, Construction. Words, “May not.” Civil action commenced in the Supreme Judicial Court for the county of Suffolk on August 15, 2011. The case was reported by Lenk, J. Pamela Alford, Assistant District Attorney, for the Commonwealth. Lawrence P. Murray for the defendant. GANTS, J. Under G. L. c. 6, § 178E (f), where a defendant convicted of a sex offense is not “sentenced to immediate confinement,” the judge “shall relieve such sex offender of the obligation to register” as a sex offender with the Sex Offender Registry Board (SORB) if the judge, within fourteen days of sentencing, determines that “the circumstances of the offense in conjunction with the offender’s criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public.” However, § 178E (f) also provides that a judge “may not make such a determination or finding if the sex offender . . . has been convicted of a sex offense involving a child.” The defendant in this case was convicted of statutory rape of a fourteen year old girl, in violation of G. L. c. 265, § 23, which is a “sex offense involving a child” as defined in G. L. c. 6, § 178C, and was not sentenced to immediate confinement. The issue presented in this case is whether a judge may relieve the defendant of the obligation to register with SORB because § 178E (f) declares that a judge “may not,” rather than “shall not,” make the required determination. We conclude that the judge may not. Background. After a jury-waived trial, the defendant was found guilty of one count of statutory rape and sentenced to a term of probation of six years, with special conditions.[1] The defendant filed a motion for relief from the obligation to register as a sex offender, and the Commonwealth filed an opposition. After hearing, the judge found that, if § 178E (f) allows him the discretion to determine that the circumstances of the offense in conjunction with the defendant’s criminal history indicate that the defendant does not pose a risk of reoffense or a danger to the public, […]
Commonwealth v. Spray (Lawyers Weekly No. 10-043-14)
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‑10095 COMMONWEALTH vs. QUILLIE MERLE SPRAY, SECOND. Worcester. November 8, 2013. ‑ March 13, 2014. Present: Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ. Homicide. Firearms. Evidence, Credibility of witness, Firearm, Hearsay, Identification of inanimate object, Testimony of third party respecting identification, Insanity, Admissions and confessions, Voluntariness of statement. Due Process of Law, Hearing. Practice, Criminal, Assistance of counsel, Capital case, Defendant’s competency, Hearsay, Motion to suppress, New trial, State of mind, Trial of indictments together, Admissions and confessions, Voluntariness of statement, Witness. Insanity. Constitutional Law, Assistance of counsel, Admissions and confessions. Indictments found and returned in the Superior Court Department on April 6, 2001. Pretrial motions to suppress evidence were heard by Peter W. Agnes, Jr., J., the cases were tried before him, and a motion for a new trial, filed on February 28, 2007, was considered by him; and a second motion for a new trial, filed on July 14, 2010, was heard by John S. McCann, J. Kenneth I. Seiger for the defendant. Donna-Marie Haran, Assistant District Attorney, for the Commonwealth. LENK, J. The defendant appeals from his conviction of murder in the first degree on a theory of extreme atrocity or cruelty, and from the denial of two motions for new trial. The defendant, his brother, his sister-in-law, and his cousin worked together in a tiling business based in Oklahoma. While working on a job at a restaurant in Clinton, the defendant stabbed and killed the general manager with no apparent provocation or motive. The defense at trial was based on a theory of actual innocence and that the defendant’s sister-in-law was the true culprit. The defendant argues error in the denial of a motion to suppress statements; improper joinder of charges for trial; admission of certain hearsay evidence; and the denial of his first motion for a new trial without an evidentiary hearing. The defendant also argues that his trial counsel was ineffective for failing to pursue a defense of lack of criminal responsibility, based on evidence that the defendant may have been suffering from a spontaneous recurrence of methamphetamine-induced psychosis at the time of the stabbing. We conclude that there was no error, and, after a review of the entire record pursuant to our responsibility under G. L. c. 278, § 33E, that there is […]
Ari Weitzner, M.D., P.C. v. Cynosure, Inc.
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 13‑P‑264 Appeals Court ARI WEITZNER, M.D., P.C. vs. CYNOSURE, INC. No. 13‑P‑264. Middlesex. October 4, 2013. ‑ March 13, 2014. Present: Graham, Sikora, & Hanlon, JJ. Practice, Civil, Class action, Judicial discretion. Rules of Civil Procedure. Due Process of Law, Class action, Jurisdiction over nonresident. Superior Court, Jurisdiction. Civil action commenced in the Superior Court Department on May 24, 2005. A motion for class certification was heard by Joseph M. Walker, III, J., and entry of final judgment was ordered by him. Todd C. Bank (Christopher J. Marino with him) for the plaintiff. Richard M. Zielinski for the defendant. SIKORA, J. The plaintiff, Ari Weitzner, M.D., P.C. (Weitzner), brought a class action complaint in Superior Court for injunctive relief and damages against the defendant, Cynosure, Inc. (Cynosure). A judge denied class certification and subsequently entered judgment on the merits of Weitzner’s individual claims. Weitzner has appealed. He contends (1) that the judge wrongly denied certification of the proposed class of plaintiffs, and (2) that the judge should not have adjudicated the merits of his individual claims because the Superior Court lacked jurisdiction over allegations of damages below the level of $ 25,000. For the following reasons, we affirm. Background. The following facts emerge from the record as undisputed. Weitzner conducts an ophthalmology practice in Brooklyn, New York; Cynosure is a manufacturer of laser and light-based technology with a principal place of business in Massachusetts. Between April 7, 2004, and May 20, 2004, Cynosure sent Weitzner four unsolicited facsimile advertisements. On May 24, 2005, Weitzner filed the class action complaint in Superior Court alleging that Cynosure had violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. The TCPA prohibits, inter alia, the transmission of unsolicited advertisements via facsimile. 47 U.S.C. § 227(b)(1)(C). Weitzner requested $ 1,500 in statutory damages for each violation of the TCPA and an order enjoining Cynosure from “continuing to send unsolicited facsimile advertisements.” See 47 U.S.C. § 227(b)(3). Three months later, in August of 2005, Cynosure voluntarily suspended its facsimile transmission program. In February of 2006, a judge denied Cynosure’s motion to dismiss the complaint. Weitzner subsequently ignored Cynosure’s offer to confess judgment on his individual claims. In April of 2008, Weitzner moved for certification of a nationwide class composed of: “[a]ll individuals […]