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Neovi Data Corp. It appears that one may be liable as an aider and abetter of a negligent act. Navarrete v. Meyer Cal. Orser v. George Cal. Copyright Judicial Council of California. SouthWest Dealer Services, Inc. Judicial Council of. Jury Instns. CACI No. Consultants LLC Cal. Partners, Ltd. State Farm General Ins. We need not decide whether specific intent is a. The elements of this doctrine are prescribed in section.
Abbott Laboratories 26 Cal. Yi 22 Cal. It likewise. Bank Nat. Union School Dist. Go-Best asserts that Citizens Bank had a duty of care toward those with funds on deposit in the client account and that, in light of overdrafts in it, this duty required it to "make reasonable inquiries," and to take steps to protect funds on deposit in that account. Go-Best asserts that Citizens Bank breached this duty, and that that breach was a proximate cause of its loss.
Duty and breach. In determining the scope of the bank's duty of reasonable care, we apply well-established precepts of depositary bank liability. First, in the ordinary case, banks have no duty to monitor the use of deposit accounts they hold. See, e. Fidelity Trust Co. See also Newburyport v. First Natl. Bank, Mass. Second, however, where a bank has sufficient notice of wrongdoing, that notice may give rise to a duty on the part of the bank to make further inquiry, see, e.
Atlantic Natl. Pilgrim Trust. Thus, for example, the Supreme Judicial Court has said that when a transaction is a "badge of fraud" it may give rise to "a duty" on the part of the bank "to interfere to prevent" a misappropriation. See ibid. Although there is no Massachusetts case addressing a chronic insufficiency of funds in a client trust account, in applying similar principles in a parallel circumstance there, as a matter of New York law , the United States Court of Appeals for the Second Circuit vacated the dismissal of some of the plaintiffs' complaints against the defendant banks and stated:.
Nevertheless, a bank may be liable for participation in such a diversion, either by itself acquiring a benefit, or by notice or knowledge that a diversion is intended or being executed. Adequate notice may come from circumstances which reasonably support the sole inference that a misappropriation is intended, as well as directly. Having such knowledge, the bank is under the duty to make reasonable inquiry and endeavor to prevent a diversion.
Although small overdrafts [in a client trust account] are generally insufficient to trigger a duty of inquiry, the bank's duty may be triggered by chronic insufficiency of funds. Lerner, F. While we reiterate that banks ordinarily have no duty to monitor the use of funds placed in deposit accounts, under the principles articulated in those Supreme Judicial Court cases, the evidence of Citizens Bank's knowledge of the chronic insufficiency of funds in a client funds account, if proven, would trigger a duty of reasonable care on the part of Citizens Bank to all those who, like Go-Best, subsequently placed funds in that account, to make reasonable inquiry and to endeavor to prevent a diversion.
Kask, Mass. For this reason, summary judgement is rarely appropriate in negligence cases, and is "especially disfavored" where, as here, knowledge is at issue. Pratt v. Martineau, 69 Mass. Viewed in the light most favorable to Go-Best, the evidence in the record raises a question of fact whether Citizens Bank exercised reasonable care when it failed to endeavor to prevent a diversion, which it might have done by complying with applicable Massachusetts Rules of Professional Conduct, adopted by the Supreme Judicial Court, requiring it to report overdrafts on the client account, see Mass.
And a "bank's evident default in the performance of its regulatory obligation to make a report of. The evidence in the record at this summary judgment stage indicates that, although Citizens Bank was aware of the chronic overdrafts in the client funds account, it never reported dishonored checks to the Board of Bar Overseers, nor did it take any steps to investigate the matter.
The evidence indicates that, when confronted about this, Wong was nervous and stated, "I never should have done it. Citizens Bank argues that it owed no duty because this account was not, in fact, a trust account covered by rule 1. It argues in the alternative that it did not know the client account was a trust account, if it was. An account is a trust account subject to the rules of professional conduct, however, if funds in it are held "for clients and in any other fiduciary capacity in connection with a representation.
There is sufficient evidence in the record viewed in the light most favorable to Go-Best indicating that the account held client funds in trust consistent with this definition to present a genuine issue of fact about the nature of the account. Moreover, this account was also labeled a "client account. Assuming the client account was a trust account, whether Citizens Bank knew or should have known that it was also presents a question for the fact finder.
The rules of professional conduct state that "[l]awyers or law firms maintaining trust accounts shall take all steps necessary to inform the depository institution of the purpose and identity of such accounts. In this case, the evidence indicates that Goldings asked that the account be denominated "Morris M. These facts alone raise a genuine issue as to what Citizens Bank knew or should have known about the nature of the account.
Citizens Bank also argues that, even if the client account was a trust account, any duty Citizens Bank had would have extended only to clients of Goldings or MHG whose funds were deposited in the account. The plaintiff in this case, Go-Best, was not a client. The dissent agrees with Citizens Bank's argument and concludes that the principles articulated in Lerner should apply only where the person whose funds were on deposit in a trust account and who alleges they were lost through the bank's negligence was a client of the attorney or firm holding the funds in that account.
Citizens Bank's argument misperceives the nature of the duty. It is foreseeable that any party that allows its funds to be deposited into a trust account may be injured in the event of a fraudulent scheme of misappropriation, whether or not that party was a client. A nonclient party like Go-Best may have reasonably believed that the client account, by its nature as a trust account, was subject to bank supervision.
Citizens Bank's duty, and its relationship with those whose funds were deposited in the account, has nothing whatever to do with the technical relationship between the depositors and Goldings. The viability of their claims did not depend upon the bank's "actual knowledge" that these depositors were clients with escrow agreements with the bank.
See Lerner, F. Further, and perhaps most important, imposition of a duty running to all whose funds are deposited in client trust accounts, rather than only to clients, does not impose any additional burden upon the bank. If a bank holds a client account, it is required to take reasonable care in the face of chronic overdrafts.
This will be true whether the account exclusively holds client funds or not. Indeed, it is likely that the bank will know nothing about the source of any of the particular funds held at any particular time in any client account. To limit recovery only to clients thus would immunize a bank proven to have caused through its negligence losses that would otherwise have been actionable on the arbitrary ground that they happen to have been incurred by nonclients.
Finally, Citizens Bank argues that application of the principles of our case law to impose a duty in the circumstances alleged would "change the landscape of the banking industry and is plainly unworkable as a matter of public policy.
But the principles we apply today have been similarly applied in New York, the banking center of the United States, where they appear neither to have proven unworkable nor to have led to dramatic consequences for the banking industry. In the absence of evidence to the contrary, this suffices to answer Citizens Bank's objection. Causation and damage. As to causation and damage, there is sufficient evidence in the record, viewed in the light most favorable to the nonmoving party, that Go-Best incurred damage.
This leaves only the question whether the evidence raises a genuine issue whether any such damage was proximately caused by Citizens Bank's negligence. Proximate causation is a question of fact ordinarily left to the jury.
Mullins v. Pine Manor College, Mass. Edwards, 62 Mass. This evidence, taken in the light most favorable to Go-Best, raises a genuine issue of material fact on the question of proximate cause. Citizens Bank argues that a causal connection is lacking because there is no evidence in the record that demonstrates Citizens Bank knew of any specific fraudulent transaction involving the funds Go-Best had transferred to the client account.
The general rule is that a bank has no liability for a fiduciary's misuse of funds in a fiduciary account absent knowledge of that misuse. Fourth Natl. A bank may presume that a fiduciary will apply funds in such an account to their proper purposes.
But the allegation here is not that the bank has a general obligation to oversee fiduciary accounts. The allegation here is that, through negligent failure to adhere to its legal duties with respect to client trust accounts, a duty triggered only by the chronic insufficiency of funds in this client account, the bank allowed the account to continue operating with the "client account" moniker, and the protections it implied, such that Goldings was able to continue his fraudulent scheme to Go-Best's detriment.
In order to find proximate causation the jury thus need not conclude that the bank was aware of the specifics of any particular transaction in the account. We emphasize that we are not holding that Citizens Bank was negligent in this case. That has not been proven, and it is a question on which we express no opinion; it is one for the fact finder. We conclude only that summary judgment should not have entered on Go-Best's claim of negligence against Citizens Bank and that it must be reversed.
Aiding and abetting. In light of the evidence described above, again taken in the light most favorable to Go-Best, the portion of the order dismissing Go-Best's claim against Citizens Bank for aiding and abetting Goldings's fraud, breach of fiduciary duty, and conversion must also be reversed. Given the evidence that an employee of Citizens Bank intentionally and improperly transferred money into the client account, whether Citizens Bank knew of Goldings's fraudulent use of the client account presents a genuine issue of a material fact.
In dismissing these claims, the judge erroneously concluded that the knowledge requirement of aiding and abetting liability cannot be satisfied without proof of Citizens Bank's knowledge of Goldings's particular alleged misuse of Go-Best's funds. Such a reading is too narrow. Our law requires only that "the defendant actually knows about 'its substantial, supporting role in an unlawful enterprise. Miles, Inc. Philip Morris, Inc.
As described above, the chronic overdrafts and insufficiency of funds in the client account demonstrated a very high likelihood of the misuse of the account by Goldings. See post at n. But again, this misperceives the significance of the character of the person or entity whose funds are on deposit in a client trust account.
The ordinary rule is that a tortfeasor is liable for the reasonably foreseeable consequences of its actions. If Go-Best's claims are proven, the injury to any and all individuals with funds on deposit in the client account would have been reasonably foreseeable. Again, this is not to say that Citizens Bank did indeed provide knowing assistance to Goldings.
That has not been proven. But there is at least a genuine issue of material fact about Citizens Bank's state of mind. Turning to the misrepresentation claim, Go-Best argues before us that Citizens Bank's act of labeling the client account "client account" amounted to the provision by Citizens Bank of false information because it did not provide the oversight that, Go-Best argues, that label implies, and that Go-Best relied upon that misrepresentation to its detriment.
Citizens Bank argues that the complaint does not satisfy the heightened pleading standard of Mass. We agree. In various places in the complaint it is alleged that the client account was maintained at Citizens Bank and was labeled "client account," that Go-Best reasonably believed this was a trust account monitored by the bank, that "Goldings had been using the Citizens Bank client funds account to perpetrate criminal activity with the help of Citizens Bank's employees," and that Go-Best reasonably relied to its detriment on "its understanding of the nature" of the client account.
Go-Best appears to argue that it can be inferred from the complaint, though it is never in terms asserted, that Citizens Bank falsely labeled the account "client account," and that it did so with knowledge of that falsity. Nonetheless, the complaint does not anywhere allege that Citizens Bank even through Goldings provided Go-Best any material that had the name of the account on it. Citizens Bank similarly concealed the fraudulent and unlawful activity that had occurred through Goldings' trust account.
The primary purpose of rule 9 b is to place the defendant in a fraud case on notice of the specific acts that are alleged to have been fraudulent. In this case the complaint did not "warn [Citizens Bank] adequately concerning the particular statements which constituted the alleged fraud so that they could prepare their defense. Jablonski, Mass. Consequently, summary judgment on the misrepresentation count was properly granted.
Conversion and accounting. Finally, summary judgment also properly entered on the other two claims against Citizens Bank. Indeed, Go-Best does not seem to contend otherwise. The evidence is insufficient to create a genuine issue of material fact whether Citizens Bank itself failed to return Go-Best's funds when they were in its possession and Go-Best requested their return, which would be essential to a judgment against Citizens Bank for conversion of the plaintiff's funds.
See Marshall Vessels, Inc. Wright, Mass. See also Gossels v. Fleet Natl. Similarly, there is no evidence to raise a genuine issue whether there was a fiduciary relationship between Go-Best and Citizens Bank. This is an essential element of the cause of action for an accounting.
See Ball v. Harrison, Mass. Omni Publications Intl. Summary judgment in favor of Citizens Bank on these counts, as well as on the misrepresentation count, will be affirmed. The judge separately granted summary judgment in favor of Goldings's former partners, William S. Edmands, on Go-Best's claims of aiding and abetting Goldings's alleged fraud, conversion,.
If, viewing the evidence in the light most favorable to the nonmoving party, Go-Best, we find no genuine issue as to any material fact, and the partners have demonstrated their entitlement to judgment as a matter of law, we will not disturb that judgment. Arcidi v. Viewed in the light most favorable to Go-Best, as relevant to the claims against the partners the summary judgment record reveals the following:. There is deposition testimony of Hawkes that he understood the account to be a trust account subject to rule 1.
Hawkes further testified that Goldings was the largest originator of business at the firm. The record reveals that MHG's own client trust accounts were monitored daily by the firm's accounting department. Margaret Franchi, the controller-accounting manager at MHG, testified in a deposition that disbursements could be made from the MHG accounts only through a disbursement request made to her.
The accounting department would have to authorize any such disbursement. The evidence indicates that the accounting department kept records of each separate client fund held within the firm's trust accounts. Before funds could be disbursed, an attorney requesting such disbursement had to, among other things, identify the particular client fund from which the disbursement was being made.
Deposition testimony reveals, however, that, unlike the firm's own trust accounts, the client account was not monitored by anyone at the firm, nor did anyone at the firm other than Goldings. Indeed, Franchi testified that at one point Richard Lyon, the firm administrator who apparently began his duties in early , raised with her the possibility of her supervising the client account, which she said she would not do unless the account was audited by providing documentation for each client whose funds were held in the account.
There was no way I was going to take an individual account over not knowing what was there. She was informed of this by her supervisee, Nanette LeBlanc, who had noticed the withdrawal in her review of the daily report sent to the firm by Citizens Bank. Similarly, Hawkes testified that Goldings frequently did not follow the firm's written case intake policy, saying, "Morris wasn't great at getting engagement letters signed," and that he was "sure there were [other] ways which he did not follow the policy.
When the funds were not replaced the next day, Franchi telephoned the bank, where she spoke with Wong, the Citizens Bank employee, who, as described above, was "very. Goldings subsequently telephoned Franchi. He told her to stop telephoning the bank, and that he would take care of getting the money back into the IOLTA account.
At this point, Franchi brought the matter to the attention of Hawkes. According to Hawkes's deposition testimony, Franchi conveyed all this information to him. Hawkes telephoned Citizens Bank and was told that it was not a bank mistake, but rather that Goldings had specifically instructed the bank to transfer the money out of the firm's IOLTA account and put it in the client account.
Hawkes then had a meeting with Goldings, at which Goldings told Hawkes a different story from what he had told LeBlanc. Hawkes testified that he had a serious conversation with Goldings about the matter and that he, Hawkes, was "pretty angry," stating, "I think I probably lost my cool. Hawkes testified that he believed that after his conversation with Goldings he discussed the matter contemporaneously with partners Gershwin, Peters, and Edmands.
None of the partners took action to report Goldings to bar counsel or to the Board of Bar Overseers, to investigate the circumstances that gave rise to the shortfall in Goldings's client account, to monitor that account, or to prevent Goldings's continued misappropriation of funds from that account. Franchi testified that she had "no idea" why an exception from oversight was made for the Goldings client account.
The complaint does not assert a negligence claim against the partners, but rather three claims of aiding and abetting. We will assume without deciding that the record raises a jury question whether the partners' inaction in failing to monitor the client account amounted to the provision of "substantial assistance" to Goldings, permitting us to turn to the question of the state of the partners' knowledge.
Each aiding and abetting claim requires knowledge by the defendant of the principal's wrongdoing. Nutt, Mass. The partners argue that they may not be held liable without knowledge of the specific acts perpetrated upon Go-Best, something of which there is no indication in the summary judgment record. But the allegation at the root of all of Go-Best's claims of aiding and abetting against the partners is that Goldings engaged in an ongoing, fraudulent Ponzi scheme, of which Go-Best was only one of the victims.
The partners could be found to have aided and abetted the unlawful scheme without specific knowledge about the Go-Best transaction. Sovereign Bank, F. The question before us in addressing the aiding and abetting claims thus is whether the summary judgment record raises a fact question about the partners' knowledge that Goldings was engaged in such a fraudulent scheme.
See Arcidi v. The evidence here falls short. Read in the light most favorable to Go-Best, the evidence supports an inference of knowledge on the part of at least some of the partners that Goldings once misappropriated funds from the firm's IOLTA account, and knowledge of the shortfall in the client account that Goldings asserted was the reason for that misappropriation.
But there was no evidence any of the partners knew of the pattern of overdrafts that might have given them awareness that a fraudulent scheme was ongoing. There was also, it is true, evidence that Goldings sought to disburse funds in client accounts even before the checks for those funds had cleared, but this evidence, unlike evidence of a chronic insufficiency of funds, is not indicative of ongoing wrongdoing. And there is also evidence that would support an inference that Goldings did not always pay attention to other firm policies which may have been rooted, at least in part, in ethical requirements.
But, again, this does not support an inference of knowledge of an ongoing unlawful scheme. Even if the evidence would raise a jury question whether some or all of the partners should. To be sure, in some jurisdictions deliberately taking steps to avoid knowledge of wrongdoing has been held to satisfy the knowledge requirement. This is widely true in criminal prosecutions for aiding and abetting.
Guerrero, F. Giovannetti, F. Some courts have also applied this reasoning in civil actions for aiding and abetting tortfeasors. Beacon Hill Asset Mgmt. Madoff, U. September 9,
In Wright v. July 19, New York City Transit Authority, the New York Supreme Court, Appellate Division, 2d Department, addressed the standard for entry of summary judgment in favor of a common carrier alleged to have negligently operated a bus. July 24, Mejia, the New York Supreme Court, Appellate Division, 1st Department, addressed the application of strict liability to a dog owner whose dog bit a child.
To recover upon a theory of strict liability in a tort for a dog bite or attack, the injured person must prove that the dog had vicious propensities and that the dog owner, or person in control of the premises where the dog was, knew or should have known of such propensities. The court found that the injured child submitted evidence demonstrating that the dog was kept, at least in part, as a guard dog, and that the dog bit the child on the face unprovoked and would not let go until another boy intervened.
The court found that this evidence was sufficient to raise a triable issue as to whether the dog owners knew or should have known that the dog had vicious propensities. In Burkholder v. Department of Agriculture, the Commonwealth Court of Pennsylvania addressed whether, under the Dog Law , a noncommercial Class IV kennel is automatically converted to a commercial kennel when the kennel owner has exceeded the limits in his license for dog transfers.
The court held that while the breeder violated the Dog Law by exceeding the limits of dog transfers, this did not warrant an automatic conversion to a commercial kennel. The Dog Law requires a kennel to apply for a different license, which means there can be no automatic license conversion. July 12, In Conn v. Port Authority of New York and New Jersey, the New York Supreme Court, Appellate Division, 2d Department , addressed whether an estate administrator must first file a pre-suit Notice of Claim to a public entity before she seeks to amend a complaint filed by the decedent that alleged negligence and violations of the Labor Law.
The purpose of a Notice of Claim is to allow public entities time to investigate and evaluate the merits of all claims made against them. July 17, In Detra Holloway v. Madison Trinity Limited Partnership, the Appeals Court of Massachusetts addressed whether the owner and manager of a private housing development owed members of the public a duty to warn about potential dangers on a public road that runs through the private development. The court held that no such duty exists, as under Massachusetts law, a landowner is not held to any duty with respect to public highways adjacent to or crossing his land.
July 18, In Tilija v. Establishing a prima facie case requires evidence that shows a reasonable likelihood that the movant is entitled to asylum relief. A reasonable likelihood is established when the movant merely shows a realistic chance that the movant can, at a later time, establish that asylum should be granted. Additionally, the Board must accept facts presented by the movant as true. In GN Netcom, Inc.
Plantonics, Inc. July 10, Integrity House, Inc. July 8, In Hedberg v. The court ruled that such an exception should apply and adopted Proposed Mass. July 11, In Bove v. Akpharma Inc. The plaintiff alleged that his use of a nasal spray developed by his supervisor caused him to develop cancer. Akphrama Inc. The court noted that the employer did not force the plaintiff to use the nasal spray , nor know of any dangers related to its use. Accordingly, the plaintiff could not prove that Akpharma Inc.
In Bandler v. DeYonker, the New York Supreme Court, Appellate Division, First Department , addressed the statute of limitations for tortious interference with contract and with prospective business relations. The court ruled that the statute of limitations had expired because the plaintiff was injured when he was terminated from his engagement with BPCM in February , not when his federal action against BPCM was dismissed in September In Samuels v.
July 9, China Construction America, Inc. July 2, In Gagliardi v. June 20, In McDonough v. Smith , the United States Supreme Court addressed the statute of limitations applicable to a civil rights claim brought under 42 U. Carlton Harris Chiropractic, Inc. In Kozik v. June 19, In Boston Globe Media Partners v. Department of Public Health , the Supreme Judicial Court of Massachusetts addressed whether indices of birth and marriage records were exempt from disclosure under the public records statute under a statutory exception for personnel and medical files, disclosure of which may constitute an unwarranted invasion of personal privacy.
The court concluded that, in some circumstances, there is a greater privacy interest in a compilation of personal information than in the discrete information that a compilation summarizes. June 17, In von Schonau-Riedweg v. Rothschild Bank AG , the Appeals Court of Massachusetts addressed whether, in a dispute between an heiress and a Swiss bank regarding a recommended investment in two Massachusetts-based companies that proved worthless, Massachusetts courts had personal jurisdiction over the Swiss bank.
The court reasoned that it did not. June 12, In Henry v. June 11, The court held that the Pennsylvania State Police are required to provide a hearing under Section of the Administrative Agency Law. As a result of the alleged negligence, plaintiffs alleged that they suffered reputational harm and were subject to FINRA investigations. In Glueck v Starbucks Corporation, the New York Supreme Court, Appellate Division, First Department, was asked to consider whether Starbucks acted negligently when the plaintiff, an elderly woman with a cane, tripped and fell outside its shop.
The plaintiff was unable to identify where exactly she fell or how , and gave multiple versions of the accident. Neither of the witnesses nor an expert could identify where the woman fell, and in any event the expert report was unsworn and speculative. June 6, In Narleski v. Gomes, the Superior Court of New Jersey addressed whether an underage adult host or his parents owe a legal duty to parties injured as a result of underage alcohol consumption.
The court held that, absent proven knowledge or consent , parents of an underage adult host do not owe a legal duty to prevent their child from allowing other underage individuals from drinking alcohol in their home. Although the court further held that the underage adult host owed no duty under the current law, it prospectively held that an underage adult owes a common law duty to injured parties to desist from facilitation of alcohol consumption by other underage adults in his or her place of residence.
In Paladino v. Auletto Enterprises, Inc. The court held that there is no per se or presumptive rule that materials prepared or collected before litigation are not prepared in anticipation of litigation. Instead, there is a case-by-case, fact-specific analysis to be undertaken. If it is determined that the materials were prepared or collected in anticipation of litigation, the party seeking the materials must show a substantial need for the discovery and demonstrate that he or she is unable to obtain the substantial equivalent of the materials without undue hardship.
In Home Depot U. Jackson , the United States Supreme Court addressed whether a third-party counterclaim defendant may remove a case filed in state court to federal court. The Court held that neither the general removal provisions nor the removal provisions set forth in the Class Action Fairness Act of allowed a third-party defendant named only in a counterclaim and not the complaint to remove the civil action to federal court. May 28, In Box v. The court held that the State has a legitimate interest in proper disposal of fetal remains, upholding the new law altering the manner of disposing fetal remains.
In Mauthe v. Optum Inc. To establish third-party based liability under the TCPA, a plaintiff must show that the fax: 1 sought to promote or enhance the quality or quantity of a product or service being sold commercially; 2 was reasonably calculated to increase the profits of the sender; and 3 directly or indirectly encouraged the recipient to influence the purchasing decisions of a third-party. In Deschamps v. In Arias v. Recife Realty Company, N. May 30, In Robbins v. Consolidated Rail Corporation , the Superior Court of Pennsylvania considered whether the family of a deceased railroad employee was permitted to bring a Federal Employers Liability Act case in Pennsylvania against the railroad company, even though the decedent only ever worked in Indiana.
May 29, In Elizee v. The court found that the property owner proved that the sidewalk was not slippery approximately 30 minutes prior to the accident and that the ice on which the plaintiff slipped was not visible when she fell. May 15, In Velez v. Demolition, Inc. The court noted that the complaint was deficient because the plaintiffs failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts as required by CPLR f.
In Salazar v. The defendants had filed their motion belatedly after discovery had ended without demonstrating good cause to do so, as required by the court rules. The court held that the trial court abused its discretion by effectively barring claims as a discovery sanction without explaining its reasons for overlooking the discovery rules, which only permitted the defendants to file the motion late if they had good cause.
April 8, In Vaughn, F. Olympus America, Inc. Even though a majority of the evidence was in North Carolina or Japan, and not Pennsylvania, the court found that the plaintiff can establish a close connection with a forum based upon relevant corporate actions that take place there. April 10, A majority owner of an airport spa concession sought to hold a minority owner of the spa personally liable and sought to sue in New York.
The court found that because the minority owner attended three meetings in New York, accepted regular payments and operational support from individuals in New York and maintained an ownership interest in an entity that was partnered in and had an interest in the New York spa, personal jurisdiction in New York was warranted. April 11, In Medford Township School District v. Schneider Electric , the Superior Court of New Jersey, Appellate Division , analyzed whether an arbitration clause in a contract was mandatory or permissive.
April 26, Quest Diagnostics Clinical Laboratories, Inc. In overturning Grimm, the Superior Court noted that 20 Pa. May 1, In John v. Philadelphia Pizza Team, Inc. In Curto v. The court held that the sex-specific swim times violated the Fair Housing Act because the men were allotted more favorable swimming time than the women on weeknights and Friday afternoons. April 22, In Fulton v. In Francisco Romero v.
April 23, The court found that because the minority owner attended three meetings in New York, accepted regular payments and operational suppor t from individuals in New York, and maintained an ownership interest in an entity that was partnered in and had an interest in the New York spa, personal jurisdiction in New York was warranted.
In Husovic v. Structure Tone, Inc. The trial court properly imposed discovery sanctions where the defendant failed to comply with three separate discovery orders to produce documents especially when the trial court set forth what documents needed to be provided and warned that failure to comply may result in sanctions. April 18, Bank N. In Cornwall Warehousing, Inc. April 16, Sosmetal Products, Inc.
April 4, Tenacity Construction Inc. April 3, March 22, March 27, March 26, March 28, The court held that if a trial court sustains preliminary objections seeking enforcement of an agreement for alternate dispute resolution pursuant to Pa. March 15, March 8, The court held that evidence that the plaintiff fell within one foot of where she was seated was insufficient to establish a prima facie showing of negligence. Wal-Mart Stores, Inc.
March 5, The court found that the defendant-bank properly exercised its authority to foreclose as the trustee of the securitized trust, the assignee of the mortgage and the entity in physical possession of the note. In Rotkiske v. February 25, In Barbato v. Because that definition is not limited to entities that actively collect from consumers, the court found that an entity whose primary business aim is the collection of debts — either directly or indirectly — qualifies as a debt collector.
February 22, In Gowen v. Helly Nahmad Gallery, Inc. In declining to dismiss an action seeking return of a painting allegedly looted by the Nazi-occupied French government, the court observed that the action would be time-barred in France, the purportedly more appropriate forum. February 26, In Kelly Systems, Inc.
Leonard S. Fiore, Inc. The court held that the defendant was not required to file a Certificate of Merit because the defendant sought joinder based on negligent acts related to the negligent acts originally pleaded by the plaintiff. Dutton v. Rando , the Superior Court of New Jersey , Appellate Division, addressed whether expert testimony was required to support a monetary claims for loss of advice, guidance and companionship under the Wrongful Death Act.
The court recognized that the assessment of pecuniary loss might require some speculation , but that assessment is not so beyond the common knowledge and experience of a juror to warrant the need for expert testimony. In People of the State of New York v. Orbital Publishing Group, Inc. In fact, the publishing group had at best indirect relationships with the publishers, and offered rates above the standard subscription prices.
Therefore, the court found that the solicitations violated the GBL. February 21, In Esposito v. A patron of the bar alleged a violation of the Dram Shop Act after he was assaulted by two other patrons.
The evidence showed that the patron who was assaulted had ordered and paid for the drink of the individual who later assaulted him. February 20, In Timbs v. Indiana , the Supreme Court of the United States addressed whether the Excessive Fines Clause applies only to federal actions or may be imputed to the states. In City of Philadelphia v. The court held that because neither statute nor the Constitution conferred the Executive Branch with authority to condition the grant of funding under the relevant statute, immigration-related conditions on law-enforcement grants to the City of Philadelphia were invalid.
February 15, In Halstrom v. The client changed counsel July 1, ; the medical malpractice action was settled in ; and the firm brought a suit for fees on July 7, In Janczewski v. February 13, In Patterson v. Transit Rail Operations, Inc.
February 12, In Sprott v. In Porter v. The court held that the lease holder had the right to access and do initial due diligence work on the site while the full scope of the lease issue was being litigated. February 10, In Kalaj v. The clients moved to dismiss the complaint , arguing, among other things, that they had a defense based on documentary evidence.
February 6, In Wong v. Broughton , the Supreme Court of Delaware addressed whether an expert witness improperly based his opinions on a res ipsa loquitor theory. That is, the expert testified that the physician breached the standard of care solely because the patient sustained a permanent injury. In so holding, the court noted that the expert appropriately qualified why he disagreed with the results of a study cited by the defense, and further stated that his opinions were based upon the medical records, eyewitness accounts and other information an expert would ordinarily rely upon in his field.
The court also held that statistical data used to demonstrate the rarity of the injury suffered was not improper evidence that invited an inference of an inevitable result, and therefore, was admissible. February 4, Alfa Leval U. Holding, Inc. January 31, January 30, In Tracey Mitchell v. Quincy Amusements, Inc. In the underlying case, the plaintiff slipped in a movie theater and sustained injuries, and the case went to trial.
Bucks County International, Inc. The court determined that such a purchase was covered as a sale of merchandise under the CFA. The key factor is that a member of the public could have made the same custom purchase. The CFA was meant to be liberally construed in order to serve its original remedial purpose and is applicable to certain commercial transactions, including custom-made goods.
In Empire Loan of Stoughton, Inc. Stanley Convergent Security Solutions, Inc. The proponent of the forum selection clause met its burden of showing that the clause was reasonably communicated and accepted and that the opponent bore a substantial burden of showing that the enforcement of the forum selection clause would be unfair and unreasonable. Here, where the witnesses could be deposed in Massachusetts and the Connecticut forum could apply claims based in Massachusetts law, the business that opposed the forum selection clause did not meet its burden.
January 29, Because the provision failed to adequately convey what she was agreeing to, she claimed that there was no basis for mutual assent to arbitrate disputes. The Court determined the language of the statute mandates the 25 percent cap apply only to fees for representation before the court, not the agency. Therefore, the Court held that applying the 25 percent cap to the aggregate fees awarded under the two subsections would make little sense.
The individual was a New Hampshire resident and the lawsuit involved an incident that occurred in Florida, but was served in-hand while attending a sporting event in Massachusetts. The court noted that its holding is limited to individuals, not businesses, and its ruling does not preclude a case being dismissed for forum non conveniens. January 4, January 3, In Soloway v. In Brewington v. December 28, December 27, In Covelli v.
Silver First, Ltd. The court found that landowners are only liable for injury occurring on their property or in areas under their control. In Leite v. Bergeron , the United States Court of Appeals for the First Circuit addressed whether an inmate established a claim against a corrections officer for violating his Eighth Amendment rights. Holding that the inmate had not produced sufficient evidence to establish deliberate indifference to inmate health or safety, the court explained that the inmate needed to produce evidence that the officer knew of a risk specific of harm to the inmate.
December 19, In Eclipse Liquidity v. Geden Holdings , the Superior Court of Pennsylvania held that a foreign judgment can be registered in Pennsylvania without commencing a civil action to determine whether the judgment should be recognized. The Uniform Enforcement of Foreign Judgments Act makes clear that the legislature intended to streamline the enforcement of foreign judgments and requires only that the party seeking enforcement file a copy of the judgment and docket entries with the clerk of any Court of Common Pleas.
December 7, In Baron v. Suissa , the Supreme Court of New York, Appellate Division, 2d Department , addressed the application of the statute of frauds to several oral agreements between a cohabitating man and woman. While the statute of frauds prohibits the conveyance of real property without a written contract, as was allegedly agreed to here, a court may compel specific performance of an oral contract in cases of partial performance.
As to the alleged oral agreements concerning the provision of domestic and legal services in exchange for support and sharing of business profits , the court found that agreements between cohabiting people are not per se required to be in writing. December 12, December 6, The court also found that the regulation was neither a taking under the Fifth Amendment nor an equal protection violation under the Fourteenth Amendment. December 5, December 3, In Ogando v. National Freight, Inc.
The court determined that this threshold was not met for both victims. November 29, November 28, In Flanzman v. Jenny Craig, Inc. Consequently, there was no mutual assent , rendering the arbitration agreement unenforceable and invalid as a matter of law. In Ballantine v. Pine Plains Hose Company, Inc. The plaintiff filed suit against the hospital, but did not file a notice of claim even though the hospital was a public corporation.
The lower court granted the plaintiff leave to serve a late notice of claim, and the hospital appealed. The Second Department found that where a plaintiff seeks leave to file a late notice of claim, the court should consider whether the public corporation acquired timely actual knowledge of the facts constituting the claim. November 14, November 2, New York law generally requires a defendant to move for dismissal due to lack of personal jurisdiction based upon improper service within 60 days after service of the answer.
November 7, In Piech v. Layendecker , the Superior Court of New Jersey, Appellate Division , addressed the proper jury instructions in a lawsuit against a property owner for injuries caused by an activity conducted on the land and not the condition of the land. The trial court instructed the jury on both the general duty owed to a social guest by a social host i.
October 19, In Watkins v. Pennsylvania Department of Corrections , the Commonwealth Court of Pennsylvania addressed whether the trial court should have permitted an inmate proceeding pro se to amend his complaint for civil rights violations after the trial court dismissed it for failure to state a claim. The court agreed that any amendment would be futile because the Department of Corrections as a state agency is not subject to suit under federal civil rights law and that his proposed amendments concern conduct by prison guards unrelated to the basis for his complaint, the knowing delay of his change in status.
In McCormick v. City of New York , the New York Supreme Court, Appellate Division, 1st Department , addressed what entity was responsible for maintaining the part of the sidewalk within a designated bus-stop location. The court determined that the city continues to be responsible for maintaining the sidewalk in this area but, in the absence of any statute or evidence defining the parameters of a bus stop , it was impossible to establish on a motion for summary judgment whether the city was responsible for the maintenance.
October 25, In Howell v. The City of New York , the New York Supreme Court, Appellate Division, 1st Department , addressed, in part, whether the trial court exceeded its authority in sua sponte vacating its prior decision and order reinstating a prior judgment. The court determined that a trial court has no revisory or appellate jurisdiction to sua sponte vacate its own order or judgment in the absence of any request from a litigant.
In Highley v. Commonwealth of Pennsylvania Department of Transportation , the Commonwealth Court of Pennsylvania addressed whether employees of a prospective contracting bidder have standing under the traditional standing requirements to challenge a construction project. In order for a party to demonstrate it has standing, the party must show that it has a substantial, direct, and immediate interest in the outcome of the litigation.
The court found that, where the only relation the employees have to the bidding process is that their employer may have submitted a bid if there were no project labor agreement requirement, they do not meet the requirements for traditional standing. Pennsylvania Department of Corrections , the Commonwealth Court of Pennsylvania addressed the personal-involvement requirement for individual-capacity Section suits.
October 10, Guardian Service Industries, Inc. Arciere, Inc. Moreover, the plaintiff failed to present any evidence demonstrating how long the hazardous condition was present on the sidewalk prior to the incident. In Sauers v. October 2, In Gohrig v. The court held that an injured bicyclist could not show the Real Property Exception to immunity under the Tort Claims Act applied because the bicyclist offered no evidence showing the location of his accident was improperly constructed , beyond his own speculative testimony.
September 21, In Murray v. September 25, In Pennsylvania Department of Health v. In so holding, the Court found that 28 Pa. September 27, In Victor v. Borough of Red Bank , the Superior Court of New Jersey, Appellate Division , addressed whether a moveable bleacher placed in an area where spectators were known to walk constituted a dangerous condition under the Tort Claims Act, N.
In Martinez v. The court held that in order to sustain a claim for aiding and abetting against the store, the plaintiff must prove that the store had knowledge that the items returned for refund were stolen or that the store knowingly and substantially assisted in stealing the items purchased. In Jurtowski v.
The court held that, to establish an excessive force claim , an injured plaintiff must be able to specifically identify the responsible police officers. September 14, In Butcher v. University of Massachusetts , the Supreme Judicial Court of Massachusetts found that the fair reporting privilege did not shield a student newspaper from defamation claims arising from a publication which stated that a suspicious white male was taking pictures of women on campus without their permission.
The court reasoned that the privilege did not extend to the publication because the report was based only on witness allegations to police officers, and not any official government action. In Walker v. Senior Deputy Brian T. Coffey , the United State Court of Appeals for the Third Circuit addressed whether a prosecutor and special agent employed by the Pennsylvania Office of the Attorney General were entitled to qualified immunity in a 42 U.
Section claim where the plaintiff alleged that the investigators violated her Fourth Amendment right to be free from an unreasonable search when they used an invalid subpoena to induce her employer, Pennsylvania State University, to produce her work emails. The court concluded that the investigators were entitled to qualified immunity because the plaintiff did not have a clearly established right to privacy in the content of her work emails.
September 20, In Vorchheimer v. The Philadelphian Owners Association , the United States Court of Appeals for the Third Circuit addressed whether a disabled tenant has a right to a reasonable housing accommodation for the use and enjoyment of her home. The court held that a disabled tenant has a right to reasonable housing accommodations, but if the landlord offers the tenant an alternative that satisfies the need, the tenant has no right to demand a particular desired accommodation.
The court held that bystander claims are not, as a matter of law, restricted to relationships involving marriage or blood ties. August 17, In Balentine v. Chester Water Authority , the Supreme Court of Pennsylvania held that the statutory language of the vehicle liability exception to governmental immunity under the Political Subdivision Tort Claims Act , 42 Pa.
Currie Corporation v. In First Choice Plumbing Corporation v. August 22, In Broach-Butts v. Therapeutics Alternatives, Inc. The court held that the agency owed a duty to the foster parents to reasonably disclose a child's background to enable foster parents to make an informed decision about whether to accept him.
In Berardelli v. Therefore, actors covered by the RA must modify their policies to allow for the use of service animals by individuals with disabilities to the same extent as actors covered by the ADA. August 14, In State of New Jersey v. After suffering a million-dollar-plus crop loss, to protect against future losses, the farm planned to construct heated hoop houses to provide cover for its crops.
A hoop house has no concrete footing so they are commonly only constructed on level ground. The area where the farm constructed the hoop houses was not level ground, so the farm altered the elevation of the land, excavated the earth on the field and leveled the ground.
The court held that the farm had the right to erect the hoop houses but did not have the right to permanently damage a wide swath of premier quality soil in doing so, therefore the farm violated the easement and the ARDA. In Cobham v. The court determined that the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury are factors to be considered in determining whether a defect is trivial.
The court further found that expert affidavits, photographs and deposition testimony are sufficient proof to establish that the sidewalk defect was not an actionable trap or nuisance. August 15, August 6, South Street Business Park, LLC , the Appeals Court of Massachusetts addressed whether the discovery rule tolled the statute of limitations in a breach of contract action.
August 8, In Brugaletta v. Garcia, D. The court held while a trial court may properly conduct in camera review of facts underlying what a hospital concluded was not a reportable Serious Preventable Adverse Event SPAE , a trial court cannot declare a SPAE had occurred and cannot order the production of related incident reports based on that finding. July 25, In Sconiers v. Thus, the court held that the plaintiff must bring a claim with an administrative agency within two years and, if the claim is denied by the administrative agency, file an action in court within six months of the denial.
In Wear v. Selective Insurance Company, et al , the Superior Court of New Jersey, Appellate Division addressed whether exclusionary language relating to fungi and bacteria claims in a policy issued to the insured by Selective Insurance Company precluded coverage for an environmental personal injury claim. The court held that it was premature to order Selective to assume responsibility for the defense when it was unclear based upon the anti-concurrent and anti-sequential language in the exclusion whether any claims would be covered.
The court held that the duty to defend should be converted into a duty to reimburse pending resolution of the coverage action. July 20, In Sampedro v. As the superintendent was not acting within the scope of his employment , and because the contractor was retained by the tenant and not the landlord, the court held that that the landlord could not be held liable.
In Palladino v. Monadnock, the New York Supreme Court, Appellate Division, 2d Department , addressed whether safety regulations pertaining to public streets and sidewalks are applicable when those streets and sidewalks are closed to the public due to construction. In Maas v. UPMC , the Superior Court of Pennsylvania held that claims against the University of Pittsburgh Medical Center may proceed to trial to determine if the hospital and its employees breached their duty to warn identifiable third-parties of threats of specific and immediate harm.
There, a patient repeatedly expressed such a plan with respect to his neighbor, who was then the victim of a homicide committed by the patient. June 29, In Laurent v. Town of Oyster Bay , the New York Supreme Court, Appellate Division, 2d Department , addressed whether an ice skater was barred from recovering damages for injury based on assumption of risk. In this action, an ice skater suffered personal injury after allegedly being pushed to the ice by an unruly skater at a public ice rink.
The court noted that while relieving an owner of a sporting venue from liability for the inherent risks of engaging in a sport is justified , participants will not be deemed to have assumed unreasonably increased risks or those incurred where reckless behavior is above the usual inherent dangers. July 5, In McAlwee v. The court noted that while there should be full disclosure of all matter material necessary in the prosecution or defense of an action, a party is not entitled to uncontrolled and unfettered disclosure and the trial court has the power to regulate this discovery and prevent abuse.
Considering that the physician at issue did not treat the patient and was not required to supervise the treating physician, the court found that the employment contract was not material and necessary to a viable claim. As a result, the hospital was not compelled to produce this contract in discovery.
The court concluded that New Jersey common law does not necessarily preclude the imposition of such a duty, but remanded the case to the Trial Division for further factual development. June 26, June 27, Palatella Saros Builders Group, Inc. June 28, In Brunt v. June 18, In Lozman v. The Court held that the allegation of the official policy motivating the retaliation separated his claim from a typical retaliatory arrest claim, for which a finding of probable cause is dispositive.
In Carroll v. E One Inc. In Lucia v. In Caltagirone v. Cephalon, Inc. The court held that the general rule is that no private right to enforce the law and regulations of the FDCA exists. June 8, In Anthony v. Parx Casino , the Superior Court of Pennsylvania held that a corporation is not subject to venue in a county based solely upon the business activities of a sister corporation in that county.
The court held that a license awarded to a corporation, but not issued, did not create the quality or quantity of acts necessary to sustain venue in a county. In Pisack v. The TCA applies to private entities in limited circumstances where those private entities act under the control and supervision of a public entity to perform a governmental service. Because the driver complained about the imposition of fees which were not supervised by the police, the towing company is therefore not entitled to immunity.
June 14, In Cular v. MT Imports, Inc. Finally, the court held that the failure to admit the sales report summaries into evidence was not erroneous because the summaries could reasonably produce an unjust result by over emphasizing the particular claim that the plaintiff wanted to make.
June 5, In Quail v. ShopRite , the Superior Court of New Jersey, Appellate Division , addressed whether a death certificate was admissible as proof of causation and as a substitute for expert testimony in a wrongful death case. The court held that the death certificate contained inadmissible hearsay , despite the hearsay exception for vital statistics.
The court further held that expert testimony was required on cause of death and declined to grant an extension to provide the same. June 4, In Rice v. Miller , the Superior Court of New Jersey, Appellate Division , addressed whether the trial judge could take judicial notice of the asserted legality of a pedestrian crossing the road outside of a crosswalk. The court held that this inquiry was a fact-dependent jury issue, turning on the actual proximity of the crosswalk, the lighting conditions and whether it was too dangerous to reach from the plaintiff's location.
Additionally, the court held that an investigating police officer who was not been identified as an expert could not testify as to the speed of the vehicle under the guise of lay opinion testimony. In McIlmail v. Archdiocese of Philadelphia , the Superior Court of Pennsylvania addressed whether the notes and memoranda of witness interviews conducted by a private investigator acting at the express direction of counsel are protected by the work-product doctrine , as defined in Pennsylvania Rule of Civil Procedure No.
The Archdiocese argued that because its defense counsel hired the investigator to conduct the interviews, it should be entitled to the broader protection of the doctrine applicable to attorneys under Rule The court disagreed, reasoning that Rule Accordingly, the court refused to extend the broader protections afforded to attorneys' work product to notes memorializing the statements of witnesses taken by an investigator acting as a mere agent of the client or of the attorney.
June 7, In Broderick v. May 31, In Tanner v. The court denied the request for sanctions because the plaintiff failed to establish that the defendant intentionally or negligently failed to preserve the evidence after being placed on notice that the evidence might be needed for future litigation. In Lee v. The court noted that the plaintiff could have subpoenaed the employees as nonparty witnesses.
May 24, May 18, May 21, May 22, In this action, an individual fell on a crack while descending a stairwell in an apartment building. In Murphy v. Additionally, the Court held that PAPSA was not a valid preemption provision because it did not regulate private actors. Therefore, the Court held that while Congress could regulate sports gambling directly, it cannot indirectly regulate sports gambling by regulating state government's regulations of their citizens.
May 14, In Scheeler v. May 16, In Vinson v. The court held that the provision did not violate public policy as the gym member was voluntarily engaged in recreational activity at the gym and was subject to the membership agreement, an agreement between private parties. May 4, In In Re Adoption of N. While the court upheld a majority of the provisions, it invalidated portions which required applicants to pay for subsequent Independent Medical Examinations IMEs and to pay for addenda to IMEs.
May 7, In Goldman v. After reviewing the Act's legislative history and amendments, the court dismissed the plaintiff's assertion that the statute authorized "any person in the name" of the SPCA to bring an action and held that the PCAA did not authorize a qui tam action. In Petro-Lubricant Testing Laboratories v.
Adelman , the Supreme Court of New Jersey addressed the viability of a defamation claim arising from an online article that detailed a gender-discrimination, workplace harassment and retaliation lawsuit. The court held that the dismissal was proper because, as a full, fair and accurate recitation of a court-filed complaint, the online article was entitled to the protection of the common law doctrine of fair report privilege. In Encarnacion v. May 10, In Hutcherson v. Hill , the New York Supreme Court, Appellate Division, 1st Department , addressed whether a nuisance claim had been established by a resident in a cooperative apartment building against his neighbor.
The court determined that two periods of intermittent noise were insufficient to establish a nuisance claim. The court further determined that the neighbor, an elderly and sickly man, could not have created enough disturbance to constitute a nuisance. The court found that the mere collation of data with respect to the donors of private funds is not considered financial data.
Conversely, the court held that records relating to the actual receipt and disbursement of privately donated nongovernmental funds by a city are financial records. In Brennan v. Lonegan , the Superior Court of New Jersey, Appellate Division , addressed whether a qui tam action is permitted under the New Jersey False Claims Act when the plaintiff has no direct and independent knowledge of the alleged violation.
May 2, In Straw v. Kirk A. Additionally, the court concluded that the plain language of the Fair Share Act and the Uniform Contribution Among Tortfeasors Act permits apportionment and contribution between reckless and negligent co-defendants. April 30, In Day v. Wilcox Landscaping, Inc. In its decision, the court explained the public policy underlying the continuing storm doctrine and noted the inconsistencies that would result if only landowners were allowed to claim the benefit of this defense.
In Buchanan v. TD Bank, N. In this case, the plaintiff argued that the continuing storm doctrine did not apply to pre-storm, precautionary measures that the landowner should have taken to prevent the accumulation of snow during the storm.
The court rejected this argument, finding it to be a meaningless distinction and an attempt undercut the protections of the continuing storm doctrine. April 24, April 25, Wenger Construction Company, Inc. The court held that the agreement to modify the Statute of Limitations was unenforceable because a certain condition precedent to payment e. In Krzykalski v. Tindall, the Supreme Court of New Jersey addressed whether fault may be allocated to a known, but unidentified John Doe defendant under under the Comparative Negligence Act and the Joint Tortfeasors Contribution Law in a multi-vehicle accident case.
April 17, In United States v. Microsoft, the United States Supreme Court held that its review was rendered moot as to whether a warrant pursuant to the Stored Communications Act required a US email service provider to disclose to the government electronic communications under its control but stored abroad. In Ember v. Denizard, the Supreme Court of the State of New York, Appellate Division, 1st Department , addressed the extent to which a settlement agreement may be given preclusive effect as to future claims.
April 19, In Age Group, Ltd. Martha Stewart Living Omnimedia, Inc. The court also held that issues of fact existed as to whether the merchandising company breached the agreement by saying that it would not approve any new designs. The court noted that while the merchandising company was permitted to refuse any design on subjective grounds such as personal taste and sensibilities, it was nevertheless obligated to exercise its refusal in good faith , based on dissatisfaction genuinely and honestly arrived at.
April 12, In Anderson v. Hovnanian at Port Imperial Urban Renewal II, LLC , the Superior Court of New Jersey addressed 1 whether plaintiff should have been permitted to amend her complaint for the third time at the eve of the discovery end date ; 2 whether plaintiff should have been permitted to introduce three late expert reports which were produced over a month after the court ordered deadline; and 3 whether summary judgment was proper where plaintiff could not prove any of her allegations without expert testimony.
First, the court held that defendants would be prejudiced if another amendment were permitted at this late stage in the proceedings because the amendment would require additional discovery, depositions and expert review. Finally, summary judgment was proper because plaintiff failed to produce the requisite expert testimony to prove the existence of a defect in the HVAC system, and damages, in support of her claims.
In Morris v. Bank , the Superior Court of New Jersey, Appellate Division , considered whether a bank was liable for emotional distress a bank customer experienced as a result of being misidentified as the perpetrator of a bank robbery. In Kisela v. Hughes, the United States Supreme Court addressed whether a police officer was entitled to qualified immunity after he shot a woman four times in her driveway while she held a large kitchen knife.
The Court held that the police officer was entitled to qualified immunity as his conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. April 2, In Friedman v.
The court held that a victim of such an intrusion need not provide evidence of her captured image to prove that an intrusion occurred and that it was enough that the victim provide evidence supportive of a finding that a recording device was present when she was in a secluded area where a reasonable expectation of privacy may be assumed.
March 23, In Burlingame v. Dagostin, the Superior Court of Pennsylvania interpreted the statute of repose contained in the Right to Farm Act pertaining to a nuisance action. Accordingly, the court held that, where the farm is in operation more than one year prior to the filing of a nuisance complaint and where an expanded operation is compliant with a nutrient management plan, a nuisance claim will be barred.
March 29, In Bermingham v. Lagano v. If a disclosure would reveal a person was a confidential informant for a particular agency, in a particular investigation, during a particular period, or in a particular way, the court must consider whether such information is now publicly known. March 21, When an arbitrator determined a hearing was necessary, the only requirements were that the parties had a right to notice, to be heard, to present evidence and to cross-examine witnesses.
March 14, In Hickey v. Although the plaintiffs stand properly within Rule 10b-5's class of purchasers or sellers, their complaint fails to make the additional allegation required by the Rule that defendants' alleged fraudulent acts in are in some way connected with the purchases in The court, on the other hand, reads the facts simply as they are set out in the complaint. Plaintiffs purchased their shares on May 11, , relying, they allege, on the issuer's representation that it would adhere to a fiduciary duty of good faith.
The alleged breach of fiduciary duty occurred, at the earliest, on December 31, when the defendants took control of the issuer CREE with the supposed intent to make fraudulent acquisitions in March and April of the next year. Nothing in the complaint can be read to tie the alleged fraud of these defendants to representations made by unrelated persons who happened to be in control of CREE at the time the plaintiffs purchased the partnership shares.
While the defendants might be charged with breaching a fiduciary duty of good faith in managing the affairs of the partnership after they acquired control, it was the original owners of CREE, not their successors, the defendants, who made the general representations of good faith upon which the plaintiffs state they relied in making their purchase. Because the events of December through April are thus not "in connection with" plaintiffs' purchases in May , we grant defendants' motion to dismiss the claims under section 10 b and Rule 10b Similarly we dismiss the derivative claim on behalf of the partnership contained in count II of the complaint.
Not only is there no connection between the public offering of shares in and the defendants' actions in after they acquired control of CREE, but there is no allegation that the partnership was a purchaser or seller of the securities. Walner v. Friedman, S. Accordingly, plaintiffs have dropped their claims based on sections 11 and 12 of the Securities Act, leaving only the 10b-5 claim to be disposed of here.
Clearly plaintiffs cannot sustain a 10b-5 claim on the theory that they were defrauded by the allegedly false financials in the annual report. The report was received two years after the plaintiffs purchased; plaintiffs have shown neither reliance on the statements contained therein, nor that the statements were made "in connection with" their purchase.
Since we have already dismissed plaintiffs' complaint as to the primary fraud on the grounds that it fails to state a claim cognizable under section 10 b and Rule 10b-5, we need not further consider the additional claim of aiding and abetting that same fraud. Price Waterhouse's motion to dismiss is therefore granted as to counts I and II. Count III of plaintiffs' amended complaint alleges that defendants have been negligent in managing the partnership and have in other ways violated common law duties owed to the limited partner.
In ruling on the motions to dismiss as to counts I and II, we found that the facts alleged in the complaint failed to support the court's jurisdiction under the federal securities laws. However, without deciding the merits of plaintiffs' allegations, we are satisfied that the complaint does recite facts sufficient to justify going forward on a claim of common law breach of duty in the postinvestment management of the partnership.
Having dismissed all of plaintiffs' claims arising under federal law, and because diversity of citizenship is lacking between plaintiffs and one of the defendants, Price Waterhouse,  we must now decide whether to exercise this court's pendent jurisdiction over these state law related claims.
Pendent jurisdiction is entirely a matter for the court's informed discretion; it is not a plaintiff's right. United Mineworkers v. Gibb, , U. It is true that here the state law claims arise out of the same set of operative facts as the now dismissed federal claims.
But since no federal issues remain to be considered, this is not an occasion to consider the economies of keeping state claims pendent where they might have facts in common with a remaining federal claim. Rather, the court should consider primarily the fairness to the litigants, the substantiality of the state law question, and the convenience both to the parties and the court.
These considerations persuade us not to retain jurisdiction over plaintiffs' remaining claims arising under state law. Where a plaintiff's federal claims have been dismissed early on in the suit, on summary judgment or, as here, on a motion to dismiss, the court should exercise pendent jurisdiction only in exceptional circumstances.
No such circumstances present themselves here. It is true that this case has been in our court for two years, but it appears from the submissions that the efforts of the parties have been devoted to the federal, not the state law claims. We have here made a final disposition of the federal claim; what little time or money has been expended on the state law claim will not be wasted by our decision today not to exercise pendent jurisdiction.
The court has also considered the particular federal claim the plaintiffs have unsuccessfully attempted to raise. The course of judicial precedent in regard to section 10 b and Rule 10b-5 has been to narrow the class of plaintiffs who have standing in order to avoid putting the federal courts in the position of deciding claims based simply on corporate mismanagement. Firstbrook, 2 Cir. Manley v. Schoenbaum, , U. By exercising pendent jurisdiction over just such a state claim we would be permitting plaintiffs to do indirectly what they would otherwise have no standing to do directly.
Finally the court takes particular notice of the provision in the partnership agreement that requires all disputes relating to partnership affairs to be submitted to arbitration. We do not suggest that in declining to exercise pendent jurisdiction the parties should be compelled to arbitrate; our dismissal here deprives us of jurisdiction to order arbitration. However, we attribute to the arbitration provision the same significance Judge Friendly attributed to a similar provision when he reviewed the lower court's exercise of pendent jurisdiction in Kavit v.
Stamm, supra. In that case the court affirmed the exercise of pendent jurisdiction but Judge Friendly thought it "a quite different case" where the decision to dismiss the state claims "would enable the defendant to have those claims determined by arbitrators rather than by a court. Accordingly we decline to exercise pendent jurisdiction over count III, the remaining state law related claims of plaintiffs.
Whether or not a class could properly be certified does not alter our decision on the motion to dismiss. The court deems this to be mere speculation, but in granting the motions to dismiss as to any of the claims arising under the securities law, the court does so without prejudice to the plaintiffs' seeking leave to amend their complaint to allege additional facts tying the defendants more closely to the statements of the predecessor director and owners of CREE, provided leave to amend is sought within 20 days of the date of this order.
Landy v. Federal Deposit Insurance Corp. Taylor, 1 Cir.
Plaintiffs Ronald Paasch, Francis G. Gleason, Jr. Medelle never appeared and was defaulted under Mass. Plaintiffs subsequently moved for an assessment of damages and default judgment under Rule 55 b 2 but the court deferred a hearing on the motion. As the case 1 Francis G. Plaintiffs now renew their motion for entry of default judgment and assessment of damages against Medelle. This effort, however, proved unsuccessful and by the autumn of , the company was heavily in debt, almost out of cash, and unable to raise additional capital.
An auction was held on December 22, , during which time Ranoux, the only bidder, submitted the winning bid. Ranoux subsequently conveyed the assets to Bio-X-Cell, a corporation that Ranoux had formed following the auction. They claimed that defendants purposely failed to inform them of the auction in order to prevent them 2 from participating in it. In Spring , plaintiffs requested and obtained a Mass. They subsequently moved for an assessment of damages and default judgment against Medelle pursuant to Mass.
In opposing the motion to assess damages, INVO contended that because it asserted legal defenses in its motion to dismiss that were equally applicable to Medelle, an assessment of damages would risk premature and inconsistent judgments. The court agreed. A few months later, in November , the court Hinkle, J. The court Lauriat, J. A subsequent motion to reconsider was also denied.
As their trial date approached, Ranoux and plaintiffs jointly moved for leave to pursue binding arbitration in connection with the remaining claims against Ranoux fraud and breach of fiduciary duty , which the court allowed. After five days of hearings, the arbitrator issued an Award dated February 15, , in favor of Ranoux and against plaintiffs. In April , plaintiffs filed a motion to vacate the arbitration award and, in response, Ranoux filed a motion to confirm the award.
This court Billings, J. Shortly thereafter, the clerk, without motion from either party, entered a final judgment under Rule 58 a the Judgment. The Appeals Court, ruling pursuant to its Rule , affirmed the judgment. In response, INVO and Bio-XCell have filed an opposition and have also moved, along with Karloff, for entry of final judgment on the claims against them that were dismissed in November As discussed below, plaintiffs are not entitled to a default judgment against Medelle.
The claims against Medelle must be dismissed. A judgment dismissing fewer than all of the claims or parties in an action involving multiple claims and multiple parties is interlocutory. Harrison v. Roncone, Mass. Therefore, plaintiffs, following the entry of the Judgment, were required to raise on appeal all issues that had been decided against plaintiffs, including the dismissal of the claims against INVO, Bio- X-Cell, and Karloff.
Moreover, the default entered against Medelle, defendants argue, was waived by plaintiffs proceeding on the appeal and raising only their objections to the confirmation of the arbitration award. Defendants contend that plaintiffs should be estopped from returning to this court to pursue claims because they effectively abandoned their claims.
The court, however, need not determine whether INVO has standing to oppose the motion as the considerations INVO highlights are properly addressed by this court on its own accord. See Multi Multi Tech. Mitchell Mgt. But while we find the complaint pleads fraud in sufficient detail, it is in examining these very details of the complaint that the court finds the allegations to be deficient in making out a claim under the securities laws.
Plaintiffs have failed in their pleadings and memoranda to demonstrate the connection, indispensable as a matter of law, between the defendants' activities and the misrepresentations that are at the heart of the securities law claim. The first of their claims pleads a violation of sections 11 and 12 of the Securities Act of , 15 U. Here, the prospectus became effective March 11, , plaintiffs bought in reliance on the prospectus, May 11, , and the offering to which the prospectus applied closed July 29, Defendants' motion to dismiss the claims under sections 11 and 12 of the Securities Act is therefore granted.
These provisions of the securities laws extend only to frauds and misrepresentations "in connection with" the purchase or sale of the securities. Blue Chip Stamps v. Manor Drug Stores, , U. Plaintiffs purchased on May 11, , and the offer closed on July 29, Moreover, the investments that are the subject of the alleged fraud were not made until March and April of Thus, the complaint fails to allege that defendants' fraud was contemporaneous to, or in any other way in connection with, the purchase by these plaintiffs.
At best the complaint makes out a claim of postinvestment fraud or mismanagement. In Birnbaum v. Newport Steel Corp. American Leisure Time Enterprises, Inc. The same defect in chronology defeats the instant complaint. Although the plaintiffs stand properly within Rule 10b-5's class of purchasers or sellers, their complaint fails to make the additional allegation required by the Rule that defendants' alleged fraudulent acts in are in some way connected with the purchases in The court, on the other hand, reads the facts simply as they are set out in the complaint.
Plaintiffs purchased their shares on May 11, , relying, they allege, on the issuer's representation that it would adhere to a fiduciary duty of good faith. The alleged breach of fiduciary duty occurred, at the earliest, on December 31, when the defendants took control of the issuer CREE with the supposed intent to make fraudulent acquisitions in March and April of the next year.
Nothing in the complaint can be read to tie the alleged fraud of these defendants to representations made by unrelated persons who happened to be in control of CREE at the time the plaintiffs purchased the partnership shares. While the defendants might be charged with breaching a fiduciary duty of good faith in managing the affairs of the partnership after they acquired control, it was the original owners of CREE, not their successors, the defendants, who made the general representations of good faith upon which the plaintiffs state they relied in making their purchase.
Because the events of December through April are thus not "in connection with" plaintiffs' purchases in May , we grant defendants' motion to dismiss the claims under section 10 b and Rule 10b Similarly we dismiss the derivative claim on behalf of the partnership contained in count II of the complaint. Not only is there no connection between the public offering of shares in and the defendants' actions in after they acquired control of CREE, but there is no allegation that the partnership was a purchaser or seller of the securities.
Walner v. Friedman, S. Accordingly, plaintiffs have dropped their claims based on sections 11 and 12 of the Securities Act, leaving only the 10b-5 claim to be disposed of here. Clearly plaintiffs cannot sustain a 10b-5 claim on the theory that they were defrauded by the allegedly false financials in the annual report.
The report was received two years after the plaintiffs purchased; plaintiffs have shown neither reliance on the statements contained therein, nor that the statements were made "in connection with" their purchase. Since we have already dismissed plaintiffs' complaint as to the primary fraud on the grounds that it fails to state a claim cognizable under section 10 b and Rule 10b-5, we need not further consider the additional claim of aiding and abetting that same fraud.
Price Waterhouse's motion to dismiss is therefore granted as to counts I and II. Count III of plaintiffs' amended complaint alleges that defendants have been negligent in managing the partnership and have in other ways violated common law duties owed to the limited partner. In ruling on the motions to dismiss as to counts I and II, we found that the facts alleged in the complaint failed to support the court's jurisdiction under the federal securities laws. However, without deciding the merits of plaintiffs' allegations, we are satisfied that the complaint does recite facts sufficient to justify going forward on a claim of common law breach of duty in the postinvestment management of the partnership.
Having dismissed all of plaintiffs' claims arising under federal law, and because diversity of citizenship is lacking between plaintiffs and one of the defendants, Price Waterhouse,  we must now decide whether to exercise this court's pendent jurisdiction over these state law related claims. Pendent jurisdiction is entirely a matter for the court's informed discretion; it is not a plaintiff's right. United Mineworkers v. Gibb, , U. It is true that here the state law claims arise out of the same set of operative facts as the now dismissed federal claims.
But since no federal issues remain to be considered, this is not an occasion to consider the economies of keeping state claims pendent where they might have facts in common with a remaining federal claim. Rather, the court should consider primarily the fairness to the litigants, the substantiality of the state law question, and the convenience both to the parties and the court.
These considerations persuade us not to retain jurisdiction over plaintiffs' remaining claims arising under state law. Where a plaintiff's federal claims have been dismissed early on in the suit, on summary judgment or, as here, on a motion to dismiss, the court should exercise pendent jurisdiction only in exceptional circumstances. No such circumstances present themselves here.
It is true that this case has been in our court for two years, but it appears from the submissions that the efforts of the parties have been devoted to the federal, not the state law claims. We have here made a final disposition of the federal claim; what little time or money has been expended on the state law claim will not be wasted by our decision today not to exercise pendent jurisdiction.
The court has also considered the particular federal claim the plaintiffs have unsuccessfully attempted to raise.
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