Opinion
No. 95-0143
October 15, 1996
MEMORANDUM OF DECISION AND ORDER ON "DEFENDANTS SUED AS REPRESENTATIVES" MOTION TO DISMISS
On January 9, 1995, the plaintiff, Bradley S. Giles ("Giles") filed this action against the defendants, Richard Gill ("Gill"), Northeastern University ("Northeastern"), and Alpha Epsilon Pi, Inc.("AEPi"). On August 16, 1995, AEPi filed a motion to dismiss on the grounds that an unincorporated association, such as AEPi, is not subject to suit under Massachusetts law. On October 17, 1995, the motion to dismiss was continued for ninety days by the Court (Fremont-Smith, J.) in order to permit the plaintiff time to conduct discovery pertaining to jurisdiction. On or about January 22, 1996, the plaintiff moved to amend the complaint by substituting defendants Haber, Jaffy and Margulis for defendant AEPi. On or about March 26, 1996, the Court (Barrett, J.), declined to allow the amendment on the ground that the three named defendants alone could not fairly and adequately represent AEPi, but granted plaintiff leave to file a further amendment naming all twenty-two members of Alpha Epsilon Pi.
With the exception of Haber, Jaffy and Margulis, who are also sued in their individual capacities, the newly-named individual defendants are sued only in their capacities as representatives of AEPi, and are not alleged to have played a personal role in the attack or injuries suffered by plaintiff on February 18, 1992. As nineteen of the twenty-two individual defendants reside in states other than Massachusetts, defendants have moved to dismiss the action as against them in their capacities as representatives of AEPi, on the ground that the Massachusetts Court lacks personal jurisdiction. See M.G.L.c. 233A, § 3. After hearing and the Court's consideration of the submissions of the parties, the Court DENIES the defendants' motion without prejudice to renewal of the motion at the close of all discovery.
BACKGROUND
On February 18, 1992, the plaintiff, Bradley S. Giles, was viciously assaulted outside a Northeastern University fraternity party and left with permanent brain damage. The defendant, Richard Gill, was tried, convicted and sentenced to serve five years in the Suffolk County House of Correction for his role in the attack. In a later deposition, Gill denied any responsibility for Giles' injuries. Due to Giles injuries, Giles has no memory of the events of February 18, 1992, and now seeks damages for the injuries he suffered that night.
DISCUSSION
The facts of each controversy determine whether personal jurisdiction can be maintained over foreign defendants. Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 2-3 (1979). When the defendant is a nonresident, the court must determine (1) whether jurisdiction is authorized under the state's long arm statute, M.G.L.c. 233A, § 3(a)-(g); and (2) whether the exercise of such jurisdiction comports with the due process requirements of the United States Constitution. Id. at 5-6; Tatro v. Manor Care, Inc., 416 Mass. 763, 767 (1994); Johnson Creative Arts, Inc. v. Wool Masters, Inc., 573 F. Supp. 1106, 1109 (D. Mass. 1983).
When faced with a motion to dismiss under Mass. R. Civ. P. 12(b)(2), the plaintiff bears "the burden of establishing the facts upon which the question of personal jurisdiction over the defendant is to be determined." Nicholas Assoc., Inc. v. Starr, 4 Mass. App. Ct. 91, 93 (1976); Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 151 (1978).
To determine whether the representative defendants' motion to Dismiss should be granted for lack of personal jurisdiction, the facts presented direct the court to look first to M.G.L.c. 233A, § 3(a) and (b):
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's . . . (a) transacting any business in the commonwealth . . . (b) causing tortious injury by act or omission in this commonwealth. . .
Jurisdiction is proper under the due process clause of the Fourteenth Amendment if the defendant had minimum contacts with the forum state, such that the lawsuit would not offend "traditional notions of fair play and substantial justice." International Shoe v. Washington, 326 U.S. 310, 316 (1945). In addition, the court should consider whether the defendants have purposefully availed themselves of the "privilege of conducting business within the forum state, thus invoking the benefits and protection of the laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958); Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979). Thus, an essential inquiry is whether the defendants conduct and connection with Massachusetts was sufficient that they could "reasonably anticipate being haled into court [here]." American Intern Rent-A-Car Corp. v. Cross, 709 F. Supp. 272, 275 (D. Mass. 1989) (quoting World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
The Court recognizes that the representative defendants are sued only in their capacities as representatives of the unincorporated association, Alpha Epsilon Pi, and are not sued personally. However, in order for a Massachusetts court to have personal jurisdiction over a nonresident individual defendant, an independent basis must exist for the assertion of such jurisdiction. Johnson Creative Arts, Inc. v. Wool Masters, Inc., 573 F. Supp. 1106, 1111 (D. Mass. 1983). Jurisdiction cannot be based merely on jurisdiction over a corporation or association, but there must have been personal involvement by the individuals in the tortious conduct at issue. Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 906 (1st Cir. 1980). While there are no factual allegations at this time to the effect that the newly-named individual defendants were personally involved in the events of February 18, 1992, it cannot be said, prior to the close of all discovery, that plaintiff will be unable to allege a factual basis for a personal claim against any or all of the newly-named defendants. Accordingly, defendants' motion to dismiss as to the newly-named individual defendants will be DENIED without prejudice to renewal at the close of all discovery.
ORDER
For the reasons discussed above, it is hereby ORDERED that the defendants' motion to dismiss is DENIED, without prejudice to renewal at the completion of all discovery. The discovery deadline is extended for a period of ninety days following completion of the deposition of Detective Mark Coleman, in accordance with the Court's separate order of this date relative thereto.
___________________________ Thayer Fremont-Smith Justice of the Superior Court
MEMORANDUM OF DECISION AND ORDER ON BOSTON POLICE DEPARTMENT'S MOTION FOR PROTECTIVE ORDER
On or about January 9, 1995, the plaintiff, Bradley S. Giles ("Giles") filed this civil action against the defendants, former officers and members of Alpha Epsilon Pi of the fraternity house at 38 The Fenway, Boston, arising out of injuries he suffered as a result of an assault, which left him with permanent brain damage and with no memory of the events in question. As a result of a police investigation by Boston police detective Mark Coleman, defendant Gill was indicted, tried and convicted of assaulting the plaintiff, but has subsequently been deposed in this action and denied all involvement. The other defendants have similarly disclaimed any knowledge of the incident. Seeking to ascertain information as to the events leading up to the assault and as to the identity of his assailants, plaintiff has served a notice for deposition and a subpoena duces tecum on Detective Coleman, in order to depose him regarding the contents of his investigatory file. In response, the Boston Police Department has moved for a protective order, arguing that the information sought is protected from disclosure pursuant to the investigative records exemption to the public records law, M.G.L.c. 4, § 7, cl. 26(f). After an evidentiary hearing and the Court's consideration of the submissions of all of the parties, the Boston Police Department's motion for protective order is DENIED.
DISCUSSION
Although, at common law, there was a broad privilege encompassing all communications made to law enforcement officials for the purpose of securing law enforcement, the legislature in 1992 enacted M.G.L.c. 66, § 10, the Public Records Statute, which requires public access to various records and documents in the possession of public officials unless otherwise exempt. In District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 510-511 (1995), the Supreme Judicial Court explained that "generally, the public records statute favors disclosure by creating a 'presumption that the record sought is public.' G.L.c. 66, § 10(c). However, G.L.c. 4, § 7, Twenty-sixth, details specific exemptions to the public records statutes, but in order for a record to qualify as exempt, the custodian of the record has the burden to 'prove with specificity' that the exemption applies. G.L.c. 66, § 10(c); Attorney General v. School Committee of Northampton, 375 Mass. 127, 131 (1978); Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61-62 (1976)." The Court went on to recognize "the absence of a blanket exemption for police records or investigatory materials" and stated that "a case-by-case review is required to determine whether an exemption applies, Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-290 (1979), and that 'there must be specific proof elicited that the documents sought are of a type for which an exemption has been provided. . .'" Id. at 512. The Court remanded the case to the Superior Court for an evidentiary proceeding to determine this.
Similarly, in Bougas v. Chief of Police of Lexington, supra, the Court remanded the case to the Superior Court for an evidentiary hearing to determine whether the investigatory file could be shown, in whole or in part, to meet the criteria of the exemption.
At the evidentiary hearing here, the investigating officer, Detective Mark Coleman, contrary to asserting that the disclosure of the contents of his investigatory file would be likely to prejudice effective law enforcement, or that its disclosure would not be in the public interest, testified unequivocally that no prejudice would result to the public or to law enforcement from disclosure of the file. He further testified that no information in the file came from any informant who had been promised or assured that the information would remain confidential and/or that it would not be divulged.
The police department did offer an additional witness, Daniel Keeler, a detective with the Homicide Unit of the Attorney General's Office, who testified that "crime has a tendency to repeat itself, so that law enforcement officers seek the help of the same informants time after time," and that it was his practice, in an investigation, to assure informants that their information would be kept confidential. He admitted on cross-examination, however, that he had interviewed no persons in connection with this investigation, and had made no such assurances to any informant with respect to any information contained in Detective Coleman's file. Moreover, no evidence was presented to indicate that the assault in question was undertaken in connection with any recurrent type of criminal activity or that there was any likelihood that any of the fraternity members who might have been involved, or have given information, would be called upon by law enforcement officials in the future to do so. Indeed, in opposing plaintiff's attempt to require the fraternity to designate a knowledgeable person for the purpose of a Rule 30(b)(6) deposition, defendants have asserted that none of the present officers or members of the fraternity have any knowledge whatsoever of the events in question, and have asserted that every knowledgeable person has by now graduated and that most have departed the Commonwealth.
Accordingly, the Court finds that the Boston Police Department has not satisfied its burden of proof to indicate that, in the particular circumstances of this case, the disclosure of the investigatory materials would "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest," as required by M.G.L.c. 4, § 7, cl. 26(f).
ORDER
For the reasons stated above, the Motion for Protective Order is DENIED and the Boston Police Department is ordered to make Detective Mark Coleman available for his deposition and to make the investigatory file of the Boston Police Department (except for CORI material contained therein) available for production, examination and copying by plaintiff in conjunction with such deposition, such deposition and production of documents to take place at a mutually convenient time and place within thirty (30) days after receipt of this Order. Information contained in the investigatory file shall, however, be kept confidential and shall not be used or revealed except as shall be reasonably necessary for the prosecution or defense of this action.
_________________________ Thayer Fremont-Smith Justice of the Superior Court
DATED: October 15, 1996