Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-046-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Property). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the Property, the defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the Property and the Grantor of the Conservation Restriction. Plaintiffs allege that the Ballou Channing induced the Foundation into making a $ 3 million gift in return for Ballou Channing’s promise to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”). 2 This lawsuit was instituted on May 4, 2016. In their original Complaint, plaintiffs asserted the following counts against both defendants: breach of the Gift Agreement (Count I); breach of the Conservation Restriction (Count II); promissory estoppel (Count III); unjust enrichment (Count IV); and violation of Chapter 93A (Count V). The defendants filed motions to dismiss. On December 30, 2016, this Court allowed those motions in part. See Memorandum of Decision and Order dated December 30, 2016 (the 2016 Decision). As to Ballou Channing, this Court dismissed Count II because it no longer owned the Property that was subject to the Conservation Restriction. As to Cedar Hill, this Court dismissed Counts I, III and IV – those counts based on the Gift Agreement –because Cedar Hill was not a party to the Gift Agreement. Count V alleging a violation of Chapter 93A was dismissed as to both defendants. Six months later, plaintiffs amended their complaint to assert new claims against both defendants and to add back some claims that this Court had previously dismissed. Specifically, the Amended Complaint contains a new claim against both defendants based on the same allegations that were the basis of Counts I, III and IV of the original Complaint, but with a wrinkle: this new claim asserts a breach of what is described as a “Letter Agreement” between the defendants Ballou Channing and Cedar Hill. Plaintiffs say that they only learned of this Letter Agreement as a result of discovery in the case but now claim they are third party beneficiaries entitled […]
Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 09-034-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION ON PLAINTIFFS’ MOTION FOR RECONSIDERATION OR CLARIFICATION On July 13, 2017, the parties were before this Court on the Plaintiffs’ Motion to Compel Discovery and the Defendants’ Motion for a Protective Order. Defendants argued that the discovery sought was beyond the scope of what was at issue in this lawsuit and that the plaintiffs’ requests were unduly burdensome and amounted to harassment. This Court denied the motion from the bench, with only a brief explanation of its reasons by way of a margin note. Plaintiffs now move to reconsider and/or clarify this Court’s earlier ruling. Although initially skeptical of this request, this Court is now convinced that clarification is indeed required. Although plaintiffs are not entitled to the broad discovery they had originally sought (which was unnecessary and unduly burdensome), this Court was wrong to deny any discovery sought by their Motion to Compel. It is also apparent that the parties may have interpreted that earlier order almost as if it were a dispositive motion and that the discovery ruling meant that certain parts of plaintiffs’ Complaint were not properly before this Court. This Court did not anticipate or intend that and now wishes to correct that misimpression. The 2 Motion to Reconsider is therefore ALLOWED, with the following offered by way of explanation. This is an action seeking to enforce a Conservation Restriction (CR) imposed on real property located in Duxbury, Massachusetts (the Premises). The parties to the CR are the plaintiffs Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the defendant Cedar Hill Retreat Center Inc., (Cedar Hill). In its Amended Complaint, 1 Wildlands Trust alleges that Cedar Hill is engaging in “commercial revenue generating activities…as well as other activities that are violative of the Conservation Restriction.” ¶ 7 of Amended Complaint; see also ¶48-50. In its Motion for a Protective Order (and again in opposing the Motion to Reconsider), Cedar Hill took the position that Wildlands Trust’s ability to complain of Cedar Hill’s activities on the Premises is far narrower – that is, that it is limited to a single event in September 8, 2012 when there was a wedding reception on the Premises. This did not involve a complaint that the Premises were being used to generate revenue. In denying the plaintiffs’ Motion to Compel, this Court was of the view that a single violation was enough to entitle the plaintiffs to the equitable relief they sought, so that discovery that went beyond the September […]
Walker, et al. v. Boston Medical Center Corp., et al. (Lawyers Weekly No. 12-081-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2015-01733-BLS1 KAMYRA WALKER and another,1 1 Anne O’ Rourke 2 MDF Transcription, LLC and Richard J. Fagan. on behalf of themselves and other similarly situated vs. BOSTON MEDICAL CENTER CORP. and others 2 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BOSTON MEDICAL CENTER CORP.’S MOTION FOR SUMMARY JUDGMENT In March 2014, defendant Boston Medical Center, Corp. (BMC) learned that another health care provider had inadvertently accessed a BMC patient’s medical information on a website maintained by defendant MDF Transcriptions, LLC (MDF), a medical transcription company used by both BMC and thisother provider. It sent a letter to all its patients who had records that had been transcribed by MDF informingthem that there might have been unauthorized access to their medical information. After receiving this letter, the plaintiffs Kamyra Walker and Anne O’Rourke,filedthisputative classaction against BMC, MDF, and Richard Fagan, MDF’s owner and manager. They assertthat the defendants are liableto them, and all other similarly situated BMC patients,for failing to ensure that their medical information was kept confidential. The case is before the court on BMC’smotionfor summary judgment. BMCargues, among other things, that the plaintiffs lack standing to maintain the claims asserted2 against it.3 For the reasons that follow, the motion isALLOWED. 3 BMC also argues that the complaint fails to state a claim on which relief may be granted. Having found that the plaintiffs lack standing to bring their claims, the court does not reach this issue. 4 “FTP, or file transfer protocol, is a protocol for exchanging files over any computer network that supports the TCP/IP protocol (such as the Internet or an intranet). SRI Int’l Inc. v. Internet Sec. Sys., 647 F. Supp. 2d 323, 332 n.2 (D. Del. 2009). 5 Plaintiffs note that JosephCumillus, BMC’s 30(b)(6) deponent, stated in his deposition: “it was concerning to me that this information was on an FTP site that wasn’t password protected.” The court understands this to refer BACKGROUND For several years, certain BMC medical practices used MDF to transcribe their physicians’ audio recordedpatientnotes. The transcriptions were available through a “file transfer protocol” (FTP or .ftp) site maintained by MDF.4 On March 4, 2014, Pam Bronson of Access Sports Medicine(ASM), anotherMDF customer, telephoned BMC. She informed BMC that she saw a BMC transcription record when she accessed MDF’s transcription portalusing her ASM user name and password. In response, BMC contacted MDF,and MDF took down the FTP site. Shortly thereafter, BMC terminated its relationship with MDF and notified patients, including the plaintiffs, of what had occurred. The notification letter sent to the plaintiffs informed them that their patient records from office visits with physicians “were inadvertently made accessible to […]
Wildlands Trust of Southeastern Massachusetts, Inc., et al. v. Cedar Hill Retreat Center, Inc., et al. (Lawyers Weekly No. 12-174-16)
-1- COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2016-01432-BLS2 WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC. & JOHN AND CYNTHIA REED FOUNDATION, Plaintiffs vs. CEDAR HILL RETREAT CENTER, INC. & BALLOU CHANNING DISTRICT UNITARIAN UNIVERSALIST ASSOCIATION, INC., Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS This is an action seeking to enforce a Conservation Restriction imposed on real property located in Duxbury, Massachusetts (the Premises). Plaintiffs are the Wildlands Trust of Southeastern Massachusetts, Inc. (Wildlands Trust) and the John and Cynthia Reed Foundation (the Foundation). Plaintiffs allege that the current owner of the land, defendant Cedar Hill Retreat Center, Inc. (Cedar Hill), is engaging in commercial activities in violation of the Conservation Restriction. Also named as a defendant is the Ballou Channing District Unitarian Universalist Association, Inc. (Ballou Channing), the original owner of the land and the Grantor of the Conservation Restriction. Plaintiffs allege that the Foundation made a $ 3 million gift to Ballou Channing in exchange for Ballou Channing’s agreement to create the Conservation Restriction and to use the Foundation’s donation to preserve the Premises in conformity with that restriction (the “Gift Agreement”). The case is now before this Court on the defendants’ motions to dismiss pursuant to Mass. R. Civ. P. 12(b) (1) and Mass. R. Civ. P. 12(b)(6). Ballou Channing moves to dismiss all -2- counts asserted against it; Cedar Hill moves to dismiss some but not all of the counts against it. The motions raise difficult questions, some of which would benefit from discovery and cannot be decided at this early stages in the case. Still, there are certain claims that are not supported by the facts alleged in the Complaint or the applicable law, and which must therefore be dismissed, for reasons set forth below. BACKGROUND The Complaint contains the following allegations which, for purposes of these motions, are assumed to be true. The Foundation is a private charitable foundation created by John and Cynthia Reed. The Reeds are abutters to the Premises, which consists of 12.23 acres of land. Ballou Channing is a nonprofit religious corporation organized pursuant to Chapter 180 of the General Laws. Ballou Channing acquired the Premises in 1980 through a Deed of Gift that imposed certain restrictions on its use. Located on the Premises are a building and improvements that have historically been known as the Cedar Hill Retreat Center. Ballou Channing would periodically permit the center to be used by its member congregations. In 2007, the Reeds learned that the restrictions imposed on the Premises through the Deed of Gift were to expire within the next couple of years. Thee Reeds wished to preserve the Premises in conformity with those original restrictions; negotiations with Ballou Channing […]
Doe, et al. v. Boston Medical Center Corporation (Lawyers Weekly No. 11-133-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1998 Appeals Court JANE DOE & another[1] vs. BOSTON MEDICAL CENTER CORPORATION. No. 13-P-1998. Suffolk. May 6, 2015. – September 9, 2015. Present: Rubin, Brown, & Maldonado, JJ. Practice, Civil, Summary judgment. Negligence, Hospital, Duty to prevent harm, Foreseeability of harm. Civil action commenced in the Superior Court Department on March 2, 2011. The case was heard by Heidi E. Brieger, J., on a motion for summary judgment. Matthew W. Perkins for the plaintiffs. Joseph A. King (Kevin M. Sullivan with him) for the defendant. BROWN, J. The plaintiffs, Jane and John Doe, filed an amended complaint for negligent supervision and loss of consortium, arising out of an assault on Jane by Boston Medical Center Corporation (hospital) interpreter Thomas Consoli. A Superior Court judge entered summary judgment in favor of the hospital. The plaintiffs appeal. We reverse. 1. Background. We summarize the relevant facts from the record in the light most favorable to the nonmoving party. See Foster v. Group Health Inc., 444 Mass. 668, 672 (2005). The facts as written are undisputed. In 2004, after obtaining a Criminal Offender Record Information (CORI) report from the Criminal History Systems Board, indicating no prior criminal convictions, the hospital hired Consoli as an interpreter. Shortly after being hired Consoli was oriented and informed of the hospital’s policies. One such policy was that as an interpreter, Consoli was never to touch or be alone with any patients. This policy was self-regulated by Consoli, that is, the only person to insure that Consoli was never alone with a patient was himself. On March 31, 2008, Jane, a Spanish-speaking immigrant from Guatemala who understands minimal English and has no formal education, was admitted to the hospital in connection with the impending labor and delivery of her first child. She was directed to a room and changed into a hospital gown. At or shortly after 3:05 P.M. Consoli entered Jane’s hospital room and translated between Jane and Jane’s doctor and nurse. After speaking with Jane, Consoli and the medical team went out of the room, leaving her door open. Consoli told the nurse that he was going to another assignment in triage, but when she departed, he remained outside Jane’s room. Soon after, Consoli reentered Jane’s room, alone, and asked Jane where she felt pain. He told her that he […]
Roe No. 1, et al. v. Children’s Hospital Medical Center, et al. (Lawyers Weekly No. 10-164-14)
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-11533 ROBERT ROE No. 1 & others[1] vs. CHILDREN’S HOSPITAL MEDICAL CENTER & others.[2] Suffolk. April 8, 2014. – October 1, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Child Abuse. Negligence, Hospital, Employer, Duty to prevent harm. Practice, Civil, Complaint, Amendment of complaint, Dismissal. Civil action commenced in the Superior Court Department on March 28, 2011. A motion to dismiss was heard by Merita A. Hopkins, J. The Supreme Judicial Court granted an application for direct appellate review. Mark F. Itzkowitz (Carmen L. Durso with him) for the plaintiffs. Gail M. Ryan (John P. Ryan with her) for Children’s Hospital Medical Center. The following submitted briefs for amici curiae: John J. Barter for Professional Liability Foundation, Ltd. Darrell L. Heckman, of Ohio, & Ninamary Buba Maginnis, of Kentucky, for National Center for Victims of Crime. J. Michael Conley, Jeffrey S. Beeler, Thomas R. Murphy, & Kimberly A. Alley for Massachusetts Academy of Trial Attorneys. CORDY, J. This case requires us to decide whether a Massachusetts hospital employer owes a legally cognizable duty of care to future patients of a doctor who has left the hospital’s employ and resumed practicing medicine in the employ of a different hospital in another State. We conclude that such a duty is not cognizable in the circumstances presented here, where the hospital does not have the type of special relationship either with its former employee, or with any of his prospective patients, that would create such a duty. Consequently, we affirm the judgment entered in the Superior Court dismissing the complaint for failing to state a claim on which relief may be granted. 1. Background. We recite the relevant facts as drawn from the plaintiffs’ complaint, which we assume to be true for the purposes of our review. Nader v. Citron, 372 Mass. 96, 98 (1977). The defendant, Children’s Hospital Medical Center (Children’s Hospital), is a fully licensed hospital located in Boston. In 1966 it hired Melvin Levine as a pediatric physician. Levine held that position until leaving Children’s Hospital’s employ in 1985.[3] On leaving Children’s Hospital, Levine relocated to North Carolina, where he obtained a license to practice medicine and became employed as a pediatrician at the University of North Carolina School of Medicine (UNC). Twenty-four years later, in 2009, amid […]
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