Boston Restoration Resources, Inc. v. Pitts, et al. (Lawyers Weekly No. 09-026-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 17-1142-C BOSTON RESTORATION RESOURCES, INC. v. LORENZO PITTS, INCORPORATED, WILLETTA PITTS-GIVENS, REBECCA MAUTNER, LESLIE BOS, and JAMAICA PLAIN NEIGHBORHOOD DEVELOPMENT CORPORATION MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO QUASH DEPOSITION SUBPOENA TO KEEPER OF RECORDS OF UNITED HOUSING MANAGEMENT, LLC Plaintiff Boston Restoration Resources, Inc. (“BRI”) has brought a Rule 45(d) motion to quash a document subpoena served on non-party United Housing Management, LLC. The thrust of BRI’s motion is that the subpoena is unreasonably over-broad and burdensome, and seeks documents relevant only to a previously asserted theory of damages it has since abandoned. United Housing Management has to date defied the subpoena served upon it, but has not joined this motion. Mass. R. Civ. P. 45(f)(3) provides that “[a]ny person subject to a subpoena under this rule may move the court (A) for a protective order under rule 26(c) or (B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.” Inasmuch as BRI is not “the person subject to subpoena” under Rule 45, and does not maintain that production of the documents sought thereby would invade any legal right or privilege it has in the same, it lacks standing to assert objections on behalf of United Housing Management. See In re Stone & Webster Securities Litigation, 2006 WL 2818489, at *2-3 (D. Mass. 2006) (a party has no standing to object to a subpoena directed to a non-party); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena addressed to a non-party witness.”). See generally P. Lauriat et al., Discovery, 49A Mass. Practice _ 8:23, at 289 and n.21 (3d ed. 2017) (“In general a party has no standing to assert objections to a subpoena on behalf of a non-party.”). It is true, as BRI points out, that “[a] party has standing to quash a subpoena served on a non-party if he or she has a personal right or privilege with respect to the requested information.” Enargy Power (Shenzhen) Co. Ltd. v. Xiaolong Wang, 2014 WL 2048416, at *2 n.4 (D. Mass. May 6, 2014). See also P. Lauriat, supra, 49A Mass. Practice _ 8:23, at 289 (“A party may assert objections as to a subpoena served on a non-party … where the objections relate to rights of that party rather than the non-party.”). This is not the case in BRI’s present motion. BRI […]
Therapy Resources Management LLC, et al. v. Whittier Health Network, Inc., et al. (Lawyers Weekly No. 12-120-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 1784CV0942 BLS 1 THERAPY RESOURCES MANAGEMENT LLC, et al vs. WHITTIER HEALTH NETWORK, INC., et al ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT Count IV of the Amended Complaint seeks a declaratory judgment to the effect that defendants (referred to collectively as “Whittier”) are barred from seeking indemnity from plaintiffs (referred to collectively as “Therapy”). Whittier has not yet answered the amended complaint or asserted a counterclaim, but the record is clear that Whittier believes it has the right to be indemnified by Therapy for litigation costs and a settlement payment incurred by Whittier in connection with an investigation and lawsuit under the False Claims Act (“FCA”), 31 U.S.C. §3729.1 There is an actual controversy between the parties regarding whether, as a matter of law, Whittier can obtain indemnification under its contracts with Therapy which state that “[Therapy] shall indemnify and hold [Whittier] harmless from and against all claims, demands, costs, expenses, liabilities and losses (including reasonable attorney’s fees) which may result against [Whittier] as a consequence of any malfeasance, negligence . . . caused . . . by [Therapy] . . . .” 1 Whittier has effectively obtained some indemnification by refusing to pay invoices for services rendered by Therapy. Thus, Therapy is the plaintiff in this action seeking recovery for non-payment of invoices. The claim for indemnification by Whittier is anticipated because such claim is the stated basis for Whittier’s refusal to pay the invoices. 1 Therapy’s argument for summary judgment on Count IV is based on the following undisputed facts. The losses that Whittier wants indemnification for arise from the fact that Whittier was sued, along with Therapy, for fraud under the FCA. The suit was brought by a former employee of Therapy. There was also another suit by a different former employee of Therapy against Therapy alone. The filing of the suits triggered an investigation by federal officials. The gist of the FCA claims was that Whittier and Therapy knowingly presented false claims for Medicare reimbursement. Both Whittier and Therapy denied the allegations. At some point, the claims against Therapy were dismissed. It is unclear from the record whether the dismissal was a result of a settlement or whether it was a dismissal without prejudice. Sometime later, Whittier entered into a settlement with the FCA plaintiffs, including the government, requiring, among other things, payment by Whittier of $ 2.5 million. Therapy was not a party to the settlement. FCA claims against Therapy were not released in the Whittier settlement. The settlement agreement alleges that Whittier failed “to take sufficient steps to prevent [Therapy] from engaging in a pattern and practice of fraudulently inflating the reported amounts […]
People for the Ethical Treatment of Animals, Inc. v. Department of Agricultural Resources, et al. (Lawyers Weekly No. 10-105-17)
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-12207 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. vs. DEPARTMENT OF AGRICULTURAL RESOURCES & another.[1] Suffolk. February 6, 2017. – June 14, 2017. Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ. Public Records. Agriculture. Animal. Statute, Construction. Privacy. Civil action commenced in the Superior Court Department on October 14, 2014. The case was heard by Christopher J. Muse, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David Milton for the plaintiff. Amy Spector, Assistant Attorney General, for the defendants. Laura Rótolo & Jessie Rossman, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. Jessica White, for Prisoners’ Legal Services of Massachusetts, amicus curiae, submitted a brief. LENK, J. This case concerns the scope of two exemptions from the statutory definition of “public records.” Specifically, it probes whether information, such as names, addresses, telephone numbers, and other information, contained on animal health certificates in the custody of the Department of Agricultural Resources, is subject to disclosure in response to a public records request. A Superior Court judge determined that such information is protected from disclosure under statutory exemptions G. L. c. 4, § 7, Twenty-sixth (n) and (c), implicating, respectively, public safety and privacy. For the reasons that follow, we vacate that order and remand for further proceedings consistent with this opinion.[2] Background. 1. Public records framework. At all times relevant to this case, two statutes governed access to public records: G. L. c. 66, § 10, and G. L. c. 4, § 7, Twenty-sixth.[3] General Laws c. 66, § 10, sets forth the conditions under which government entities, through their records custodians, must provide access to public records. “The primary purpose of G. L. c. 66, § 10, is to give the public broad access to governmental records.” Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-383 (2002). The term “public records,” in turn, is defined by G. L. c. 4, § 7, Twenty-sixth. The definition sweeps in a wide array of documents and data made or received by employees, agencies, or other instrumentalities of the Commonwealth. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614 (1993), citing G. L. c. 4, § 7, Twenty-sixth (1990 ed.). This expansive definition of “public records” is statutorily limited by twenty enumerated exemptions in G. L. […]
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 […]
MBTA Winter Weather Info and Resources
The MBTA adjusts the scheduling of all of its modes of transportation in real time during severe snow events, and the service provides several frequently-updated resources to check while the snow is coming down. With a potential blizzard on the way Friday into Saturday, the MBTA may put into effect its severe weather service plan, which includes a reduction of service on the subways, commuter rails, buses, boats and the RIDE. On the web: The MBTA provides a winter weather website which is active during major snow events. This site will provide detail of a reduction in service in real-time: MBTA.com/winter. MBTA.com is the homepage, which also displays updates. A way to find out find out whether a specific line is experiencing a reduction in service is to check the MBTA’s service updates page. This page is always active. Alerts: Riders can sign up to get alerts sent to their phones via text message or email as well. Social Media: The MBTA has a vibrant Twitter presence. The official MBTA twitter account is @MBTAGM, but there are several unofficial Twitter accounts which monitor transit. @MBTATransitPD is the official Twitter account for the transit police. Searching #MBTA or #MassDOT will yield several updates, alerts and unofficial Twitter accounts as well. Contacting MBTA: The MBTA has a snow and ice email address customers can use to email concerns: mbtasnowandice@mbta.com. This email address is monitored by a maintenance dispatcher who will prioritize concerns and deploy crews where needed. Also, the MBTA’s customer support phone line is 617-222-3200. Commuter Rail: The MBTA implements a winter-specific reduced service schedule on the commuter rail only if necessary. Check the MBTA winter weather website or the MBTA homepage for an update on this during the storm. What MBTA does during the storm: As the snow falls, MBTA subway personnel will work to prevent snow and ice build-up in the track beds and around switches. Crews are dispatched throughout the system to remove snow from train platforms, bus stops, and station entrances. During the overnight hours early Saturday, the MBTA will operate observation trains to prevent snow and ice build-up and look for any potential hazards such as downed trees or low hanging limbs. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch