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 […]
FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 09-042-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3481 BLS 1 FBT EVERETT REALTY, LLC vs. MASSACHUSETTS GAMING COMMISSION MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT This is a claim for damages by plaintiff, FBT Everett Realty, LLC (“FBT”), arising from an alleged taking of property by the Massachusetts Gaming Commission (“Commission”). FBT’s amended complaint asserts three counts: Count II (“Per Se Taking”), Count III (“Regulatory Taking”), Count IV (“Impairment of a Contract Right”).1 All three counts claim that as a result of conduct by the Commission, FBT is entitled to compensation under either the Massachusetts Declaration of Rights or the United States Constitution, or both. The Commission moves to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). BACKGROUND The amended complaint alleges the following facts, accepted for this motion as true. FBT was the owner of a parcel of land (the “parcel”) in Everett, Massachusetts. On December 19, 2012, FBT entered into an Option Agreement with Wynn MA, LLC concerning the possible sale of the parcel to Wynn. Wynn anticipated applying for approval from the 1 Count I of the amended complaint has been dismissed, as described in the Background section of this memorandum. 1 Commission to build and operate a casino gambling facility on the parcel. Under the Option Agreement, Wynn agreed to pay FBT $ 100,000 per month for the right to purchase the parcel for $ 75 million in the event that Wynn was awarded the Category 1 destination resort casino license. The Option Agreement granted to Wynn “the option, but not the obligation, to purchase [the parcel]” from FBT. Amended Complaint, Ex A. In connection with Wynn’s application to the Commission, FBT agreed to “reasonably cooperate with [Wynn] with respect to any information it reasonably requires to complete the Casino Application and respond to any such inquiries throughout the licensing process.” Id. In November 2011, the Legislature enacted the Massachusetts Gaming Act, which is codified at G.L. c. 23K. The Act establishes the Commission as the agency to implement and regulate casino gambling. The Act, and the regulations promulgated thereunder, establish a two phase application process for a Category 1 license. The first phase is known as the “Request for Application Phase 1.” In this phase, the applicant is required to make disclosures regarding itself and affiliates. The Investigations and Enforcement Bureau (“IEB”) of the Commission then conducts an investigation of the applicant and provides findings and recommendations to the Commission regarding the suitability of the applicant and its affiliates and business associates. Only those applicants found suitable to receive a license may proceed to the second phase of the process, known as Request for Application Phase 2, […]
Categories: News Tags: 0904217, Commission, Everett, Gaming, Lawyers, massachusetts, Realty, Weekly
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 […]
Fortress, Inc. v. Massachusetts Emergency Management Agency (Lawyers Weekly No. 09-025-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2014-3904 BLS 1 FORTRESS, INC. vs. MASSACHUSETTS EMERGENCY MANAGEMENT AGENCY MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The sole theory of defendant’s motion for summary judgment is that plaintiff, Fortress, Inc., did not qualify for special consideration of its bid for a contract because its principal place of business was not in Massachusetts. If Fortress did not qualify for special consideration, its claim for breach of contract against defendant, Massachusetts Emergency Management Agency (“MEMA”), based on losing the bid, fails. Whether Fortress’s principal place of business was in Massachusetts is the subject of approximately 25 numbered paragraphs of the parties’ Joint Statement of Undisputed Facts (“JSUF”). Notwithstanding the title of the JSUF suggesting that the facts are undisputed, at least 15 of those paragraphs are expressly disputed, either by MEMA or by Fortress. Thus, the issues before the court are (a) whether the disputed paragraphs of the JSUF are properly supported as required under Superior Court Rule 9A, and (b) whether the existence of the dispute is material such that summary judgment must be denied. This case arises out of a dispute between Fortress and MEMA regarding a Request for Responses (“RFR”) issued by MEMA in May 2014. The RFR solicited bids to provide Standard 1 Operating Procedure manuals for the Commonwealth’s emergency operations centers. The RFR indicated that it was targeted to solicit bids from small businesses participating in the Commonwealth’s Small Business Purchasing Program (“SBPP”). The RFR stated that MEMA intended “to evaluate bid responses from and to award a contract to a SBPP-participating business(es) who submit a bid that meets or exceeds the solicitation criteria only.” If no SBPP qualified vendors submitted a responsive bid, MEMA reserved the right to award the contract to a non-SBPP business. Fortress submitted a bid to the RFR as a SBPP qualified vendor. Fortress had previously registered as a SBPP qualified vendor through an online form on the website of the Commonwealth’s Operational Services Division (“OSD”). MEMA, however, awarded the contract to a different vendor who was not qualified as a SBPP vendor. MEMA determined that Fortress was not qualified as a SBPP vendor because its principal place of business was not in Massachusetts. When Fortress’s bid was evaluated as a non-SBPP bid, it scored lower than the winning bid of a different non-SBPP vendor. MEMA moves for summary judgment on the single ground that Fortress did not qualify as a SBPP vendor. Absent such qualification, MEMA argues that Fortress’s claim fails. The reason Fortress does not qualify, according to MEMA, is because Fortress’s principal place of business was not in Massachusetts. The SBPP was established in 2010 by […]
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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. A motion to dismiss was heard by Rosalind Henson Miller, J. Paul L. Nevins for the plaintiff. Jeffrey S. Beeler for the defendants. LEMIRE, J. Susan Gallagher, a personal care attendant (PCA) who provided in-home services for an elderly man (consumer[2]), brought an action in Superior Court against Cerebral Palsy of Massachusetts, Inc.; its president, Donald Uvanitte; and its treasurer, David Sprague (collectively, CPM), alleging that CPM was her employer and that it failed to pay her for her overtime hours, including failing to do so at an overtime rate. A judge granted CPM’s motion to dismiss on the ground that, pursuant to the MassHealth regulations (regulations) governing Gallagher’s work arrangement, she was employed by the consumer, not CPM. Gallagher appeals from the judgment, and we affirm. Standard of review. Although there were exhibits attached to both CPM’s motion to dismiss and Gallagher’s opposition, the judge ostensibly declined to treat the motion as one for summary judgment, and she excluded the additional material from consideration. See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). But in a footnote explicitly listing the excluded exhibits, the judge did not identify as having been excluded one of CPM’s submissions: excerpts from a contract it executed with the Executive Office of Health and Human Services. That document establishes the applicability of certain of the regulations, including CPM’s role within that regulatory framework as a “fiscal intermediary,” i.e., an entity that serves in a facilitative role with regard to payroll and related matters. 130 Code Mass. Regs. § 422.402 (2006). These facts were not reflected in the complaint, but the judge cited them as dispositive. By relying on facts outside of the complaint, the judge essentially rendered a decision in the nature of summary judgment. Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 533-534 (2014). We will review the decision as such, including taking into consideration the other excluded […]
Massachusetts Bay Transportation Authority v. Boston and Maine Corporation, et al. (Lawyers Weekly No. 12-124-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-00153-BLS1 MASSACHUSETTS BAY TRANSPORTATION AUTHORITY vs. BOSTON AND MAINE CORPORATION & others1 MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF MASSACHUSETTS BAY TRANSPORTATION AUTHORITY’S PARTIAL MOTION TO DISMISS DEFENDANTS’ COUNTERCLAIMS Plaintiff, Massachusetts Bay Transportation Authority (MBTA), filed this action for declaratory and injunctive relief against defendants, Boston and Maine Corporation, Springfield Terminal Railway Company, and Pan Am Southern LLC (referred to collectively as “Pan Am”). The dispute involves the implementation of positive train control (PTC), a safety system aimed at preventing train accidents. Pan Am alleged eleven counterclaims against the MBTA. MBTA now moves to dismiss three of the counterclaims pursuant to Mass. R. Civ. P. 12(b)(6). The three counterclaims allege misrepresentation (Count VIII), promissory/equitable estoppel (Count IX), and violation of G.L. c. 93A, § 11 (Count X). For the reasons stated below, the MBTA’s motion to dismiss is allowed. BACKGROUND The facts as revealed by Pan Am’s counterclaims are as follows. The MBTA is a body politic and corporate and a political subdivision of the 1 Springfield Terminal Railway Company and Pan Am Southern LLC. Commonwealth of Massachusetts. It operates bus, subway, commuter rail, and ferry systems in and around Boston, Massachusetts. The Pan Am defendants operate freight lines over tracks that, in some instances, are owned and/or used by the MBTA. Since 2010, Pan Am worked closely and cooperatively with the MBTA to plan and prepare for the implementation of PTC on tracks over which both parties operate. The parties worked to comply with a 2008 federal mandate requiring that PTC be implemented on certain rail lines, including lines that carry certain minimum levels of passenger traffic. PTC is designed to prevent train-to-train collisions, derailments resulting from excessive speed, and other types of accidents. Generally, PTC uses a combination of on-board and rail-side technology to track and control train movements on the rail lines outfitted with this technology. In this dispute, the rail lines affected include both MBTA-owned trackage, over which Pan Am operates freight trains pursuant to a reserved freight easement, and Pan Am-owned trackage, over which the MBTA initiated and expanded commuter rail operations at the end of 2016. According to Pan Am, under federal law, PTC must be implemented on the rail lines at issue because the MBTA operates passenger trains on them. Absent the MBTA’s use of these rail lines, no PTC system is required. In addition, freight trains may not operate on tracks handling passenger traffic that are required to have PTC unless those freight trains are equipped with a PTC system that is compatible with the commuter rail’s PTC system. After the federal government imposed the 2008 PTC requirements, Pan Am alleges that […]
Categories: News Tags: 1212417, Authority, boston, Corporation, Lawyers, Maine, massachusetts, Transportation, Weekly
New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)
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-654 Appeals Court NEW BEDFORD EDUCATORS ASSOCIATION vs. CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]). No. 16-P-654. Middlesex. May 4, 2017. – August 23, 2017. Present: Trainor, Vuono, & Sullivan, JJ. Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review. Declaratory Relief. Mandamus. Board of Education. Commonwealth, Education. Education. School and School Committee. Labor, Public employment. Civil actions commenced in the Superior Court Department on July 18, July 23, and October 21, 2014. After consolidation, motions to dismiss were heard by Kimberly S. Budd, J. Laurie R. Houle for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants. VUONO, J. In these consolidated cases, we consider the propriety of actions taken by the Commissioner of the Massachusetts Department of Elementary and Secondary Education (commissioner) and by the Massachusetts Board of Elementary and Secondary Education (board) in creating and approving “turnaround plans” for chronically underperforming schools pursuant to the so-called Achievement Gap Act (Act), G. L. c. 69, § 1J. The plaintiffs, New Bedford Educators Association (NBEA), Holyoke Teachers Association (HTA), and Boston Teachers Union (BTU) (collectively, the unions), filed separate complaints, later amended, in the Superior Court against the commissioner, the board, and its chairman (collectively, the defendants), alleging that the defendants failed to satisfy the requirements of the Act with regard to four chronically underperforming schools located in New Bedford, Holyoke, and Boston.[3] The unions sought declaratory relief pursuant to G. L. c. 231A. NBEA and HTA also sought certiorari review under G. L. c. 249, § 4, and relief in the nature of mandamus pursuant to G. L. c. 249, § 5. The defendants moved to dismiss the unions’ complaints under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack of subject matter jurisdiction. Following a hearing, a judge dismissed the complaints, concluding that the unions did not have standing to challenge the turnaround plans because the unions’ primary concerns were outside the area of interest protected by G. L. c. 69, § 1J, and because the defendants’ statutory duty was to students, not to local teachers’ unions. On appeal, the unions contend that the judge erred in dismissing their complaints solely on the basis of standing. For the reasons […]
Categories: News Tags: 1110817, Association, Bedford, Board, cases, Chairman, consolidated, Education, Educators, Elementary, Lawyers, massachusetts, Secondary, Weekly
Riva v. Massachusetts Parole Board (Lawyers Weekly No. 10-136-17)
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 SJC-12270 JAMES RIVA vs. MASSACHUSETTS PAROLE BOARD. August 18, 2017. Supreme Judicial Court, Superintendence of inferior courts. Parole. Practice, Criminal, Discovery. The petitioner, James Riva, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Riva is currently serving a life sentence for second degree murder. After the parole board (board) denied him parole in January, 2015, he filed a complaint in the Superior Court seeking certiorari review and a declaratory judgment in connection with claimed constitutional violations that occurred in the course of the proceedings before the board. The board’s motion to dismiss the complaint was allowed as to the declaratory judgment claim but denied as to the certiorari claim. Riva’s subsequently-filed motion to compel discovery was initially denied, but, on Riva’s motion for reconsideration, the motion judge indicated that the motion was allowed “to the extent that the administrative record shall reflect the evidence relied upon by the parole board to issue its decision.” Riva then filed a “motion for relief,” which also pertained to certain discovery. After this motion was denied, Riva filed his G. L. c. 211, § 3, petition in the county court. In the petition, he argued that his case could not proceed in the trial court without the requested discovery. The single justice denied the petition without a hearing. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). Riva has not made, and cannot make, such a showing. He argues that the board has been “allowed” to “disobey a compelled discovery order” and that, essentially, if the board is allowed to continue to do so, the issue will eventually become moot by the time he is again eligible for parole. There is no reason, however, why the rulings related to discovery cannot adequately be addressed in an appeal from any adverse judgment, including the mootness issue. See, e.g., Madison v. Commonwealth, 466 Mass. 1033, 1033 (2013), and cases cited. The single justice did not err or abuse his discretion in denying relief under […]
Commonwealth of Massachusetts ex rel. Kelly, et al. v. Novartis Pharmaceuticals Corporation, et al. (Lawyers Weekly No. 12-098-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2016-03107-BLS1 COMMONWEALTH OF MASSACHUSETTS, EX REL., ALLISON KELLY AND FRANK GARCIA vs. NOVARTIS PHARMACEUTICALS CORPORATION & Others1 1 Novartis Corporation and Genentech, Inc. 2 The District Court’s order actually dismissed the state claims with prejudice, notwithstanding its declination of jurisdiction over them. The First Circuit reversed that part of the District Court’s decision. It observed that while the District Court could have dismissed the state claims based on the same reasoning applied to the federal claims had it retainedjurisdiction, once it declined jurisdiction, it was required to dismiss the state claims MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS RELATORS’ FIRST AMENDED COMPLAINT Allison Kelly and Frank Garcia (Relators) brought qui tam actions against Genentech, Inc. (Genentech) and Novartis Pharmaceuticals Corporation (Novartis) in federal district court in Massachuesetts under the Federal False Claims Act (FCA), 31 U.S.C. § 3729 et seq., the Massachusetts False Claims Act (MFCA), G. L. c. 12, § 5B(a)(1)-(10), and several other analogous state statutes. The federal claims asserted in their complaints were dismissed by the District Court for failure to plead the alleged fraud with the specificity required by Fed. R. Civ. P. 9(b). See U.S. ex rel. Garcia v. Novartis Pharm. Corp.,91 F. Supp. 3d 87 (D. Mass. 2015). The dismissal was affirmed by the First Circuit Court of Appeals. See U.S. ex. rel. Kelly v. Novartis Pharm. Corp.,827 F. 3d 5 (1stCir. 2016) (Kelly). While the Relators’ FCA claims were dismissed with prejudice, their state claims were dismissed without prejudice because the District Court declined to exercise supplemental jurisdiction over them.2 The Relators then filed 2 without prejudice. Kelly, 827 F. 3d at 16. 3 Novartis Corporation is also a named defendant, but the Relators did not serve that company with a summons and complaint or the Amended Complaint, so the case is dismissed as to it. 4 Because the court concludes that the Relators have not complied with Rule 9(b), it will not consider the defendants’ arguments that the Amended Complaint should also be dismissed because the“public disclosure” bar applies or because the Relators failed to file the Amended Complaint under seal. thequi tam action against Genentech and Novartis now before the Superior Court alleging claims underthe MFCA.3 As with their previous federal complaints, the Relators allege that the defendants, who jointly marketed the asthma medication Xolair, providedillegal kickbacks to certain Massachusetts doctors, which caused the doctors to prescribe Xolair to Massachusetts Medicaid patients and submit false reimbursement claims for the drug to Medicaid. The defendants now move to dismiss the Relator’s First Amended Complaint (Amended Complaint) contending, among other grounds, that the Relators have again failed […]
Categories: News Tags: 1209817, Commonwealth, Corporation, kelly, Lawyers, massachusetts, Novartis, Pharmaceuticals, rel., Weekly
Rodriguez v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-099-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-942 Appeals Court RAQUEL RODRIGUEZ[1] vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY. No. 16-P-942. Suffolk. April 7, 2017. – July 31, 2017. Present: Grainger, Sullivan, & Kinder, JJ.[2] Massachusetts Bay Transportation Authority, Contract. Railroad. Contract, What constitutes, Offer and acceptance. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on November 10, 2015. A motion to dismiss was heard by Mitchell H. Kaplan, J. Thomas G. Shapiro (Robert Richardson & Edward C. Cumbo also present) for the plaintiff. David S. Mackey (Christina S. Marshall also present) for the defendant. KINDER, J. In this case we address whether a public transportation authority breaches a contract with its commuter rail customers when extraordinary winter storms interrupt the service schedule. For the reasons that follow, we conclude that in the circumstances presented here, it does not. Accordingly we affirm the judgment of dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a breach of contract claim. On April 22, 2015, the plaintiff, Raquel Rodriguez, brought this action against the Massachusetts Bay Transportation Authority (MBTA) and its commuter rail operator, Keolis Commuter Services, LLC (Keolis), on behalf of a putative class of purchasers of monthly rail passes in January, February, and March, 2015. The complaint alleged that the MBTA commuter rail service suffered severe delays and cancellations during the record-setting snowstorms of 2015. Rodriguez claimed that these service disruptions were in breach of the MBTA’s implied contract “to provide timely, reliable commuter rail service . . . for January, February and March of 2015.” In a comprehensive written decision, a Superior Court judge allowed the MBTA’s motion to dismiss. Among other things, the judge concluded that even if the MBTA had some form of contractual obligation to its monthly pass holders, “the complaint fails to allege an essential element of a breach of contract claim: an agreement between the parties on a material term of the contract at issue.” This appeal followed.[3] Background. We summarize the allegations in the operative complaint and the items appearing in the record of the case. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The MBTA is charged by statute with providing commuter rail and subway service in eastern Massachusetts. G. L. c. 161A, §§ 1 and 2. The MBTA provides service […]
Categories: News Tags: 1109917, Authority, Lawyers, massachusetts, Rodriguez, Transportation, Weekly