Oxford Global Resources, LLC v. Hernandez (Lawyers Weekly No. 12-065-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03911-BLS2 ____________________ OXFORD GLOBAL RESOURCES, LLC v. JEREMY HERNANDEZ ____________________ MEMORANDUM AND ORDER ALLOWING DEFENDANT’S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS Oxford Global Resources, LLC, is a recruiting and staffing company that places individual contractors who have specialized technical expertise with businesses who need workers having such skills. Oxford hired Jeremy Hernandez to work in its Campbell, California, office. To accept Oxford’s offer Hernandez had to and did sign an offer letter and a separate “protective covenants agreement” (the “Agreement”) that contains confidentiality, non-competition, and non-solicitation provisions. The Agreement provides that it is governed by Massachusetts law and that any suit arising from or relating to that contract must be brought in Massachusetts. Oxford alleges that Hernandez breached the Agreement by using information regarding the identity of Oxford’s customers to solicit those customers on behalf of a competitor in California. Hernandez has moved to dismiss this action under the forum non conveniens doctrine, arguing that this action should be heard in California, where he lives and worked for Oxford. The Court concludes that the forum selection clause is unenforceable and that the interests of justice require that this case be heard in California. The Court will therefore ALLOW the motion to dismiss pursuant to G.L. c. 223A, § 5, and the common law doctrine known as forum non conveniens. 1. Enforceability of the Forum Selection Clause. 1.1. California Law Governs the Agreement. Whether Massachusetts courts will enforce a forum selection clause like the one agreed to by Hernandez must be decided under whatever law governs the contract as a whole. See Melia v. Zenhire, Inc., 462 Mass. 164, 168 (2012); Jacobson v. Mailboxes Etc. U.S.A., Inc., 419 Mass. 572, 575 (1995). Thus, before deciding whether the Agreement’s mandatory forum selection clause is enforceable the Court must decide which State’s law governs this – 2 – contract.1 Although the Agreement specifies that it is governed by Massachusetts law, the Court concludes that choice-of-law provision is unenforceable and that the contract is instead governed by California law. “A choice-of-law clause should not be upheld where,” as here, “the party resisting it did not have a meaningful choice at the time of negotiation — i.e., where the parties had unequal bargaining power, and the party now attempting to enforce the choice-of-law clause essentially forced the clause upon the weaker party,” and enforcing the clause would be unfair to the weaker party. Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191, 195 n.8 (2013). This follows from the general rule that contracts of adhesion are not enforceable if “they are unconscionable, offend public policy, or are shown to be unfair in the particular circumstances.” McInnes […]
Commonwealth v. Hernandez (Lawyers Weekly No. 10-132-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12089 COMMONWEALTH vs. AARON HERNANDEZ. Suffolk. May 3, 2016. – August 19, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Cellular Telephone. Search and Seizure, Warrant. Practice, Criminal, Warrant. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 1, 2015. A petition for relief under G. L. c. 211, § 3, filed on March 29, 2016, was reported by Botsford, J. Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan & Janis DiLoreto Smith, Assistant District Attorneys, with her) for the Commonwealth. James L. Sultan (Charles W. Rankin with him) for the defendant. SPINA, J. In this case, here on a reservation and report from a single justice of the county court, we consider whether the Commonwealth, by means of an anticipatory search warrant, can obtain possession of a cellular telephone that the defendant, Aaron Hernandez, gave to his attorney for the purpose of obtaining legal advice. For the reasons that follow, we conclude that, pursuant to G. L. c. 276, § 1, a search warrant may issue for the seizure of the telephone because, absent such issuance, there is probable cause to believe that the telephone will be secreted from view.[2] Accordingly, we vacate the order of the Superior Court that reached a contrary conclusion. Background. On July 16, 2012, Daniel de Abreu and Safiro Furtado were murdered in an alleged drive-by shooting in the South End section of Boston. During the investigation of the crimes, Alexander Bradley stated that he witnessed the defendant shoot at five occupants of a 2003 BMW sedan on the date in question. He further stated that on February 13, 2013, while he and the defendant were on vacation together in Florida, the defendant shot him in the head. Bradley also indicated that, following this incident, he communicated with the defendant on multiple occasions between February 14, 2013, and June, 2013, either by calling the defendant or sending him text messages on his cellular telephone. During these conversations, Bradley threatened to sue the defendant and to publicly expose his violent behavior. Around June 16, 2013, the defendant purportedly delivered his cellular telephone to his attorney at Ropes & Gray LLP (Ropes & Gray) for the purpose of seeking legal advice on several matters.[3] On March […]
Commonwealth v. Hernandez (Lawyers Weekly No. 10-205-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11574 COMMONWEALTH vs. ARIEL HERNANDEZ. Middlesex. October 9, 2015. – December 29, 2015. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Homicide. Robbery. Armed Home Invasion. Home Invasion. Firearms. Felony-Murder Rule. Evidence, Firearm. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Search and Seizure, Motor vehicle, Probable cause, Inevitable discovery. Practice, Criminal, Capital case, Motion to suppress, Severance, Trial of indictments together. Indictments found and returned in the Superior Court Department on December 10 and 22, 2009. A pretrial motion to suppress evidence was heard by Thomas P. Billings, J., and the cases were tried before him. Dana Alan Curhan for the defendant. Casey E. Silvia, Assistant District Attorney, for the Commonwealth. HINES, J. Based on an armed robbery that occurred during the evening of October 22, 2009, and an armed home invasion and double murder that occurred several hours later, a jury convicted on indictments charging the defendant with two counts of armed robbery; two counts of murder in the first degree on the theory of felony-murder (with armed home invasion and attempted armed robbery as the underlying felonies); and one count each of home invasion, unlawful possession of ammunition, and possessing a firearm without a license. The defendant’s trial was joined with the trials of two codefendants, cousins Karon and Jamal McDougal,[1] on each of their indictments charging two counts of felony murder and one count of home invasion, and with Jamal’s indictments for firearms offenses. Karon and Jamal were acquitted of all charges. On appeal, the defendant argues (1) error in the denial of his motion to suppress the firearm used in the armed robbery and murders and (2) error in the joinder of trial with his codefendants and in the joinder of the armed robbery charges and charges relating to the home invasion. We affirm the order denying the defendant’s motion to suppress as well as the defendant’s convictions, and we discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Motion to suppress. a. Background. Prior to trial, the defendant filed a motion to suppress the firearm evidence, claiming, on State and Federal constitutional grounds, that police lacked probable cause for the warrantless search and the search exceeded the bounds of a proper inventory search. The […]
Commonwealth v. Hernandez (Lawyers Weekly No. 10-048-15)
COMMONWEALTH vs. AARON HERNANDEZ. SJC-11840 SUPREME JUDICIAL COURT OF MASSACHUSETTS March 26, 2015, Decided NOTICE: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE MASSACHUSETTS REPORTER USERS ARE REQUESTED TO NOTIFY THE CLERK OF THE COURT OF ANY FORMAL ERRORS SO THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS. HEADNOTES-1 COUNSEL: The case was submitted on the papers filed, accompanied by a memorandum of law. Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth. Michael K. Fee & James L. Sultan for the defendant. OPINION The defendant is presently on trial in the Superior Court on indictments charging murder in the first degree and various firearms offenses. The Commonwealth filed a motion in limine before trial seeking to establish the admissibility of testimony from a particular witness, Robert Paradis, as to certain conversations that he had with the defendant. After the trial began, and after conducting a hearing on the motion that included a voir dire of Paradis, the trial judge denied the motion on February 18, 2015. Nineteen days later, on March 9, 2015, the Commonwealth sought relief from a single justice of this court pursuant to G. L. c. 211, § 3.1 The single justice denied the petition on March 11, 2015. Six days after that, on March 17, the Commonwealth filed a notice of appeal from the single justice’s ruling, and on the following day, March 18, 2015, filed a memorandum in this court pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).2 Pursuant to an order of this court issued the same day, the defendant then filed, on March 23, 2015, his response to the Commonwealth’s memorandum.3 We have considered the papers, and, for the reasons that follow, affirm the decision of the single justice. FOOTNOTES 1 The Commonwealth did not include with its G. L. c. 211, § 3, petition copies of its motion in limine or the defendant’s opposition to the motion. Those papers were thus not a part of the record before the single justice. In seeking relief pursuant to G. L. c. 211, § 3, it was the Commonwealth’s burden, as a petitioner, to create a record that included all of the relevant pleadings, motions, and other parts of the trial court record pertaining to the disputed issue. Gorod v.Tabachnick, 428 Mass. 1001, 1001, cert. denied, 525 U.S. 1003 (1998). Nor did the Commonwealth provide a written transcript of the hearing on its motion. It did provide a video recording, which we have viewed, of a portion of the hearing, which we are informed (by the defendant) was downloaded fromwww.youtube.com. 2 The Commonwealth also purported to refile its petition under G. L. c. 211, § 3, directly to the full court. “The standard of review is the same […]
Week in Review: Hernandez Investigation
The following were the top articles on South End Patch from June 24 to June 28, 2013: Poli South End Patch News
Categories: Arrests Tags: Hernandez, Investigation, Review, Week