SlideShare a Scribd company logo
1 of 65
DIANE WARREN FLYNN
107 Ploughed Neck Road • East Sandwich, MA 02537 • (617) 827-1376 • dlwflynn@comcast.net
www.linkedin.com/in/dianewarrenflynn
INTERNATIONAL CORPORATE PARALEGAL
Highly self-motivated paralegal and business professional with extensive experience in corporate law,
lobbying law, real estate law, estate planning, probate, civil litigation, office administration, marketing,
business development and client relations. Recognized for independent judgment, competence and sound
decision-making in support of top management. Able to comprehend complex materials and summarize and
present information for executive review. Proven ability to integrate technology to meet organizational goals.
Resourceful and confident project manager committed to excellence and client satisfaction. Valued member of
executive team with excellent leadership, communication, organization and problem-solving skills.
Outstanding performance in establishing rapport with both clients and colleagues. Able to remain calm under
pressure. Trusted advisor, liaison and assistant.
• Legal writing and research
• File management and maintenance
• Manage multiple demands/deadlines
• Time management ability
• Strict attention to detail
• Independent thinking
• Written and verbal communication
• Organizational leadership / team member
• Effective liaison between clients and firm
Thorough understanding of office operations, policies, and procedures.
Proficient in Microsoft Word, Excel, PowerPoint, Outlook, QuickBooks, LexisNexis, Westlaw Next,
Directorpoint, Legal Suite, Workshare, Timeslips, ACT, Constant Contact and Swift Page
PROFESSIONAL EXPERIENCE
INTERNATIONAL FUND FOR ANIMAL WELFARE, INC., Yarmouth Port, MA 2015-present
Corporate Paralegal
• Assist General Counsel with corporate governance matters for IFAW’s global entities including company
formation, maintenance of minute books and other corporate records. Coordinate and track compliance
filings.
• Respond to internal and external requests for corporate records and information, including resolutions,
certificates of good standing, and apostilled/legalized documents.
• Liaise with outside counsel in foreign jurisdictions to ensure proper preparation, registration and filing of
compliance documentation. Review outside counsel invoices.
• Gather information, review, summarize and analyze data relative to assigned research projects.
• Research state and federal lobbying laws and registration/filing requirements. Prepare and file state
lobbying reports and maintain lobbying activity database.
• Attend all board/committee meetings and take meeting minutes in role as Assistant Clerk to U.S. entity.
• Research, launch and maintain board portal for directors’ access to all board meeting materials.
• Communicate with board members to coordinate execution of corporate documents.
BRENNAN, WASDEN & PAINTER LLC, Savannah, GA 2013-2014
Legal Assistant
• Assisted partners with preparation of motions, pleadings, and other legal/court documentation in busy
civil litigation practice. Created and proofread documents, perform cite checking.
• Organized litigation files and other legal documentation. Maintained and updated files as necessary.
• Managed commercial and residential real estate transactions, drafted probate filings and estate planning
documentation. Created business entities, prepared Crummey letters for ILITs.
• Maintained court calendar, tracked filing deadlines. Recorded attorney time data and maintained billing
and expense records.
DIANE WARREN FLYNN
Page 2
OFFICE OF THE GENERAL COUNSEL, Gloucester, MA 2013
Paralegal Intern
• Conducted legal research, drafted affidavits; organized commercial real estate project files. Completed
online title searches to determine deeded rights in a waterway and a potential encroachment on city
owned property and drafted Memorandum reporting results.
• Researched and prepared summaries of federal and state gun laws; wrote case briefs for federal and state
case law relative to gun law; compiled comprehensive legal reference for office use.
THE ATLANTIC RESTAURANT GROUP, Marshfield, MA 2006-2012
Sales and Marketing Manager – Atlantic License Brokers, 2011-2012
• Provided administrative, sales and marketing support to start-up licensing division specializing in the sale
of liquor licenses to restaurant owners throughout Boston and Southeastern MA.
• Collaborated with web designer to create new website. Wrote web copy and press releases.
• Initiated contact and established rapport with key staff at Boston Licensing Board. Obtained and
maintained ABCC data. Built gross business sales from zero to over $1M within first three months.
Administrative Manager / Marketing Assistant – Atlantic Real Estate Group, 2010-2011
• Recruited by owner to set up and manage newly acquired, underperforming real estate office.
Coordinated all aspects of office reorganization and renovations. Obtained corporate real estate license.
• Prepared and filed Articles of Organization with Secretary of State to create new corporation. Set up
corporate account with Department of Revenue (DOR). Obtained employee and 1099 tax forms.
• Provided marketing/sales support to twelve real estate agents. Set up process to track transactions.
Conducted monthly staff meetings. Researched, purchased and trained agents in new software.
Implemented policies to meet compliance requirements for file maintenance and security.
Office Manager / Marketing Assistant – Atlantic Restaurant Group, 2006-2010
• Provided administrative and paralegal support to owner of a commercial real estate brokerage firm
specializing in the sale of restaurant businesses, assets and real estate
• Drafted written correspondence and drafted and reviewed legal documents/contracts. Proofread and
edited press releases. Maintained website and client database. Created listing information sheets via
website and mass marketing communications with target members.
HOAG & SULLIVAN, Marshfield, MA 1988-2005
Paralegal
• Provided paralegal support in progressively responsible positions at a high volume law firm. Coordinated
commercial and residential real estate closings on behalf of individual clients and various lending
institutions.
• Gathered and analyzed research data including title examinations/rundowns, trusts, 21E reports, property
taxes, UCC financing statements, zoning decisions and building codes. Drafted written correspondences
and legal documents.
• Served as liaison with attorneys, clients, lenders, law firms, brokers, title insurance companies and
surveyors.
• Managed foreclosure proceedings of commercial and residential properties, initiated and prepared
bankruptcy filings and assisted with estate planning.
• Assisted in preparation of civil litigation proceedings including drafting complaints, answers and
counterclaims.
______________________________________________________________________________
EDUCATION
Associate of Science in Paralegal Studies (2013)
North Shore Community College, Danvers, Massachusetts – GPA 4.0
American Bar Association Approved
3
Table of Contents
1. Letters
a. Confirming Conversation 4
b. Deposition Transcript Enclosure 5
c. Deposition Confirmation 6
d. 93A Letter 7
2. Case Briefs
a. Minnesota v. Dickerson 9
b. Upton v. JWP Businessland 11
c. Hunting v. Elders 12
d. In re Hrones 14
3. Memoranda of Law
a. Landowner Duties 16
b. Malpractice Claim 20
c. Division of Stock Options 24
4. Complaints
a. Goldsmith v. Boston Movie Theater Company 27
b. Smith v. Larry’s Landscape Supplies, LLC et al 31
5. Answers and Counterclaims
a. Smith v. Larry’s Landscape Supplies, LLC et al
(Hammersmith) 34
b. Smith v. Larry’s Landscape Supplies, LLC et al
(Larry’s Landscape Supplies, LLC) 37
6. Motions
a. Motion for Temporary Order 40
b. Motion for Summary Judgment 42
c. Memorandum of Law in Support of Motion for
Summary Judgment 44
7. Interrogatories 51
8. Deposition Summary 54
9. Appellate Brief 57
4
Jones & Associates, LP
123 Main Street
Lawrence, Massachusetts 01840
May 24, 2013
Mary Smith, Esq.
Smith, Days & Roe
45 Church Street
Lowell, MA 01852
RE: Deposition of Elizabeth Connors
Connors v. City of Lawrence
Dear Attorney Smith:
In connection with the above-referenced matter, this letter is to confirm our conversation today
in which you stated that you will represent the plaintiff, Elizabeth Connors, for a deposition at
the law office of Jones & Associates, LP, 123 Main Street, Lawrence, Massachusetts, on
September 6, 2013, at 10:00 a.m.
If you have any questions, please do not hesitate to call me.
Very truly yours
Diane Warren Flynn
Paralegal
cc: Robert Jones, Esq.
Sally Walker, Esq.
5
Dillon & Associates
555 West Hartford Street
Hartford, Connecticut 06101
February 14, 2013
Via Overnight Delivery
Ms. Suzanne Nichols
12 Mountainview Terrace
Avon, CT 06001
RE: Deposition of February 13, 2013
Nichols v. The TJX Companies, Inc.
Dear Ms. Nichols:
Enclosed is a copy of the transcript of your February 13, 2013 deposition. Please review the
transcript carefully and note any statements that were incorrectly transcribed. You may not rewrite
your testimony, but you should note any inaccurate transcriptions. You may correct the spelling of
names and places. If you find any serious mistakes, please call me to discuss the problems.
When you review the deposition, please do not mark the original transcript. Instead, note any
discrepancies on a separate sheet of paper. Please note the page and line of any discrepancies. I will
have my assistant type a list of the discrepancies, and we will discuss these changes before we send
them to the court reporter. These changes must be received by the court reporter within 30 days;
therefore, I would appreciate your prompt review of the transcript and would like to review your
changes by March 6, 2013. If we fail to provide the changes to the court reporter within 30 days, we
will forfeit your right to correct the transcript and any inaccuracies will be part of the record.
If you have any questions, please do not hesitate to call me.
Thank you for your cooperation in advance.
Very truly yours,
Enc.
Diane Warren Flynn
Paralegal
6
Silver & Associates
321 Main Street
Natick, Massachusetts 01760
May 24, 2013
Via Facsimile (508) 555-1212
Michael Gold, Esq.
Gold, Diamond & Sapphire, PC
987 Gemstone Way
Framingham, MA 01701.
RE: Stevens v. Apple Orchard, Inc.
Internal reference number: 6531354
Dear Attorney Gold:
In connection with the above-entitled matter, this letter is to confirm our conversation today in
which you stated that you will represent the plaintiff, Alissa Stevens, for a deposition at the law
office of Silver & Associates, 321 Main Street, Natick, Massachusetts, on October 8, 2013, at
10:00 a.m.
If you should have any questions, please do not hesitate to call me.
Very truly yours,
Diane Warren Flynn
Paralegal
cc: Peter Hickey, Esq.
7
Sanders & Sanders, LP
90 Belkins Way, Suite 400
Peabody, Massachusetts 01960
May 24, 2013
VIA CERTIFIED MAIL – RETURN RECEIPT REQUESTED
Mark Jones, Esq.
General Counsel and Vice President
Sears Holdings Corporation
3333 Beverly Road
RE: Claim for Damages and Demand under M.G.L. c. 93A
Dear Attorney Jones:
Please be advised that this office represents the interests of Ms. Rebecca Stapleton. I am writing
to you under the provisions of Massachusetts General Laws, Chapter 93A, Section 9, the
Consumer Protection Act. I am writing to request relief as outlined in that statute.
In March of 2013, Ms. Stapleton purchased a new clothes dryer from Sears for the sum of
$800.00. She also purchased an extended warranty in the amount of $100.00 which covers the
costs of any new parts needed for the machine, but not the labor cost of any service call.
Beginning on April 1, 2013, the following events occurred:
On April 1, 2013, during the first time Ms. Stapleton used her new washing machine, it did not
rinse the soap from her clothes. She had to run the rinse cycle three times to get all the soap out
and then hand wring her clothes to get out the excess water. She called Sears to request repair of
the machine but was informed that service could not be provided until April 13th
.
On April 4, 2013, she spent $10.00 at the laundromat to wash her clothing. When the Sears
serviceman arrived on April 13, 2013, Ms. Stapleton was informed that another part was needed
and that he would return in two weeks to install it. A service call fee of $75.00 was charged.
On April 15, 2013, Ms. Stapleton spent $20.00 at the laundromat to wash her clothing. The
Sears repairman returned on April 25, 2013 and installed the new part. Another service call fee
was charged in the amount of $125.00. The machine was in good working order on April 30,
2013.
On May 5, 2013, the washing machine failed to properly rinse the clothing once again. Ms.
Stapleton incurred an additional cost to launder her clothing in the amount of $10.00. She
contacted Sears once again to schedule an appointment to repair the washing machine.
8
The Sears serviceman returned on May 10, 2013 to service the machine a third time. No parts
were required but a service call fee of $75.00 was charged. The washing machine was in good
working order during use on May 11-12, 2013.
On May 15, 2013, the washing machine did not properly rinse the clothes again, at which point it
overflowed and flooded Ms. Stapleton’s basement. As a result, she paid a cleaning service
$500.00 to dry her basement floors on May 16, 2013.
To date, Ms. Stapleton has paid a total of $275.00 to Sears for reparations to a brand new
washing machine in addition to $100.00 for the extended parts warranty; however, her washing
machine is still not operational.
I believe that these acts are declared unlawful by Section 2 of Chapter 93A, which declares
unfair or deceptive acts or practices in the conduct of any trade or commerce unlawful.
My client has suffered loss of money and property in the amount of $540.00. This sum
represents the full cost of the clean-up of Ms. Stapleton’s basement and the laundromat expenses
incurred to wash her laundry when the washing machine was inoperable.
This letter serves as my client’s request for the following relief: $540.00 and the delivery and
installation of a new washing machine to replace the defective one. Under the provisions of
Section 9 of Chapter 93A, I am providing you with the opportunity to make a written offer of
settlement of this claim within 30 days. If you fail to make a good faith offer of settlement in
response to this request, and Ms. Stapleton institutes legal action, a court may award Ms.
Stapleton triple damages, attorney’s fees and costs if the court finds in her favor.
I may be reached at the address written above, or at 978-740-0000 between the hours of 9:00am
and 5:00pm, Monday through Friday. I look forward to hearing from you.
Very truly yours,
Andrew Jones, Esq.
cc: Rebecca Stapleton
AJ/dwf
9
CASE BRIEF
CASE CITATION: Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334
(1993)
COURT OF DECISION: The United States Supreme Court
JUDICIAL HISTORY: Defendant’s motion to suppress seizure of crack cocaine from
defendant’s person was denied by the District Court, Hennepin County. The Minnesota Court of
Appeals reversed. The State appealed. The Minnesota Supreme Court affirmed. The State’s
petition for certiorari was granted.
KEY FACTS: At 8:15pm on November 9, 1989, two officers patrolling outside a notorious
‘crackhouse’ noticed respondent leaving the building. Respondent began walking toward squad
car until making eye contact with an officer, and then abruptly changed direction, raising the
officer’s suspicion. Officer watched respondent turn down an alley. Based on respondent’s
evasive behavior and his presence in a building known for cocaine traffic, officer stopped
respondent and conducted a patdown search. The search revealed no weapons, but officer took
interest in a small lump in respondent’s jacket pocket. Officer examined lump with fingers
stating that “it slid and it felt to be a lump of crack cocaine in cellophane.” Tr. 9 (Feb. 20, 1990).
The officer then reached into respondent’s pocket and retrieved a
small plastic bag containing one fifth of one gram of crack cocaine. Respondent was arrested and
charged with possession of a controlled substance. Respondent moved to suppress the cocaine.
ISSUE: Whether the Fourth Amendment permits the seizure of contraband detected through
a police officer’s sense of touch during a protective patdown search.
HOLDING: The Fourth Amendment does not permit the seizure of contraband detected
through a police officer’s sense of touch during a protective patdown search unless the
contraband strictly adheres to the plain-view doctrine.
REASONING: Under the Fourth Amendment, searches and seizures conducted without prior
approval by a judge or magistrate are unreasonable – subject only to a few exceptions. One such
exception states that when a police officer suspects criminal activity, he may briefly stop the
suspicious person and make “reasonable inquiries”. When the officer is justified in believing that
the individual he is investigating at close range is armed and presently dangerous to the officer or
others, he has the right to conduct a
patdown search to determine if the person is carrying a weapon. This sort of protective search
without a warrant, based on reasonable suspicion rather than probable cause, is strictly limited to
the discovery of weapons that could be used to harm the officer or others nearby. If the
protective search goes beyond what is necessary to determine if the suspect is armed, it is no
longer valid and the results will be suppressed. The plain-view doctrine stipulates that if
contraband is left in open view and is observed by a police officer from a lawful vantage point,
there has been no invasion of a legitimate expectation of privacy and therefore no “search” within
10
the meaning of the Fourth Amendment. However, the officer determined that the lump was
contraband only after invasively manipulating the contents of the defendant’s pocket which the
officer already knew contained no weapon. The officer’s continued exploration of respondent’s
pocket was outside the scope of the allowable search and therefore resulted in an unauthorized
evidentiary search. The officer’s further search of respondent’s pocket was constitutionally
invalid and the seizure of the cocaine that followed was also unconstitutional.
DISPOSITION: Affirmed.
11
CASE BRIEF
1. Citation: Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357 (1997)
2. Court: Supreme Judicial Court of Massachusetts
3. Judicial History: Norfolk County Superior Court entered summary judgment for the
defendant. Supreme Judicial Court of Massachusetts granted plaintiff’s application for direct
appellate review.
4. Facts: A single mother accepted employment with the verbal understanding that her hours
of work would be 8:15am to 5:30pm with the need to work late one or two days each month.
After four months of employment, employer’s expectations exceeded originally agreed upon
hours, when employer demanded 13-14 hour work days, six days a week. Employee was
terminated two weeks after informing her employer that she would not be able to work the
expanded hours because of her parental responsibilities.
5. Issue: Whether it is a violation of public policy for employers to demand that their adult
employees work expanded hours regardless of parental responsibilities?
6. Holding: No.
7. Reasoning: It was first determined that, in the absence of an employment contract, the
plaintiff was defined as an at-will employee. The general rule is that an at-will employee may be
terminated at any time for any reason or for no reason at all. The public policy exception makes
redress available to employees who are terminated for asserting a legal right, for doing what the
law requires or for refusing to disobey the law. However, there is no clearly established public
policy which requires employers to refrain from demanding that their adult employees work long
hours. The record showed there was no promise in a contractual sense that restricted the work
hours of the employee, only an inquiry made by the plaintiff and a reply by the employer during
the interview process.
8. Decision: Decision affirmed.
9. Concurring Opinion: None.
10. Dissenting Opinion: None.
12
CASE BRIEF
CASE CITATION: Hunting v. Elders, 359 S.C. 217, 597 S.E.2d 803 (2004)
COURT OF DECISION: Court of Appeals of South Carolina
JUDICIAL HISTORY: Plaintiff was issued judgment against Defendant by trial court.
Defendant filed appeal with South Carolina Appellate Court on phase II of judgment which
declared William Elders as alter ego of Elmyer Enterprises, Inc. and therefore personally liable
for the judgment against the corporation.
KEY FACTS: William Elders is the operator of a bar named Willie’s, owned by Elmyer
Enterprises, Inc. (the ‘corporation’). Samuel Chris Gordon (co-defendant) was a patron at
Willie’s and was served alcohol in spite of his obvious intoxicated state. Mr. Gordon left the bar
intoxicated and subsequently caused an accident that left Catherine Hitchcock permanently brain
damaged. Carol Hunting, as guardian ad litem for Catherine Hitchcock, brought suit against Mr.
Gordon, the Corporation and Mr. Elders, individually, as the alter ego of the corporation. At this
point, it is important to relate that this was a bifurcated case. In the first phase of the case, the
court found in favor of the plaintiff and awarded a judgment in the amount of $1.5 Million in
actual damages as well as $3,000 in punitive damages against Mr. Gordon and $25,000 in
punitive damages against the corporation. In the second phase, which is the subject of the appeal,
a non-jury trial established that, based on Mr. Elder’s actions, the corporate veil should be
pierced thereby holding Mr. Elder’s personally liable for the judgment against the corporation.
During the trial, a forensic accountant testified that Elders had siphoned between $400,000 and
$800,000 from the business over a three year period. It was also established that the capital used
to fund the corporation was only $1,000 and had not increased. A law professor testified that the
company was grossly undercapitalized given the inherent risks of operating a business serving
alcohol. It was also noted that the property and equipment used to operate Willie’s were leased
from companies also owned by Mr. Elders.
Mr. Elders argued that detailed records were never kept but that the reported income was accurate.
He also stated that as an S corporation, the same level of business formalities was not required. It
was also disclosed during trial that in 1993, Mr. Elders had transferred stock into the names of his
wife and niece and also made the corporate officers. The niece testified that she was had no
knowledge of this action, although Mr. Elders had presented corporate minutes that stated she was
present for the meeting to elect officers.
ISSUE: Whether the actions of a corporate officer have met the standards necessary to pierce the
corporate veil and ultimately make the officer personally liable for a judgment against the
corporation.
HOLDING: Yes, the actions of William Elders as a corporate officer did meet the necessary
13
standards in order to pierce the corporate veil and thereby render him personally liable for the
judgment against Elmyer Enterprises, Inc.
REASONING: Generally, when considering a request to pierce the corporate veil, a court places
the burden of proof on the party requesting the action. It is widely held by the courts that a
corporation is regarded as a legal entity until sufficient reason to the contrary appears; but when
the notion of legal entity is used to protect fraud, justify wrong, or defeat public policy, the law
will regard the corporation as an association of persons.
In Sturkie, a two-pronged test was used to determine whether to pierce the corporate veil. To
disregard corporate protection, an eight-factor analysis was created in Dumas v. InfoSafe Corp.,
320 S.C. 188, 463 S.E. 2d 641 (Ct.App.1995). A number of these must apply, but not all:
(1) whether the corporation was grossly undercapitalized;
(2) failure to observe corporate formalities;
(3) non-payment of dividends;
(4) insolvency of the debtor corporation at the time;
(5) siphoning of funds of the corporation by the dominant stockholder;
(6) non-functioning of other officers or other directors;
(7) absence of corporate records; and
(8) the fact that the corporation was merely a facade for the operations of the dominant
stockholder;
When applying these factors, it was found that (1) the corporation failed to remain properly
capitalized; (2) the corporation failed to observe corporate formalities; (3) the dominant
stockholder siphoned funds from the corporation; (4) the corporate officers were inactive.
The court agreed with the trial court that a sufficient number of the eight factors were met to
move on to the second prong of the test. The second part requires that the plaintiff prove (1) that
the defendant was aware of the plaintiff’s claim against the corporation, and (2) thereafter, the
defendant acted in a self-serving manner with regard to the property of the corporation and in
disregard of the plaintiff’s claim in the property.
There is evidence that indicates Elders knew of the plaintiff’s claim against the corporation and
that, as the trial court found, he nevertheless acted in a self-serving and unfair manner by
siphoning off substantial sums of money, commingling and transferring assets which he held in
his own name to different entities, transferring stock in the corporation to other individuals
without a valuable consideration, and then finally dissolving the corporation.
DISPOSITION: Affirmed.
14
CASE BRIEF
CASE CITATION: In re Hrones, 457 Mass. 844 (2010)
COURT OF DECISION: Supreme Judicial Court of Massachusetts
JUDICIAL HISTORY: Board of Bar Overseers’ hearing committee recommended suspension
of respondent. On appeal, Board of Bar Overseers adopted hearing committee’s subsidiary
findings with modifications. Single Justice of the Supreme Judicial Court, Suffolk County,
Ireland, J., reserved the case and reported it without decision.
KEY FACTS: An attorney (Hrones) hired a law school graduate, who had not passed the bar
examination, as a paralegal (Porter) at attorney’s law firm. Said paralegal was knowledgeable
in employment discrimination law and had appeared before the Massachusetts Commission
Against Discrimination (MCAD) and entered into a business arrangement with attorney where
paralegal would use law firm’s name and attorney’s license to practice law to develop a
practice in employment discrimination. All fees would be paid to the firm and attorney would
compensate paralegal two-thirds of all fees collected and retain one-third. Attorney had no
expertise in the area of employment discrimination. Paralegal was expected to operate an
independent practice without supervision of any kind. Paralegal told attorney that he was not
required to be a member of the Massachusetts bar to practice before the MCAD. Both
reviewed an unidentified statute or regulation that confirmed this policy. Attorney permitted
paralegal to sign his name to various court filings without prior review. Paralegal began
handling discrimination cases in his sole discretion: setting fees, filing complaints, drafting
pleadings, conducting discover, counseling clients as to their legal rights, settling cases, and
moving cases from MCAD to State or Federal court, all without attorney supervision. In June,
2003, the MCAD assessed sanctions against the attorney in connection with misconduct of the
paralegal. Attorney took no action in response to sanctions. In November, 2003, attorney, his
firm, and the paralegal, were suspended from practice before the MCAD for failure to pay
sanctions. Approximately forty cases were pending at the time but no action was taken to
address reassignment of existing cases. Between February and October, 2004, attorney
received multiple complaints of neglect filed by employment discrimination clients. In
October 2004, attorney terminated paralegal after learning that a client’s fee payment had not
been remitted.
ISSUE: Whether an attorney can be held liable for assisting in the unauthorized practice of law
by a non- attorney employee without specific intent.
HOLDING: Yes, an attorney can be held liable for assisting in the unauthorized practice of law
by a non- attorney employee without specific intent.
REASONING: Rule 5.5(b) of the Massachusetts Rule of Professional Conduct, 426 Mass. 1410
(1998), prohibits an attorney from “assist[ing] a person who is not a member of the bar in the
performance of activity that constitutes the unauthorized practice of law.” The paralegal
established fees, negotiated settlements and rendered legal advice after establishing an attorney
client relationship. The attorney was aware of the extent of paralegal’s practice before the
MCAD, was aware that the paralegal’s practice was unsupervised, did not arrange for his actions
15
to be supervised, and was aware that the paralegal was not an attorney.
DISPOSITION: Judgment was entered suspending the attorney from the practice of law in the
Commonwealth for one year and one day.
16
Memorandum of Law
To: Attorney Judy Judgment
From: Diane Warren Flynn
Date: December 11, 2012
Subject: Victoria V. v. U Shop Mall
Facts
Victoria V. parked her car under a light at the U Shop Mall, anticipating that it would be
dark when she finished shopping. Unknown to her, the bulb was out. When exiting the mall,
Victoria V. was sexually assaulted in the mall parking lot.
A security guard is employed by the mall to patrol its two parking areas which takes about
30 minutes each. The security guard had reported that the bulb was out 24 hours prior to Victoria
V.’s assault, but there were no replacement bulbs on hand. Records indicated that one month
prior to the assault, three cars were broken into and a mugging took place in the mall’s parking
area. Two weeks prior to the assault, the U Shop Mall received a report of sexual assault that
took place in a neighboring shopping center about 2 miles away. No occurrence of sexual assault
has ever been reported in the U Shop Mall or its parking lot.
Issue(s)
Does a landowner have a duty to protect others from attack by third parties?
Discussion
When examining the duty of U Shop Mall to protect Victoria V. from attack by a third
17
party, it is assumed that the cause of action would be negligence. In Ann M. v. Pacific Plaza
Shopping Center, 6 Cal. 4th 666, 863 P.2d 207, 25 Cal. Rptr. 2d 137 (1993), the court states: “An
action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that
the defendant breached the duty, and that the breach was a proximate or legal cause of injuries
suffered by the plaintiff.” Id.
The duty owed by a landowner is established through California law in Civ. Code, §1714
and case law, requiring “landowners to maintain land in their possession and control in a
reasonably safe condition,” Id. When comparing the facts of Victoria’s case with Ann M. v.
Pacific, there is a similarity in the landlord’s general duty of maintenance, owed to both tenants
and patrons. The landlord is required to take reasonable steps to prevent foreseeable criminal
acts of third parties that are likely to occur. It is the foreseeability of criminal acts that is a
crucial factor in determining duty. California has adopted the policy of considering all
circumstances in determining the business landowner’s responsibilities. Foreseeability weighed
heavily in the defendants favor in the court case because the landlord was not aware of any
criminal activity on the premises. Without prior knowledge of a similar prior incident on or in
the premises, it would be nearly impossible to prove any level of foreseeability. The court made
it clear that without foreseeability, there is no duty. It was concluded that “the requisite degree
of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent
crime on the landowner’s premises”. Id.
The absence of parking lot security is a pivotal argument. The landlord did not provide a
security guard for the property and was under no obligation according to the terms of the lease.
18
The plaintiff argued that security should have been provided and was requested by the tenants.
The court ruled that there must be a balance between foreseeability of criminal acts and the
burden placed on the landlord to deter them. In other words, if the expense to protect is great,
then the foreseeability of crime must be equally substantial. “We conclude that a high degree of
foreseeability is required in order to find that the scope of a landlord’s duty of care includes the
hiring of security guards.” Id. Consequently, the court refused to address whether the landlord’s
failure to provide security guards was a proximate cause of Ann M.’s injuries.
In the case of Victoria V., circumstances present a stronger case. Proving foreseeability
was established via written reports in the possession of the landowner. The broken light bulb
that was not replaced, combined with the recent thefts and muggings were clear indicators that
the present security measures were inadequate to insure the safety of tenants and patrons. While
there was no prior report of a sexual assault on the immediate premises, there was a similar
incident reported within two miles of the mall. A clear pattern of increased criminal activity was
established with the full knowledge of the landowner. With these facts in mind, it stands to
reason that duty of care is more likely to be proven. However, if the court holds hard and fast to
the requirement of prior similar acts of violent crime, the strength is compromised. The sexual
assault reported within a 30 day period took place two miles away from the U Shop Mall.
In addressing another contrast in circumstances, it cannot be overlooked that the U Shop
Mall provided the services of a security guard. This fact implies an acknowledgement of duty of
care by the landlord that the court case did not possess. The burned out light bulb that was
reported but not replaced moves beyond duty of care to demonstrate a breach of that duty. This
19
was an example of a minimal burden on the landlord with maximum foreseeability. Although it
cannot be determined with certainty that the light would have deterred the assailant, it stands to
reason that the likelihood would have been significantly diminished if the area had been properly
lit. It can be concluded that the facts of the Victoria V. case are on only slightly better footing
when attempting to overcome the stumbling blocks of the court case, namely meeting the
foreseeability requirement to establish the landlord’s duty.
Conclusion
In spite of the obvious similarity in nature of the assaults, their general location relative to
a landlord’s duty, and the claim of negligence, the circumstances of these incidents are quite
different. Essentially, one critical statement differentiates the two cases by a narrow margin:
“Foreseeability is a crucial factor in determining the existence of duty”. Id. Without this factor,
the defendant could not be found negligent. However, U Shop Mall cannot claim ignorance to
the heightened criminal activity in the parking areas. The greatest challenge remains in the
absence of foreseeability based on a prior incident of a similar nature on the immediate premises.
Whether the court will take the sexual assault occurring in a neighboring shopping plaza into
consideration is an unknown. If not, Victoria V.’s case is no better positioned for success than
Ann M.’s.
20
Memorandum of Law
To: Attorney Hirbour
From: Diane Warren Flynn
RE: Bill Broker Malpractice Claim
Date: March 4, 2013
Facts
Bill Broker is a partner in You R Home Real Estate Associates (“YRH”), a real estate
business that utilizes the legal services of Oliver, Wendell & Holmes (“OWH”), a local law firm.
The law firm has represented the interests of YRH in various business matters for more than ten
years.
During a party at Bill Broker’s house on July 4th
, Bill launched an illegal fireworks
display. One of the rockets caused a fire in his neighbor Barbara’s house. While the house was
not a total loss, there was serious damage. There were no personal injuries.
Barbara demanded payment of $10,000 for damages. At that time, Bill called OWH and
conveyed the previous day’s events to Greg, the paralegal who usually assisted Bill with YRH’s
annual reports. In turn, Greg summarized the facts to Kim Holmes, a partner in the firm who
was with another client at the time. Kim said “[t]hat’s not my area and I think he ought to call a
tort lawyer, but I’d pay the money and avoid more trouble if it were me.” Greg relayed that
comment to Bill and Bill wrote Barbara a check that afternoon. Several weeks later, Bill was
interviewed by a police officer about the incident and later brought criminal charges. When
Bill’s insurance company learned of the criminal charges his homeowner’s policy was cancelled,
triggering a default on his mortgage and a foreclosure proceeding.
21
Issue(s)
Whether an attorney-client relationship between Bill Broker and Oliver, Wendell &
Holmes has been established.
Discussion
When examining the potential existence of an attorney-client relationship between Bill
Broker and OWH, the elements required to establish this relationship are clearly set forth in
DeVaux v. American Home Assurance Com., 387 Mass. 814 (1982):
An attorney-client relationship need not rest on an express contract. An
attorney-client relationship may be implied "when (1) a person seeks
advice or assistance from an attorney, (2) the advice or assistance sought
pertains to matters within the attorney's professional competence, and (3)
the attorney expressly or impliedly agrees to give or actually gives the
desired advice or assistance...In appropriate cases the third element may
be established by proof of detrimental reliance, when the person seeking
legal services reasonably relies on the attorney to provide them and the
attorney, aware of such reliance, does nothing to negate it.”
When comparing the facts of Bill Broker’s case with DeVaux v. American Home
Assurance Com., there is a significant difference in the level of communication and specificity of
instructions given by the defendant’s secretary. When the plaintiff called to speak with the
attorney, it was the secretary that returned her call and advised her to write a letter to the store
owner explaining the circumstances of her fall, a letter to the attorney requesting legal assistance
and also arranged for a medical examination of the plaintiff’s injuries. In fact, the secretary’s
involvement in the case was extensive enough for the plaintiff to assume an attorney-client
relationship had been established based on her conversation and consequently executed each act
as directed. The court indicated that “an attorney should not permit lay persons even to appear to
22
form the attorney-client relationship with a prospective client, because that is part of the practice
of law.” Id.
In the Broker case, the brief advice that the attorney casually, albeit irresponsibly,
conveyed via her paralegal was insufficient to establish the relationship, particularly when the
statement immediately preceding was that the issue was “not my area” and subsequently advised
Bill Broker to call a tort lawyer. Under the required elements to establish an attorney-client
relationship, this disclaimer provides a strong argument that the relationship was not formed as a
result of the conversation between Bill Broker and the paralegal.
In the case of Fanaras Enters. v. Doane, 423 Mass. 121 (1996), it was determined that the
established business relationship between plaintiff and defendant in no way constitutes a
personal attorney-client relationship. The plaintiff never requested the defendant’s professional
legal advice but simply “relied” on the defendant to protect him. “That reliance may or may not
have been reasonable, but it did not establish an attorney-client relationship…”. Id. This same
principal can be applied to the Brady case and therefore hindering a successful outcome. He was
relying on the attorney to protect him but that was not a wise assumption. Bill Brady chose to
disregard the primary advice he was given and implemented the callous remark instead.
Conclusion
In spite of the obvious differences in fact patterns amongst these three cases, the general
circumstances raising the question as to whether an attorney-client relationship had been
established provide a foundation to determine what actions do and do not constitute this
relationship. The strongest argument against the Brady case lies in the elements of an attorney-
client relationship. Specifically, when Attorney Holmes stated that this was “not her area” and
suggested Bill Brady contact a tort attorney, she effectively removed herself from the possibility
23
of creating an attorney-client relationship. Her subsequent remark may serve to cloud the issue,
but the disclaimer will likely provide a defense against the accusation. Under these
circumstances, it seems unlikely that Bill Brady will be successful in his claim against OWH.
However, given the dissimilar fact patterns of the cases used, it would be prudent to do more
research to seek out a ruling on a more comparable scenario.
24
OFFICE MEMORANDUM OF LAW
TO: Shannon Murphy Barnes, Esq. RE: Division of Stock Options
FROM: Diane Warren Flynn, Paralegal
DATE: April 24, 2013
CASE: Smith v. Smith
OFFICE FILE NUMBER: 37-14
DOCKET NUMBER: (none at this time; no action has been filed)
1. STATEMENT OF THE ASSIGNMENT
You have asked me to assess whether our client, Trudy Smith, is entitled to an apportionment
of her husband Peter’s stock options, including those vested and unvested, none of which have
been exercised, with his current employer pursuant to Mass. Gen. Laws ch. 208, § 34. I have
focused my research on the analysis of Baccanti v. Morton, 434 Mass. 787, 752 N.E.2d 718
(2001). Case law suggests that the argument strongly favors Mrs. Smith’s position.
2. ISSUE AND SUMMARY CONCLUSION
Issue: Whether a spouse’s vested and unvested stock options are considered part of the marital
estate and therefore subject to division of marital assets under Massachusetts law.
Summary Conclusion: Yes.
3. FACTS
Peter and Trudy Smith have been married for fifteen years. Trudy Smith is filing for a divorce
from Peter. Trudy and Peter will live separately in their current residences with shared physical
custody of their two children, ages 11 and 13. Trudy is a CPA but has only recently returned to
the workforce in a part time capacity since the birth of her children. During the marriage,
Trudy was the primary caregiver of the children and maintained the home while Peter was the
financial provider. Peter is a highly successful corporate accountant with a national firm with
an annual compensation totaling $275,000. Trudy’s annual earnings are $32,500. Trudy will
receive child support until such time as the last child reaches the age of 21 and spousal support
for a period not to exceed ten years and six months. Over the course of his employment with
Account Specialists, Inc., Peter has been awarded stock options, some of which are vested,
others are not. All of the stock options were earned during the marriage.
4. DISCUSSION/ANALYSIS
When examining how the division of stock options is addressed as a marital asset in
Massachusetts, state statute and court precedent must both be reviewed. According to Mass.
Gen. Laws ch. 208, § 34, “the court may assign to either husband or wife all or any part of the
estate of the other, including but not limited to, all vested and nonvested benefits,…pension,
profit-sharing, annuity, deferred compensation and insurance.” In Baccanti, the court
interprets the law by stating that “[A]lthough the statute does not expressly mention stock
options, the language in the statute that a party’s ‘estate’ includes ‘all vested and nonvested
25
benefits, rights and funds’ clearly indicates that both vested and unvested stock options may be
treated as marital assets.” Id. at 794-95.
Mass. Gen. Laws ch. 208, § 34 also sets forth conditions to consider when dividing marital
property including the length of marriage, the conduct of the parties during the marriage, the
age, health, station, occupation, amount and sources of income, needs of each of the parties, the
opportunity of each for future acquisition of capital assets and income, and the amount and
duration of alimony awarded, and the present and future needs of the dependent children of the
marriage. The court may also consider the contribution of each of the parties in the acquisition,
preservation or appreciation in value of their respective estates and the contribution of each of
the parties as a homemaker to the family unit.
The similarities in family composition and spousal responsibilities between the Smiths and
those in Baccanti suggest that it would be reasonable to expect the court to arrive at a similar
decision in awarding stock options. Both couples were married for a significant length of time;
9 (Baccanti) and 15 (Smith) years; both husbands were the primary financial providers; both
wives were caretakers of their children and responsible for the maintenance and operation of
the marital home. It should be noted that in Baccanti, the non-employee spouse was ultimately
awarded one-half of the vested and unvested stock options.
A small distinction in the two cases lies in that Ms. Baccanti worked part-time throughout her
nine year marriage, whereas Trudy Smith returned to the workforce a little over a year ago. It
is assumed that Ms. Baccanti’s income would have been a necessity assuming her husband’s
annual income was considerably less than Peter Smith’s earnings. Nonetheless, this is a point
for consideration.
Where all of Peter Smith’s stock options were earned during the marriage, it would be difficult
for him to defend the argument that the vested stocks should not be considered part of the
marital property and subject to division. The central issue in Trudy Smith’s case revolves
around the treatment of unvested options that will vest after the dissolution of the marriage. In
the Baccanti opinion, the court found that the burden of proof lies with the employee spouse to
show that the stock options were granted for future services and that the non-employee spouse
made no contribution to the acquisition of the asset. Should the burden of proof be met, then
the portion of unvested stock options to be awarded to the non-employee spouse is determined
at the discretion of the judge. Use of a ‘time rule’ as a manner of calculating what portion of
the unvested stocks will be included in the marital property is outlined in the opinion. While
present division of assets is preferred, it is not always feasible. Instead, an order for future
division would be issued when and if the options are exercised.
Without full knowledge of the circumstances under which Peter Smith’s unvested stock
options will fully vest, it is difficult to ascertain whether or not Trudy Smith made a
contribution to their acquisition during the marriage. This would be a weak point in her claim
26
to a share of the unvested stock options and a foothold for Peter Smith to argue in favor of
excising the unvested stocks from the marital estate.
5. CONCLUSION
Trudy Smith’s contribution to Peter’s achievement is clearly taken into account according to
Massachusetts statue and is further supported by court precedent. As caretaker of the home
and family, Trudy’s role aligns with the non-employee spouse’s role in Baccanti and will likely
bring the same outcome in terms of an award of Peter’s vested stock options. Although it
would be difficult for Peter to prove that his wife made no contribution to the acquisition of the
unvested stock options, this is a potentially vulnerable area for Trudy Smith should he contest
division of those specific assets.
6. RECOMMENDATIONS
There is further investigation still needed. First, we should ascertain whether Peter Smith
intends to contest the division of stock options as a marital asset. Second, it would be
advantageous to review Peter Smith’s stock option plan to determine what special conditions,
if any, exist in order for non-vested options to become vested. In the event Peter objects to the
division, he may attempt to prove that the vesting of his unvested stock options is dependent
upon factors unaffected by Trudy’s contributions during their marriage i.e. future employment,
future achievements or future project completion. Finally, given the similarities between the
Smith’s circumstances and the Baccanti case, I think it is reasonable for Trudy Smith to
request and receive a fifty percent share of all vested and unvested stock options as part of the
marital estate.
7. APPENDIX
Attached is case.
27
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION CASE NO.
Marissa Goldsmith, )
Plaintiff )
)
v. )
)
Boston Movie Theater Company, )
Defendant )
)
COMPLAINT
PARTIES
1. The plaintiff, Marissa Goldsmith, is an individual residing at 10 Water Street, Boston,
Suffolk County, Massachusetts.
2. The defendant, Boston Movie Theater Company (hereinafter Theater) is the owner and in
control of certain premises known as the Boston Movie Theater Company, a corporation
duly organized and existing under the laws of the Commonwealth of Massachusetts with
a principal place of business at 200 Park Street, Boston , Suffolk County, Massachusetts.
FACTS
3. The plaintiff is a part-time student at Boston Community College and enrolled the
nursing program.
4. The plaintiff is employed at Rolly’s Restaurant as a waitress for approximately 20 hours a
week.
5. On or about the 23
rd
day of March, 2012, the plaintiff was lawfully on the premises as an
invitee of the defendant to view a movie in the theater along with two friends.
28
6. During the progress of the entertainment there conducted the plaintiff received and
suffered severe bodily injuries in consequence of the careless, defective, and negligent
condition of the premises, as the seat which the plaintiff was invited to use collapsed,
sending her crashing to the floor.
7. As she fell, the plaintiff struck her chin on an arm rest and then landed hard on her
backside and wrist. Consequently, she suffered a gash on her chin, severe bruising on her
backside and a sprained wrist.
8. The plaintiff required emergency medical attention at Massachusetts General Hospital
where she received sutures to close the gash and a splint to immobilize the sprained right
wrist. An inflatable ring was also provided by emergency medical staff to ease the pain
involved in sitting due to a bruised coccyx bone.
9. The plaintiff continues to attend classes but cannot fully participate in her assignments
due to the impeded functionality of her right hand which is her writing hand.
10. The plaintiff cannot perform her duties at work as a waitress because she is unable to
meet the physical requirements involved in lifting and carrying trays of food and
beverages.
11. A full recovery of the plaintiff’s injuries will require a minimum of 5 weeks.
12. As a result of the broken chair, the plaintiff received and suffered severe bodily injuries,
suffered great pain of body and mind, has been put to great expenses for medicines,
medical services, and attendance, and has been incapacitated for her usual occupations.
NEGLIGENCE
13. The plaintiff repeats and realleges the allegations contained in paragraphs 1 through 12 as
if each were set forth fully herein.
29
14. On or about March 23, 2013, and/or at all material times, the defendant, through its
agents, servants or employees, had a duty to provide seating in good working order for its
patrons.
15. On or about March 23, 2013, and/or at all material times, the defendant, through its
agents, servants or employees, breached its duty by failing to use due care when it failed
to properly inspect and/or repair all seats prior to allowing patrons to enter the premises
and seat themselves in broken theater seating.
16. Due to the negligence of the defendant, the plaintiff was caused to suffer serious personal
injuries when her chair collapsed to the floor.
17. As a direct and proximate result of the defendant’s negligence, the plaintiff was caused to
suffer and continues to suffer bodily pain and loss of wages, has incurred medical
expenses for her care and attendance, and has suffered an impairment to her ability to
enjoy life and attend to her usual activities.
18. The plaintiff was at all times in the exercise of due care and free of all comparative or
contributory negligence.
19. The plaintiff has satisfied all conditions precedent to the bringing of this action.
30
WHEREFORE the plaintiff demands judgment against the defendant for damages, interest, and
costs.
Respectfully submitted,
By her attorney,
Dated: May 30, 2013
Halye Sugarman
BBO #654321
123 Middlesex Way
Bedford, MA 02134
(978) 123-4567
31
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 10.12CV01544
Joseph Smith, )
Plaintiff )
)
v. )
)
Larry’s Landscape Supplies, LLC )
and )
Jesse James Hammersmith, )
Defendants )
)
COMPLAINT AND JURY CLAIM
PARTIES and FACTS
1. The plaintiff, Joseph Smith, is an individual residing in Lynn, Essex County,
Massachusetts.
2. The defendant, Larry’s Landscape Supplies, LLC (hereinafter Larry’s Landscape) is a
corporation duly organized and existing under the laws of the Commonwealth of Massachusetts
with a principal place of business at 140 North Sturbridge Road, Charlton, Worcester County,
Massachusetts and a registered agent at 23 Deer Run, Charlton, Worcester County,
Massachusetts.
3. The defendant, Jesse James Hammersmith (hereinafter Hammersmith), is an individual
residing in Lynn, Essex County, Massachusetts.
4. The defendant Hammersmith is an employee of defendant Larry’s Landscape.
5. A witness, Jake Sake, is an individual residing in Lynn, Essex County, Massachusetts.
32
6. On or about September 30, 2012, plaintiff was walking in a crosswalk on a public way
called Main Street in Lynn, Essex County, Massachusetts when defendant Hammersmith, driving
a truck owned by defendant Larry’s Landscape, negligently drove a motor vehicle, striking the
plaintiff causing plaintiff to suffer serious personal injuries as the result of the defendants’
negligence.
7. The witness reported to responding law enforcement officers that the truck was travelling
at an excessive rate of speed when the plaintiff was struck.
THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT
COUNT I – NEGLIGENCE
8. The plaintiff repeats and reavers the foregoing paragraphs as if each were set forth fully
herein.
9. On or about September 30, 2012, and/or at all material times, the defendants, through
their agents, servants or employees, had a duty to operate the vehicle with due care.
10. On or about September 30, 2012, and/or at all material times, the defendants, through
their agents, servants or employees, breached their duty by failing to use due care when
recklessly operating the motor vehicle.
11. Due to the negligence of the defendants the plaintiff was caused to suffer serious personal
injuries when he was struck in the crosswalk.
12. As a direct and proximate result of the defendants’ reckless negligence the plaintiff was
caused to suffer and continues to suffer bodily pain and mental anguish, has incurred medical
expenses for his care and attendance, has suffered from a loss of wages and an impairment to
his ability to enjoy life and attend to his usual activities.
33
13. The plaintiff was at all times in the exercise of due care and free of all comparative or
contributory negligence.
14. The plaintiff has satisfied all conditions precedent to the bringing of this action.
WHEREFORE, the plaintiff demands judgment against the defendant in the amount of his
damages, plus interest and costs.
JURY CLAIM
The plaintiff claims a trial by jury on this cause of action.
Respectfully submitted,
By his attorneys,
LAW OFFICES OF IMA GOOD
Ima Good
BBO #123456
6 Night Street
Salem, MA 01970
(978) 744-0075
Dated: October 11, 2012
34
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 10.12CV01544
Joseph C. Smith, )
Plaintiff )
)
v. )
)
Larry’s Landscape Supplies, LLC )
and )
Jesse James Hammersmith, )
Defendants )
)
ANSWER
Defendant Jesse James Hammersmith answers the Amended Complaint as follows:
1. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph1 of the Amended Complaint and therefore denies each and every
allegation contained therein.
2. Admitted.
3. Admitted.
4. Admitted.
5. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 5 of the Amended Complaint and therefore denies each and every
allegation contained therein.
6. Defendant admits that he was operating the motor vehicle involved in the incident of
September 30, 2012, but denies the remaining allegations in paragraph 6.
7. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 7 of the Amended Complaint and therefore denies each and
every allegation contained therein.
35
THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT
COUNT I – NEGLIGENCE
The allegations in this count are not directed to this defendant and accordingly no response by
this defendant is made to the count. In the event it is ever determined that this count is directed
to this defendant, this defendant reserves his right to respond to this count.
COUNT II NEGLIGENCE
15. The defendant Hammersmith repeats and reavers paragraphs 1 through 7 as if each were
set forth fully herein.
16. Admitted.
17. Denied.
18. Denied.
19. Denied.
20. Denied.
21. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 21 of the Amended Complaint and therefore denies each and
every allegation contained therein.
AFFIRMATIVE DEFENSES
1. Plaintiff's negligence was the sole cause or a contributing cause of the injury.
2. The injuries of which Plaintiff complains were caused by Plaintiff's negligence in the
following respects:
a. In failing to take reasonable precaution for his own safety by looking for
oncoming motor vehicles prior to crossing a street; and
36
b. In failing to use care by recklessly running out into the street with careless
disregard for oncoming motor vehicles in the immediate proximity thereby
depriving a driver of reasonable reaction time to stop a motor vehicle; and
c. In failing to keep a proper lookout for his own safety at the time and place.
3. Defendant denies each and every allegation of the Amended Complaint by which
Plaintiff seeks to impose liability upon it and denies that it has been guilty of any actionable
conduct in the premises.
4. Defendant alleges that it observed and discharged each and every duty required of it by
law and due care.
5. Defendant alleges that Plaintiff's injuries, however described, resulted solely and
proximately from conditions and/or conduct for which Defendant is not liable or responsible, and
Defendant has no liability in the premises.
WHEREFORE, defendant Jesse James Hammersmith respectfully prays that this Court:
1. Dismiss Plaintiff’s Amended Complaint and all claims and relief.
2. Grant Defendant his reasonable attorney’s fees and costs of this action; and
3. Grant Defendant such other and further relief as the Court deems just and proper.
Respectfully submitted,
By his attorneys,
LAW OFFICES OF THOMAS MURPHY
Dated: October 17, 2012
THOMAS MURPHY
BBO #123458
10 Night Street
Salem, MA 01970
(978) 744-0076
37
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 10.12CV01544
Joseph C. Smith, )
Plaintiff )
)
v. )
)
Larry’s Landscape Supplies, LLC )
and )
Jesse James Hammersmith, )
Defendants )
)
ANSWER
Defendant Larry’s Landscape Supplies LLC answers the Amended Complaint as follows:
1. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph1 of the Amended Complaint and therefore denies each and every
allegation contained therein.
2. Admitted.
3. Admitted.
4. Admitted.
5. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph1 of the Amended Complaint and therefore denies each and every
allegation contained therein.
6. Defendant admits that it owns the motor vehicle involved in the motor vehicle accident of
September 30, 2012, but does not have sufficient knowledge or information to form a belief as to
38
the truth of the allegations in paragraph 6 of the Amended Complaint and therefore denies each
and every allegation contained therein.
7. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph7 of the Amended Complaint and therefore denies each and every
allegation contained therein.
THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT
COUNT I – NEGLIGENCE
8. The defendant Larry’s Landscape repeats and reavers the foregoing paragraphs as if each
were set forth fully herein.
9. Admitted.
10. Denied.
11. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 11 of the Amended Complaint and therefore denies each and
every allegation contained therein.
12. Denied.
13. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 13 of the Amended Complaint and therefore denies each and
every allegation contained therein.
14. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the allegations in paragraph 14 of the Amended Complaint and therefore denies each and
every allegation contained therein.
39
COUNT II NEGLIGENCE
The allegations in this count are not directed to this defendant and accordingly no response by
this defendant is made to the count. In the event it is ever determined that this count is directed
to this defendant, this defendant reserves his right to respond to this count.
FIRST AFFIRMATIVE DEFENSE
Plaintiff’s claims against defendant Larry’s Landscape Services, LLC fail to state a claim upon
which relief can be granted or are barred due to the fact that at all times relevant to this action,
defendant Jesse James Hammersmith was not acting within the scope of his respective
employment as authorized agent of Larry’s Landscape Services, LLC.
WHEREFORE, the defendant Larry’s Landscape Services, LLC requests that plaintiff’s
Amended Complaint against defendant Larry’s Landscape Services, LLC be dismissed.
Respectfully submitted,
By his attorneys,
LAW OFFICES OF MARY JONES
MARY JONES
BBO #123457
8 Night Street
Salem, MA 01970
(978) 744-0076
Dated: October 17, 2012
40
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
Essex Division PROBATE & FAMILY COURT
CIVIL ACTION (DIVORCE)
DOCKET NO. ES13D247DR
)
Trudy Smith, )
Plaintiff )
) PLAINTIFF’S MOTION FOR
v. ) TEMPORARY ORDERS
)
Peter Smith, )
Defendant )
)
The plaintiff, Trudy Smith, moves that the Court enter the following temporary orders:
1. That the defendant be ordered to pay $4,000.00 per month for the maintenance of the
minor children, Tabitha, age 13, and PJ, age 11, pursuant to M.G.L.A. c. 208 § 19 and the
Massachusetts Child Support Guidelines enacted pursuant to M.G.L.A. c. 211B, § 15.
2. That the defendant be ordered to pay $2,000.00 per month for temporary support for the
plaintiff.
3. That the defendant be ordered to maintain in full force and effect his life insurance
policies for the benefit of the plaintiff and said minor children.
4. That the defendant be ordered to maintain in full force and effect the medical, hospital
and dental insurance for the benefit of the plaintiff and said minor children.
5. That the plaintiff be granted primary physical custody of said minor children.
6. That the defendant be ordered to pay the plaintiff’s and said minor children’s reasonable
medical, hospital, dental, optical and pharmaceutical expenses not covered by insurance.
7. That the defendant be ordered to transfer to the plaintiff title ownership of the
unencumbered 2009 Jeep Grand Cherokee for plaintiff’s free and uninterrupted use.
41
8. For such further relief as this court deems just and proper under the circumstances.
In support hereof the plaintiff states that the gross income of the defendant exceeds that
of the movant by $242,500.00, and cites in support thereof the sworn financial statements
filed by the parties pursuant to Mass.Supp.Probate R. 401, and further states that since the
separation of the parties on January 5, 2013, said defendant has failed to contribute to the
support of said minor children while in plaintiff’s care.
WHEREFORE, plaintiff respectfully requests that the above temporary orders be entered
on her behalf.
RESPECTFULLY SUBMITTED
FOR TRUDY SMITH
BY HER ATTORNEY
Diane Warren Flynn
123 Main Street
Salem, MA 01970
Telephone: 978-934-1234
BBO # 275439
Dated: February 14, 2013
CERTIFICATE OF SERVICE
A copy of the aforesaid Motion has this day been served on the defendant, by mailing a
copy thereof postage prepaid to John Smith, the attorney of record for the defendant, at 456
Washington Street, Salem, MA, 01970, together with notice that the Motion has been marked
for hearing on March 1, 2013 at 10:00am in the Essex Division of the Probate and Family
Court at 36 Federal Street, Salem, MA.
Dated: February 14, 2013
Attorney for the Plaintiff
42
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION CASE NO. 2013-54321A
Robert Dylan, )
Plaintiff )
)
v. )
)
Lindsay Lohan and )
George Clooney, )
Defendants )
)
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Now comes defendant Mr. George Clooney, pursuant to Mass. R. Civ. P. 56, and
respectfully moves for summary judgment on the grounds that Mr. Clooney cannot be held liable
for the actions of his party guest. Mr. Clooney did not know nor should have known that his
guest was intoxicated, did not knowingly give her an alcoholic drink while in an intoxicated state
and did not knowingly permit her to operate a motor vehicle in an intoxicated state.
Additionally, duty cannot be imposed on Mr. Clooney because he did not control or regulate the
supply of liquor that his guest consumed.
In further support of this motion, Mr. Clooney submits the accompanying Memorandum
of Law in Support of His Motion for Summary Judgment, which sets forth Mr. Clooney’s
arguments in detail.
43
Respectfully submitted,
GEORGE CLOONEY,
By his attorney,
Halye A. Sugarman
BBO #654321
123 Middlesex Way
Bedford, MA 02134
(978) 123-4567
Dated: June 19, 2013
44
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION CASE NO. 2013-54321A
Robert Dylan, )
Plaintiff )
)
v. )
)
Lindsay Lohan and )
George Clooney, )
Defendants )
)
DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF HIS
MOTION FOR SUMMARY JUDGMENT
Now comes defendant Mr. George Clooney, pursuant to Mass. R. Civ. P. 56, and
respectfully moves for summary judgment. The plaintiff, Robert Dylan, alleges that Mr.
Clooney is liable for the actions of an intoxicated party guest, Lindsay Lohan, operating a motor
vehicle and thereafter resulting in a vehicular accident. Summary judgment should be granted on
Mr. Dylan’s allegations of negligence because Mr. Clooney cannot be held liable for the actions
of his party guest. Mr. Clooney did not know nor should have known that his guest was
intoxicated, did not knowingly give her an alcoholic drink while in an intoxicated state or
knowingly permit her to operate a motor vehicle in an intoxicated state. Additionally, duty
cannot be imposed on Mr. Clooney because he did not control or regulate the supply of liquor.
Therefore, Mr. Dylan’s claim of negligence contains no genuine issues of material fact and
consequently fails as a matter of Massachusetts law.
45
FACTS
Mr.Dylan alleges that on May 15, 2012, defendant Mr. Clooney was liable, as a social
host, for injuries Mr. Dylan suffered as a result of a motor vehicle accident when defendant
Lindsay Lohan, who was driving while intoxicated after leaving a party hosted by Mr. Clooney,
crossed lanes and hit his car. Mr. Dylan has alleged negligence against Mr. Clooney.
On May 15, 2012, Mr. Clooney hosted a party in celebration of his recent graduation
from law school and passing of the bar exam. Approximately 30 guests were invited to bring
their own alcoholic beverages. Mr. Clooney provided several juices, a bottle opener, a wine
bottle opener, buckets of ice and drinking glasses. Two bottles of champagne were the only
alcohol provided by Mr. Clooney. (See transcript of Mr. Clooney’s deposition p. 25:1-8.) Mr.
Clooney stated that he assumed his guests would be drinking, as he had invited them to bring
their own alcohol. (See transcript of Mr. Clooney’s deposition p. 30:5-7.) All guests were 21
years of age or older.
Mr. Clooney stood by the door to greet his guests. At 8:00 pm that evening, Ms. Lohan
arrived carrying three bottles of Absolut vodka. Mr. Clooney briefly greeted Ms. Lohan and
shortly thereafter, she went to the kitchen to mix a drink. Ms. Lohan stated that “I saw that he
had some other drinks but I didn’t drink any of his alcohol. I did use the cups and juice he
provided.” (See Ms. Lohan’s Answers to Interrogatories p. 5.) Mr. Clooney entertained his
guests and danced throughout the evening but never saw Ms. Lohan mix her drinks. Mr.
Clooney also did not see Ms. Lohan drink the champagne he put out for his guests. Throughout
the evening, Mr. Clooney saw Ms. Lohan drinking from a cup but did not know what she was
drinking. He also saw her dancing on the deck with her boyfriend and some other guests. Mr.
Clooney and Ms. Lohan did not actually speak to each other at any point during the night, other
than a brief hello at the beginning of the night.
46
At approximately midnight, Ms. Lohan left the party to go home. Mr. Clooney did not
attempt to stop her or prevent her from driving her vehicle. He stated that “I did not talk to
Lindsay during the party, other than to say a brief hello, and I did not think she seemed drunk
when she left.” (See transcript of Mr. Clooney’s deposition p. 45:21-22.) Ms. Lohan stated that
“I did not think I was drunk when I left the party. I said hello to George when I arrived and I
think he saw me dancing, but I didn’t talk to him at all.” (See Ms. Lohan’s Answers to
Interrogatories p. 7.) On her way home, Ms. Lohan swerved precariously between lanes and hit
Mr. Dylan’s vehicle. Mr. Dylan has sustained serious injuries as a result of the accident.
ARGUMENT
I. Summary Judgment Standard
Summary judgment should be granted where there are no material facts in dispute and the
moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction,
390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976);
Mass. R. Civ. P. 56c. The moving party bears the burden of affirmatively demonstrating the
absence of a triable issue, and that the moving party is entitled to judgment as a matter of law.
Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Where the party moving for summary
judgment does not have the burden of proof at trial, this burden may be met by either submitting
affirmative evidence that negates an essential element of the opponent’s case, or by
“demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v.
Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors
Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable
issue, the party opposing the motion must respond and allege specific facts establishing the
existence of a material fact in order to defeat the motion. Pederson v. Time, Inc., 404 Mass.
14, 17 (1989).
47
II. Summary Judgment Should Be Granted Because Mr. Clooney, As A Social Host,
Did Not Owe A Duty To Third Parties From Negligent Driving Of An Intoxicated
Guest.
Mr. Dylan alleges that Mr. Clooney owed him a duty pursuant to social host liability, to
prevent his guests from operating a motor vehicle while intoxicated. In fact, Mr. Clooney owed
no duty Mr. Dylan because Mr. Clooney did not know nor should have known Ms. Lohan was
intoxicated and did not have control of the liquor she consumed.
A. Summary Judgment Is Warranted Because Mr. Clooney Did Not Know Nor
Should Have Known That His Guest Was Intoxicated, Did Not Knowingly Give
Her An Alcoholic Drink While In An Intoxicated State And Did Not Knowingly
Permit Her To Operate A Motor Vehicle In An Intoxicated State.
A social host is liable to a person injured by an intoxicated guest’s negligent operation of
a motor vehicle when a social host knew or should have known that the guest was drunk, gave
her or permitted her to take an alcoholic drink and thereafter, due to intoxication, the guest
negligently operated a motor vehicle causing a third person’s injury. McGuiggan v. New
England Tel. & Tel. Co., 398 Mass. 152 (1986).
In McGuiggan, there was no evidence that (1) the social hosts knew that their guest was
intoxicated at any time while at their home; or that (2) the guest was obviously intoxicated at any
relevant time. Id. at 161. Therefore, the court found that there were insufficient grounds to hold
the social hosts liable for the third party injuries suffered as a result of their guest’s actions in the
motor vehicle accident. Consistent with that finding, Mr. Clooney did not know nor should have
known that his guest was drunk. He did not serve Ms. Lohan any alcohol and did not know what
she was drinking while in his home. He spoke with her only once throughout the evening and
saw her only once while dancing. Ms. Lohan’s testimony concurs with Mr. Clooney’s account
when stating “I said hello to George when I arrived and I think he saw me dancing, but I didn’t
talk to him at all.” (See Ms. Lohan’s Answers to Interrogatories p. 7.) At no point did Ms. Lohan
48
appear obviously intoxicated. Mr. Clooney testified that he “did not think she seemed drunk
when she left”. (See transcript of Mr. Clooney’s deposition p. 45:21-22.) Therefore, in
applying case law, summary judgment should be granted as a matter of law because Mr. Clooney
did not know nor should have known that his guest was intoxicated, did not knowingly give her
an alcoholic drink while in an intoxicated state and did not knowingly permit her to operate a
motor vehicle in an intoxicated state
B. Summary Judgment Is Warranted Because Mr. Clooney Did Not Control Or
Regulate The Supply Of Liquor Consumed By His Guest.
A social host is not liable for injuries suffered from negligent driving of an intoxicated
guest who drank alcohol which guest brought to host’s party. Ulwick v. DeChristopher, 411
Mass. 401 (1991). In Ulwick, defendant hosted a “B.Y.O.B.” (“Bring Your Own Booze”) party.
Defendant did not serve or make any alcohol available to guests. The court found that defendant
was not liable for injuries suffered by a third party as a result of a guest’s negligent driving
because the social host did not control and therefore could not regulate the supply of liquor.
“The ability effectively to control a guest’s excessive drinking is not present when the liquor
belongs to the guest”. Id. at 406. In the present case, Mr. Clooney did not provide the alcohol
Ms. Lohan consumed and therefore did not possess control over or the ability to regulate her
drinking. Ms. Lohan did not consume any of the champagne Mr. Clooney had provided as
indicated in her testimony when stating “I saw that he had some other drinks but I didn’t drink
any of his alcohol. I did use the cups and juice he provided.” (See Ms. Lohan’s Answers to
Interrogatories p. 5.). The liquor she brought with her was mixed with juice provided by the
host. Therefore, consistent with case law, Mr. Clooney should be granted Summary Judgment as
a matter of law because he did not control or regulate the supply of liquor consumed by his
guest.
49
CONCLUSION
Mr. Dylan’s claim of negligence contains no genuine issues of material fact and
consequently fails as a matter of Massachusetts law. Mr. Clooney, as a social host, did not owe a
duty to Mr. Dylan for Ms. Lohan’s negligent driving as an intoxicated guest because Mr.
Clooney did not know nor should have known Ms. Lohan was intoxicated and did not have
control of the liquor she consumed.
Therefore, Mr. Clooney respectfully requests that the court grant Defendant’s Motion for
Summary Judgment as to Mr. Dylan’s claim of negligence.
.
Respectfully submitted,
GEORGE CLOONEY,
By his attorney,
Halye A. Sugarman
BBO #654321
123 Middlesex Way
Bedford, MA 02134
(978) 123-4567
Dated: June 19, 2013
50
CERTIFICATE OF SERVICE
I, Hayle A. Sugarman, certify that on this 19th
day of June, 2013, I served by first class
mail, postage prepaid, a copy of the foregoing Defendant’s Motion for Summary Judgment and
Defendant’s Memorandum of Law in Support of his Motion for Summary Judgment on counsel
for the Defendant,
John Smith, Esquire
123 Main Street, Suite A
Salem, MA 01970
Halye A. Sugarman
51
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 10.12CV01544
Joseph C. Smith, )
Plaintiff )
)
v. )
)
Larry’s Landscape Supplies, LLC )
and )
Jesse James Hammersmith, )
Defendants )
)
PLAINTIFF’S INTERROGATORIES TO
DEFENDANT JESSE JAMES HAMMERSMITH
(First Set)
Defendant Jesse James Hammersmith is hereby required to answer under the penalties of
perjury the interrogatories numbered from 1 to 10 inclusive, as shown below, within 45 days of
the time service is made upon you, in accordance with Rule 33(a) of the Massachusetts Rules of
Civil Procedure.
DEFINITIONS
Reference is hereby made to Superior Court Standing Order 1-09 to define the terms used herein.
INSTRUCTIONS
1. In answering each interrogatory:
(a) state whether the answer is within the personal knowledge of the person answering
the interrogatory and, if not, the identity of each person known to have personal
knowledge of the answer;
(b) identify each document that was used in any way to formulate the answer.
52
INTERROGATORIES
1. State your full name, age, residence, place of employment and business address.
2. Was the motor vehicle bearing Massachusetts registration number ABC123 for the year
2012 alleged in the complaint of the plaintiff to have been involved in an accident in
which the plaintiff claims to have been injured on September 30, 2012 operated on, at, or
near Main Street, Lynn, Essex County, Massachusetts, owned by Larry’s Landscape
Supplies, LLC and registered in that name on said day?
3. Identify the operator of the automobile involved in the alleged accident.
4. Describe in the fullest detail how the alleged accident occurred.
5. Describe the points of contact between the defendant’s vehicle and the plaintiff involved
in the accident.
6. State the distance in feet from the point of contact with the alleged accident to where the
defendant first saw the plaintiff.
7. State the specific location of the plaintiff on Main Street in Lynn, Essex County,
Massachusetts at the time of the alleged accident.
8. Describe all street signage and markings within 100 feet on either side of the point of
contact of the alleged accident on Main Street in Lynn, Essex County, Massachusetts.
9. Described in detail just what the defendant did in an attempt to avoid the alleged
accident.
10. State whether or not you ever made or gave any statement or communication, whether
oral or in writing, to anyone regarding the happening of the alleged occurrence,
specifying in as much detail as possible.
53
By Plaintiff’s attorney,
LAW OFFICES OF JACK SMITH
Jack Smith
BBO #123456
6 Night Street
Salem, MA 01970
(978) 744-0075
Dated: November 5, 2012
54
Deposition of Diana Salvador
Volume I – February 18, 2005
Bostwick v. International Healthcare Services, Inc.
(Case No. 02-C-04-095273MT)
Appearances of Examining Counsel:
For Plaintiff Adams:
Laura Zois, Esq.
Zois & Posner, LLP
For Defendant International Healthcare Services, Inc.:
Samuel Schneider, Esq.
Schneider & Schneider, LLP
EXAMINATION OF DIANA SALVADOR BY LAURA ZOIS:
Page:Line Topic/Exhibit Summary
4:2 – 4:4 Swearing In Diana Salvador, being duly sworn, testified as follows:
5:21 – 6:21 Background Salvador is a student currently in her junior year at University
of Maryland Baltimore School of Nursing. She has resided at
her current address in Millerstown, MD for the past six years.
She is presently employed as a Certified Nursing Assistant in
North Arundel Hospital.
7:3 – 7:17 Employment
History
Salvador has worked at North Arundel Hospital for almost a
year. Prior to that, at the age of 18, she was employed by her
father’s company, International Nursing Services, Inc.(INS), as
a driver chauffeuring nurses employed by INS to and from
their jobs with hospitals in the Baltimore/Washington DC area
such as Bon Secours Hospital and Harbor Hospital. Previous
to that position, Salvador worked at McDonalds, the aquarium,
Walmart, and CVS.
7:18 – 10:8 INS
Specifics/Work
Requirements
Salvador’s family home served as a dormitory for nurses
working for clients of INS. As a driver for INS, Salvador’s
daily duties consisted of transporting nurses to and from work
that did not have a driver’s license. She was 18 years of age
when she was employed as a driver for INS. Salvador did not
have a special type of license for this work nor did she receive
any special training in her capacity as a driver. Salvador
received her license at the age of 16 and was 19 years old when
the accident occurred. She had never driven in a professional
55
capacity prior to working for her father’s company
10:9 – 11:18 Plaintiff’s
Activities Day
of Accident
Salvador confirmed she was involved in an accident on
February 10, 2003. She stated that the accident took place at
approximately 7:00pm on that day. She recalled it was a
snowy day, that she had been at home watching television, and
that she had to take a nurse from her home in Millersville to
Harbor Hospital that evening. Nothing out of the ordinary
occurred on the day of the accident.
11:19 – 13:2 Route Travelled
to and from
Harbor Hospital
When driving to the hospital, Salvador first said she took
Route 97 South to Route 695. She took Exit 12, the
Benfield/Newcut exit. Upon further questioning, Salvador
then agreed that she got on Route 97 North off of Newcut to
Route 695. Travelling on 695 toward Dundalk, she took the
exit toward Brooklyn, which is Richie Highway, and travelled
all the way down until she reached Harbor Hospital. When
returning, she travelled Ritchie Highway South, avoiding
Route 695. Trying to take a short cut home, she made a left
onto Furnace Branch, then a left on Point Pleasant Road.
13:3 – 13:21 Timeline After turning onto Point Pleasant Road, Salvador was about 15
minutes from home. She left her home at 6:00pm and arrived
at Harbor Hospital at 6:20pm. It was approximately 6:22pm
when she left the hospital after dropping off her passenger.
The accident happened at 7:00pm.
14:1 – 14:9 Shortcut Salvador took a shortcut home with the intention of stopping
by a friend’s house to pick up shoes and clothes left there but
never made it.
14:10 –
17:16
Traffic/Road
Conditions
Traffic was going slow. Salvador took her time, travelling
slower than usual because of the weather conditions. Furnace
Branch Road’s conditions were a little worse than Routes 97
and 695 because it’s a side road. Point Pleasant Road was
about the same as Furnace Branch Road because it is also a
side road. Her wipers were on as she travelled about 15
minutes on Point Pleasant Road. The speed limit on Point
Pleasant Road is 25 miles per hour. Salvador travels that road
several times a week so she was very familiar with the bends in
the road.
17:15 –
17:16
Ice and Snow
Conditions
There was snow and ice on the ground and it was snowing out.
The roadway was very icy and Salvador could feel her vehicle
slipping.
17:17 -
18:20
Events Leading
to Accident
Salvador started to slow down even more than she had been
travelling, knowing the bend was coming. While slowing
down, her breaks started to lock up on the ice. On the bend in
the road, the vehicle continued as she held onto the wheel,
pumping the breaks to further decrease her speed. When the
wheels locked up and the vehicle began to cross the median
she attempted to steer the vehicle into a yard instead of going
into the other direction. As she was trying to turn, her vehicle
56
continued straight ahead. That was when she saw an oncoming
vehicle.
18:21 –
22:19
Rate of Speed
and Description
and Features of
Vehicle
Salvador confirmed that she started to slide as soon as she hit
the bend and stated that her rate of speed at that point was 20
miles per hour based on her speedometer. She was driving a
1999 or 2000 Toyota Tundra with 4-wheel drive engaged at the
time of the accident. She started to slip in a curvy area of Point
Pleasant Road at 20 miles per hour then reduced her speed to
17 or 18 miles per hour to get around the bend. That is when
the vehicle began to slip and the wheel and brakes locked up.
The vehicle had antilock brakes that vibrated when the vehicle
went into the skid. When the vehicle began to skid, Salvador
planned to go off onto the left-hand side of the road into the
yard and crossed over the yellow lines in doing that.
22:20 –
25:10
Collision Salvador estimated that the other vehicle was a few hundred
feet away when she first saw it. She was slipping and had
already crossed the double lines when she saw it. Impact
happened a few seconds after she first saw the other vehicle.
She was unable to estimate the rate of speed for either vehicle.
The approaching vehicle was within its own lane of travel just
beyond the bend when the accident occurred. The vehicles
made contact in a head-on collision.
25:11 – 26:2 Post Collision Immediately following the accident, Salvador removed her
seatbelt and attended to an injured man in the other vehicle.
She opened the passenger side door of the other vehicle and
asked if he was okay or hurt. After calling 911, she assessed
him.
26:3 – 27:19 Injured Party
Assessment
He was screaming in pain. The ash tray was pressed up against
his knee and so she pushed it to the side. She told him the
paramedics were on their way and stayed with the injured man
until the paramedics arrived. He was bleeding, presumably
from the knee area but was coherent, able to speak and scream,
and did not appear to have lost consciousness after the
accident. Paramedics arrived within 5-10 minutes. Upon their
arrival, firemen asked her to return to her vehicle so she never
saw the injured man leaving the scene.
27:20 – 29:2 Parties Present
at Scene of
Accident
Paramedics were the first to arrive at the scene, followed by
the police. There were other bystanders, one of which offered
to call someone on the injured man’s behalf. Salvador called
her friend that lived nearby. He arrived with his mother and
brother but was denied access to the accident scene.
29:3 – 29:17 Plaintiff
Contact and
Vehicle
Damage
Salvador has not had any contact with the plaintiff or the
plaintiff’s family members since the accident. Her vehicle was
repaired after the accident but she did not have any pictures of
her vehicle.
57
MASSACHUSETTS APPEALS COURT
Case No. 2013-P-1415
GEORGE CLOONEY,
Defendant – Appellant
v.
BOB DYLAN,
Plaintiff – Appellee
ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT
BRIEF OF THE DEFENDANT – APPELLANT,
GEORGE CLOONEY
Halye A. Sugarman
BBO #654321
123 Middlesex Way
Bedford, MA 02134
(978) 123-4567
John R. Smith
B.B.O. #234567
123 Main Street, Suite A
Salem, MA 01970
(978) 345-6789
58
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………………………….… ii
STATEMENT OF THE ISSUE……… ……………………………………………… 1
STATEMENT OF THE CASE……………………………………………………..… 2
I. Procedural History………………………………………………………… 2
II. Factual History……………………………………………………………. 3
SUMMARY OF ARGUMENT………………….…………………………………… 5
ARGUMENT…………………………………………………………………………. 7
THE SUPERIOR COURT ERRED WHEN INSTRUCTING THE JURY ON THE
LAW OF SOCIAL HOST LIABILITY, THEREBY MISINFORMING AND
IMPROPERLY INFLUENCING JURY DELIBERATIONS, WHICH RESULTED
IN A FINDING AGAINST DEFENDANT-APPELLANT.
A. Pursuant to Massachusetts Common Law, Defendant-Appellant, As A Social Host,
Did Not Owe A Duty To Third Parties From Negligent Driving Of An Intoxicated
Guest……………………................................................................ 12
B. Pursuant to Massachusetts Common Law, Defendant-Appellant Did Not
Know Nor Should Have Known That His Guest Was Intoxicated, Did Not
Knowingly Give Her An Alcoholic Drink While In An Intoxicated State And
Did Not Knowingly Permit Her To Operate A Motor Vehicle In An
Intoxicated State………………………………………………………………. 14
CONCLUSION……………………………………………………………………….. 16
59
TABLE OF AUTHORITIES
CASES
Alioto v. Marnell, 402 Mass. 36, 520 N.E.2d 1284 (1988)………………………………... 13
Christopher v. Father's Huddle Cafe, Inc., 57 Mass.App.Ct. 217, 782 N.E.2d 517
(2003)……………………………………………………………………………………... 10
Cremins v. Clancy,415 Mass. 289, 612 N.E.2d 1183 (1993)……………………………… 15
Daugherty v. Elmcrest, Inc., 853 F.Supp. 561, 741 N.E.2d 92 (Mass. 1994)……………... 12
Hamilton v. Ganias, 417 Mass. 666, 632 N.E.2d 407 (1994)……………………………... 11
Juliano v. Simpson, 461 Mass. 527, 962 N.E.2d 175 (2012)……………………………… 8
Manning v. Nobile, 411 Mass. 382, 582 N.E.2d 942 (1991)………………………………. 14
McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986)…… 12
Mosko v. Raytheon Co., 416 Mass. 395, 622 N.E.2d 1066 (1993)………………………... 9
Nunez v. Carrabba's Italian Grill, Inc., 448 Mass. 170, 859 N.E.2d 801 (2007)…………. 10
O'Flynn v. Powers, 38 Mass.App.Ct. 936, 646 N.E.2d 1091 (1995)……………………… 8
Panagakos v. Walsh, 434 Mass. 353, 749 N.E.2d 670 (2001)…………………………….. 14
Sampson v. MacDougall,60 Mass.App.Ct. 394, 802 N.E.2d 602 (2004)………………… 15
Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 661 N.E.2d 627 (1996)…………... 10
Ulwick v. DeChristopher, 411 Mass. 401, 582 N.E.2d 954 (1991)………………………... 8
RULES
Mass. R. Civ. P. 56(b)……………………………..………………………………............... 7
60
STATEMENT OF THE ISSUE
Whether the Superior Court erred when instructing the jury on the law of social host
liability, thereby misinforming and improperly influencing jury deliberations, which erroneously
resulted in a finding against defendant-appellant.
61
STATEMENT OF THE CASE
I. Procedural History
An action for social host liability arose out of injuries sustained by Plaintiff-Appellee
Bob Dylan in a motor vehicle accident on May 15, 2012. On January 10, 2013, Mr. Dylan filed
his complaint in Massachusetts Superior Court, Suffolk County, alleging that Defendant-
Appellant George Clooney, was liable as a social host for injuries caused by Defendant Lindsay
Lohan when driving while intoxicated after leaving a party hosted by Mr. Clooney.
On February 16, 2013, Mr. Dylan and Ms. Lohan reached an out of court settlement
agreement.
On March 1, 2013, Mr. Clooney moved for summary judgment in Suffolk County
Superior Court on the grounds that the evidence contained no genuine issues of material fact and
consequently failed as a matter of Massachusetts law. After a hearing on April 3, 2013, the
Superior Court denied summary judgment. The memorandum and order was issued on April 30,
2013. The Superior Court ruled that there were genuine issues of material fact as to (1) whether
Mr. Clooney knew or should have known that Ms. Lohan was drunk; and (2) whether Clooney
had “control” over the alcoholic beverages Ms. Lohan drank at the party.
Thereafter, the case of Bob Dylan v. George Clooney went to trial on May 23, 2013. A
jury decided against Mr. Clooney on June 1, 2013, and awarded Mr. Dylan $250,000 in
damages.
On June 4, 2013, Mr. Clooney filed an appeal in the Massachusetts Appeals Court, sitting
in Suffolk County.
62
II. Factual History
Mr. Dylan alleges that on May 15, 2012, defendant Mr. Clooney was liable, as a social
host, for injuries Mr. Dylan suffered as a result of a motor vehicle accident when defendant
Lindsay Lohan, who was driving while intoxicated after leaving a party hosted by Mr. Clooney,
crossed lanes and hit his car. Mr. Dylan alleged social host liability against Mr. Clooney.
On May 15, 2012, Mr. Clooney hosted a party in celebration of his recent graduation
from law school and passing of the bar exam. Approximately 30 guests were invited to bring
their own alcoholic beverages. Mr. Clooney provided several juices, a bottle opener, a wine
bottle opener, buckets of ice and drinking glasses. Two bottles of champagne were the only
alcohol provided by Mr. Clooney. (See transcript of Mr. Clooney’s deposition p. 25:1-8.) Mr.
Clooney stated that he assumed his guests would be drinking, as he had invited them to bring
their own alcohol. (See transcript of Mr. Clooney’s deposition p. 30:5-7.) All guests were 21
years of age or older.
Mr. Clooney stood by the door to greet his guests. At 8:00 pm that evening, Ms. Lohan
arrived carrying three bottles of Absolut vodka. Mr. Clooney briefly greeted Ms. Lohan and
shortly thereafter, she went to the kitchen to mix a drink. Ms. Lohan stated that “I saw that he
had some other drinks but I didn’t drink any of his alcohol. I did use the cups and juice he
provided.” (See Ms. Lohan’s Answers to Interrogatories p. 5.) Mr. Clooney entertained his
guests and danced throughout the evening but never saw Ms. Lohan mix her drinks. Mr.
Clooney also did not see Ms. Lohan drink the champagne he put out for his guests. Throughout
the evening, Mr. Clooney saw Ms. Lohan drinking from a cup but did not know what she was
drinking. He also saw her dancing on the deck with her boyfriend and some other guests. Mr.
63
Clooney and Ms. Lohan did not actually speak to each other at any point during the night, other
than a brief hello at the beginning of the night.
At approximately midnight, Ms. Lohan left the party to go home. Mr. Clooney did not
attempt to stop her or prevent her from driving her vehicle. He stated that “I did not talk to
Lindsay during the party, other than to say a brief hello, and I did not think she seemed drunk
when she left.” (See transcript of Mr. Clooney’s deposition p. 45:21-22.) Ms. Lohan stated that
“I did not think I was drunk when I left the party. I said hello to George when I arrived and I
think he saw me dancing, but I didn’t talk to him at all.” (See Ms. Lohan’s Answers to
Interrogatories p. 7.) On her way home, Ms. Lohan swerved precariously between lanes and hit
Mr. Dylan’s vehicle. Mr. Dylan has sustained serious injuries as a result of the accident.
64
SUMMARY OF ARGUMENT
The judge incorrectly instructed the jury in the law of social host liability. A social host
is liable to a person injured by an intoxicated guest’s negligent operation of a motor vehicle
when a social host knew or should have known that the guest was drunk, gave her or permitted
her to take an alcoholic drink and thereafter, due to intoxication, the guest negligently operated a
motor vehicle causing a third person’s injury.
Mr. Clooney did not know nor should have known that his guest was drunk. He did not
serve Ms. Lohan any alcohol and did not know what she was drinking while in his home. He
spoke with her only once throughout the evening and saw her only once while dancing. Ms.
Lohan’s testimony concurs with Mr. Clooney’s account of their contact throughout the evening.
At no point did Ms. Lohan appear obviously intoxicated. Mr. Clooney testified that he did not
think she seemed drunk when she left.
Furthermore, a social host is not liable for injuries suffered from negligent driving of an
intoxicated guest who drank alcohol which a guest brought to a host’s party. Mr. Clooney did
not provide the alcohol Ms. Lohan consumed and therefore did not possess control over the
alcohol or the ability to regulate her drinking. Ms. Lohan did not consume any of the champagne
Mr. Clooney had provided as indicated in her testimony. The liquor she brought with her was
mixed with juice provided by the host.
When properly applying social host liability as established in Massachusetts case law, Mr.
Clooney did not know nor should have known that Ms. Lohan was intoxicated, did not
knowingly give her an alcoholic drink while in an intoxicated state and did not knowingly permit
her to operate a motor vehicle in an intoxicated state nor did he control or regulate the supply of
liquor consumed by Ms. Lohan.
65
The Superior Court Judge, when incorrectly instructing the jury as to the law of social
host liability, failed to accurately instruct the jurors, thereby preventing them from reaching a
decision that accurately exonerates Mr. Clooney from liability in this case.

More Related Content

What's hot

Sample meet and confer declaration for motion for judgment on the pleadings i...
Sample meet and confer declaration for motion for judgment on the pleadings i...Sample meet and confer declaration for motion for judgment on the pleadings i...
Sample meet and confer declaration for motion for judgment on the pleadings i...LegalDocsPro
 
Sample motion for relief from forfeiture of lease in California
Sample motion for relief from forfeiture of lease in CaliforniaSample motion for relief from forfeiture of lease in California
Sample motion for relief from forfeiture of lease in CaliforniaLegalDocsPro
 
Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...
Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...
Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...LegalDocsPro
 
Sample letters to remove inquiries
Sample letters to remove inquiriesSample letters to remove inquiries
Sample letters to remove inquiriesmortgagecalculator01
 
Sample California meet and confer letter
Sample California meet and confer letter Sample California meet and confer letter
Sample California meet and confer letter LegalDocsPro
 
Sample California motion to amend judgment to add judgment debtor on alter eg...
Sample California motion to amend judgment to add judgment debtor on alter eg...Sample California motion to amend judgment to add judgment debtor on alter eg...
Sample California motion to amend judgment to add judgment debtor on alter eg...LegalDocsPro
 
Sample California motion to strike answer
Sample California motion to strike answer Sample California motion to strike answer
Sample California motion to strike answer LegalDocsPro
 
Sample California complaint for assault and battery
Sample California complaint for assault and batterySample California complaint for assault and battery
Sample California complaint for assault and batteryLegalDocsPro
 
Sample California complaint to vacate judgment
Sample California complaint to vacate judgmentSample California complaint to vacate judgment
Sample California complaint to vacate judgmentLegalDocsPro
 
Sample California motion to strike for unlawful detainer (eviction) complaint
Sample California motion to strike for unlawful detainer (eviction) complaintSample California motion to strike for unlawful detainer (eviction) complaint
Sample California motion to strike for unlawful detainer (eviction) complaintLegalDocsPro
 
Sample stipulation and order for california
Sample stipulation and order for californiaSample stipulation and order for california
Sample stipulation and order for californiaLegalDocsPro
 
Sample collection of meet and confer letters for discovery in california
Sample collection of meet and confer letters for discovery in californiaSample collection of meet and confer letters for discovery in california
Sample collection of meet and confer letters for discovery in californiaLegalDocsPro
 
Sample dispute letter to credit bureau under Fair Credit Reporting Act
Sample dispute letter to credit bureau under Fair Credit Reporting ActSample dispute letter to credit bureau under Fair Credit Reporting Act
Sample dispute letter to credit bureau under Fair Credit Reporting ActLegalDocsPro
 
Opposition to a California summary judgment motion
Opposition to a California summary judgment motionOpposition to a California summary judgment motion
Opposition to a California summary judgment motionLegalDocsPro
 
Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...
Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...
Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...LegalDocsPro
 
Sample notice of ruling for California
Sample notice of ruling for CaliforniaSample notice of ruling for California
Sample notice of ruling for CaliforniaLegalDocsPro
 
Sample California Lis pendens or notice of pending action
Sample California Lis pendens or notice of pending actionSample California Lis pendens or notice of pending action
Sample California Lis pendens or notice of pending actionLegalDocsPro
 
Motion for Leave To Amend And Add Known Jane Does
Motion for Leave To Amend And Add Known Jane DoesMotion for Leave To Amend And Add Known Jane Does
Motion for Leave To Amend And Add Known Jane DoesJRachelle
 
Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...
Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...
Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...LegalDocsPro
 
Sample Notice of Errata for California
Sample Notice of Errata for California Sample Notice of Errata for California
Sample Notice of Errata for California LegalDocsPro
 

What's hot (20)

Sample meet and confer declaration for motion for judgment on the pleadings i...
Sample meet and confer declaration for motion for judgment on the pleadings i...Sample meet and confer declaration for motion for judgment on the pleadings i...
Sample meet and confer declaration for motion for judgment on the pleadings i...
 
Sample motion for relief from forfeiture of lease in California
Sample motion for relief from forfeiture of lease in CaliforniaSample motion for relief from forfeiture of lease in California
Sample motion for relief from forfeiture of lease in California
 
Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...
Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...
Sample motion to vacate judgment under rule 60(b)(2) in United States Distric...
 
Sample letters to remove inquiries
Sample letters to remove inquiriesSample letters to remove inquiries
Sample letters to remove inquiries
 
Sample California meet and confer letter
Sample California meet and confer letter Sample California meet and confer letter
Sample California meet and confer letter
 
Sample California motion to amend judgment to add judgment debtor on alter eg...
Sample California motion to amend judgment to add judgment debtor on alter eg...Sample California motion to amend judgment to add judgment debtor on alter eg...
Sample California motion to amend judgment to add judgment debtor on alter eg...
 
Sample California motion to strike answer
Sample California motion to strike answer Sample California motion to strike answer
Sample California motion to strike answer
 
Sample California complaint for assault and battery
Sample California complaint for assault and batterySample California complaint for assault and battery
Sample California complaint for assault and battery
 
Sample California complaint to vacate judgment
Sample California complaint to vacate judgmentSample California complaint to vacate judgment
Sample California complaint to vacate judgment
 
Sample California motion to strike for unlawful detainer (eviction) complaint
Sample California motion to strike for unlawful detainer (eviction) complaintSample California motion to strike for unlawful detainer (eviction) complaint
Sample California motion to strike for unlawful detainer (eviction) complaint
 
Sample stipulation and order for california
Sample stipulation and order for californiaSample stipulation and order for california
Sample stipulation and order for california
 
Sample collection of meet and confer letters for discovery in california
Sample collection of meet and confer letters for discovery in californiaSample collection of meet and confer letters for discovery in california
Sample collection of meet and confer letters for discovery in california
 
Sample dispute letter to credit bureau under Fair Credit Reporting Act
Sample dispute letter to credit bureau under Fair Credit Reporting ActSample dispute letter to credit bureau under Fair Credit Reporting Act
Sample dispute letter to credit bureau under Fair Credit Reporting Act
 
Opposition to a California summary judgment motion
Opposition to a California summary judgment motionOpposition to a California summary judgment motion
Opposition to a California summary judgment motion
 
Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...
Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...
Sample motion for sanctions under Code of Civil Procedure section 128.5 in ca...
 
Sample notice of ruling for California
Sample notice of ruling for CaliforniaSample notice of ruling for California
Sample notice of ruling for California
 
Sample California Lis pendens or notice of pending action
Sample California Lis pendens or notice of pending actionSample California Lis pendens or notice of pending action
Sample California Lis pendens or notice of pending action
 
Motion for Leave To Amend And Add Known Jane Does
Motion for Leave To Amend And Add Known Jane DoesMotion for Leave To Amend And Add Known Jane Does
Motion for Leave To Amend And Add Known Jane Does
 
Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...
Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...
Sample opposition to rule 60(b)(1) motion to vacate judgment in United States...
 
Sample Notice of Errata for California
Sample Notice of Errata for California Sample Notice of Errata for California
Sample Notice of Errata for California
 

Similar to Legal Writing Portfolio

Similar to Legal Writing Portfolio (20)

RESUME
RESUMERESUME
RESUME
 
Jami Baybrook - Resume
Jami Baybrook - ResumeJami Baybrook - Resume
Jami Baybrook - Resume
 
Lisa A. Petty Resume
Lisa A. Petty ResumeLisa A. Petty Resume
Lisa A. Petty Resume
 
Mary McManus CV
Mary McManus CVMary McManus CV
Mary McManus CV
 
UPDATE BEY LEGAL 111415
UPDATE BEY LEGAL 111415UPDATE BEY LEGAL 111415
UPDATE BEY LEGAL 111415
 
Juanita evans~resume
Juanita evans~resumeJuanita evans~resume
Juanita evans~resume
 
DAlessio, Amanda-Resume
DAlessio, Amanda-ResumeDAlessio, Amanda-Resume
DAlessio, Amanda-Resume
 
Stacey New Resume Update 2 (1)
Stacey New Resume Update 2 (1)Stacey New Resume Update 2 (1)
Stacey New Resume Update 2 (1)
 
McMullen_Debra_CV_Legal Executive_2017
McMullen_Debra_CV_Legal Executive_2017McMullen_Debra_CV_Legal Executive_2017
McMullen_Debra_CV_Legal Executive_2017
 
JACQUELYN E
JACQUELYN EJACQUELYN E
JACQUELYN E
 
Raymond Harrington Resume
Raymond Harrington ResumeRaymond Harrington Resume
Raymond Harrington Resume
 
RENEE PHILLIPS RESUME 2014
RENEE PHILLIPS RESUME 2014RENEE PHILLIPS RESUME 2014
RENEE PHILLIPS RESUME 2014
 
Keren Campbell Professional Resume
Keren Campbell Professional ResumeKeren Campbell Professional Resume
Keren Campbell Professional Resume
 
Resume of Melissa Grant
Resume of Melissa GrantResume of Melissa Grant
Resume of Melissa Grant
 
Merlyn Resume6.8.15
Merlyn Resume6.8.15Merlyn Resume6.8.15
Merlyn Resume6.8.15
 
Resume - KGEllis.PDF
Resume - KGEllis.PDFResume - KGEllis.PDF
Resume - KGEllis.PDF
 
ELIHU HERNANDEZ(Updated)
ELIHU HERNANDEZ(Updated)ELIHU HERNANDEZ(Updated)
ELIHU HERNANDEZ(Updated)
 
CSJ RESUME 2015
CSJ RESUME 2015CSJ RESUME 2015
CSJ RESUME 2015
 
Nitesh Slathia legal Resume
Nitesh Slathia legal ResumeNitesh Slathia legal Resume
Nitesh Slathia legal Resume
 
Jenn Marques Resume
Jenn Marques ResumeJenn Marques Resume
Jenn Marques Resume
 

Recently uploaded

Town of Haverhill's Summary Judgment Motion for Declaratory Judgment Case
Town of Haverhill's Summary Judgment Motion for Declaratory Judgment CaseTown of Haverhill's Summary Judgment Motion for Declaratory Judgment Case
Town of Haverhill's Summary Judgment Motion for Declaratory Judgment CaseRich Bergeron
 
OMassmann - Investment into the grid and transmission system in Vietnam (2024...
OMassmann - Investment into the grid and transmission system in Vietnam (2024...OMassmann - Investment into the grid and transmission system in Vietnam (2024...
OMassmann - Investment into the grid and transmission system in Vietnam (2024...Dr. Oliver Massmann
 
1990-2004 Bar Questions and Answers in Sales
1990-2004 Bar Questions and Answers in Sales1990-2004 Bar Questions and Answers in Sales
1990-2004 Bar Questions and Answers in SalesMelvinPernez2
 
Right to life and personal liberty under article 21
Right to life and personal liberty under article 21Right to life and personal liberty under article 21
Right to life and personal liberty under article 21vasanthakumarsk17
 
Power Point Obligations and contracts Article 1313-1327
Power Point Obligations and contracts Article 1313-1327Power Point Obligations and contracts Article 1313-1327
Power Point Obligations and contracts Article 1313-1327bariajenne
 
Illinois Department Of Corrections reentry guide
Illinois Department Of Corrections reentry guideIllinois Department Of Corrections reentry guide
Illinois Department Of Corrections reentry guideillinoisworknet11
 
Town of Haverhill's Motion for Summary Judgment on DTC Counterclaims
Town of Haverhill's Motion for Summary Judgment on DTC CounterclaimsTown of Haverhill's Motion for Summary Judgment on DTC Counterclaims
Town of Haverhill's Motion for Summary Judgment on DTC CounterclaimsRich Bergeron
 
RA. 7432 and RA 9994 Senior Citizen .pptx
RA. 7432 and RA 9994 Senior Citizen .pptxRA. 7432 and RA 9994 Senior Citizen .pptx
RA. 7432 and RA 9994 Senior Citizen .pptxJFSB1
 
Ashutosh Yadav v. State of UP 22nd March, 2024 All HC.pdf
Ashutosh Yadav v. State of UP 22nd March, 2024 All HC.pdfAshutosh Yadav v. State of UP 22nd March, 2024 All HC.pdf
Ashutosh Yadav v. State of UP 22nd March, 2024 All HC.pdfVidit Agrawal
 
ENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened to
ENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened toENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened to
ENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened toirenelavilla52178
 
Hungarian legislation made by Robert Miklos
Hungarian legislation made by Robert MiklosHungarian legislation made by Robert Miklos
Hungarian legislation made by Robert Miklosbeduinpower135
 
Are There Any Alternatives To Jail Time For Sex Crime Convictions in Los Angeles
Are There Any Alternatives To Jail Time For Sex Crime Convictions in Los AngelesAre There Any Alternatives To Jail Time For Sex Crime Convictions in Los Angeles
Are There Any Alternatives To Jail Time For Sex Crime Convictions in Los AngelesChesley Lawyer
 
Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...
Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...
Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...Rich Bergeron
 
Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...
Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...
Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...Rich Bergeron
 
Choosing the Right Business Structure for Your Small Business in Texas
Choosing the Right Business Structure for Your Small Business in TexasChoosing the Right Business Structure for Your Small Business in Texas
Choosing the Right Business Structure for Your Small Business in TexasBrandy Austin
 

Recently uploaded (15)

Town of Haverhill's Summary Judgment Motion for Declaratory Judgment Case
Town of Haverhill's Summary Judgment Motion for Declaratory Judgment CaseTown of Haverhill's Summary Judgment Motion for Declaratory Judgment Case
Town of Haverhill's Summary Judgment Motion for Declaratory Judgment Case
 
OMassmann - Investment into the grid and transmission system in Vietnam (2024...
OMassmann - Investment into the grid and transmission system in Vietnam (2024...OMassmann - Investment into the grid and transmission system in Vietnam (2024...
OMassmann - Investment into the grid and transmission system in Vietnam (2024...
 
1990-2004 Bar Questions and Answers in Sales
1990-2004 Bar Questions and Answers in Sales1990-2004 Bar Questions and Answers in Sales
1990-2004 Bar Questions and Answers in Sales
 
Right to life and personal liberty under article 21
Right to life and personal liberty under article 21Right to life and personal liberty under article 21
Right to life and personal liberty under article 21
 
Power Point Obligations and contracts Article 1313-1327
Power Point Obligations and contracts Article 1313-1327Power Point Obligations and contracts Article 1313-1327
Power Point Obligations and contracts Article 1313-1327
 
Illinois Department Of Corrections reentry guide
Illinois Department Of Corrections reentry guideIllinois Department Of Corrections reentry guide
Illinois Department Of Corrections reentry guide
 
Town of Haverhill's Motion for Summary Judgment on DTC Counterclaims
Town of Haverhill's Motion for Summary Judgment on DTC CounterclaimsTown of Haverhill's Motion for Summary Judgment on DTC Counterclaims
Town of Haverhill's Motion for Summary Judgment on DTC Counterclaims
 
RA. 7432 and RA 9994 Senior Citizen .pptx
RA. 7432 and RA 9994 Senior Citizen .pptxRA. 7432 and RA 9994 Senior Citizen .pptx
RA. 7432 and RA 9994 Senior Citizen .pptx
 
Ashutosh Yadav v. State of UP 22nd March, 2024 All HC.pdf
Ashutosh Yadav v. State of UP 22nd March, 2024 All HC.pdfAshutosh Yadav v. State of UP 22nd March, 2024 All HC.pdf
Ashutosh Yadav v. State of UP 22nd March, 2024 All HC.pdf
 
ENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened to
ENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened toENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened to
ENG7-Q4-MOD3. determine the worth of ideas mentioned in the text listened to
 
Hungarian legislation made by Robert Miklos
Hungarian legislation made by Robert MiklosHungarian legislation made by Robert Miklos
Hungarian legislation made by Robert Miklos
 
Are There Any Alternatives To Jail Time For Sex Crime Convictions in Los Angeles
Are There Any Alternatives To Jail Time For Sex Crime Convictions in Los AngelesAre There Any Alternatives To Jail Time For Sex Crime Convictions in Los Angeles
Are There Any Alternatives To Jail Time For Sex Crime Convictions in Los Angeles
 
Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...
Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...
Town of Haverhill's Statement of Material Facts For Declaratory Judgment Moti...
 
Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...
Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...
Town of Haverhill's Statement of Facts for Summary Judgment on Counterclaims ...
 
Choosing the Right Business Structure for Your Small Business in Texas
Choosing the Right Business Structure for Your Small Business in TexasChoosing the Right Business Structure for Your Small Business in Texas
Choosing the Right Business Structure for Your Small Business in Texas
 

Legal Writing Portfolio

  • 1. DIANE WARREN FLYNN 107 Ploughed Neck Road • East Sandwich, MA 02537 • (617) 827-1376 • dlwflynn@comcast.net www.linkedin.com/in/dianewarrenflynn INTERNATIONAL CORPORATE PARALEGAL Highly self-motivated paralegal and business professional with extensive experience in corporate law, lobbying law, real estate law, estate planning, probate, civil litigation, office administration, marketing, business development and client relations. Recognized for independent judgment, competence and sound decision-making in support of top management. Able to comprehend complex materials and summarize and present information for executive review. Proven ability to integrate technology to meet organizational goals. Resourceful and confident project manager committed to excellence and client satisfaction. Valued member of executive team with excellent leadership, communication, organization and problem-solving skills. Outstanding performance in establishing rapport with both clients and colleagues. Able to remain calm under pressure. Trusted advisor, liaison and assistant. • Legal writing and research • File management and maintenance • Manage multiple demands/deadlines • Time management ability • Strict attention to detail • Independent thinking • Written and verbal communication • Organizational leadership / team member • Effective liaison between clients and firm Thorough understanding of office operations, policies, and procedures. Proficient in Microsoft Word, Excel, PowerPoint, Outlook, QuickBooks, LexisNexis, Westlaw Next, Directorpoint, Legal Suite, Workshare, Timeslips, ACT, Constant Contact and Swift Page PROFESSIONAL EXPERIENCE INTERNATIONAL FUND FOR ANIMAL WELFARE, INC., Yarmouth Port, MA 2015-present Corporate Paralegal • Assist General Counsel with corporate governance matters for IFAW’s global entities including company formation, maintenance of minute books and other corporate records. Coordinate and track compliance filings. • Respond to internal and external requests for corporate records and information, including resolutions, certificates of good standing, and apostilled/legalized documents. • Liaise with outside counsel in foreign jurisdictions to ensure proper preparation, registration and filing of compliance documentation. Review outside counsel invoices. • Gather information, review, summarize and analyze data relative to assigned research projects. • Research state and federal lobbying laws and registration/filing requirements. Prepare and file state lobbying reports and maintain lobbying activity database. • Attend all board/committee meetings and take meeting minutes in role as Assistant Clerk to U.S. entity. • Research, launch and maintain board portal for directors’ access to all board meeting materials. • Communicate with board members to coordinate execution of corporate documents. BRENNAN, WASDEN & PAINTER LLC, Savannah, GA 2013-2014 Legal Assistant • Assisted partners with preparation of motions, pleadings, and other legal/court documentation in busy civil litigation practice. Created and proofread documents, perform cite checking. • Organized litigation files and other legal documentation. Maintained and updated files as necessary. • Managed commercial and residential real estate transactions, drafted probate filings and estate planning documentation. Created business entities, prepared Crummey letters for ILITs. • Maintained court calendar, tracked filing deadlines. Recorded attorney time data and maintained billing and expense records.
  • 2. DIANE WARREN FLYNN Page 2 OFFICE OF THE GENERAL COUNSEL, Gloucester, MA 2013 Paralegal Intern • Conducted legal research, drafted affidavits; organized commercial real estate project files. Completed online title searches to determine deeded rights in a waterway and a potential encroachment on city owned property and drafted Memorandum reporting results. • Researched and prepared summaries of federal and state gun laws; wrote case briefs for federal and state case law relative to gun law; compiled comprehensive legal reference for office use. THE ATLANTIC RESTAURANT GROUP, Marshfield, MA 2006-2012 Sales and Marketing Manager – Atlantic License Brokers, 2011-2012 • Provided administrative, sales and marketing support to start-up licensing division specializing in the sale of liquor licenses to restaurant owners throughout Boston and Southeastern MA. • Collaborated with web designer to create new website. Wrote web copy and press releases. • Initiated contact and established rapport with key staff at Boston Licensing Board. Obtained and maintained ABCC data. Built gross business sales from zero to over $1M within first three months. Administrative Manager / Marketing Assistant – Atlantic Real Estate Group, 2010-2011 • Recruited by owner to set up and manage newly acquired, underperforming real estate office. Coordinated all aspects of office reorganization and renovations. Obtained corporate real estate license. • Prepared and filed Articles of Organization with Secretary of State to create new corporation. Set up corporate account with Department of Revenue (DOR). Obtained employee and 1099 tax forms. • Provided marketing/sales support to twelve real estate agents. Set up process to track transactions. Conducted monthly staff meetings. Researched, purchased and trained agents in new software. Implemented policies to meet compliance requirements for file maintenance and security. Office Manager / Marketing Assistant – Atlantic Restaurant Group, 2006-2010 • Provided administrative and paralegal support to owner of a commercial real estate brokerage firm specializing in the sale of restaurant businesses, assets and real estate • Drafted written correspondence and drafted and reviewed legal documents/contracts. Proofread and edited press releases. Maintained website and client database. Created listing information sheets via website and mass marketing communications with target members. HOAG & SULLIVAN, Marshfield, MA 1988-2005 Paralegal • Provided paralegal support in progressively responsible positions at a high volume law firm. Coordinated commercial and residential real estate closings on behalf of individual clients and various lending institutions. • Gathered and analyzed research data including title examinations/rundowns, trusts, 21E reports, property taxes, UCC financing statements, zoning decisions and building codes. Drafted written correspondences and legal documents. • Served as liaison with attorneys, clients, lenders, law firms, brokers, title insurance companies and surveyors. • Managed foreclosure proceedings of commercial and residential properties, initiated and prepared bankruptcy filings and assisted with estate planning. • Assisted in preparation of civil litigation proceedings including drafting complaints, answers and counterclaims. ______________________________________________________________________________ EDUCATION Associate of Science in Paralegal Studies (2013) North Shore Community College, Danvers, Massachusetts – GPA 4.0 American Bar Association Approved
  • 3. 3 Table of Contents 1. Letters a. Confirming Conversation 4 b. Deposition Transcript Enclosure 5 c. Deposition Confirmation 6 d. 93A Letter 7 2. Case Briefs a. Minnesota v. Dickerson 9 b. Upton v. JWP Businessland 11 c. Hunting v. Elders 12 d. In re Hrones 14 3. Memoranda of Law a. Landowner Duties 16 b. Malpractice Claim 20 c. Division of Stock Options 24 4. Complaints a. Goldsmith v. Boston Movie Theater Company 27 b. Smith v. Larry’s Landscape Supplies, LLC et al 31 5. Answers and Counterclaims a. Smith v. Larry’s Landscape Supplies, LLC et al (Hammersmith) 34 b. Smith v. Larry’s Landscape Supplies, LLC et al (Larry’s Landscape Supplies, LLC) 37 6. Motions a. Motion for Temporary Order 40 b. Motion for Summary Judgment 42 c. Memorandum of Law in Support of Motion for Summary Judgment 44 7. Interrogatories 51 8. Deposition Summary 54 9. Appellate Brief 57
  • 4. 4 Jones & Associates, LP 123 Main Street Lawrence, Massachusetts 01840 May 24, 2013 Mary Smith, Esq. Smith, Days & Roe 45 Church Street Lowell, MA 01852 RE: Deposition of Elizabeth Connors Connors v. City of Lawrence Dear Attorney Smith: In connection with the above-referenced matter, this letter is to confirm our conversation today in which you stated that you will represent the plaintiff, Elizabeth Connors, for a deposition at the law office of Jones & Associates, LP, 123 Main Street, Lawrence, Massachusetts, on September 6, 2013, at 10:00 a.m. If you have any questions, please do not hesitate to call me. Very truly yours Diane Warren Flynn Paralegal cc: Robert Jones, Esq. Sally Walker, Esq.
  • 5. 5 Dillon & Associates 555 West Hartford Street Hartford, Connecticut 06101 February 14, 2013 Via Overnight Delivery Ms. Suzanne Nichols 12 Mountainview Terrace Avon, CT 06001 RE: Deposition of February 13, 2013 Nichols v. The TJX Companies, Inc. Dear Ms. Nichols: Enclosed is a copy of the transcript of your February 13, 2013 deposition. Please review the transcript carefully and note any statements that were incorrectly transcribed. You may not rewrite your testimony, but you should note any inaccurate transcriptions. You may correct the spelling of names and places. If you find any serious mistakes, please call me to discuss the problems. When you review the deposition, please do not mark the original transcript. Instead, note any discrepancies on a separate sheet of paper. Please note the page and line of any discrepancies. I will have my assistant type a list of the discrepancies, and we will discuss these changes before we send them to the court reporter. These changes must be received by the court reporter within 30 days; therefore, I would appreciate your prompt review of the transcript and would like to review your changes by March 6, 2013. If we fail to provide the changes to the court reporter within 30 days, we will forfeit your right to correct the transcript and any inaccuracies will be part of the record. If you have any questions, please do not hesitate to call me. Thank you for your cooperation in advance. Very truly yours, Enc. Diane Warren Flynn Paralegal
  • 6. 6 Silver & Associates 321 Main Street Natick, Massachusetts 01760 May 24, 2013 Via Facsimile (508) 555-1212 Michael Gold, Esq. Gold, Diamond & Sapphire, PC 987 Gemstone Way Framingham, MA 01701. RE: Stevens v. Apple Orchard, Inc. Internal reference number: 6531354 Dear Attorney Gold: In connection with the above-entitled matter, this letter is to confirm our conversation today in which you stated that you will represent the plaintiff, Alissa Stevens, for a deposition at the law office of Silver & Associates, 321 Main Street, Natick, Massachusetts, on October 8, 2013, at 10:00 a.m. If you should have any questions, please do not hesitate to call me. Very truly yours, Diane Warren Flynn Paralegal cc: Peter Hickey, Esq.
  • 7. 7 Sanders & Sanders, LP 90 Belkins Way, Suite 400 Peabody, Massachusetts 01960 May 24, 2013 VIA CERTIFIED MAIL – RETURN RECEIPT REQUESTED Mark Jones, Esq. General Counsel and Vice President Sears Holdings Corporation 3333 Beverly Road RE: Claim for Damages and Demand under M.G.L. c. 93A Dear Attorney Jones: Please be advised that this office represents the interests of Ms. Rebecca Stapleton. I am writing to you under the provisions of Massachusetts General Laws, Chapter 93A, Section 9, the Consumer Protection Act. I am writing to request relief as outlined in that statute. In March of 2013, Ms. Stapleton purchased a new clothes dryer from Sears for the sum of $800.00. She also purchased an extended warranty in the amount of $100.00 which covers the costs of any new parts needed for the machine, but not the labor cost of any service call. Beginning on April 1, 2013, the following events occurred: On April 1, 2013, during the first time Ms. Stapleton used her new washing machine, it did not rinse the soap from her clothes. She had to run the rinse cycle three times to get all the soap out and then hand wring her clothes to get out the excess water. She called Sears to request repair of the machine but was informed that service could not be provided until April 13th . On April 4, 2013, she spent $10.00 at the laundromat to wash her clothing. When the Sears serviceman arrived on April 13, 2013, Ms. Stapleton was informed that another part was needed and that he would return in two weeks to install it. A service call fee of $75.00 was charged. On April 15, 2013, Ms. Stapleton spent $20.00 at the laundromat to wash her clothing. The Sears repairman returned on April 25, 2013 and installed the new part. Another service call fee was charged in the amount of $125.00. The machine was in good working order on April 30, 2013. On May 5, 2013, the washing machine failed to properly rinse the clothing once again. Ms. Stapleton incurred an additional cost to launder her clothing in the amount of $10.00. She contacted Sears once again to schedule an appointment to repair the washing machine.
  • 8. 8 The Sears serviceman returned on May 10, 2013 to service the machine a third time. No parts were required but a service call fee of $75.00 was charged. The washing machine was in good working order during use on May 11-12, 2013. On May 15, 2013, the washing machine did not properly rinse the clothes again, at which point it overflowed and flooded Ms. Stapleton’s basement. As a result, she paid a cleaning service $500.00 to dry her basement floors on May 16, 2013. To date, Ms. Stapleton has paid a total of $275.00 to Sears for reparations to a brand new washing machine in addition to $100.00 for the extended parts warranty; however, her washing machine is still not operational. I believe that these acts are declared unlawful by Section 2 of Chapter 93A, which declares unfair or deceptive acts or practices in the conduct of any trade or commerce unlawful. My client has suffered loss of money and property in the amount of $540.00. This sum represents the full cost of the clean-up of Ms. Stapleton’s basement and the laundromat expenses incurred to wash her laundry when the washing machine was inoperable. This letter serves as my client’s request for the following relief: $540.00 and the delivery and installation of a new washing machine to replace the defective one. Under the provisions of Section 9 of Chapter 93A, I am providing you with the opportunity to make a written offer of settlement of this claim within 30 days. If you fail to make a good faith offer of settlement in response to this request, and Ms. Stapleton institutes legal action, a court may award Ms. Stapleton triple damages, attorney’s fees and costs if the court finds in her favor. I may be reached at the address written above, or at 978-740-0000 between the hours of 9:00am and 5:00pm, Monday through Friday. I look forward to hearing from you. Very truly yours, Andrew Jones, Esq. cc: Rebecca Stapleton AJ/dwf
  • 9. 9 CASE BRIEF CASE CITATION: Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) COURT OF DECISION: The United States Supreme Court JUDICIAL HISTORY: Defendant’s motion to suppress seizure of crack cocaine from defendant’s person was denied by the District Court, Hennepin County. The Minnesota Court of Appeals reversed. The State appealed. The Minnesota Supreme Court affirmed. The State’s petition for certiorari was granted. KEY FACTS: At 8:15pm on November 9, 1989, two officers patrolling outside a notorious ‘crackhouse’ noticed respondent leaving the building. Respondent began walking toward squad car until making eye contact with an officer, and then abruptly changed direction, raising the officer’s suspicion. Officer watched respondent turn down an alley. Based on respondent’s evasive behavior and his presence in a building known for cocaine traffic, officer stopped respondent and conducted a patdown search. The search revealed no weapons, but officer took interest in a small lump in respondent’s jacket pocket. Officer examined lump with fingers stating that “it slid and it felt to be a lump of crack cocaine in cellophane.” Tr. 9 (Feb. 20, 1990). The officer then reached into respondent’s pocket and retrieved a small plastic bag containing one fifth of one gram of crack cocaine. Respondent was arrested and charged with possession of a controlled substance. Respondent moved to suppress the cocaine. ISSUE: Whether the Fourth Amendment permits the seizure of contraband detected through a police officer’s sense of touch during a protective patdown search. HOLDING: The Fourth Amendment does not permit the seizure of contraband detected through a police officer’s sense of touch during a protective patdown search unless the contraband strictly adheres to the plain-view doctrine. REASONING: Under the Fourth Amendment, searches and seizures conducted without prior approval by a judge or magistrate are unreasonable – subject only to a few exceptions. One such exception states that when a police officer suspects criminal activity, he may briefly stop the suspicious person and make “reasonable inquiries”. When the officer is justified in believing that the individual he is investigating at close range is armed and presently dangerous to the officer or others, he has the right to conduct a patdown search to determine if the person is carrying a weapon. This sort of protective search without a warrant, based on reasonable suspicion rather than probable cause, is strictly limited to the discovery of weapons that could be used to harm the officer or others nearby. If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid and the results will be suppressed. The plain-view doctrine stipulates that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and therefore no “search” within
  • 10. 10 the meaning of the Fourth Amendment. However, the officer determined that the lump was contraband only after invasively manipulating the contents of the defendant’s pocket which the officer already knew contained no weapon. The officer’s continued exploration of respondent’s pocket was outside the scope of the allowable search and therefore resulted in an unauthorized evidentiary search. The officer’s further search of respondent’s pocket was constitutionally invalid and the seizure of the cocaine that followed was also unconstitutional. DISPOSITION: Affirmed.
  • 11. 11 CASE BRIEF 1. Citation: Upton v. JWP Businessland, 425 Mass. 756, 682 N.E.2d 1357 (1997) 2. Court: Supreme Judicial Court of Massachusetts 3. Judicial History: Norfolk County Superior Court entered summary judgment for the defendant. Supreme Judicial Court of Massachusetts granted plaintiff’s application for direct appellate review. 4. Facts: A single mother accepted employment with the verbal understanding that her hours of work would be 8:15am to 5:30pm with the need to work late one or two days each month. After four months of employment, employer’s expectations exceeded originally agreed upon hours, when employer demanded 13-14 hour work days, six days a week. Employee was terminated two weeks after informing her employer that she would not be able to work the expanded hours because of her parental responsibilities. 5. Issue: Whether it is a violation of public policy for employers to demand that their adult employees work expanded hours regardless of parental responsibilities? 6. Holding: No. 7. Reasoning: It was first determined that, in the absence of an employment contract, the plaintiff was defined as an at-will employee. The general rule is that an at-will employee may be terminated at any time for any reason or for no reason at all. The public policy exception makes redress available to employees who are terminated for asserting a legal right, for doing what the law requires or for refusing to disobey the law. However, there is no clearly established public policy which requires employers to refrain from demanding that their adult employees work long hours. The record showed there was no promise in a contractual sense that restricted the work hours of the employee, only an inquiry made by the plaintiff and a reply by the employer during the interview process. 8. Decision: Decision affirmed. 9. Concurring Opinion: None. 10. Dissenting Opinion: None.
  • 12. 12 CASE BRIEF CASE CITATION: Hunting v. Elders, 359 S.C. 217, 597 S.E.2d 803 (2004) COURT OF DECISION: Court of Appeals of South Carolina JUDICIAL HISTORY: Plaintiff was issued judgment against Defendant by trial court. Defendant filed appeal with South Carolina Appellate Court on phase II of judgment which declared William Elders as alter ego of Elmyer Enterprises, Inc. and therefore personally liable for the judgment against the corporation. KEY FACTS: William Elders is the operator of a bar named Willie’s, owned by Elmyer Enterprises, Inc. (the ‘corporation’). Samuel Chris Gordon (co-defendant) was a patron at Willie’s and was served alcohol in spite of his obvious intoxicated state. Mr. Gordon left the bar intoxicated and subsequently caused an accident that left Catherine Hitchcock permanently brain damaged. Carol Hunting, as guardian ad litem for Catherine Hitchcock, brought suit against Mr. Gordon, the Corporation and Mr. Elders, individually, as the alter ego of the corporation. At this point, it is important to relate that this was a bifurcated case. In the first phase of the case, the court found in favor of the plaintiff and awarded a judgment in the amount of $1.5 Million in actual damages as well as $3,000 in punitive damages against Mr. Gordon and $25,000 in punitive damages against the corporation. In the second phase, which is the subject of the appeal, a non-jury trial established that, based on Mr. Elder’s actions, the corporate veil should be pierced thereby holding Mr. Elder’s personally liable for the judgment against the corporation. During the trial, a forensic accountant testified that Elders had siphoned between $400,000 and $800,000 from the business over a three year period. It was also established that the capital used to fund the corporation was only $1,000 and had not increased. A law professor testified that the company was grossly undercapitalized given the inherent risks of operating a business serving alcohol. It was also noted that the property and equipment used to operate Willie’s were leased from companies also owned by Mr. Elders. Mr. Elders argued that detailed records were never kept but that the reported income was accurate. He also stated that as an S corporation, the same level of business formalities was not required. It was also disclosed during trial that in 1993, Mr. Elders had transferred stock into the names of his wife and niece and also made the corporate officers. The niece testified that she was had no knowledge of this action, although Mr. Elders had presented corporate minutes that stated she was present for the meeting to elect officers. ISSUE: Whether the actions of a corporate officer have met the standards necessary to pierce the corporate veil and ultimately make the officer personally liable for a judgment against the corporation. HOLDING: Yes, the actions of William Elders as a corporate officer did meet the necessary
  • 13. 13 standards in order to pierce the corporate veil and thereby render him personally liable for the judgment against Elmyer Enterprises, Inc. REASONING: Generally, when considering a request to pierce the corporate veil, a court places the burden of proof on the party requesting the action. It is widely held by the courts that a corporation is regarded as a legal entity until sufficient reason to the contrary appears; but when the notion of legal entity is used to protect fraud, justify wrong, or defeat public policy, the law will regard the corporation as an association of persons. In Sturkie, a two-pronged test was used to determine whether to pierce the corporate veil. To disregard corporate protection, an eight-factor analysis was created in Dumas v. InfoSafe Corp., 320 S.C. 188, 463 S.E. 2d 641 (Ct.App.1995). A number of these must apply, but not all: (1) whether the corporation was grossly undercapitalized; (2) failure to observe corporate formalities; (3) non-payment of dividends; (4) insolvency of the debtor corporation at the time; (5) siphoning of funds of the corporation by the dominant stockholder; (6) non-functioning of other officers or other directors; (7) absence of corporate records; and (8) the fact that the corporation was merely a facade for the operations of the dominant stockholder; When applying these factors, it was found that (1) the corporation failed to remain properly capitalized; (2) the corporation failed to observe corporate formalities; (3) the dominant stockholder siphoned funds from the corporation; (4) the corporate officers were inactive. The court agreed with the trial court that a sufficient number of the eight factors were met to move on to the second prong of the test. The second part requires that the plaintiff prove (1) that the defendant was aware of the plaintiff’s claim against the corporation, and (2) thereafter, the defendant acted in a self-serving manner with regard to the property of the corporation and in disregard of the plaintiff’s claim in the property. There is evidence that indicates Elders knew of the plaintiff’s claim against the corporation and that, as the trial court found, he nevertheless acted in a self-serving and unfair manner by siphoning off substantial sums of money, commingling and transferring assets which he held in his own name to different entities, transferring stock in the corporation to other individuals without a valuable consideration, and then finally dissolving the corporation. DISPOSITION: Affirmed.
  • 14. 14 CASE BRIEF CASE CITATION: In re Hrones, 457 Mass. 844 (2010) COURT OF DECISION: Supreme Judicial Court of Massachusetts JUDICIAL HISTORY: Board of Bar Overseers’ hearing committee recommended suspension of respondent. On appeal, Board of Bar Overseers adopted hearing committee’s subsidiary findings with modifications. Single Justice of the Supreme Judicial Court, Suffolk County, Ireland, J., reserved the case and reported it without decision. KEY FACTS: An attorney (Hrones) hired a law school graduate, who had not passed the bar examination, as a paralegal (Porter) at attorney’s law firm. Said paralegal was knowledgeable in employment discrimination law and had appeared before the Massachusetts Commission Against Discrimination (MCAD) and entered into a business arrangement with attorney where paralegal would use law firm’s name and attorney’s license to practice law to develop a practice in employment discrimination. All fees would be paid to the firm and attorney would compensate paralegal two-thirds of all fees collected and retain one-third. Attorney had no expertise in the area of employment discrimination. Paralegal was expected to operate an independent practice without supervision of any kind. Paralegal told attorney that he was not required to be a member of the Massachusetts bar to practice before the MCAD. Both reviewed an unidentified statute or regulation that confirmed this policy. Attorney permitted paralegal to sign his name to various court filings without prior review. Paralegal began handling discrimination cases in his sole discretion: setting fees, filing complaints, drafting pleadings, conducting discover, counseling clients as to their legal rights, settling cases, and moving cases from MCAD to State or Federal court, all without attorney supervision. In June, 2003, the MCAD assessed sanctions against the attorney in connection with misconduct of the paralegal. Attorney took no action in response to sanctions. In November, 2003, attorney, his firm, and the paralegal, were suspended from practice before the MCAD for failure to pay sanctions. Approximately forty cases were pending at the time but no action was taken to address reassignment of existing cases. Between February and October, 2004, attorney received multiple complaints of neglect filed by employment discrimination clients. In October 2004, attorney terminated paralegal after learning that a client’s fee payment had not been remitted. ISSUE: Whether an attorney can be held liable for assisting in the unauthorized practice of law by a non- attorney employee without specific intent. HOLDING: Yes, an attorney can be held liable for assisting in the unauthorized practice of law by a non- attorney employee without specific intent. REASONING: Rule 5.5(b) of the Massachusetts Rule of Professional Conduct, 426 Mass. 1410 (1998), prohibits an attorney from “assist[ing] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” The paralegal established fees, negotiated settlements and rendered legal advice after establishing an attorney client relationship. The attorney was aware of the extent of paralegal’s practice before the MCAD, was aware that the paralegal’s practice was unsupervised, did not arrange for his actions
  • 15. 15 to be supervised, and was aware that the paralegal was not an attorney. DISPOSITION: Judgment was entered suspending the attorney from the practice of law in the Commonwealth for one year and one day.
  • 16. 16 Memorandum of Law To: Attorney Judy Judgment From: Diane Warren Flynn Date: December 11, 2012 Subject: Victoria V. v. U Shop Mall Facts Victoria V. parked her car under a light at the U Shop Mall, anticipating that it would be dark when she finished shopping. Unknown to her, the bulb was out. When exiting the mall, Victoria V. was sexually assaulted in the mall parking lot. A security guard is employed by the mall to patrol its two parking areas which takes about 30 minutes each. The security guard had reported that the bulb was out 24 hours prior to Victoria V.’s assault, but there were no replacement bulbs on hand. Records indicated that one month prior to the assault, three cars were broken into and a mugging took place in the mall’s parking area. Two weeks prior to the assault, the U Shop Mall received a report of sexual assault that took place in a neighboring shopping center about 2 miles away. No occurrence of sexual assault has ever been reported in the U Shop Mall or its parking lot. Issue(s) Does a landowner have a duty to protect others from attack by third parties? Discussion When examining the duty of U Shop Mall to protect Victoria V. from attack by a third
  • 17. 17 party, it is assumed that the cause of action would be negligence. In Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666, 863 P.2d 207, 25 Cal. Rptr. 2d 137 (1993), the court states: “An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” Id. The duty owed by a landowner is established through California law in Civ. Code, §1714 and case law, requiring “landowners to maintain land in their possession and control in a reasonably safe condition,” Id. When comparing the facts of Victoria’s case with Ann M. v. Pacific, there is a similarity in the landlord’s general duty of maintenance, owed to both tenants and patrons. The landlord is required to take reasonable steps to prevent foreseeable criminal acts of third parties that are likely to occur. It is the foreseeability of criminal acts that is a crucial factor in determining duty. California has adopted the policy of considering all circumstances in determining the business landowner’s responsibilities. Foreseeability weighed heavily in the defendants favor in the court case because the landlord was not aware of any criminal activity on the premises. Without prior knowledge of a similar prior incident on or in the premises, it would be nearly impossible to prove any level of foreseeability. The court made it clear that without foreseeability, there is no duty. It was concluded that “the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises”. Id. The absence of parking lot security is a pivotal argument. The landlord did not provide a security guard for the property and was under no obligation according to the terms of the lease.
  • 18. 18 The plaintiff argued that security should have been provided and was requested by the tenants. The court ruled that there must be a balance between foreseeability of criminal acts and the burden placed on the landlord to deter them. In other words, if the expense to protect is great, then the foreseeability of crime must be equally substantial. “We conclude that a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards.” Id. Consequently, the court refused to address whether the landlord’s failure to provide security guards was a proximate cause of Ann M.’s injuries. In the case of Victoria V., circumstances present a stronger case. Proving foreseeability was established via written reports in the possession of the landowner. The broken light bulb that was not replaced, combined with the recent thefts and muggings were clear indicators that the present security measures were inadequate to insure the safety of tenants and patrons. While there was no prior report of a sexual assault on the immediate premises, there was a similar incident reported within two miles of the mall. A clear pattern of increased criminal activity was established with the full knowledge of the landowner. With these facts in mind, it stands to reason that duty of care is more likely to be proven. However, if the court holds hard and fast to the requirement of prior similar acts of violent crime, the strength is compromised. The sexual assault reported within a 30 day period took place two miles away from the U Shop Mall. In addressing another contrast in circumstances, it cannot be overlooked that the U Shop Mall provided the services of a security guard. This fact implies an acknowledgement of duty of care by the landlord that the court case did not possess. The burned out light bulb that was reported but not replaced moves beyond duty of care to demonstrate a breach of that duty. This
  • 19. 19 was an example of a minimal burden on the landlord with maximum foreseeability. Although it cannot be determined with certainty that the light would have deterred the assailant, it stands to reason that the likelihood would have been significantly diminished if the area had been properly lit. It can be concluded that the facts of the Victoria V. case are on only slightly better footing when attempting to overcome the stumbling blocks of the court case, namely meeting the foreseeability requirement to establish the landlord’s duty. Conclusion In spite of the obvious similarity in nature of the assaults, their general location relative to a landlord’s duty, and the claim of negligence, the circumstances of these incidents are quite different. Essentially, one critical statement differentiates the two cases by a narrow margin: “Foreseeability is a crucial factor in determining the existence of duty”. Id. Without this factor, the defendant could not be found negligent. However, U Shop Mall cannot claim ignorance to the heightened criminal activity in the parking areas. The greatest challenge remains in the absence of foreseeability based on a prior incident of a similar nature on the immediate premises. Whether the court will take the sexual assault occurring in a neighboring shopping plaza into consideration is an unknown. If not, Victoria V.’s case is no better positioned for success than Ann M.’s.
  • 20. 20 Memorandum of Law To: Attorney Hirbour From: Diane Warren Flynn RE: Bill Broker Malpractice Claim Date: March 4, 2013 Facts Bill Broker is a partner in You R Home Real Estate Associates (“YRH”), a real estate business that utilizes the legal services of Oliver, Wendell & Holmes (“OWH”), a local law firm. The law firm has represented the interests of YRH in various business matters for more than ten years. During a party at Bill Broker’s house on July 4th , Bill launched an illegal fireworks display. One of the rockets caused a fire in his neighbor Barbara’s house. While the house was not a total loss, there was serious damage. There were no personal injuries. Barbara demanded payment of $10,000 for damages. At that time, Bill called OWH and conveyed the previous day’s events to Greg, the paralegal who usually assisted Bill with YRH’s annual reports. In turn, Greg summarized the facts to Kim Holmes, a partner in the firm who was with another client at the time. Kim said “[t]hat’s not my area and I think he ought to call a tort lawyer, but I’d pay the money and avoid more trouble if it were me.” Greg relayed that comment to Bill and Bill wrote Barbara a check that afternoon. Several weeks later, Bill was interviewed by a police officer about the incident and later brought criminal charges. When Bill’s insurance company learned of the criminal charges his homeowner’s policy was cancelled, triggering a default on his mortgage and a foreclosure proceeding.
  • 21. 21 Issue(s) Whether an attorney-client relationship between Bill Broker and Oliver, Wendell & Holmes has been established. Discussion When examining the potential existence of an attorney-client relationship between Bill Broker and OWH, the elements required to establish this relationship are clearly set forth in DeVaux v. American Home Assurance Com., 387 Mass. 814 (1982): An attorney-client relationship need not rest on an express contract. An attorney-client relationship may be implied "when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney's professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance...In appropriate cases the third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it.” When comparing the facts of Bill Broker’s case with DeVaux v. American Home Assurance Com., there is a significant difference in the level of communication and specificity of instructions given by the defendant’s secretary. When the plaintiff called to speak with the attorney, it was the secretary that returned her call and advised her to write a letter to the store owner explaining the circumstances of her fall, a letter to the attorney requesting legal assistance and also arranged for a medical examination of the plaintiff’s injuries. In fact, the secretary’s involvement in the case was extensive enough for the plaintiff to assume an attorney-client relationship had been established based on her conversation and consequently executed each act as directed. The court indicated that “an attorney should not permit lay persons even to appear to
  • 22. 22 form the attorney-client relationship with a prospective client, because that is part of the practice of law.” Id. In the Broker case, the brief advice that the attorney casually, albeit irresponsibly, conveyed via her paralegal was insufficient to establish the relationship, particularly when the statement immediately preceding was that the issue was “not my area” and subsequently advised Bill Broker to call a tort lawyer. Under the required elements to establish an attorney-client relationship, this disclaimer provides a strong argument that the relationship was not formed as a result of the conversation between Bill Broker and the paralegal. In the case of Fanaras Enters. v. Doane, 423 Mass. 121 (1996), it was determined that the established business relationship between plaintiff and defendant in no way constitutes a personal attorney-client relationship. The plaintiff never requested the defendant’s professional legal advice but simply “relied” on the defendant to protect him. “That reliance may or may not have been reasonable, but it did not establish an attorney-client relationship…”. Id. This same principal can be applied to the Brady case and therefore hindering a successful outcome. He was relying on the attorney to protect him but that was not a wise assumption. Bill Brady chose to disregard the primary advice he was given and implemented the callous remark instead. Conclusion In spite of the obvious differences in fact patterns amongst these three cases, the general circumstances raising the question as to whether an attorney-client relationship had been established provide a foundation to determine what actions do and do not constitute this relationship. The strongest argument against the Brady case lies in the elements of an attorney- client relationship. Specifically, when Attorney Holmes stated that this was “not her area” and suggested Bill Brady contact a tort attorney, she effectively removed herself from the possibility
  • 23. 23 of creating an attorney-client relationship. Her subsequent remark may serve to cloud the issue, but the disclaimer will likely provide a defense against the accusation. Under these circumstances, it seems unlikely that Bill Brady will be successful in his claim against OWH. However, given the dissimilar fact patterns of the cases used, it would be prudent to do more research to seek out a ruling on a more comparable scenario.
  • 24. 24 OFFICE MEMORANDUM OF LAW TO: Shannon Murphy Barnes, Esq. RE: Division of Stock Options FROM: Diane Warren Flynn, Paralegal DATE: April 24, 2013 CASE: Smith v. Smith OFFICE FILE NUMBER: 37-14 DOCKET NUMBER: (none at this time; no action has been filed) 1. STATEMENT OF THE ASSIGNMENT You have asked me to assess whether our client, Trudy Smith, is entitled to an apportionment of her husband Peter’s stock options, including those vested and unvested, none of which have been exercised, with his current employer pursuant to Mass. Gen. Laws ch. 208, § 34. I have focused my research on the analysis of Baccanti v. Morton, 434 Mass. 787, 752 N.E.2d 718 (2001). Case law suggests that the argument strongly favors Mrs. Smith’s position. 2. ISSUE AND SUMMARY CONCLUSION Issue: Whether a spouse’s vested and unvested stock options are considered part of the marital estate and therefore subject to division of marital assets under Massachusetts law. Summary Conclusion: Yes. 3. FACTS Peter and Trudy Smith have been married for fifteen years. Trudy Smith is filing for a divorce from Peter. Trudy and Peter will live separately in their current residences with shared physical custody of their two children, ages 11 and 13. Trudy is a CPA but has only recently returned to the workforce in a part time capacity since the birth of her children. During the marriage, Trudy was the primary caregiver of the children and maintained the home while Peter was the financial provider. Peter is a highly successful corporate accountant with a national firm with an annual compensation totaling $275,000. Trudy’s annual earnings are $32,500. Trudy will receive child support until such time as the last child reaches the age of 21 and spousal support for a period not to exceed ten years and six months. Over the course of his employment with Account Specialists, Inc., Peter has been awarded stock options, some of which are vested, others are not. All of the stock options were earned during the marriage. 4. DISCUSSION/ANALYSIS When examining how the division of stock options is addressed as a marital asset in Massachusetts, state statute and court precedent must both be reviewed. According to Mass. Gen. Laws ch. 208, § 34, “the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits,…pension, profit-sharing, annuity, deferred compensation and insurance.” In Baccanti, the court interprets the law by stating that “[A]lthough the statute does not expressly mention stock options, the language in the statute that a party’s ‘estate’ includes ‘all vested and nonvested
  • 25. 25 benefits, rights and funds’ clearly indicates that both vested and unvested stock options may be treated as marital assets.” Id. at 794-95. Mass. Gen. Laws ch. 208, § 34 also sets forth conditions to consider when dividing marital property including the length of marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony awarded, and the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. The similarities in family composition and spousal responsibilities between the Smiths and those in Baccanti suggest that it would be reasonable to expect the court to arrive at a similar decision in awarding stock options. Both couples were married for a significant length of time; 9 (Baccanti) and 15 (Smith) years; both husbands were the primary financial providers; both wives were caretakers of their children and responsible for the maintenance and operation of the marital home. It should be noted that in Baccanti, the non-employee spouse was ultimately awarded one-half of the vested and unvested stock options. A small distinction in the two cases lies in that Ms. Baccanti worked part-time throughout her nine year marriage, whereas Trudy Smith returned to the workforce a little over a year ago. It is assumed that Ms. Baccanti’s income would have been a necessity assuming her husband’s annual income was considerably less than Peter Smith’s earnings. Nonetheless, this is a point for consideration. Where all of Peter Smith’s stock options were earned during the marriage, it would be difficult for him to defend the argument that the vested stocks should not be considered part of the marital property and subject to division. The central issue in Trudy Smith’s case revolves around the treatment of unvested options that will vest after the dissolution of the marriage. In the Baccanti opinion, the court found that the burden of proof lies with the employee spouse to show that the stock options were granted for future services and that the non-employee spouse made no contribution to the acquisition of the asset. Should the burden of proof be met, then the portion of unvested stock options to be awarded to the non-employee spouse is determined at the discretion of the judge. Use of a ‘time rule’ as a manner of calculating what portion of the unvested stocks will be included in the marital property is outlined in the opinion. While present division of assets is preferred, it is not always feasible. Instead, an order for future division would be issued when and if the options are exercised. Without full knowledge of the circumstances under which Peter Smith’s unvested stock options will fully vest, it is difficult to ascertain whether or not Trudy Smith made a contribution to their acquisition during the marriage. This would be a weak point in her claim
  • 26. 26 to a share of the unvested stock options and a foothold for Peter Smith to argue in favor of excising the unvested stocks from the marital estate. 5. CONCLUSION Trudy Smith’s contribution to Peter’s achievement is clearly taken into account according to Massachusetts statue and is further supported by court precedent. As caretaker of the home and family, Trudy’s role aligns with the non-employee spouse’s role in Baccanti and will likely bring the same outcome in terms of an award of Peter’s vested stock options. Although it would be difficult for Peter to prove that his wife made no contribution to the acquisition of the unvested stock options, this is a potentially vulnerable area for Trudy Smith should he contest division of those specific assets. 6. RECOMMENDATIONS There is further investigation still needed. First, we should ascertain whether Peter Smith intends to contest the division of stock options as a marital asset. Second, it would be advantageous to review Peter Smith’s stock option plan to determine what special conditions, if any, exist in order for non-vested options to become vested. In the event Peter objects to the division, he may attempt to prove that the vesting of his unvested stock options is dependent upon factors unaffected by Trudy’s contributions during their marriage i.e. future employment, future achievements or future project completion. Finally, given the similarities between the Smith’s circumstances and the Baccanti case, I think it is reasonable for Trudy Smith to request and receive a fifty percent share of all vested and unvested stock options as part of the marital estate. 7. APPENDIX Attached is case.
  • 27. 27 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION CASE NO. Marissa Goldsmith, ) Plaintiff ) ) v. ) ) Boston Movie Theater Company, ) Defendant ) ) COMPLAINT PARTIES 1. The plaintiff, Marissa Goldsmith, is an individual residing at 10 Water Street, Boston, Suffolk County, Massachusetts. 2. The defendant, Boston Movie Theater Company (hereinafter Theater) is the owner and in control of certain premises known as the Boston Movie Theater Company, a corporation duly organized and existing under the laws of the Commonwealth of Massachusetts with a principal place of business at 200 Park Street, Boston , Suffolk County, Massachusetts. FACTS 3. The plaintiff is a part-time student at Boston Community College and enrolled the nursing program. 4. The plaintiff is employed at Rolly’s Restaurant as a waitress for approximately 20 hours a week. 5. On or about the 23 rd day of March, 2012, the plaintiff was lawfully on the premises as an invitee of the defendant to view a movie in the theater along with two friends.
  • 28. 28 6. During the progress of the entertainment there conducted the plaintiff received and suffered severe bodily injuries in consequence of the careless, defective, and negligent condition of the premises, as the seat which the plaintiff was invited to use collapsed, sending her crashing to the floor. 7. As she fell, the plaintiff struck her chin on an arm rest and then landed hard on her backside and wrist. Consequently, she suffered a gash on her chin, severe bruising on her backside and a sprained wrist. 8. The plaintiff required emergency medical attention at Massachusetts General Hospital where she received sutures to close the gash and a splint to immobilize the sprained right wrist. An inflatable ring was also provided by emergency medical staff to ease the pain involved in sitting due to a bruised coccyx bone. 9. The plaintiff continues to attend classes but cannot fully participate in her assignments due to the impeded functionality of her right hand which is her writing hand. 10. The plaintiff cannot perform her duties at work as a waitress because she is unable to meet the physical requirements involved in lifting and carrying trays of food and beverages. 11. A full recovery of the plaintiff’s injuries will require a minimum of 5 weeks. 12. As a result of the broken chair, the plaintiff received and suffered severe bodily injuries, suffered great pain of body and mind, has been put to great expenses for medicines, medical services, and attendance, and has been incapacitated for her usual occupations. NEGLIGENCE 13. The plaintiff repeats and realleges the allegations contained in paragraphs 1 through 12 as if each were set forth fully herein.
  • 29. 29 14. On or about March 23, 2013, and/or at all material times, the defendant, through its agents, servants or employees, had a duty to provide seating in good working order for its patrons. 15. On or about March 23, 2013, and/or at all material times, the defendant, through its agents, servants or employees, breached its duty by failing to use due care when it failed to properly inspect and/or repair all seats prior to allowing patrons to enter the premises and seat themselves in broken theater seating. 16. Due to the negligence of the defendant, the plaintiff was caused to suffer serious personal injuries when her chair collapsed to the floor. 17. As a direct and proximate result of the defendant’s negligence, the plaintiff was caused to suffer and continues to suffer bodily pain and loss of wages, has incurred medical expenses for her care and attendance, and has suffered an impairment to her ability to enjoy life and attend to her usual activities. 18. The plaintiff was at all times in the exercise of due care and free of all comparative or contributory negligence. 19. The plaintiff has satisfied all conditions precedent to the bringing of this action.
  • 30. 30 WHEREFORE the plaintiff demands judgment against the defendant for damages, interest, and costs. Respectfully submitted, By her attorney, Dated: May 30, 2013 Halye Sugarman BBO #654321 123 Middlesex Way Bedford, MA 02134 (978) 123-4567
  • 31. 31 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 10.12CV01544 Joseph Smith, ) Plaintiff ) ) v. ) ) Larry’s Landscape Supplies, LLC ) and ) Jesse James Hammersmith, ) Defendants ) ) COMPLAINT AND JURY CLAIM PARTIES and FACTS 1. The plaintiff, Joseph Smith, is an individual residing in Lynn, Essex County, Massachusetts. 2. The defendant, Larry’s Landscape Supplies, LLC (hereinafter Larry’s Landscape) is a corporation duly organized and existing under the laws of the Commonwealth of Massachusetts with a principal place of business at 140 North Sturbridge Road, Charlton, Worcester County, Massachusetts and a registered agent at 23 Deer Run, Charlton, Worcester County, Massachusetts. 3. The defendant, Jesse James Hammersmith (hereinafter Hammersmith), is an individual residing in Lynn, Essex County, Massachusetts. 4. The defendant Hammersmith is an employee of defendant Larry’s Landscape. 5. A witness, Jake Sake, is an individual residing in Lynn, Essex County, Massachusetts.
  • 32. 32 6. On or about September 30, 2012, plaintiff was walking in a crosswalk on a public way called Main Street in Lynn, Essex County, Massachusetts when defendant Hammersmith, driving a truck owned by defendant Larry’s Landscape, negligently drove a motor vehicle, striking the plaintiff causing plaintiff to suffer serious personal injuries as the result of the defendants’ negligence. 7. The witness reported to responding law enforcement officers that the truck was travelling at an excessive rate of speed when the plaintiff was struck. THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT COUNT I – NEGLIGENCE 8. The plaintiff repeats and reavers the foregoing paragraphs as if each were set forth fully herein. 9. On or about September 30, 2012, and/or at all material times, the defendants, through their agents, servants or employees, had a duty to operate the vehicle with due care. 10. On or about September 30, 2012, and/or at all material times, the defendants, through their agents, servants or employees, breached their duty by failing to use due care when recklessly operating the motor vehicle. 11. Due to the negligence of the defendants the plaintiff was caused to suffer serious personal injuries when he was struck in the crosswalk. 12. As a direct and proximate result of the defendants’ reckless negligence the plaintiff was caused to suffer and continues to suffer bodily pain and mental anguish, has incurred medical expenses for his care and attendance, has suffered from a loss of wages and an impairment to his ability to enjoy life and attend to his usual activities.
  • 33. 33 13. The plaintiff was at all times in the exercise of due care and free of all comparative or contributory negligence. 14. The plaintiff has satisfied all conditions precedent to the bringing of this action. WHEREFORE, the plaintiff demands judgment against the defendant in the amount of his damages, plus interest and costs. JURY CLAIM The plaintiff claims a trial by jury on this cause of action. Respectfully submitted, By his attorneys, LAW OFFICES OF IMA GOOD Ima Good BBO #123456 6 Night Street Salem, MA 01970 (978) 744-0075 Dated: October 11, 2012
  • 34. 34 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 10.12CV01544 Joseph C. Smith, ) Plaintiff ) ) v. ) ) Larry’s Landscape Supplies, LLC ) and ) Jesse James Hammersmith, ) Defendants ) ) ANSWER Defendant Jesse James Hammersmith answers the Amended Complaint as follows: 1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph1 of the Amended Complaint and therefore denies each and every allegation contained therein. 2. Admitted. 3. Admitted. 4. Admitted. 5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the Amended Complaint and therefore denies each and every allegation contained therein. 6. Defendant admits that he was operating the motor vehicle involved in the incident of September 30, 2012, but denies the remaining allegations in paragraph 6. 7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 7 of the Amended Complaint and therefore denies each and every allegation contained therein.
  • 35. 35 THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT COUNT I – NEGLIGENCE The allegations in this count are not directed to this defendant and accordingly no response by this defendant is made to the count. In the event it is ever determined that this count is directed to this defendant, this defendant reserves his right to respond to this count. COUNT II NEGLIGENCE 15. The defendant Hammersmith repeats and reavers paragraphs 1 through 7 as if each were set forth fully herein. 16. Admitted. 17. Denied. 18. Denied. 19. Denied. 20. Denied. 21. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 21 of the Amended Complaint and therefore denies each and every allegation contained therein. AFFIRMATIVE DEFENSES 1. Plaintiff's negligence was the sole cause or a contributing cause of the injury. 2. The injuries of which Plaintiff complains were caused by Plaintiff's negligence in the following respects: a. In failing to take reasonable precaution for his own safety by looking for oncoming motor vehicles prior to crossing a street; and
  • 36. 36 b. In failing to use care by recklessly running out into the street with careless disregard for oncoming motor vehicles in the immediate proximity thereby depriving a driver of reasonable reaction time to stop a motor vehicle; and c. In failing to keep a proper lookout for his own safety at the time and place. 3. Defendant denies each and every allegation of the Amended Complaint by which Plaintiff seeks to impose liability upon it and denies that it has been guilty of any actionable conduct in the premises. 4. Defendant alleges that it observed and discharged each and every duty required of it by law and due care. 5. Defendant alleges that Plaintiff's injuries, however described, resulted solely and proximately from conditions and/or conduct for which Defendant is not liable or responsible, and Defendant has no liability in the premises. WHEREFORE, defendant Jesse James Hammersmith respectfully prays that this Court: 1. Dismiss Plaintiff’s Amended Complaint and all claims and relief. 2. Grant Defendant his reasonable attorney’s fees and costs of this action; and 3. Grant Defendant such other and further relief as the Court deems just and proper. Respectfully submitted, By his attorneys, LAW OFFICES OF THOMAS MURPHY Dated: October 17, 2012 THOMAS MURPHY BBO #123458 10 Night Street Salem, MA 01970 (978) 744-0076
  • 37. 37 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 10.12CV01544 Joseph C. Smith, ) Plaintiff ) ) v. ) ) Larry’s Landscape Supplies, LLC ) and ) Jesse James Hammersmith, ) Defendants ) ) ANSWER Defendant Larry’s Landscape Supplies LLC answers the Amended Complaint as follows: 1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph1 of the Amended Complaint and therefore denies each and every allegation contained therein. 2. Admitted. 3. Admitted. 4. Admitted. 5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph1 of the Amended Complaint and therefore denies each and every allegation contained therein. 6. Defendant admits that it owns the motor vehicle involved in the motor vehicle accident of September 30, 2012, but does not have sufficient knowledge or information to form a belief as to
  • 38. 38 the truth of the allegations in paragraph 6 of the Amended Complaint and therefore denies each and every allegation contained therein. 7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph7 of the Amended Complaint and therefore denies each and every allegation contained therein. THE PLAINTIFF’S CLAIM AGAINST THE DEFENDANT COUNT I – NEGLIGENCE 8. The defendant Larry’s Landscape repeats and reavers the foregoing paragraphs as if each were set forth fully herein. 9. Admitted. 10. Denied. 11. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 11 of the Amended Complaint and therefore denies each and every allegation contained therein. 12. Denied. 13. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 13 of the Amended Complaint and therefore denies each and every allegation contained therein. 14. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 14 of the Amended Complaint and therefore denies each and every allegation contained therein.
  • 39. 39 COUNT II NEGLIGENCE The allegations in this count are not directed to this defendant and accordingly no response by this defendant is made to the count. In the event it is ever determined that this count is directed to this defendant, this defendant reserves his right to respond to this count. FIRST AFFIRMATIVE DEFENSE Plaintiff’s claims against defendant Larry’s Landscape Services, LLC fail to state a claim upon which relief can be granted or are barred due to the fact that at all times relevant to this action, defendant Jesse James Hammersmith was not acting within the scope of his respective employment as authorized agent of Larry’s Landscape Services, LLC. WHEREFORE, the defendant Larry’s Landscape Services, LLC requests that plaintiff’s Amended Complaint against defendant Larry’s Landscape Services, LLC be dismissed. Respectfully submitted, By his attorneys, LAW OFFICES OF MARY JONES MARY JONES BBO #123457 8 Night Street Salem, MA 01970 (978) 744-0076 Dated: October 17, 2012
  • 40. 40 COMMONWEALTH OF MASSACHUSETTS TRIAL COURT Essex Division PROBATE & FAMILY COURT CIVIL ACTION (DIVORCE) DOCKET NO. ES13D247DR ) Trudy Smith, ) Plaintiff ) ) PLAINTIFF’S MOTION FOR v. ) TEMPORARY ORDERS ) Peter Smith, ) Defendant ) ) The plaintiff, Trudy Smith, moves that the Court enter the following temporary orders: 1. That the defendant be ordered to pay $4,000.00 per month for the maintenance of the minor children, Tabitha, age 13, and PJ, age 11, pursuant to M.G.L.A. c. 208 § 19 and the Massachusetts Child Support Guidelines enacted pursuant to M.G.L.A. c. 211B, § 15. 2. That the defendant be ordered to pay $2,000.00 per month for temporary support for the plaintiff. 3. That the defendant be ordered to maintain in full force and effect his life insurance policies for the benefit of the plaintiff and said minor children. 4. That the defendant be ordered to maintain in full force and effect the medical, hospital and dental insurance for the benefit of the plaintiff and said minor children. 5. That the plaintiff be granted primary physical custody of said minor children. 6. That the defendant be ordered to pay the plaintiff’s and said minor children’s reasonable medical, hospital, dental, optical and pharmaceutical expenses not covered by insurance. 7. That the defendant be ordered to transfer to the plaintiff title ownership of the unencumbered 2009 Jeep Grand Cherokee for plaintiff’s free and uninterrupted use.
  • 41. 41 8. For such further relief as this court deems just and proper under the circumstances. In support hereof the plaintiff states that the gross income of the defendant exceeds that of the movant by $242,500.00, and cites in support thereof the sworn financial statements filed by the parties pursuant to Mass.Supp.Probate R. 401, and further states that since the separation of the parties on January 5, 2013, said defendant has failed to contribute to the support of said minor children while in plaintiff’s care. WHEREFORE, plaintiff respectfully requests that the above temporary orders be entered on her behalf. RESPECTFULLY SUBMITTED FOR TRUDY SMITH BY HER ATTORNEY Diane Warren Flynn 123 Main Street Salem, MA 01970 Telephone: 978-934-1234 BBO # 275439 Dated: February 14, 2013 CERTIFICATE OF SERVICE A copy of the aforesaid Motion has this day been served on the defendant, by mailing a copy thereof postage prepaid to John Smith, the attorney of record for the defendant, at 456 Washington Street, Salem, MA, 01970, together with notice that the Motion has been marked for hearing on March 1, 2013 at 10:00am in the Essex Division of the Probate and Family Court at 36 Federal Street, Salem, MA. Dated: February 14, 2013 Attorney for the Plaintiff
  • 42. 42 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION CASE NO. 2013-54321A Robert Dylan, ) Plaintiff ) ) v. ) ) Lindsay Lohan and ) George Clooney, ) Defendants ) ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Now comes defendant Mr. George Clooney, pursuant to Mass. R. Civ. P. 56, and respectfully moves for summary judgment on the grounds that Mr. Clooney cannot be held liable for the actions of his party guest. Mr. Clooney did not know nor should have known that his guest was intoxicated, did not knowingly give her an alcoholic drink while in an intoxicated state and did not knowingly permit her to operate a motor vehicle in an intoxicated state. Additionally, duty cannot be imposed on Mr. Clooney because he did not control or regulate the supply of liquor that his guest consumed. In further support of this motion, Mr. Clooney submits the accompanying Memorandum of Law in Support of His Motion for Summary Judgment, which sets forth Mr. Clooney’s arguments in detail.
  • 43. 43 Respectfully submitted, GEORGE CLOONEY, By his attorney, Halye A. Sugarman BBO #654321 123 Middlesex Way Bedford, MA 02134 (978) 123-4567 Dated: June 19, 2013
  • 44. 44 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION CASE NO. 2013-54321A Robert Dylan, ) Plaintiff ) ) v. ) ) Lindsay Lohan and ) George Clooney, ) Defendants ) ) DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT Now comes defendant Mr. George Clooney, pursuant to Mass. R. Civ. P. 56, and respectfully moves for summary judgment. The plaintiff, Robert Dylan, alleges that Mr. Clooney is liable for the actions of an intoxicated party guest, Lindsay Lohan, operating a motor vehicle and thereafter resulting in a vehicular accident. Summary judgment should be granted on Mr. Dylan’s allegations of negligence because Mr. Clooney cannot be held liable for the actions of his party guest. Mr. Clooney did not know nor should have known that his guest was intoxicated, did not knowingly give her an alcoholic drink while in an intoxicated state or knowingly permit her to operate a motor vehicle in an intoxicated state. Additionally, duty cannot be imposed on Mr. Clooney because he did not control or regulate the supply of liquor. Therefore, Mr. Dylan’s claim of negligence contains no genuine issues of material fact and consequently fails as a matter of Massachusetts law.
  • 45. 45 FACTS Mr.Dylan alleges that on May 15, 2012, defendant Mr. Clooney was liable, as a social host, for injuries Mr. Dylan suffered as a result of a motor vehicle accident when defendant Lindsay Lohan, who was driving while intoxicated after leaving a party hosted by Mr. Clooney, crossed lanes and hit his car. Mr. Dylan has alleged negligence against Mr. Clooney. On May 15, 2012, Mr. Clooney hosted a party in celebration of his recent graduation from law school and passing of the bar exam. Approximately 30 guests were invited to bring their own alcoholic beverages. Mr. Clooney provided several juices, a bottle opener, a wine bottle opener, buckets of ice and drinking glasses. Two bottles of champagne were the only alcohol provided by Mr. Clooney. (See transcript of Mr. Clooney’s deposition p. 25:1-8.) Mr. Clooney stated that he assumed his guests would be drinking, as he had invited them to bring their own alcohol. (See transcript of Mr. Clooney’s deposition p. 30:5-7.) All guests were 21 years of age or older. Mr. Clooney stood by the door to greet his guests. At 8:00 pm that evening, Ms. Lohan arrived carrying three bottles of Absolut vodka. Mr. Clooney briefly greeted Ms. Lohan and shortly thereafter, she went to the kitchen to mix a drink. Ms. Lohan stated that “I saw that he had some other drinks but I didn’t drink any of his alcohol. I did use the cups and juice he provided.” (See Ms. Lohan’s Answers to Interrogatories p. 5.) Mr. Clooney entertained his guests and danced throughout the evening but never saw Ms. Lohan mix her drinks. Mr. Clooney also did not see Ms. Lohan drink the champagne he put out for his guests. Throughout the evening, Mr. Clooney saw Ms. Lohan drinking from a cup but did not know what she was drinking. He also saw her dancing on the deck with her boyfriend and some other guests. Mr. Clooney and Ms. Lohan did not actually speak to each other at any point during the night, other than a brief hello at the beginning of the night.
  • 46. 46 At approximately midnight, Ms. Lohan left the party to go home. Mr. Clooney did not attempt to stop her or prevent her from driving her vehicle. He stated that “I did not talk to Lindsay during the party, other than to say a brief hello, and I did not think she seemed drunk when she left.” (See transcript of Mr. Clooney’s deposition p. 45:21-22.) Ms. Lohan stated that “I did not think I was drunk when I left the party. I said hello to George when I arrived and I think he saw me dancing, but I didn’t talk to him at all.” (See Ms. Lohan’s Answers to Interrogatories p. 7.) On her way home, Ms. Lohan swerved precariously between lanes and hit Mr. Dylan’s vehicle. Mr. Dylan has sustained serious injuries as a result of the accident. ARGUMENT I. Summary Judgment Standard Summary judgment should be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56c. The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the moving party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Where the party moving for summary judgment does not have the burden of proof at trial, this burden may be met by either submitting affirmative evidence that negates an essential element of the opponent’s case, or by “demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).
  • 47. 47 II. Summary Judgment Should Be Granted Because Mr. Clooney, As A Social Host, Did Not Owe A Duty To Third Parties From Negligent Driving Of An Intoxicated Guest. Mr. Dylan alleges that Mr. Clooney owed him a duty pursuant to social host liability, to prevent his guests from operating a motor vehicle while intoxicated. In fact, Mr. Clooney owed no duty Mr. Dylan because Mr. Clooney did not know nor should have known Ms. Lohan was intoxicated and did not have control of the liquor she consumed. A. Summary Judgment Is Warranted Because Mr. Clooney Did Not Know Nor Should Have Known That His Guest Was Intoxicated, Did Not Knowingly Give Her An Alcoholic Drink While In An Intoxicated State And Did Not Knowingly Permit Her To Operate A Motor Vehicle In An Intoxicated State. A social host is liable to a person injured by an intoxicated guest’s negligent operation of a motor vehicle when a social host knew or should have known that the guest was drunk, gave her or permitted her to take an alcoholic drink and thereafter, due to intoxication, the guest negligently operated a motor vehicle causing a third person’s injury. McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986). In McGuiggan, there was no evidence that (1) the social hosts knew that their guest was intoxicated at any time while at their home; or that (2) the guest was obviously intoxicated at any relevant time. Id. at 161. Therefore, the court found that there were insufficient grounds to hold the social hosts liable for the third party injuries suffered as a result of their guest’s actions in the motor vehicle accident. Consistent with that finding, Mr. Clooney did not know nor should have known that his guest was drunk. He did not serve Ms. Lohan any alcohol and did not know what she was drinking while in his home. He spoke with her only once throughout the evening and saw her only once while dancing. Ms. Lohan’s testimony concurs with Mr. Clooney’s account when stating “I said hello to George when I arrived and I think he saw me dancing, but I didn’t talk to him at all.” (See Ms. Lohan’s Answers to Interrogatories p. 7.) At no point did Ms. Lohan
  • 48. 48 appear obviously intoxicated. Mr. Clooney testified that he “did not think she seemed drunk when she left”. (See transcript of Mr. Clooney’s deposition p. 45:21-22.) Therefore, in applying case law, summary judgment should be granted as a matter of law because Mr. Clooney did not know nor should have known that his guest was intoxicated, did not knowingly give her an alcoholic drink while in an intoxicated state and did not knowingly permit her to operate a motor vehicle in an intoxicated state B. Summary Judgment Is Warranted Because Mr. Clooney Did Not Control Or Regulate The Supply Of Liquor Consumed By His Guest. A social host is not liable for injuries suffered from negligent driving of an intoxicated guest who drank alcohol which guest brought to host’s party. Ulwick v. DeChristopher, 411 Mass. 401 (1991). In Ulwick, defendant hosted a “B.Y.O.B.” (“Bring Your Own Booze”) party. Defendant did not serve or make any alcohol available to guests. The court found that defendant was not liable for injuries suffered by a third party as a result of a guest’s negligent driving because the social host did not control and therefore could not regulate the supply of liquor. “The ability effectively to control a guest’s excessive drinking is not present when the liquor belongs to the guest”. Id. at 406. In the present case, Mr. Clooney did not provide the alcohol Ms. Lohan consumed and therefore did not possess control over or the ability to regulate her drinking. Ms. Lohan did not consume any of the champagne Mr. Clooney had provided as indicated in her testimony when stating “I saw that he had some other drinks but I didn’t drink any of his alcohol. I did use the cups and juice he provided.” (See Ms. Lohan’s Answers to Interrogatories p. 5.). The liquor she brought with her was mixed with juice provided by the host. Therefore, consistent with case law, Mr. Clooney should be granted Summary Judgment as a matter of law because he did not control or regulate the supply of liquor consumed by his guest.
  • 49. 49 CONCLUSION Mr. Dylan’s claim of negligence contains no genuine issues of material fact and consequently fails as a matter of Massachusetts law. Mr. Clooney, as a social host, did not owe a duty to Mr. Dylan for Ms. Lohan’s negligent driving as an intoxicated guest because Mr. Clooney did not know nor should have known Ms. Lohan was intoxicated and did not have control of the liquor she consumed. Therefore, Mr. Clooney respectfully requests that the court grant Defendant’s Motion for Summary Judgment as to Mr. Dylan’s claim of negligence. . Respectfully submitted, GEORGE CLOONEY, By his attorney, Halye A. Sugarman BBO #654321 123 Middlesex Way Bedford, MA 02134 (978) 123-4567 Dated: June 19, 2013
  • 50. 50 CERTIFICATE OF SERVICE I, Hayle A. Sugarman, certify that on this 19th day of June, 2013, I served by first class mail, postage prepaid, a copy of the foregoing Defendant’s Motion for Summary Judgment and Defendant’s Memorandum of Law in Support of his Motion for Summary Judgment on counsel for the Defendant, John Smith, Esquire 123 Main Street, Suite A Salem, MA 01970 Halye A. Sugarman
  • 51. 51 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 10.12CV01544 Joseph C. Smith, ) Plaintiff ) ) v. ) ) Larry’s Landscape Supplies, LLC ) and ) Jesse James Hammersmith, ) Defendants ) ) PLAINTIFF’S INTERROGATORIES TO DEFENDANT JESSE JAMES HAMMERSMITH (First Set) Defendant Jesse James Hammersmith is hereby required to answer under the penalties of perjury the interrogatories numbered from 1 to 10 inclusive, as shown below, within 45 days of the time service is made upon you, in accordance with Rule 33(a) of the Massachusetts Rules of Civil Procedure. DEFINITIONS Reference is hereby made to Superior Court Standing Order 1-09 to define the terms used herein. INSTRUCTIONS 1. In answering each interrogatory: (a) state whether the answer is within the personal knowledge of the person answering the interrogatory and, if not, the identity of each person known to have personal knowledge of the answer; (b) identify each document that was used in any way to formulate the answer.
  • 52. 52 INTERROGATORIES 1. State your full name, age, residence, place of employment and business address. 2. Was the motor vehicle bearing Massachusetts registration number ABC123 for the year 2012 alleged in the complaint of the plaintiff to have been involved in an accident in which the plaintiff claims to have been injured on September 30, 2012 operated on, at, or near Main Street, Lynn, Essex County, Massachusetts, owned by Larry’s Landscape Supplies, LLC and registered in that name on said day? 3. Identify the operator of the automobile involved in the alleged accident. 4. Describe in the fullest detail how the alleged accident occurred. 5. Describe the points of contact between the defendant’s vehicle and the plaintiff involved in the accident. 6. State the distance in feet from the point of contact with the alleged accident to where the defendant first saw the plaintiff. 7. State the specific location of the plaintiff on Main Street in Lynn, Essex County, Massachusetts at the time of the alleged accident. 8. Describe all street signage and markings within 100 feet on either side of the point of contact of the alleged accident on Main Street in Lynn, Essex County, Massachusetts. 9. Described in detail just what the defendant did in an attempt to avoid the alleged accident. 10. State whether or not you ever made or gave any statement or communication, whether oral or in writing, to anyone regarding the happening of the alleged occurrence, specifying in as much detail as possible.
  • 53. 53 By Plaintiff’s attorney, LAW OFFICES OF JACK SMITH Jack Smith BBO #123456 6 Night Street Salem, MA 01970 (978) 744-0075 Dated: November 5, 2012
  • 54. 54 Deposition of Diana Salvador Volume I – February 18, 2005 Bostwick v. International Healthcare Services, Inc. (Case No. 02-C-04-095273MT) Appearances of Examining Counsel: For Plaintiff Adams: Laura Zois, Esq. Zois & Posner, LLP For Defendant International Healthcare Services, Inc.: Samuel Schneider, Esq. Schneider & Schneider, LLP EXAMINATION OF DIANA SALVADOR BY LAURA ZOIS: Page:Line Topic/Exhibit Summary 4:2 – 4:4 Swearing In Diana Salvador, being duly sworn, testified as follows: 5:21 – 6:21 Background Salvador is a student currently in her junior year at University of Maryland Baltimore School of Nursing. She has resided at her current address in Millerstown, MD for the past six years. She is presently employed as a Certified Nursing Assistant in North Arundel Hospital. 7:3 – 7:17 Employment History Salvador has worked at North Arundel Hospital for almost a year. Prior to that, at the age of 18, she was employed by her father’s company, International Nursing Services, Inc.(INS), as a driver chauffeuring nurses employed by INS to and from their jobs with hospitals in the Baltimore/Washington DC area such as Bon Secours Hospital and Harbor Hospital. Previous to that position, Salvador worked at McDonalds, the aquarium, Walmart, and CVS. 7:18 – 10:8 INS Specifics/Work Requirements Salvador’s family home served as a dormitory for nurses working for clients of INS. As a driver for INS, Salvador’s daily duties consisted of transporting nurses to and from work that did not have a driver’s license. She was 18 years of age when she was employed as a driver for INS. Salvador did not have a special type of license for this work nor did she receive any special training in her capacity as a driver. Salvador received her license at the age of 16 and was 19 years old when the accident occurred. She had never driven in a professional
  • 55. 55 capacity prior to working for her father’s company 10:9 – 11:18 Plaintiff’s Activities Day of Accident Salvador confirmed she was involved in an accident on February 10, 2003. She stated that the accident took place at approximately 7:00pm on that day. She recalled it was a snowy day, that she had been at home watching television, and that she had to take a nurse from her home in Millersville to Harbor Hospital that evening. Nothing out of the ordinary occurred on the day of the accident. 11:19 – 13:2 Route Travelled to and from Harbor Hospital When driving to the hospital, Salvador first said she took Route 97 South to Route 695. She took Exit 12, the Benfield/Newcut exit. Upon further questioning, Salvador then agreed that she got on Route 97 North off of Newcut to Route 695. Travelling on 695 toward Dundalk, she took the exit toward Brooklyn, which is Richie Highway, and travelled all the way down until she reached Harbor Hospital. When returning, she travelled Ritchie Highway South, avoiding Route 695. Trying to take a short cut home, she made a left onto Furnace Branch, then a left on Point Pleasant Road. 13:3 – 13:21 Timeline After turning onto Point Pleasant Road, Salvador was about 15 minutes from home. She left her home at 6:00pm and arrived at Harbor Hospital at 6:20pm. It was approximately 6:22pm when she left the hospital after dropping off her passenger. The accident happened at 7:00pm. 14:1 – 14:9 Shortcut Salvador took a shortcut home with the intention of stopping by a friend’s house to pick up shoes and clothes left there but never made it. 14:10 – 17:16 Traffic/Road Conditions Traffic was going slow. Salvador took her time, travelling slower than usual because of the weather conditions. Furnace Branch Road’s conditions were a little worse than Routes 97 and 695 because it’s a side road. Point Pleasant Road was about the same as Furnace Branch Road because it is also a side road. Her wipers were on as she travelled about 15 minutes on Point Pleasant Road. The speed limit on Point Pleasant Road is 25 miles per hour. Salvador travels that road several times a week so she was very familiar with the bends in the road. 17:15 – 17:16 Ice and Snow Conditions There was snow and ice on the ground and it was snowing out. The roadway was very icy and Salvador could feel her vehicle slipping. 17:17 - 18:20 Events Leading to Accident Salvador started to slow down even more than she had been travelling, knowing the bend was coming. While slowing down, her breaks started to lock up on the ice. On the bend in the road, the vehicle continued as she held onto the wheel, pumping the breaks to further decrease her speed. When the wheels locked up and the vehicle began to cross the median she attempted to steer the vehicle into a yard instead of going into the other direction. As she was trying to turn, her vehicle
  • 56. 56 continued straight ahead. That was when she saw an oncoming vehicle. 18:21 – 22:19 Rate of Speed and Description and Features of Vehicle Salvador confirmed that she started to slide as soon as she hit the bend and stated that her rate of speed at that point was 20 miles per hour based on her speedometer. She was driving a 1999 or 2000 Toyota Tundra with 4-wheel drive engaged at the time of the accident. She started to slip in a curvy area of Point Pleasant Road at 20 miles per hour then reduced her speed to 17 or 18 miles per hour to get around the bend. That is when the vehicle began to slip and the wheel and brakes locked up. The vehicle had antilock brakes that vibrated when the vehicle went into the skid. When the vehicle began to skid, Salvador planned to go off onto the left-hand side of the road into the yard and crossed over the yellow lines in doing that. 22:20 – 25:10 Collision Salvador estimated that the other vehicle was a few hundred feet away when she first saw it. She was slipping and had already crossed the double lines when she saw it. Impact happened a few seconds after she first saw the other vehicle. She was unable to estimate the rate of speed for either vehicle. The approaching vehicle was within its own lane of travel just beyond the bend when the accident occurred. The vehicles made contact in a head-on collision. 25:11 – 26:2 Post Collision Immediately following the accident, Salvador removed her seatbelt and attended to an injured man in the other vehicle. She opened the passenger side door of the other vehicle and asked if he was okay or hurt. After calling 911, she assessed him. 26:3 – 27:19 Injured Party Assessment He was screaming in pain. The ash tray was pressed up against his knee and so she pushed it to the side. She told him the paramedics were on their way and stayed with the injured man until the paramedics arrived. He was bleeding, presumably from the knee area but was coherent, able to speak and scream, and did not appear to have lost consciousness after the accident. Paramedics arrived within 5-10 minutes. Upon their arrival, firemen asked her to return to her vehicle so she never saw the injured man leaving the scene. 27:20 – 29:2 Parties Present at Scene of Accident Paramedics were the first to arrive at the scene, followed by the police. There were other bystanders, one of which offered to call someone on the injured man’s behalf. Salvador called her friend that lived nearby. He arrived with his mother and brother but was denied access to the accident scene. 29:3 – 29:17 Plaintiff Contact and Vehicle Damage Salvador has not had any contact with the plaintiff or the plaintiff’s family members since the accident. Her vehicle was repaired after the accident but she did not have any pictures of her vehicle.
  • 57. 57 MASSACHUSETTS APPEALS COURT Case No. 2013-P-1415 GEORGE CLOONEY, Defendant – Appellant v. BOB DYLAN, Plaintiff – Appellee ON APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT BRIEF OF THE DEFENDANT – APPELLANT, GEORGE CLOONEY Halye A. Sugarman BBO #654321 123 Middlesex Way Bedford, MA 02134 (978) 123-4567 John R. Smith B.B.O. #234567 123 Main Street, Suite A Salem, MA 01970 (978) 345-6789
  • 58. 58 TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………….… ii STATEMENT OF THE ISSUE……… ……………………………………………… 1 STATEMENT OF THE CASE……………………………………………………..… 2 I. Procedural History………………………………………………………… 2 II. Factual History……………………………………………………………. 3 SUMMARY OF ARGUMENT………………….…………………………………… 5 ARGUMENT…………………………………………………………………………. 7 THE SUPERIOR COURT ERRED WHEN INSTRUCTING THE JURY ON THE LAW OF SOCIAL HOST LIABILITY, THEREBY MISINFORMING AND IMPROPERLY INFLUENCING JURY DELIBERATIONS, WHICH RESULTED IN A FINDING AGAINST DEFENDANT-APPELLANT. A. Pursuant to Massachusetts Common Law, Defendant-Appellant, As A Social Host, Did Not Owe A Duty To Third Parties From Negligent Driving Of An Intoxicated Guest……………………................................................................ 12 B. Pursuant to Massachusetts Common Law, Defendant-Appellant Did Not Know Nor Should Have Known That His Guest Was Intoxicated, Did Not Knowingly Give Her An Alcoholic Drink While In An Intoxicated State And Did Not Knowingly Permit Her To Operate A Motor Vehicle In An Intoxicated State………………………………………………………………. 14 CONCLUSION……………………………………………………………………….. 16
  • 59. 59 TABLE OF AUTHORITIES CASES Alioto v. Marnell, 402 Mass. 36, 520 N.E.2d 1284 (1988)………………………………... 13 Christopher v. Father's Huddle Cafe, Inc., 57 Mass.App.Ct. 217, 782 N.E.2d 517 (2003)……………………………………………………………………………………... 10 Cremins v. Clancy,415 Mass. 289, 612 N.E.2d 1183 (1993)……………………………… 15 Daugherty v. Elmcrest, Inc., 853 F.Supp. 561, 741 N.E.2d 92 (Mass. 1994)……………... 12 Hamilton v. Ganias, 417 Mass. 666, 632 N.E.2d 407 (1994)……………………………... 11 Juliano v. Simpson, 461 Mass. 527, 962 N.E.2d 175 (2012)……………………………… 8 Manning v. Nobile, 411 Mass. 382, 582 N.E.2d 942 (1991)………………………………. 14 McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986)…… 12 Mosko v. Raytheon Co., 416 Mass. 395, 622 N.E.2d 1066 (1993)………………………... 9 Nunez v. Carrabba's Italian Grill, Inc., 448 Mass. 170, 859 N.E.2d 801 (2007)…………. 10 O'Flynn v. Powers, 38 Mass.App.Ct. 936, 646 N.E.2d 1091 (1995)……………………… 8 Panagakos v. Walsh, 434 Mass. 353, 749 N.E.2d 670 (2001)…………………………….. 14 Sampson v. MacDougall,60 Mass.App.Ct. 394, 802 N.E.2d 602 (2004)………………… 15 Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 661 N.E.2d 627 (1996)…………... 10 Ulwick v. DeChristopher, 411 Mass. 401, 582 N.E.2d 954 (1991)………………………... 8 RULES Mass. R. Civ. P. 56(b)……………………………..………………………………............... 7
  • 60. 60 STATEMENT OF THE ISSUE Whether the Superior Court erred when instructing the jury on the law of social host liability, thereby misinforming and improperly influencing jury deliberations, which erroneously resulted in a finding against defendant-appellant.
  • 61. 61 STATEMENT OF THE CASE I. Procedural History An action for social host liability arose out of injuries sustained by Plaintiff-Appellee Bob Dylan in a motor vehicle accident on May 15, 2012. On January 10, 2013, Mr. Dylan filed his complaint in Massachusetts Superior Court, Suffolk County, alleging that Defendant- Appellant George Clooney, was liable as a social host for injuries caused by Defendant Lindsay Lohan when driving while intoxicated after leaving a party hosted by Mr. Clooney. On February 16, 2013, Mr. Dylan and Ms. Lohan reached an out of court settlement agreement. On March 1, 2013, Mr. Clooney moved for summary judgment in Suffolk County Superior Court on the grounds that the evidence contained no genuine issues of material fact and consequently failed as a matter of Massachusetts law. After a hearing on April 3, 2013, the Superior Court denied summary judgment. The memorandum and order was issued on April 30, 2013. The Superior Court ruled that there were genuine issues of material fact as to (1) whether Mr. Clooney knew or should have known that Ms. Lohan was drunk; and (2) whether Clooney had “control” over the alcoholic beverages Ms. Lohan drank at the party. Thereafter, the case of Bob Dylan v. George Clooney went to trial on May 23, 2013. A jury decided against Mr. Clooney on June 1, 2013, and awarded Mr. Dylan $250,000 in damages. On June 4, 2013, Mr. Clooney filed an appeal in the Massachusetts Appeals Court, sitting in Suffolk County.
  • 62. 62 II. Factual History Mr. Dylan alleges that on May 15, 2012, defendant Mr. Clooney was liable, as a social host, for injuries Mr. Dylan suffered as a result of a motor vehicle accident when defendant Lindsay Lohan, who was driving while intoxicated after leaving a party hosted by Mr. Clooney, crossed lanes and hit his car. Mr. Dylan alleged social host liability against Mr. Clooney. On May 15, 2012, Mr. Clooney hosted a party in celebration of his recent graduation from law school and passing of the bar exam. Approximately 30 guests were invited to bring their own alcoholic beverages. Mr. Clooney provided several juices, a bottle opener, a wine bottle opener, buckets of ice and drinking glasses. Two bottles of champagne were the only alcohol provided by Mr. Clooney. (See transcript of Mr. Clooney’s deposition p. 25:1-8.) Mr. Clooney stated that he assumed his guests would be drinking, as he had invited them to bring their own alcohol. (See transcript of Mr. Clooney’s deposition p. 30:5-7.) All guests were 21 years of age or older. Mr. Clooney stood by the door to greet his guests. At 8:00 pm that evening, Ms. Lohan arrived carrying three bottles of Absolut vodka. Mr. Clooney briefly greeted Ms. Lohan and shortly thereafter, she went to the kitchen to mix a drink. Ms. Lohan stated that “I saw that he had some other drinks but I didn’t drink any of his alcohol. I did use the cups and juice he provided.” (See Ms. Lohan’s Answers to Interrogatories p. 5.) Mr. Clooney entertained his guests and danced throughout the evening but never saw Ms. Lohan mix her drinks. Mr. Clooney also did not see Ms. Lohan drink the champagne he put out for his guests. Throughout the evening, Mr. Clooney saw Ms. Lohan drinking from a cup but did not know what she was drinking. He also saw her dancing on the deck with her boyfriend and some other guests. Mr.
  • 63. 63 Clooney and Ms. Lohan did not actually speak to each other at any point during the night, other than a brief hello at the beginning of the night. At approximately midnight, Ms. Lohan left the party to go home. Mr. Clooney did not attempt to stop her or prevent her from driving her vehicle. He stated that “I did not talk to Lindsay during the party, other than to say a brief hello, and I did not think she seemed drunk when she left.” (See transcript of Mr. Clooney’s deposition p. 45:21-22.) Ms. Lohan stated that “I did not think I was drunk when I left the party. I said hello to George when I arrived and I think he saw me dancing, but I didn’t talk to him at all.” (See Ms. Lohan’s Answers to Interrogatories p. 7.) On her way home, Ms. Lohan swerved precariously between lanes and hit Mr. Dylan’s vehicle. Mr. Dylan has sustained serious injuries as a result of the accident.
  • 64. 64 SUMMARY OF ARGUMENT The judge incorrectly instructed the jury in the law of social host liability. A social host is liable to a person injured by an intoxicated guest’s negligent operation of a motor vehicle when a social host knew or should have known that the guest was drunk, gave her or permitted her to take an alcoholic drink and thereafter, due to intoxication, the guest negligently operated a motor vehicle causing a third person’s injury. Mr. Clooney did not know nor should have known that his guest was drunk. He did not serve Ms. Lohan any alcohol and did not know what she was drinking while in his home. He spoke with her only once throughout the evening and saw her only once while dancing. Ms. Lohan’s testimony concurs with Mr. Clooney’s account of their contact throughout the evening. At no point did Ms. Lohan appear obviously intoxicated. Mr. Clooney testified that he did not think she seemed drunk when she left. Furthermore, a social host is not liable for injuries suffered from negligent driving of an intoxicated guest who drank alcohol which a guest brought to a host’s party. Mr. Clooney did not provide the alcohol Ms. Lohan consumed and therefore did not possess control over the alcohol or the ability to regulate her drinking. Ms. Lohan did not consume any of the champagne Mr. Clooney had provided as indicated in her testimony. The liquor she brought with her was mixed with juice provided by the host. When properly applying social host liability as established in Massachusetts case law, Mr. Clooney did not know nor should have known that Ms. Lohan was intoxicated, did not knowingly give her an alcoholic drink while in an intoxicated state and did not knowingly permit her to operate a motor vehicle in an intoxicated state nor did he control or regulate the supply of liquor consumed by Ms. Lohan.
  • 65. 65 The Superior Court Judge, when incorrectly instructing the jury as to the law of social host liability, failed to accurately instruct the jurors, thereby preventing them from reaching a decision that accurately exonerates Mr. Clooney from liability in this case.