Thursday, December 01, 2005

What me worry?

We filed a motion to amend our complaint, and all we amended were our possible remedies (which are open to the judge to decide). Since they have all along protested vigorously their innocence, why are they so worried about what will happen if they lose? Since they know they are innocent (ha, ha) why bother wasting their valuable time?
My favorite part is how they say that we are being two faced by asking repeatedly for a trial in short order, but now are amending our complaint. We are amending our complaint as we learn new things. We are ready for a trial anytime, anywhere, anyplace. It is defendants, Flaherty, and others like Menino and the BRA etc., who will do anything and everything they can to delay the trial or get it thrown out on a legal hair splitting

COMMONWEALTH OF MASSACHUSETTS


SUFFOLK, SS SUPERIOR COURT
CIVIL ACTION NO. 05-1798-B



KEVIN McCREA, SHIRLEY KRESSEL, and KATHLEEN DEVINE,
Plaintiffs,

v.

MICHAEL F. FLAHERTY and the BOSTON CITY COUNCIL,
Defendants.


DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION TO FILE SECOND AMENDED COMPLAINT

INTRODUCTION
Now come the Defendants, the Boston City Council and Michael F. Flaherty, in the above-captioned action and hereby oppose the plaintiffs’ motion to file second amended complaint. The plaintiffs seek to amend the complaint in five significant, and wholly inappropriate ways:
1. The plaintiffs seek to include a request to hold the Boston City Council in contempt and impose sanctions for violation of a consent decree entered into between the City Council and the Attorney General in February, 1988;
2. The plaintiffs seek to have this Court impose upon the City Council a mandatory oath requiring councilors to profess their adherence to the Open Meeting Law at the start of each term;
3. The plaintiffs seek a requirement that votes taken by the Boston City Council be posted in various ways and passed at a second vote prior to becoming final;
4. The plaintiffs seek to have this Court fine and strip from office City Councilors remaining on the Council from the time of the 1988 consent decree; and,
5. The plaintiffs ask this Court to impose sanctions upon defendants’ lead counsel in this case.
All of the amendments sought by the plaintiffs are improper. The relief sought by the plaintiffs would constitute an illegal de-facto re-writing of the Boston City Charter, insofar as the requiring of an oath, or amendment to the City Council’s voting procedures. The City Council, under the City Charter, is the judge of its own members. The plaintiffs also seek to have this Court now consider stripping sitting Boston City Councilors from their duly-held and lawful office. To the extent the plaintiffs seek to impose sanctions on the defendants’ counsel, those requests are improper in terms of scope and timing, and are in any event entirely devoid of merit.
For these reasons and those discussed below, the defendants respectfully submit that this Honorable Court should deny the plaintiffs’ motion at this late stage of the proceedings.
BACKGROUND
This litigation concerns the plaintiffs’ allegations that the Boston City Council and its President violated the Massachusetts Open Meeting Law by holding closed-door sessions at various points during 2003, 2004, and 2005. On or about May 6, 2005, the pro se plaintiffs filed their original complaint in this Superior Court action. On or about May 16, 2005, the plaintiffs filed their amended complaint. The plaintiffs sought to invalidate a December 15, 2004 vote of the Boston City Council to extend various Urban Renewal plans in the City of Boston. The plaintiffs also sought an order compelling the City Council to comply with the Open Meeting Law at future meetings. The defendants moved to dismiss. On or about October 18, 2005, Justice Kottmyer of this Court issued her Memorandum of Decision and Order on that motion, allowing it to the extent of dismissing the plaintiffs’ request to invalidate the December 15, 2004 vote on timeliness grounds, but denying the motion in all other respects. The defendants moved for reconsideration of that motion insofar as the denial is concerned. That motion is pending. On or about October 31, 2005, the defendants filed their Answer to the Amended Complaint. On November 21, 2005, the defendants served, pursuant to Superior Court Rule 9A, their motion for summary judgment. On that same day, the plaintiffs served the defendants with their Motion to File Second Amended Complaint. In that complaint, the plaintiffs now seek various sanctions relating to the above-referenced consent decree, and other wide-ranging sanctions and alterations to the Boston City Charter.
DISCUSSION
A party wishing to amend a complaint by adding an additional count after the filing of a responsive pleading must seek permission of the court. Rule 15 of the Mass. Rules of Civil Procedure. Such a motion seeking leave to amend is directed to the discretion of the trial judge. See Forman v. Davis, 371 U.S. 178 (1962). While it is has been ruled that such leave to amend should be granted liberally, DiVenuti v. Reardon, 37 Mass.App.Ct. 73, 77 (1994), allowance of a motion to amend is not automatic. Terrio v. McDonough, 16 Mass.App.Ct. 163, 167 (1983). Numerous grounds exist which might warrant the denial of a motion to amend, and these include undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies in a pleading by prior amendment, undue prejudice, and futility of amendment. Manfrates v. Lawrence Plaza Ltd Partnership, 4l Mass.App.Ct. 409, 413 (1996). Denials based on undue delay are generally coupled with consideration of other factors such as prejudice to the opposing party. Sharon v. Newton, 437 Mass. 99, 102 (2002).
In this case, the plaintiffs’ Motion to Amend is the result of undue delay, which would result in considerable undue prejudice, and should be denied for this reason if no other. Moreover, the proposed amendments would in any event prove futile, and would not survive a motion to dismiss, as the relief they seek to request in their amended complaint would be wholly improper and in some cases impossible as a matter of law. Finally, the defendants leave it for this Court to determine whether the plaintiffs bring their motion in bad faith. Particularly, the defendants would respectfully ask this Court to note that the plaintiffs served this motion, without notice of any kind, after demanding a trial date, and served it the same day the City served a dispositive motion.

1. The Plaintiffs’ request is the result of undue delay.
As noted above, the denial of a motion to amend based on undue delay is generally coupled with consideration of other factors such as prejudice to the opposing party. Sharon v. Newton, 437 Mass. 99, 102 (2002). Cf. Sullivan v. Iantosca, 409 Mass. 796, 800 (1991) (no prejudice where trial not imminent and discovery was far from complete).
In Sharon v. Newton, the defendant City sought to amend its answer to add an affirmative defense, a move the plaintiff opposed on grounds of undue prejudice. The trial judge allowed the amendment, and the Supreme Judicial Court affirmed the judge’s exercise of discretion because the proposed amendment “did not raise a new issue on the eve of trial and could not be considered futile or irrelevant. . . .” The same clearly cannot be said here. The plaintiffs have repeatedly asked this Court to accelerate the proceedings, and on numerous occasions have criticized what they perceive to be delays caused by the defendants. The plaintiffs gave no indication of their intent to seek amendment prior to serving the motion in open court, on the same day the defendants served a dispositive motion. To allow amendment now, with a dispositive motion pending, after the plaintiffs have repeatedly insisted that this matter be resolved in a timely fashion, would unduly prejudice the defendants.

2. The proposed amendments would be futile.
It is proper to deny a motion to amend where the amendment would be futile and would not survive a motion to dismiss. Mathis v. Massachusetts Elec. Co., 409 Mass. at 265; Mancuso v. Kinchla, 60 Mass.App.Ct. 558, 572 (2004). Cf. Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 314 (1986)(motion to amend properly denied where proposed amendment would not cure defect in complaint).
Here, the plaintiffs propose to amend their complaint in significant and wide-ranging respects. None of the claims they seek to address in the amendments would survive a defendants’ motion to dismiss.
First, the plaintiffs seek to enforce a consent decree entered into between the City Council and the Attorney General in 1988.[1] The plaintiffs do not have standing to enforce this consent decree. The Boston City Council and the Massachusetts Attorney General entered into this consent decree in February, 1988, at the conclusion of litigation centering on alleged violations of the Open Meeting Law. None of the plaintiffs in this case were parties to the 1988 action, and the plaintiffs here have no right to enforce that decree. It is a settled principle that a consent judgment, such as the one entered in the 1987 litigation, conclusively determines the rights of the parties as to all matters within its scope. See Fishman v. Alberts, 321 Mass. 280, 281 (1947)("The great weight of authority supports the principle that [a consent judgment] is as binding and conclusive upon the parties as if it had been entered after a trial and a determination of all the issues"); Levy v. Crawford, 33 Mass.App.Ct. 932, 933 (1992)("As a general proposition, an agreement for judgment serves as a waiver of all matters within the scope of that judgment"); Thibbitts v. Crowley, 405 Mass. 222, 227 (1989) (burden on party to modify consent judgment entered against it more formidable than had party litigated and lost). In addition, an agreement for judgment is a separate and valid contract whereby the parties make a "free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment." Thibbitts v. Crowley, supra, quoting United States Steel Corp. v. Fraternal Ass'n of Steel Haulers, 601 F.2d 1269, 1274 (3d Cir.1979). Therefore, the 1988 Consent Decree is a contract between the Attorney General and the Boston City Council. It is a similarly well-established principle that a contract creates no rights in a third-party unless that party is identified in the contract. The Supreme Judicial Court has recognized that, "when one person, for a valuable consideration, engages with another, by simple contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement." Rae v. Air-Speed, Inc., 386 Mass. 187, 195 (1982), quoting Brewer v. Dyer, 7 Cush. 337, 340 (1851). In order to recover as a third-party beneficiary, the plaintiffs must show that they are intended beneficiaries of the contract between the Boston City Council and the Attorney General. See Rae v. Air-Speed, Inc., 386 Mass. at 195. A party is an intended beneficiary where "the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance." Id. at 194, quoting Restatement (Second) of Contracts § 302(1)(b) (1981). The plaintiffs here are not identified in the Consent Decree, and have no rights to enforce it. Their proposed amendment would not survive a motion to dismiss and should therefore not be allowed.
Second, the plaintiffs seek to impose a host of new requirements concerning the qualifications and procedures of the Boston City Council. Under the plaintiffs’ proposed relief, City Councillors, upon swearing in at the start of each annual session, would be required to subscribe an oath pledging adherence to the Open Meeting Law. Next, the plaintiffs seek to have this court modify the process by which a vote of the Boston City Council would become final. The plaintiffs also seek to have this Court fine and strip from office any City Councilor remaining from the time of the 1988 Consent Decree. These requirements would plainly impose restrictions and limitations on the members of the City Council without foundation in the Boston City Charter and would therefore constitute an improper and de facto amendment of the Boston City Charter. The plaintiffs would involve this Court in the realm of matters intimate to the City Council and committed exclusively to the City Council by statute. All of the requests for relief proposed by the plaintiffs’ lie squarely outside this Court’s jurisdiction and are without basis in either statute or decisional law.
The Boston City Charter sets forth the requirements that must be fulfilled by any City Councillor.[2] Section 11A of the Boston City Charter specifies that, “[e]very person elected. . . city councilor. . . shall, before entering upon the duties of his office, take, and subscribe. . . the oath of allegiance and oath of office prescribed in the constitution of this commonwealth and an oath to support the constitution of the United States.” Section 17 of the Boston City Charter commands that, “[t]he City Council shall be the judge of the election and qualification of its members. . . .” Section 54 of the Boston City Charter also instructs that, “[a]ny person who is a registered voter of the city duly qualified to vote for a candidate for an elective municipal office therein may be a candidate for nomination to such office. . . .” Thus, all that is required in order to be a City Councillor is that the candidate be a registered voter and be willing to take the oath specified in the City Charter. By imposing an oath requirement, this Court would be improperly modifying the statutory requirements that each City Councillor must meet to hold office. Where a City Charter includes such language, specifying that the body in question is to be the judge of the election and qualification of its members, the court is without jurisdiction to impose its own qualifications on that body. Peabody v. School Committee of Boston, 115 Mass. 383, 384 (1874). Indeed, this Court is without jurisdiction to consider the merits of any case challenging the qualifications of any individual to sit as a City Councillor, in light of the language in the City Charter. Dinan v. Swig, 223 Mass. 516, 517-518 (1916). Moreover, members of the Boston City Council are already subject to the Open Meeting Law. An oath to observe that law would not alter in any respect the obligations of Boston City Councillors to observe that law.
Finally, the plaintiffs seek to impose sanctions on the defendants’ lead counsel. Such a request is not a proper subject of amendment. The plaintiffs seek to sanction Attorney Sweeney for what they characterize as “knowingly pursuing a course of action that will delay justice and waste the limited resources of the Court in resolving these violations.” It is not clear from the language in the plaintiff’s request whether the plaintiffs seek to impose sanctions on Attorney Sweeney under Rule 11 or whether they seek to make him a defendant in the case. In either case, the plaintiffs’ motion should be denied. The plaintiffs base their request for sanctions on the fact that Attorney Sweeney represented the Boston City Council in the 1988 action initiated by the Attorney General. They do not allege any wrongdoing in that action, but claim instead that Attorney Sweeney’s representation of his client in the matter translates into an affirmative obligation to manage the affairs of the Boston City Council and ensure that they do not violate the Open Meeting Law.
The plaintiffs offer no examples of the delay and waste they complain of, leaving the defendants little recourse in defending their actions. As to the 1988 Consent Decree, the plaintiffs have no right, as described above, to enforce that decree or seek sanctions for any failure to observe it. Moreover, Attorney Sweeney cannot be held responsible, under any circumstances, for any client’s observance or non-observance of a consent decree. In sum, their request simply lacks foundation in either the Massachusetts Rules of Civil Procedure or any case law. The plaintiffs’ motion to amend should be denied to the extent it seeks to sanction defendants’ counsel or make him a defendant in this action, particularly at this late stage of the litigation.

3. The proposed amendments are sought in bad faith.
If this Court determines that the plaintiffs seek their amendments in bad faith, it may deny the plaintiffs’ motion. A determination of bad faith can be made upon consideration of “the totality of the circumstances, the relevant public policies, and the equities” of the matter. U.S. Ex. Rel. LaValley v. First National Bank of Boston, 1994 WL 601874 (D. Mass., Oct. 13, 1994). The defendants submit that a review of the relevant circumstances would permit this Court to conclude that the plaintiffs have acted in bad faith by bringing this motion. The plaintiffs demanded a trial date in this matter and were granted one. The plaintiffs gave no indication that they would seek to amend their complaint until serving the defendants with this motion, on the same date the defendants served their motion for summary judgment. Such tactics suggest bad faith, and the defendants respectfully request that this Court engage in a searching analysis of the relevant circumstances in determining whether the plaintiffs have brought this motion in bad faith.
CONCLUSION
For the reasons discussed above, the defendants Boston City Council and Michael F. Flaherty respectfully request that this Honorable Court DENY the plaintiffs’ motion to file a second amended complaint.

CERTIFICATE OF SERVICE

I hereby certify that on this day a true copy of the above document was served upon each party appearing pro se by U.S. mail, first class, postage paid.


_______________________________
Date Justin F. Kollar
Respectfully submitted,
Defendants Boston cITY cOUNCIL
and Michael F. Flaherty, as City
Council President,

By their attorney,
Merita A. Hopkins
Corporation Counsel


______________________________
Mark Sweeney, BBO# 490160
First Assistant Corporation Counsel


______________________________
Justin F. Kollar, BBO# 661086
Assistant Corporation Counsel
City of Boston Law Department
City Hall, Room 615
Boston, MA 02201
(617) 635-4097




[1] That action was captioned Shannon v. Boston City Council, Docket no. SUCV1987-05397.
[2] "The Boston City Charter is a patchwork of special laws enacted over the years by the Legislature." Edwards v. City of Boston, 408 Mass. 643, 649 (1990). "The scheme or framework of government is to be ascertained from all the provisions of the charter." City Council of Boston v. Mayor of Boston, 383 Mass. 716, 719 (1981), quoting Fiske v. Worcester, 219 Mass. 428, 429 (1914).

1 comment:

the sak said...

How do you persuade our Boston City
Council to include plain ASCII text in
the regular emails they offer
subscribers?...

Council emails include public hearing
notices, public meetings agendas,
council calendars and corrections.

The obstacle appears to be one person
who is a staff director for our Boston
City Council. The staff director has
limited understanding of the predicament
of using only microsoft software for
emails.

Anyone can subscribe via email
ann.hess at cityofboston.gov
Ask for plain ASCII text to be included
when you subscribe. Read the reply you
get from the City Council to requests
for plain ASCII text !

City of Boston MIS Management
Information Systems is willing.
Raj Pareek indicates he can not advise
the City Council until they make a
request to MIS
rajesh.pareek at cityofboston.gov
But the City Council hasn't been
willing.

Council emails include content not made
available on the web
http://cityofboston.gov/citycouncil
http://cityofboston.gov/mis


How do you do better at negotiating with
municipal elected and appointed
officials?...

What are the most persuasive arguments?

Even the City Office of Civil Rights
will not take on the part of the matter
regarding better access for people using
adaptive software technologies that
attempt to render City Council emails in
audio
http://cityofboston.gov/civilrights