Major Changes to Superior Court Motion Practice

Fuller

by Victoria Fuller

Practice Tips

Superior Court Rule 9A was amended effective November 1, 2018.  Although the Rule has been amended several times in the last few years, the most recent changes are big.  Really big.  Everything from cross-motions to summary judgment to basic formatting have been revised.  Superior Court practitioners who fail to familiarize themselves with these changes risk having motions returned or denied.

Summary Judgment Packages Get Leaner

The biggest change to Rule 9A affects summary judgment procedure.  These changes are geared to slimming down filings and simplifying the issues before the Court.  First, the Statement of Facts, as served, cannot exceed 20 pages, and cannot include several types of facts:

  1. Immaterial Background facts;
  2. Quotations from, or characterizations of, transactional documents (“except if admissible through percipient witnesses”); and
  3. Quotations from statutes, regulations or rules.

Parties may submit these types of material, without argument or commentary, in an addendum to the party’s memorandum.

Second, the rule limits the permissible scope of responses to the Statement of Facts by prohibiting some common responses that have complicated the Court’s ability to determine what facts are actually disputed in good faith.  Opposing parties may state whether a fact is disputed, and if so, cite supporting record evidence.  They may not, however:

  1. Deny a fact, or state that a fact is not supported by the cited materials, without a good faith basis;
  2. Comment on whether the fact is relevant or material. The opposing party may, however, state that the fact is admitted solely for purposes of summary judgment;
  3. Assert additional facts; or
  4. Include legal argument or advocacy concerning the sufficiency, relevance or materiality of the fact.

Third, opposing parties are no longer permitted to serve Statements of Additional Facts, except in support of a cross-motion for summary judgment.  They may, however, include additional facts in their opposition with supporting record citations.  The rule also directs the parties to cite both the joint appendix exhibit number and the corresponding paragraph in the Statement of Facts in their memoranda.

In addition, three types of summary judgment motions may now be denied by the Court on the papers:

  1. Multiple motions made by the same party, or a motion filed by a party sharing similar interests with a party who has already moved for summary judgment, which raises issues previously resolved by the Court;
  2. Motions for partial summary judgment that will save little to no trial time, will not simplify trial, or will not promote resolution of the case; and
  3. Motions where a genuine dispute of material fact is obvious.

Finally, the rule has updated sanctions for non-compliance with the summary judgment provisions.  The court may not consider the motion or opposition, may return the submission to counsel with instructions for re-filing, or may impose other sanctions for flagrant violations.

Cross-Motions Are Integrated Into a Single Filing Package

The rule has now filled a procedural gap affecting cross-motions.  For example, if a party serves a motion to compel, and the opposing party serves an opposition and a cross-motion for protective order: Under the old rule, the cross-motion was not required to be included in the same 9A package.  As a consequence, the motion to compel could be filed and heard before briefing on the cross motion was complete.

Under the new rule, opposing parties serve cross-motions with their opposition to the original motion.  The original moving party then serves the reply (if any) and opposition to the cross-motion.  The original moving party files both motions and oppositions as part of the same 9A package.

Cross-motions for summary judgment generally follow the same process, but in addition, a Consolidated Statement of Facts is prepared.

Parties Must Now Confer on Dispositive Motions

The new Rules 9A and 9C extend meet and confer obligations to dispositive motions (with limited exceptions).  Motions lacking a 9C certificate under the new rule, as under the old, will be denied without prejudice.

New Procedure for Requesting Leave

Parties must still seek leave to file additional briefing and pages, which will be granted only in “exceptional circumstances.”

Rule 9A(a)(6) also sets forth a new procedure for requesting leave.  Letter requests are gone.  Now, requests must be captioned as a pleading, not exceed one page, state the grounds for the relief sought, and include a certificate of service.  The request is sent to the session clerk, captioned “ATTN: Session Judge.”  If the Court grants a request for additional pages, this will apply to the opposing party’s memorandum as well, unless otherwise ordered. The permitted pleading must state the date on which leave was allowed.  Note that a request for leave does not extend the date for filing the Rule 9A package, unless permitted by Court or by agreement of the parties.

Formatting Changes

Under the old rule, papers had to be typed in “no less than 12-point type.”  Now, papers must be 12-point type – no more, no less.  In addition, quotes and footnotes must also be 12-point type. An addendum that sets forth “verbatim and without argument, pertinent excerpts from key documents, statutes, regulations or the like” need not be included in counting permitted pages.

Finally, email addresses must be included in the signature block or the attorney must certify that he or she lacks one.

Service on Non-Parties Now Required In Limited Circumstances

Unless excused by court order, or where ex parte relief is authorized by statute or rule, the new rule requires service on non-parties under three circumstances:

  1. the motion seeks to add the non-party as a party to the case;
  2. the motion seeks an order or other relief against the non-party; or
  3. the motion addresses issues which affect the personal information or other interests of the non-party.

Electronic Service Now Permitted

Many practitioners will rejoice that email service is now permitted.  The parties must agree in writing, and parties must include “served via email” on their filings for the clerk to accept scanned signatures.  That said, parties filing papers signed under the penalties of perjury, such as affidavits, and all required 9A certifications, must bear original signatures.

Motions Exempt from Rule 9A

Finally, the new Rule 9A adds two categories of motions as exempt: motions governed by e-filing rules, and review of decisions of administrative agencies.

The new rule also seeks to prevent parties from trying to skirt Rule 9A by declaring a motion an “emergency.”  Now, parties filing emergency motions must certify that they have made a good faith effort to confer with all parties, and must state whether any party assents to or opposes the motion.

*******

Though extensive, these changes should streamline and improve Superior Court motion practice.  Prudent practitioners will ensure that they, and other attorneys in their firm or organization, familiarize themselves, and comply, with the new rule.

R. Victoria Fuller is an attorney in the Boston office of White and Williams LLP.  Her practice focuses on insurance law, employment law, and general commercial litigation.


Standing in the Wake of Rental Property Management Services v. Hatcher: Only the Owner or Lessor May Use Summary Process to Evict Tenants and Property Agents that File Such Actions Are Engaging in the Unauthorized Practice of Law

DAconley

by Lauren D. Song

Practice Tips

On May 15, 2018, the Supreme Judicial Court articulated a bright line rule strictly construing the summary process statute, G.L. c. 239, § 1 (“Statute”), to hold that “[o]nly a person entitled to the property as owner or lessor may bring an action to recover possession” against a tenant, and non-attorney property agents who sign and file summary process complaints on behalf of owners are “engag[ing] in the unauthorized practice of law.” Rental Property Management Services v. Hatcher, 479 Mass. 542, 547 (2018) (“Hatcher”). In rejecting the application of agency principles that would enlarge standing in summary process to property agents, the Court also admonished that the unauthorized practice of law by such agents “seriously undermines the fairness of summary process…, especially where the vast majority of tenants in such cases are self-represented.” Id. at 553-554, n. 11. This article discusses procedural considerations in determining summary process standing in the wake of Hatcher.

Determining Whether Standing Exists In Fact

Hatcher comes at a time when the majority of the nation’s 47.5 million residential rental units is no longer owned by “mom-and-pop” landlords personally known to the tenants but by institutional and corporate owners that often remain undisclosed to tenants. Such owners typically operate through property agents so tenants may not know that the party to whom they tender rent is not the owner of the property. Tenants also often are not privy to changes in the ownership interests—e.g., through foreclosures, dissolutions, mergers, acquisitions, bankruptcies, and even assignment of leases–that may affect who has standing to bring and maintain an eviction action against them. See Billings v. GTFM, LLC, 449 Mass. 281, 289-96 (2007) (standing must exist as of the commencement of the action and continue throughout the litigation). And as the Court highlighted in Hatcher, a “plaintiff’s lack of standing will not be apparent on the face of the [summary process] complaint,” because the form complaint promulgated under the Uniform Summary Process Rules (“USPR”) which govern summary process proceedings identifies all pleaders categorically as “PLAINTIFF/LANDLORD/OWNER.” 479 Mass. at 548. Notwithstanding challenges to determining whether plaintiff-standing exists in fact,” in fiscal year 2017 alone, 40,503 summary process cases were filed throughout Massachusetts in which over 90% of the tenants were self-represented.

Summary Process Standing Cannot Be Delegated to Agents

Hatcher rejects agent standing in summary process based on the well-established principle that “[s]ummary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute.” Id. at 546, quoting Cummings v. Wajda, 325 Mass. 242, 243 (1950); see also Buron v. Brown, 336 Mass. 734, 736 (1958) (“The purpose of [the Statute]  is to give possession to those whose possession has been invaded or who have a right to possession and are within a category defined therein.”). In actions against tenants, therefore, “it is essential that there should be proof of the relation of lessor and lessee, or of landlord and tenant, between the plaintiff and defendant.” Id., quoting Ratner v. Hogan, 251 Mass. 163, 165 (1925).

Hatcher also squarely holds that the standing requirements in summary process are jurisdictional: “where the plaintiff lacks standing to bring an action, the court lacks jurisdiction of the subject matter and must therefore dismiss the action.” Id. And since “[s]ubject matter jurisdiction cannot be conferred by consent, conduct or waiver,” id., quoting Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981), it is legally ineffective for owners or lessors to purport to authorize their agents to bring summary process actions to evict their tenants:

“it is legally irrelevant whether the plaintiff is the agent or attorney of the owner or lessor, or whether the plaintiff has obtained the express approval of the owner or lessor to bring the action in the plaintiff’s name. Only a person entitled to the property as owner or lessor may bring an action to recover possession of that property. See G.L. c. 239, § 1.”

Id. at 547-548 (emphasis added).

Who Bears the Burden of Proof on Plaintiff’s Standing?  

In most civil actions, jurisdictional standing is a threshold issue typically resolved early by a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. (“Rule”) 12(b)(1), and/or for failure to state a claim upon which relief can be granted under Rule 12(b)(6). In the fast pace of summary process, however, standing is seldom challenged and if at all, usually raised in the context of a Rule 56 motion for summary judgment, as in Hatcher. How jurisdictional facts become controverted is important on who bears the burden of proof. Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577 n.2 (2002).

  • Under Rule 12(b)(1), the burden remains with the plaintiff as the party invoking standing to prove its jurisdictional facts by a preponderance of the evidence, and the court does not assume the plaintiff’s factual allegations in the complaint to be true. Caffyn v. Caffyn, 441 Mass. 487 (2004).
  • Under Rule 56, the burden shifts to the tenant as the moving party to establish that the plaintiff has no reasonable expectation of proving it is a “person entitled to the land or tenements” under the Statute, and the record would be viewed in the light most favorable to the plaintiff as the non-moving party. SeeKourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

It bears caution that consideration of matters outside the pleadings will convert a Rule 12(b)(6) motion to a motion for summary judgment, with the corresponding burden shifting to the tenant as the moving party, but “[s]uch is not the case when deciding a motion to dismiss under [R]ule 12(b)(1)” where the conversion to Rule 56 principle does not apply. Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). When motions to dismiss are filed under both Rule 12(b)(1) and Rule 12(b)(6), courts ordinarily decide the Rule 12(b)(1) motion first. See Northeast Erectors Ass’n of BTEA v. Secretary of Labor, Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995).

  • Under Rule 12(h)(3), “whenever it becomes apparent to a court in a summary process action that a plaintiff may not be the owner or lessor of the property, the court is obligated to inquire into the plaintiff’s standing and, if it determines that the plaintiff lacks standing, it must dismiss the action [with prejudice] for lack of subject matter jurisdiction, regardless of whether any party raises an issue of standing.” Hatcher, 479 Mass. at 547.

It also bears reminder that in discharging this independent obligation, judges have broad discretion to make findings outside the four corners of the pleadings and to use any method of obtaining evidence, including ordering discovery, affidavits or other documentary evidence and taking depositions and oral testimony. Ginter v. Commissioner of Ins., 427 Mass. 319 (1998).

Dismissal with Prejudice Is Compulsory If the Plaintiff Lacks Standing   

Hatcher also mandates that “where the plaintiff in a summary process action is neither the owner nor the lessor of the property, the court must dismiss the complaint with prejudice for lack of subject matter jurisdiction” because the “lack of standing is also fatal to the merits of the plaintiff’s claim” for possession. Id. at 547 (italics added). This bright line rule reflects that under USPR 2, summary process actions are deemed commenced only upon service on the defendant of “a properly completed” complaint (after which the original complaint is filed in court), and a complaint that fails to name a plaintiff with a statutory entitlement to recovery of possession is not only incompetent  to commence a justiciable action but also determinative that the plaintiff’s claim for possession is without legal merit. And while such dismissal with prejudice “would not bar the true owner or lessor of the property from filing a new complaint,” where the complaint fails to name the true owner or lessor of the property as the plaintiff in the first instance, the court is without discretion to permit any amendment, substitution or other corrective remedy but must dismiss the complaint with prejudice.

In contrast, if the complaint names a proper plaintiff but is improperly signed, filed and/or prosecuted by a non-attorney agent, a valid summary process action has commenced, and although the court must address the unauthorized practice of law by the agent, the judge has the discretion either to order the immediate dismissal of the action, or allow a conditional dismissal “on a designated date unless the plaintiff before that date retains counsel or proceeds pro se, and amends the complaint accordingly.” Id. at 551.

It bears reminder that any judgment issued without valid subject matter jurisdiction is void. Harris v. Sannella, 400 Mass. 392 (1987). And the defense of lack of subject matter jurisdiction cannot be waived for any reason and may be raised at any time, even after final judgment is entered and for the first time on appeal sua sponte by the appellate court. Id. at 54, n. 5, citing ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607 (2000); see also Prudential-Bache Securities, Inc. v. Commissioner of Revenue, 412 Mass. 243 (1992); Talmo v. Zoning Board of Appeals, 93 Mass. App. Ct. 926 (2018). While the dismissal for lack of subject matter jurisdiction is ordinarily considered a “final order” subject to immediate appellate review de novo, the denial of a motion to dismiss for lack of subject matter jurisdiction is an interlocutory order.

Conclusion

In the wake of Hatcher, parties now have clear guidelines and strong incentives to resolve promptly any questions that may impact the plaintiff’s standing. By reviewing early and updating regularly information relevant to the parties’ status with respect to the property at issue, parties can avoid considerable expense, trouble, and delay in the just, speedy, and inexpensive determination of their rights and obligations under the Statute.

Lauren D. Song is a senior attorney with Greater Boston Legal Services. Her practice focuses on affordable housing preservation and development through public-private partnerships and residential landlord-tenant law. She is a current member of the Boston Bar Journal.


Trauma Informed Care: What Lawyers Representing Children and Teens Need to Know

DAconley

by Kirstie MacEwen, MSW, LCSW

Practice Tips

Introduction

Modern social work principles present trauma informed care (TIC) as the most effective and safe way to work with clients of any age. TIC is approaching every person you meet as though he or she has experienced some kind of trauma, and doing your best to be sensitive to whatever those traumatic experiences may have been. It is working with intentionality, being grounded in empathy and empathic responses. TIC is vital when working, in any capacity, with children and adolescents, because their brains are still growing and developing. An adolescent brain is malleable. This plasticity allows the brain to readily learn and adapt, which helps the adolescent develop strategies, skills, and habits. If a child is exposed to traumatic experiences, the habits and strategies he or she is taught can significantly influence his or her ability to cope with the trauma. It is therefore critical that adults provide the support children and adolescents need to develop positive habits and strategies instead of allowing negative ones to take root.

Research has proven that trauma and traumatic experiences significantly impact brain structure. Specifically, a brain that has experienced trauma has significantly diminished frontal lobe structure. The frontal lobe is the executive of our brain. This region is the command center that helps us control our impulses, regulate our emotions, and make thoughtful decisions. Because the frontal lobe plays such a key role in both behavior and functioning, children who have experienced trauma display a wide variety of symptoms. Not surprisingly, many children who exhibit trauma symptoms are misdiagnosed with attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), disruptive mood dysregulation disorder (DMDD), as well as many others. Discussing trauma and misdiagnosis, Bessel van der Kolk states,

Before they reach their twenties, many patients have been given four, five, six, or more of these impressive but meaningless labels. If they receive treatment at all, they get whatever is being promulgated as the method of management du jour: medications, behavioral modification, or exposure therapy. These rarely work and often cause more damage.

Bessel van der Kolk, M.D., The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma 159 (2014).

While the symptoms of trauma can present in a variety of ways that make proper diagnosis difficult, misdiagnosis can be very detrimental to a child’s treatment. Take, for example, the distinction between hyperactivity and hypervigilance.  Hyperactivity (e.g., the inability to sit still or focus) is more closely associated with ADHD. Hypervigilance (including enhanced sensory sensitivity, increased arousal, and high responsiveness to stimuli) can appear the same as hyperactivity but has an added component of anxiety and is more closely associated with post-traumatic stress disorder (PTSD). The symptoms of these disorders can look very similar, but it is important for a child to have access to a clinician who is careful and cognizant of nuances so the child can receive the most appropriate treatment and support.

Why, you may be asking, is this discussion pertinent to lawyers? Children with “behavioral” symptoms are often labeled as problem kids. Because of the punitive nature of our systems of school discipline, these students often receive suspensions or are arrested by school resource officers instead of receiving therapeutic interventions. This is true even when therapeutic interventions are laid out in a legal document such as an Individualized Education Plan or 504 Plan. Punishment for school related behavior is often the cause of a student’s first interaction with the juvenile justice system, but it most likely won’t be the last. Juvenile offenders are at much greater risk of becoming adult offenders. Even on an individual level, working to disrupt this pattern by providing therapeutic support over punishment can start a trend for changes in the larger system.

Tips for Lawyers Representing Children and Teens

  1. Remember that trauma significantly impacts brain structures that are meant to help with impulse control, decision making, and emotional regulation.
  2. Always approach clients using TIC practices.
  3. Look for therapeutic supports that are trauma informed.
  1. Advocate for mental health support as opposed to punitive measures whenever possible.
  2. Work collaboratively with mental health, physical health, school, and justice system providers.
  3. Do some reading about trauma!
  • The New Jim Crow, Michelle Alexander
  • Trauma Stewardship: An Everyday Guide to Caring for Self While Caring for Others, Laura van Dernoot Lipsky with Connie Burk
  • The Boy Who was Raised as a Dog: And Other Stories from a Child Psychiatrist’s Notebook – What Traumatized Children Can Teach Us About Loss, Love, and Healing, Bruce D. Perry, M.D., Ph.D., and Maia Szalavitz
  • The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma, Bessel van der Kolk, M.D.
  • Trauma and Recovery: The Aftermath of Violence – From Domestic Abuse to Political Terror, Judith Lewis Herman

Kirstie MacEwen is a graduate of Simmons College School of Social Work.  She is an In Home Therapist for the Justice Resource Institute SMART Team.  In this capacity, Ms. MacEwen serves children and families who are engaged in the juvenile justice system.  She is passionate about juvenile justice reform and disrupting the school to prison pipeline.


How to Hire a Domestic Worker and Stay Out of Trouble

peranersweet_andreaby Andrea Peraner-Sweet

Practice Tips

The Massachusetts Domestic Workers’ Bill of Rights (“DWBR”), G.L. c. 149, §§ 190191, enacted in 2015, provided expansive new protections to domestic workers and imposed new obligations on their employers. Violation of the DWBR can result  in substantial penalties, including mandatory treble damages, attorneys’ fees and costs.  Employers who fail to comply with the DWBR can face enforcement actions by the Attorney General (“AG”), the aggrieved worker, or the Massachusetts Commission Against Discrimination (“MCAD”). Yet, many remain unfamiliar with the DWBR and its implementing regulations.  940 CMR 32.00. This article reviews key provisions of the DWBR.

Who Is Covered?

The DWBR protects workers employed within a household, regardless of their immigration status, who perform domestic services, including housekeeping, house cleaning, nanny or home companion services, and in-home caretaking of sick or elderly individuals for “wage, remuneration or other compensation.” G.L. c. 149, § 190(a); 940 CMR 32.02. The DWBR does not alter who is deemed an independent contractor (rather than domestic employee) under G.L. c. 149, § 148B.

The DWBR does not cover:  (i) babysitters who work less than sixteen hours per week providing “casual, intermittent and “irregular” childcare, and whose primary job is not childcare; (ii) personal care attendants (“PCAs”) who provide services under the MassHealth PCA program; and (iii) employees of a licensed or registered staffing, employment or placement agency.  G.L. c. 149, § 190(a); 940 CMR 32.02.

Employment Agreement

The DBWR requires employers to provide domestic workers with “notice of all applicable state and federal laws.”  G.L. c. 149, § 190(m); 940 CMR 32.04(6).  “Notice of Rights” and “Record of Information for Domestic Workers” forms can be found on the AG’s website.  Additionally, before work commences, employers must provide domestic workers who work sixteen or more hours a week a written employment agreement in a language the worker understands.  The agreement should contain the terms and conditions of employment and specify any deductible fees or costs and worker’s rights to grievance, privacy, and notice of termination.  G.L. c. 149, § 190(l); 940 CMR 32.04(3).

Both employer and worker must sign the agreement, which must be kept on file for at least three years.  A “Model Domestic Worker Employment Agreement” can be found on the AG’s website.

Working Hours, Rest Periods

Domestic workers must be paid for all time they are required to be on the employer’s premises, on duty, or any time worked before or beyond normally scheduled shifts to complete the work.   G.L. c. 149, § 190(a); 940 CMR 32.02.

Workers on duty for less than twenty-four consecutive hours who do not reside on the employer’s premises must be paid for all working time, including meal, rest or sleep periods, unless the worker is free to leave the premises and completely relieved of all work-related duties during that period.  G.L. c. 149, § 190(a) and (c).

For workers on duty for twenty-four hours or more, all meal, rest and sleep periods constitute working time. However, the worker and employer can agree to exclude from working time a regularly scheduled sleeping period of not more than eight hours if there is advance written agreement in a language understood by the worker, signed by both the worker and employer.  G.L. c. 149, § 190(d) and (e); 940 CMR 32.03(2).

Workers working forty or more hours per week must have at least twenty-four consecutive hours off each week and at least forty-eight hours off each month.  A worker may volunteer to work on a day of rest but only if there is a written agreement made in advance, signed or acknowledged by both the worker and employer.  The worker must be paid time and a half for all hours worked in excess of forty hours.  G.L. c. 149, § 190(b); 940 CMR 32.03(3).

Wage Deductions

Under certain circumstances, an employer may deduct food, beverages and lodging costs from a worker’s wages.  G.L. c. 149, § 190(f) and (g); 940 CMR 32.03(5)(b) and (c).  Such deductions are subject to the statutory maximums found in 454 CMR 27.05(3) pursuant to G.L. c. 151.

Food and beverage costs can be deducted only if they are voluntarily and freely chosen by the worker.  If the worker cannot easily bring, prepare or consume meals on the premises, the employer cannot make such deductions. G.L. c. 149, § 190(f); 940 CMR 32.03(5)(b).

Lodging costs can be deducted only if the worker voluntarily and freely accepts and actually uses the lodging.  An employer cannot deduct lodging costs if the employer requires the worker live in the employer’s home or in a particular location.  G.L. c. 149, § 190(g); 940 CMR 32.03(5)(c).

There must be a written agreement specifying the deductions, made in advance, in a language understood by the worker, signed or acknowledged by both the worker and employer.  940 CMR 32.03(5)(a).

Record Keeping, Times Sheets, Written Evaluations

Employers must keep records of domestic workers’ wages and hours for three years.  G.L. c. 149, § 190(l); 940 CMR 32.04(2). Employers must provide workers who work more than sixteen hours per week with a time sheet at least once every two weeks.  940 CMR 32.04(4).  Both the worker and employer must sign or acknowledge the time sheet. Signing or acknowledging a time sheet does not preclude a worker from claiming that additional wages are owed. Id. Likewise, a worker’s refusal to sign or acknowledge a time sheet does not relieve the employer from paying wages owed.  Id.  A sample time sheet can be found on the AG’s website.

After three months, a worker may request a written performance evaluation and, thereafter, annually.  G.L. c. 149, § 190(j).  The worker can inspect and dispute the evaluation under G.L. c. 149, § 52C, the Massachusetts Personnel Records law.  Id.

Right to Privacy

The DWBR prohibits employers from restricting, interfering with or monitoring a worker’s private communications and from taking a worker’s documents or other personal effects. G.L. c. 149, § 190(i); 940 CMR 32.03(6). Additionally, employers are barred from monitoring a worker’s use of bathrooms and sleeping and dressing quarters. Id.

A worker who resides in the employer’s home must be given access to telephone and internet services, including text messaging, social media and e-mail, without the employer’s interference.  940 CMR 32.03(8).

Prohibition Against Trafficking, Harassment and Retaliation 

It is a violation of the DWBR (and a crime) for employers to engage in any conduct that constitutes forced services or trafficking of a person for sexual servitude or forced services under G.L. c. 265, §§ 49-51. G.L. c. 149, § 190(i); 940 CMR 32.03(7).

The DWBR protects both domestic workers, as well as PCAs, from discrimination and harassment based on sex, sexual orientation, gender identity, race, color, age, religion, national origin or disability and from retaliation for exercising their rights. G.L. c. 191; 940 CMR 35.05(2).

Domestic workers are entitled to job-protected leave for the birth or adoption of a child under the Massachusetts Parental Leave Act, G.L. c. 149, § 105D.   Id.

Termination

Employers who terminate live-in workers “for cause” must provide the worker with advance written notice and at least 48 hours to leave.  G.L. c. 149, § 190(k); 940 CMR 32.03(9)(c).

Employers who terminate live-in workers “without cause” must provide the worker with written notice and at least thirty days of lodging or two weeks severance pay. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(a).

Neither notice nor severance is required where good faith allegations are made in writing that the worker abused, neglected or caused any other harmful conduct against the employer or members of the employer’s family or individuals residing in the employer’s home. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(b).

No termination notice or severance is required for workers who do not reside in the employer’s home.

Enforcement

Violations of the DWBR are enforced by the AG or by the aggrieved worker pursuant to the Massachusetts Wage Act, G.L. c. 149, § 150.   Workers who prevail in court are   awarded treble damages, the costs of litigation and attorneys’ fees.  Violations of the DWBR’s anti-discrimination and anti-harassment provisions are enforced by the MCAD.

Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP.  Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation. 


A Signed Text Message Can Result in a Binding Real Estate Contract

saccardi

by Peter F. Carr, II

Practice Tips

The commonplace reliance upon and acceptance of text messaging in commercial dealings has forced courts to examine the legal implications of texting within the seminal rule that a contract concerning real estate shall not be enforced “[u]nless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized.” G.L. c. 259, § 1, Fourth. At the trial court level, courts have embraced the concept of “contract by text message” for real estate so long as additional key elements are established. One, the text message must either contain or incorporate by express reference all material terms of an agreement concerning land. Two, the text message must conclude with the signature of the “party to be charged” or its authorized agent. A formal signature or even a complete first and last name is not required. However, the sequencing is critical. The cases to date largely have turned on whether the name of the sender appears at the end of the text message to signify the authentication of its preceding substance. The text message is sufficiently signed and binding provided that it concludes with a “mark” to indicate that the sender adopts the message.

Recent cases from the Land Court bear out these core concepts. In a commercial real estate dispute that hinged on text message exchanges between the parties’ brokers, a judge denied a special motion to dismiss a lis pendens that was issued in favor of the plaintiff buyer seeking to enforce a sales contract. St. John’s Holdings LLC v. Two Electronics, LLC, 24 LCR 190, 16 MISC 000090 (RBF), 2016 WL 1460477 (Mass. Land Ct. April 14, 2016), aff’d, 92 Mass. App. Ct. 1114 (2017). Although the defendant seller ultimately prevailed at trial, the Court steadfastly held that the text message of the seller’s broker satisfied the signed writing requirement of the Statute of Frauds. The text message incorporated by reference the final letter of intent for the purchase and sale of the property following ongoing negotiations between the parties. The contract was deemed signed and accepted by the seller when the seller’s broker concluded the text message with the inclusion of his first name. The Court held, “In the context of these exchanges between the parties, the court infers that the text message sent by [Tim, the seller’s broker] was intended to be authenticated by his deliberate choice to type his name at the conclusion of his text message.”  In another case, the Court similarly found compliance with the Statute of Frauds because, “[t] he broker’s writing her first name ‘Laurie’ at the end of the text message constitutes a signature for the purpose of the Statute of Frauds.” However, the Court ruled that the text message did not contain or incorporate sufficient material terms to form a contract. Fiore v. Lindsey, No. 17 MISC 000533 (RBF), 2017 WL 5969332 (Mass. Land Ct. Nov. 29, 2017). In contrast and underscoring the critical nature of the sequencing, text exchanges between brokers did not satisfy the Statute of Frauds where none of the operative texts concluded with the names of the brokers, even though those names appeared in the bodies of the messages. Donius v. Milligan, 24 LCR 440, 443, No. 16 MISC 00277 (HPS), 2016 WL 3926577 (Mass. Land Court July 25, 2016). The Court denied relief because the “text messages here are not signed by either the proposed buyer or seller, nor are they signed by the agents.” In addition, the Court ruled that the substance of the text messages evidenced mere negotiations.

Although no appellate court has yet addressed squarely text messages in the context of the Statute of Frauds, the prior appellate decisions affirming the binding nature of informal email exchanges coupled with the expanding usage of electronic communications arguably signal that reviewing courts are likely to embrace the theories established at the trial court level. Accordingly, to avoid being bound to an agreement involving land that may never have been intended, parties should insist upon more formal means of communicating with clear documentation, at least as negotiations proceed. A party involved in a transaction may be wise to limit or eliminate all text messaging with a counterparty during the course of negotiations, or to include written disclaimers to memorialize that text messages will not be accepted as part of a deal. At a minimum, parties must avoid a course of conduct which creates the presumption that a text message is sufficient to express offer and acceptance. Otherwise, as the judge observed in St. John’s Holdings, “a text message, all too familiar to most teenagers and their parents, can constitute a writing sufficient under the Statute of Frauds to create an enforceable contract for the sale of land.”

Peter F. Carr, II is a member of the litigation department of Eckert Seamans Cherin & Mellott, LLC, a regional law firm, practicing out of the Boston Office since joining the firm in 1995 after completing a clerkship with the Massachusetts Appeals Court assigned to former Chief Justice Joseph Warner. Peter’s daily practice covers a wide variety of business counselling and commercial litigation matters to include substantial trial experience. Peter served as trial and appellate counsel in the Land Court case of St. John’s Holdings referenced above.


Just the Right Size: Benefits (and Potential Pitfalls) of Limited Assistance Representation

saccardi

by Christopher T. Saccardi

Practice Tips

Every day in Massachusetts state courts, people take on the burden of representing themselves in civil cases. While there are a number of reasons for this, the principal factor is obvious: lawyers are expensive, and many individuals simply can’t afford them.

There are no easy solutions to this problem, but Limited Assistance Representation (LAR), which was introduced in Massachusetts in 2009 and has been expanding through the trial courts, can help. It allows litigants to retain counsel for an essential phase of litigation, or for a crucial hearing, at a cost that is much less than what an attorney might charge to represent the client for a full case. LAR also allows an attorney to offer pro bono services for a particular litigation event without having to commit to taking on an entire case.

While this article draws primarily on procedures and experience with LAR in Housing Court to introduce practitioners to LAR, highlight its benefits, and identify key issues and potential pitfalls, the rules are very similar in the other courts in which LAR is now available to civil litigants—the District Court, the Boston Municipal Court, Probate and Family Court, and the Superior Court.

Under LAR, attorneys are permitted to represent clients on a limited basis after registering with the appropriate court and watching a short video or attending a training on the mechanics of LAR. The duration of the representation can vary by agreement reached between counsel and client. Representations can be as short as a single hearing or discrete task, or they can cover a longer period of time, such as assisting through the completion of discovery or even preparing for and conducting a trial.

For example, common parts of a Housing Court case that are particularly conducive to LAR are: answering or drafting discovery requests; drafting and filing motions; appearing to argue a motion, such as a motion to vacate a default judgment or to issue an execution; conducting a mediation with a Housing Specialist; or trying a summary process (eviction) case.

The mechanics of appearing and withdrawing under LAR vary slightly from court to court, but generally follow the same basic parameters throughout the Commonwealth: attorney and client must sign an agreement that details the specific nature of the representation and the tasks and period of time to be included. The attorney will then complete a set of LAR appearance and withdrawal forms that can be obtained from the appropriate court (or online) and which must be signed by both the client and the attorney. The withdrawal is filed as soon as the representation ends; in the case of LAR for a discrete hearing, it is not unusual to file the limited appearance form at the beginning of the hearing and to file the withdrawal in open court immediately following the conclusion of the hearing.

While LAR can be a convenient tool for both attorney and client, it does present some unique challenges that are important for practitioners to keep in mind. Litigants can risk disjointed or incomplete counsel from an LAR attorney who focuses narrowly on the specific task at hand without considering the overall litigation strategy. Or, a client who engages an attorney only to draft a motion could be ill-served, even if the motion is excellent, if the LAR agreement does not provide for properly preparing the client to argue that motion. It is therefore important for both attorney and client to carefully consider the appropriate duration of the representation and the way in which the included tasks will be defined. A failure to do this can lead to awkward situations, as a judge will occasionally not allow the LAR withdrawal if he or she feels that an additional task should be completed by the attorney. For example, a judge will sometimes ask the LAR attorney to postpone the withdrawal after a hearing in order to receive a copy of the decision and explain it to the client.

Another challenge can result if it is unclear to opposing counsel when exactly an LAR attorney has entered and, more importantly, has exited the case. Not knowing whether the adverse party is represented or is pro se can hamper the ability of opposing counsel to negotiate a resolution or simply to communicate about procedural issues. Timely providing copies of the limited appearance and withdrawal to opposing counsel is therefore critically important.

Housing Court Standing Order 1-10, which governs LAR in the Housing Court, contains several requirements counsel must follow to help avoid those potential pitfalls. For example, the signature block of any document filed by an LAR attorney must indicate that it is filed under a LAR representation; a failure to do this could convert the engagement from limited to full representation. The Standing Order also requires opposing counsel to serve documents related to matters within the scope of the limited representation on both the LAR counsel and the party. Similar rules apply in other courts. See, e.g., BMC Standing Order 1-10, District Court Standing Order 1-11, Superior Court Standing Order 2-17, and a memo and FAQ regarding LAR in Probate and Family Court. The LAR page on the Massachusetts state website provides a good summary of the various LAR rules, along with links to FAQs, standing orders, and court forms.

In sum, LAR can be a valuable tool, especially in courts that serve a large population of unrepresented parties. It can be used on a pro bono basis or for paying clients, and can be a helpful way to provide assistance to a party with a critical piece of litigation at considerably lower cost than full representation. Judges are generally appreciative of LAR attorneys because they understand that often the alternative is no representation at all. So long as counsel give careful consideration to how they delineate the duration of the representation and are familiar with the applicable rules, LAR can be a useful part of any practice.

Chris Saccardi, formerly a litigation associate at Edwards Angell Palmer and Dodge, LLP, opened his own practice in 2010 in which he focuses exclusively on landlord-tenant law. He was named to the BBA’s Public Interest Leadership program in 2012-2013 and has served as Co-Chair of the BBA’s Solo and Small Firm Section.


How to Get an LLC into Federal Court: Tips for Pleading Diversity Jurisdiction Over Unincorporated Entities

sutcliffe

by Thomas Sutcliffe

Practice Tips

For federal diversity jurisdiction under 28 U.S.C. § 1332, a plaintiff, or removing defendant, must establish diversity of citizenship between the parties.  Typically, that means that all of the plaintiffs must be citizens of a different state than all of the defendants.  And a party wishing to get into federal court is required to plead diversity at the outset of litigation.

Pleading diversity, however, can be a challenge when the other party is an unincorporated entity.  A corporation’s citizenship is straightforward; it is considered to be a citizen of both the state of incorporation and the state in which its principal place of business is located.  The citizenship of other entities, such as LLCs and partnerships, is based upon the citizenship of each of its individual members or partners.  See generally Americold Realty Tr. v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016).  A complaint or notice of removal, therefore, must say something about the citizenship of an unincorporated entity’s members.  Failure to do so can result, at the very least, in a show cause order, especially within the First Circuit, where judges have not hesitated to raise the issue sua sponte.  See e.g., N. Beacon 155 Assocs. LLC v. Mesirow Fin. Interim Mgmt. LLC, No. CV 15-11750-LTS, 2015 WL 13427609, at *1 (D. Mass. June 29, 2015) (finding that allegation in notice of removal that only pleaded state of organization and principal place of business of LLC parties insufficient); Fratus v. Vivint Solar Developer LLC, 1:16-CV-10517 (D. Mass June 8, 2016) (issuing show cause order sua sponte based on similar problem in plaintiff’s complaint); see also D.B. Zwirn Special Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124, 125 (1st Cir. 2011) (determining, sua sponte, that notice of removal failed to allege jurisdiction over LLC plaintiff).

Requiring a party to plead the citizenship of another party’s members results in something of a Catch-22.  The membership of an LLC or partnership is often not publically available information, meaning a party trying to access federal court may not be able to determine the citizenship of its adversary until discovery.  But parties typically cannot conduct discovery unless they can plead some basis for subject matter jurisdiction, leaving plaintiffs and removing defendants in a quandary.

The Pragmatic Approach Taken by Some Circuits

Some courts, outside the First Circuit, have started to address this dilemma by adopting a more pragmatic approach to pleading citizenship.  For example, in Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082 (9th Cir. 2014), the Ninth Circuit embraced the “sensible principle that, at [the pleading stage], a party should not be required to plead jurisdiction [against an LLC] affirmatively based on actual knowledge.”  Id. at 1087.  Instead, the court held, it is enough for a plaintiff “to allege simply that the defendants were diverse to it,” and it is permitted “to plead its allegations on the basis of information and belief.”  Id.  Meanwhile, if the unincorporated entity – which presumably knows the citizenship of its own members – has information to the contrary, it is free to provide it and the court can “reevaluate its jurisdiction if contrary information emerged later.”  Id.  Until then, the court reasoned, the unincorporated entity is not in a position to complain.

The Third Circuit reached a similar conclusion in Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99 (3d Cir. 2015).  In Lincoln, the court reasoned that “[d]epriving a party of a federal forum simply because it cannot identify all of the members of an unincorporated association is not a rational screening mechanism,” particularly given that “[t]he membership of an LLC is often not a matter of public record.”  Id. at 108.  As a result, the court forged a compromise aimed at “strik[ing] the appropriate balance between facilitating access to the courts and managing the burdens of discovery.”  Id.  Specifically, it held that it was enough for a plaintiff to “alleg[e] that none of the defendant association’s members are citizens of” the same state as the plaintiff.  Id. at 107.  Furthermore, plaintiffs were permitted to make that allegation on information and belief provided they “conduct[ed] a reasonable inquiry into the facts alleged,” such as by consulting publically available sources.  Id. at 108.  “If, after this inquiry,” the court held, “the plaintiff has no reason to believe that any of the association’s members share its state of citizenship, it may allege complete diversity in good faith.” Id.

The court in Lincoln went on to examine the plaintiff’s complaint and found that – when combined with the plaintiff’s opposition to the defendants’ motion to dismiss – its allegations were sufficient to plead diversity of citizenship.  Specifically, the court noted that the plaintiff had alleged that:

  1. The LLC defendants had some connection to states where the plaintiff was not a citizen;
  2. Plaintiff’s counsel had “conducted a reasonable inquiry to determine the membership of the LLC defendants but found nothing of value;” and
  3. Plaintiff’s counsel “found no connection between the LLC defendants” and plaintiff’s home state.

Id. at 110.

Based on these allegations, the court concluded that the plaintiff had “alleged complete diversity in good faith.” Id. at 111.

Applying Carolina and Lincoln in the First Circuit

Can the approach of Carolina and Lincoln be applied in the First Circuit?  Not exactly.  In D.B. Zwirn Special Opportunities Fund, L.P. v. Mehrotra, 661 F.3d 124 (1st Cir. 2011), the First Circuit held, in a decision that predates Lincoln, that citizenship cannot be pleaded in the negative; that is, it is not enough to allege that the plaintiff and defendants are not parties of the same state, as the parties in that case had done.  The problem, the court explained, was that even if a party was not a citizen of the same state as its adversary, that did not rule out the possibility that one of the parties was a stateless entity (such as a foreign corporation) in which case diversity jurisdiction would again be lacking.  Id. at 126-27.  As a result, the court required affirmative information regarding the citizenship of the plaintiff-LLC’s members.

But the Carolina/Lincoln approach still offers some guidance, and Massachusetts courts might be warming to it.  In BRT Mgmt. LLC v. Malden Storage, LLC, No. CV 17-10005-FDS, 2017 WL 2726689 (D. Mass. June 23, 2017), for example, the court issued a show cause order, and the plaintiff, citing Lincoln, argued that it had searched publically available records but had been unable to determine the citizenship of the LLC defendant.  Judge Saylor observed that the approach articulated in Lincoln conflicted somewhat with D.B. Zwirn, but he nonetheless concluded that Lincoln’s “basic reasoning is sound.”  Id. at *1.  He further held that, because BRT – like the plaintiff in Lincoln – had “consulted all available public information and alleged, in good faith, that there is complete diversity of citizenship,” it was entitled to take jurisdictional discovery.  Id.

BRT suggests then that providing some indication of good faith research might go a long way towards overcoming the seemingly high burden set by D.B. Zwirn. The decision in D.B. Zwirn itself signaled that the court may be open to this kind of a pragmatic approach. Indeed, it is noteworthy that, in D.B. Zwirn, the court ordered the plaintiff-LLC to provide information regarding its citizenship, not the defendant who had removed the case to federal court (and who bore the burden of establishing jurisdiction). That suggests that the First Circuit may, in the future, be open to permitting jurisdictional discovery, at least in those instances where the party seeking federal jurisdiction makes an adequate threshold showing.

Lessons to Be Learned

So what are the lessons that can be gleaned from the case law?  A few guidelines seem to emerge:

  1. First, a party seeking federal diversity jurisdiction involving an unincorporated entity should research publically available information to the fullest practical extent and describe those efforts in the complaint or notice of removal. Even if that research is inconclusive, it is helpful to establish good faith.
  2. Second, if the research reveals no contacts between the unincorporated party and the state of which the party seeking federal jurisdiction is a citizen, the complaint should say so. If there are some contacts, the complaint should explain (if possible) why those contacts are insufficient and/or explain why the unincorporated party’s connections to another state are more extensive. The party should also allege, if appropriate, on information and belief, that the parties are not citizens of the same state.
  3. Third, the party should try to allege the unincorporated party’s state of citizenship, even if it is only an educated guess. That will help avoid the kind of “negative” pleading the First Circuit rejected in D. B. Zwirn.  Failing that, the complaint should at least try to allege facts ruling out the possibility that the unincorporated party is a “stateless” actor, such as, for example, establishing that the entity is based in the United States (and therefore presumably a citizen of some state).

The rules for establishing diversity jurisdiction over unincorporated parties are at times byzantine and arguably “def[y] logic.”  Lincoln, 800 F.3d at 111 (all judges concurring).  But neither the Supreme Court nor Congress has shown any sign of changing those rules, and courts are quick to enforce them.  By putting a bit of extra time into alleging diversity jurisdiction over these entities, parties can save themselves considerable trouble in the future and ensure that they remain in the forum of their choosing.

Thomas Sutcliffe is an attorney at Prince Lobel Tye LLP. His practice focuses on complex commercial litigation.