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COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
No. 2016-P-0268
ESSEX, ss.No. 2013-07 56-D
JAYNE CONWAY PLAINTIFF-APPELLEE
v.
PLANET FITNESS HOLDINGS, LLC. ET AL., PLANET FITNESS-APPELLANTS
APPELLEE'S BRIEF
Kenneth J. DeMoura BBO No. 548910 [email protected] Christopher L. Stanton BBO No. 694013 [email protected] DEMOURA!SMITH, LLP One International Place 14th Floor Boston, MA 02110 {617) 535-7531
May 16 2016
Counsel for Plaintiff- Appellee, Jayne Conway
TABLE OF CONTENTS
STATEMENT OF THE CASE........................... 2
STATEMENT OF THE FACTS........................... 5
SUMMARY OF ARGUMENT................................ 17
ARGUMENT........................................... 19
I. Standard of Review 19
II. Planet Fitness' Appeal of the Denial of Their Motion to Compel Must be Dismissed as It Is NotProperly before the Court 21
III. The Superior Court Correctly Found that Planet Fitness Waived Any Rightto Arbitrate This Dispute 24
A. The Planet Fitness have actively- litigated this case and delayedin moving to arbitrate Conway's claims 25
B. Significant judicial resources havebeen devoted to resolving two substantive motions addressing the merits of the case and the parties have committed the court to further judicial involvement 33
C. Conway has been prejudiced by PlanetFitness' active litigation conduct and delay in requesting arbitration 35
CONCLUSION...........................................37
STATEMENT OF THE ISSUES......................... 1
li
TABLE OF AUTHORITIES
Cases
Atkinson1s Inc. v. Alcoholic Beverage Control Comm'n,15 Mass. App. Ct. 325 (1983) ....................... 21
Cabinetree of Wisconsin, Inc, v. Kraftmaid Cabinetry, Inc. ,50 F. 3d 388 (7th Cir.1995) ......................... 30
Carpenter v. Pomerantz,36 Mass. App. Ct. 627 (1994) ....................... 20
Commonwealth v Philip Morris, Inc.,448 Mass. 836 (2007) ............................... 20
Commonwealth v. Bys,370 Mass. 350 (1976) ............................... 21
Danvers v. Wexler Constr. Co.,12 Mass.App.Ct. 160 (1981) ......................... 37
Davis v. Boston Elev. Ry.,235 Mass. 482 (1920) ............................... 21
E.T. Simonds Construction Co. v. Local 1330, Int'1 Hod Carriers,315 F. 2d 291 (7th Cir.1963) ........................ 27
Eagle Fund, Ltd, v. Sarkans,63 Mass.App.Ct. 79 (2005) .......................... 20
Edwards v Lauro,79 Mass. App. Ct. 1111 (2011) ...................... 20
Feeney v Dell,454 Mass. 192 (2009) ............................... 20
Greenleaf v. Massachusetts Bay Transp. Authy., *22 Mass. App. Ct. 426 (1986) ....................... 20
Home Gas Corp, of Massachusetts v. Walter's of Hadley, Inc.,403 Mass. 772 (1989) ....................... 26, 27, 36
m
Hooper v. Advance America,589 F.3d 917 (8th Cir. 2009) 28, 29, 30
Hurley v. Deutsche Bank Trust Co.,610 F. 3d 334 (6th Cir. 2010) ........................ 27
In re Mirant Corp.,613 F. 3d 584 (5th Cir. 2010) ........... 28, 29, 30, 31
In re Pharmacy Benefits Managers Antitrust Litigation,700 F. 3d 109 (3d Cir.2012) ......................... 31
Joca-Roca Real Estate, LLC v Brennan,772 F. 3d 945 (1st Cir. 2014) .............. 24, 28, 36
Johnson Associates Corp. v. HL Operating Corp.,680 F. 3d 713 (6th Cir.2012) ............... 27, 32, 36
Johnson v Kindred Healthcare, Inc.,466 Mass. 779 (2014) ............................... 22
Jones Motor Co. v. Chauffeurs, Teamsters & Helpers, Local No. 633 of N.H.,671 F.2d 38 (1st Cir. ) ............... .............. 27
Kramer v. Hammond,943 F. 2d 176 (2d Cir.1991) ......................... 36
Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc.,626 F. 3d 156 (2d Cir.2010) ......................... 28
Machado v System4 LLC,471 Mass. 204 (2015) ........................... 20, 23
Martin v. Norwood,395 Mass. 159 (1985) ........................... 18, 20
Mestek, Inc, v. United Pacific Ins. Co.,4 0 Mass. App. Ct. 729 (1996) ....................... 29
N. H. Transport Co. v Durham,102 N.H. 169, 152 A.2d 596 (1959) .................. 3
O. J. Distrib., Inc, v. Hornell Brewing Co.,340 F. 3d 345 (6th Cir.2003) ........................ 27
IV
23
Old Pilgrim Ins. Agency, Inc. v. Monarch Life Ins.Co.,11 Mass. App. Ct. 893 (1980) ....................
Panesis v. Loyal Protective Life Ins. Co.,5 Mass. App. Ct. 66 (1977) ......................... 24
Petroleum Pipe Americas Corp. v. Jindal Saw, Ltd.,575 F. 3d 476 (5th Cir.2009) ........................ 31
Prima Paint Corp. v. Flood & Conklin Mfq, Co.,388 U.S. 395 (1967) ................................. 3
Quirk v Data Terminal Systems, Inc.,379 Mass. 762 (1980) ............................... 22
Rankin v Allstate Insurance Co.,336 F. 3d 8, 14 (1st Cir. 2003) .................... 36
Safety Ins. Co. v. McLeod,66 Mass. App. Ct. 1102 (2006) ..................... 20
Second Congregation Society v. Hugh Stubbins and Associates, Inc.,108 N.H. 446 (1968) ............................ 26, 27
Shalaby v Arctic Sand Technologies, Inc.,2014 WL 7235830 (Mass. Superior Court December 15, 2014).............................................. 28
St. Mary's Medical Center of Evansville, Inc. v. Disco Aluminum Products Co., Inc. ,969 F. 2d 585 (7th Cir.1992) ........................ 31
Tyco Int'l Ltd, v. Swartz (In re Tyco Int'l Ltd. Sec. Litig.),422 F. 3d 41 (1st Cir.2005) ......................... 27
Warfield v. Beth Israel Deaconess Medical Center,454 Mass. 390 (2009) ................................ 3
ZipRealty, Inc, v. Lopez,72 Mass. App. Ct. 1116 (2008) ................. 20, 25
v
Statutes
M.G.L. c. 231 § 118........................... 4, 22, 23M.G.L. c. 251 § 18............................... 18, 21M. G.L. c. 251 § 18 (a)(1)............................ 4N. H. Rev. Stat. Ann. § 542:1......................... 4
Rules
Fed.R.Civ.P. 12(b)(6)........................ 31, 33, 37Mass. R. Civ. P. 30(b)(6)............................ 26Mass. R. Civ. P. Rule 12 (b)(6)............ 11, 13, 29Mass. R. Civ. P. Rule 60(b).......................... 12
Other Authorities
Judicial Involvement in Arbitrations and in the Review of Arbitration Awards,94 Mass. L. Rev. 8 (2011) .......................... 23
STATEMENT OF THE ISSUES
1. Is this appeal pursuant to G.L. 231 § 113
properly before the Court where the order denying
the motion to compel arbitration is an
interlocutory order and not a final judgment?
2. Did the Superior Court abuse its discretion in
finding that Appellants waived their right to
arbitration by engaging in active litigation
conduct for over twenty months, including filing
multiple motions to dismiss the case on the
merits, obtaining an order from the Superior
Court requiring Appellee to deposit $500,000 with
the Court as a condition of proceeding with the
action, entering into stipulations regarding the
course, timing and confidentiality of discovery,
participating in discovery and additional motion
practice, all to the prejudice of the Appellee?
1
STATEMENT OF THE CASE
The action arises from Planet Fitness'1 fraud in
connection with a Separation and Settlement Agreement
and the valuation of Conway's membership interest in
Planet Fitness Holdings, LLC ("PFH") which was part of
her employment compensation. This appeal concerns
whether or not Planet Fitness by their 'litigation
conduct' in the Superior Court waived any right to
arbitrate the disputes between the parties.
After a failed attempt to have this case
dismissed on the merits, twice; after obtaining an
order from the Superior Court requiring Conway to
deposit $500,000 with the Court as a condition of
proceeding with this action; and, after participating
in litigation, discovery and additional motion
practice for twenty months, Planet Fitness moved,
1 The Appellants-Defendants in this action, PLANET FITNESS HOLDINGS, LLC, PLA-FIT FRANCHISE, LLC, MICHAEL GRONDAHL, individually and as TRUSTEE OF THE MICHAEL A. GRONDAHL REVOCABLE TRUST OF 2006, MARC GRONDAHL, , individually and as TRUSTEE OF THE MARC GRONDAHL REVOCABLE TRUST OF 2006,CHRISTOPHER RONDEAU individually and as TRUSTEE OF THE CHRISTOPHER J. RONDEAU REVOCABLE TRUST OF 2006, and RICHARD MOORE are referred to collectively as "Planet Fitness" in this brief. The Appellee-Plaintiff, JAYNE CONWAY, is referred to as "Conway".
2
unsuccessfully, for an order to compel arbitration and
to stay these proceedings.
The Court denied the motion to compel arbitration
and stay these proceedings in a well-reasoned,
fourteen-page Memorandum of Decision and Order. ADD1-
ADD14. The Superior Court (Lang, J.) found that
"[w]ithout legitimate excuse, Defendants were content
to allow Conway to further her suit before this court
for over eighteen months before finally, without any
apparent change in circumstances, moving to compel
arbitration." ADD 13. The Superior Court made clear
that Planet Fitness had waived any right to arbitrate
the disputes as their "actions were inconsistent with
their right to arbitrate and prejudicial to Conway.
They were wasteful of the court's time and resources."
ADD 13-14.2
2 Policies favoring arbitration were designed "to enforce private agreements to arbitrate according to their terms, not to encourage arbitration of contractual disputes for its own sake." See Warfield v. Beth Israel Deaconess Medical Center, 454 Mass.390, 395 (2009). They are "as enforceable as other contracts, but not more so." Prima Paint Corp. v.Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n. 12 (1967). In her opposition, Conway argued that her claims were not subject to any enforceable agreement to arbitrate. First, the Separation and Settlement Agreement at issue does not include any arbitration provision. The gravamen of Conway's claims are based on fraud and misrepresentation by the defendants which
3
Despite paying lip-service to the purported speed
and efficiency of arbitration, Planet Fitness did not
file a single-justice petition, pursuant to M.G.L. c.
231 § 118 (first para.), of the Superior Court's
interlocutory denial of their motion. Instead, Planet
Fitness filed a notice of appeal of the Superior
Court's interlocutory order to this full court,
incorrectly interpreting the provisions of M.G.L. c.
induced her to execute a Separation and Settlement Agreement giving up valuable claims and rights.Second, the arbitration provisions contained in the Employment Agreement and the Restricted Interest Agreement are unenforceable. The defendants describe Conway's claims, including her membership interest claims, as related to her employment relationship with Pla-Fit. Under New Hampshire law, an arbitration clause is not enforceable in the employment relationship unless the agreement specifically provides that it is subject to the provisions of N.H. Rev. Stat. Ann. § 542:1. N.H. Rev. Stat. Ann. § 542:1; Southwest N.H. Transport Co. v Durham, 102 N.H. 169, 152 A.2d 596 (1959). Because neither of these agreements reference the applicable statute, the arbitration provisions contained in these two agreements are unenforceable. Conway also argued that the arbitration clauses should not be enforced because the individual defendants are not parties to the Employment Agreement or the Restricted Interest Agreement, and the potentially arbitrable claims and plainly non-arbitrable claims are "so integrally connected," that the Court should - as a matter of fairness and judicial economy - litigate this matter in a single forum: in court. The court did not rule on any of these arguments because it found that Planet Fitness had waived any right to request arbitration through its litigation conduct.
4
251 § 18 (a)(1) as permitting the same type of appeal
permitted for final judgments.
STATEMENT OF THE FACTS
A. The Claims.
Conway, served as Chief Financial Officer of Pla-
Fit Franchise, LLC from May 2010 until she was
terminated in November 2011.3 JA10; JA32. Pla-Fit
Franchise, LLC is an affiliate of PFH Holdings LLC and
both LLC's are based in Newington, New Hampshire. JA6.
The individual appellants, Michael Grondahl, Mark
Grondahl, Christopher Rondeau and Richard Moore,
3 In April 2010, Conway accepted a position as CFO.JA9: Complaint 1 10. After accepting the employment offer, Conway and the PFH and Pla-Fit entered into various agreements. JA9: Complaint 1 13. One of the agreements was an Employment Agreement with Pla-Fit.A true and accurate copy of the Employment Agreement is attached to the complaint as Exhibit B. JA56-JA72. On May 3, 2010, Conway became a member of PFH, receiving 100% of the Class B interests in PFH which represented 1.5% of all of the interests in PFH. JA9: Complaint $ 14. Conway's Class B membership interest was granted pursuant to the financial and economic terms offered to Conway to entice her to leave her employment with Gulf Oil LP and join Planet Fitness at a significant reduction in salary compensation. JA9: Complaint 5 14. Conway received a written grant of her restricted interests in the PFH representing a 1.5% profit interest of the company above an equity threshold value of $240 million dollars, on August 30, 2010. JA9-JA10: Complaint 5 16. A true and accurate copy of the Restricted Interest Agreement is attached to the complaint as Exhibit C. JA73-JA83.
5
served as officers or directors of Planet Fitness at
all relevant times. JA7-JA8.
Conway was wrongfully terminated from her
position in November 2011. JA12. After her
termination, but while she still owned membership
interests in PFH, Planet Fitness made
misrepresentations to her regarding the value of her
membership interest in the company, failed to keep her
advised of a transaction to sell the majority interest
of Planet Fitness and concealed that they entered into
an agreement to sell a majority interest in PFH to a
private-equity investor with an enterprise valuation
exceeding $500 million. JA13-JA19. Additionally,
Planet Fitness deliberately and fraudulent lied to
Delphi Valuation Advisors, a third-party appraiser
selected by the parties to provide a fair-market
valuation, about the transaction and the valuation of
PFH. JA13-JA19. Planet Fitness' fraudulent conduct
was intended to and did induce Conway to enter into a
Separation and Settlement Agreement and deprived her
of the true value of her interest in the company.
JA19-JA22.
Conway filed her complaint against Planet Fitness
on May 10, 2013. JA1. The complaint alleges that
6
Planet Fitness concealed information regarding the
$500 million private equity transaction and made
affirmative misrepresentations about the transaction.
JA5-JA26. The complaint further alleges that Planet
Fitness' fraud and deceit caused the inaccurate
valuation of Conway's membership interests in PFH and
induced her to execute the Separation and Settlement
Agreement, accept significantly less than she was
entitled to and release significant claims against the
Planet Fitness. JA5-JA26.
The complaint alleges that during the process of
appraising Conway's membership interest in PFH, Planet
Fitness represented that PFH was in the process of
entering into an agreement with a private equity
investor, and the investor was expected to purchase
75% of Planet Fitness at an implied enterprise value
of approximately $355 million, resulting in an implied
equity value for 100% of the company of approximately
$315 million. JA14. Planet Fitness further
represented to Conway that the transaction was still
under negotiation, subject to the satisfactory
completion of the due diligence process and that a
final term sheet was not available at the time that
the appraisal was issued. JA14.
7
In fact, Planet Fitness knew these
representations were false. JA15. At the time that
the representations were made to Conway the private
equity transaction had already occurred and at a
significantly higher value than represented. JA15.
The value of the transaction was significantly greater
than $355 million, and indeed greater than $500
million. JA15. The due diligence for the transaction
had already concluded, negotiations regarding the
transaction had concluded and a final term sheet for
the transaction had already been created and was
available on the same day as the issuance of the draft
appraisal report. JA15. Conway did not receive any
notices regarding the potential private equity
transaction with PFH despite her continued ownership
of all of the Class B restricted interests in PFH.
JA16.
Planet Fitness deliberately concealed and misled
Conway regarding the status of the private equity
transaction. JA17. Planet Fitness misrepresented the
status of the private equity transaction. JA18.
Conway relied on the representations made by Planet
Fitness. JA18. In reasonable reliance on Planet
Fitness' misrepresentations, deceit and concealment of
8
the true status and terms of the private equity
transaction, Conway accepted the valuation of her
interests and signed the Separation and Settlement
Agreement containing a release of claims. JA18. Had
Conway been aware of the true status and amount of the
private equity transaction, she would not have
accepted the valuation of her vested interests or
entered into the Separation and Settlement Agreement
for the consideration provided to her. JA19.
Conway brought this case to rescind the
Separation and Settlement Agreement, obtain
declaratory relief and recover damages due to the
appellants' fraudulent conduct. JA5-JA26.
The Separation and Settlement Agreement does not
have an arbitration provision. JA84-JA89. The
remaining agreements between the parties, which
according to Planet Fitness arise from the employment
relationship between Conway and Pla-Fit, include an
Employment Agreement, a Restricted Interest Agreement
and the Amended and Restated Limited Liability Company
Agreement for PFH. These agreements contain
arbitration clauses however each of the arbitration
9
clauses provide for different procedural rules, before
different tribunals, in three different states.4
B. The Course of the Litigation.
From the filing of the complaint in May 2013
until January 2015 (twenty months), Planet Fitness
actively engaged in litigation and defended against
the merits of Conway's claims.5 Conway filed her
complaint on May 10, 2013. JA1. Planet Fitness
accepted service of process on June 11, 2013. JA241.
On June 27, 2013, Planet Fitness filed a stipulation
4 The Employment Agreement provides for arbitration in Boston, Massachusetts pursuant to the Employment Arbitration and Mediation Procedures of the American Arbitration Association. JA67. The Amended and Restated Limited Liability Company Agreement for PFH provides for arbitration in New Hampshire under the rules of commercial rules for arbitration promulgated by the American Arbitration Association. JA4 4. The Restricted Interest Agreement provides for arbitration in Portland, Maine under the rules of commercial rules for arbitration promulgated by the American Arbitration Association and requiring a decision be issued by the arbitrator within 90 days. JA81.
5 A comprehensive chronicle of Planet Fitness' litigation activity is set forth in the docket for this case, JA1-JA4, as well as the affidavit of Conway's counsel, Kenneth J. DeMoura JA240-JA261 and Conway's affidavit, JA262-265, filed as part of Conway's opposition to the motion to compel arbitration. A timeline provided to the Superior Court during the hearing on the motion to compel by Conway is attached as an addendum to this brief.
10
extending the time for them to file an answer or
otherwise respond to the complaint. JA1.
On October 21, 2013, Planet Fitness filed a
motion to dismiss pursuant to Mass. R. Civ. P. Rule 12
(b){6). JA90-JA91. As grounds for relief, Planet
Fitness contended that the release contained in the
Separation and Settlement Agreement and Conway's
failure to tender back the consideration barred all of
her claims. JA93-116. Planet Fitness also asserted
that Conway's claims were barred by a forum selection
clause contained in the Separation and Settlement
Agreement. JA93-116. Planet Fitness did not reference
or mention the arbitration provisions contained in any
of the agreements as a basis for dismissal of Conway's
claims. JA90-116. Conway opposed the motion. JA117-
JA134. The parties extensively briefed it. Hearing on
the motion to dismiss was delayed on several occasions
due to requests from Planet Fitness' counsel for
postponement. JA241. The motion was heard on April 17,
2014 and the Court (Kirpalani, J.) denied the motion
to dismiss on June 16, 2014. JA148. The Court issued a
thirteen-page memorandum outlining the basis of its
denial. JA149-JA161.
11
After losing the Rule 12(b)(6) motion to dismiss,
Planet Fitness answered the complaint on July 11,
2014. JA162-JA177. The eighth affirmative defense of
Planet Fitness' Answer (out of eighteen) states: "This
matter should have been submitted to arbitration,
pursuant to Section 4.4 of the Employment Agreement
(Exhibit A to the Complaint) and Section 8{j} of the
Restricted Interest Agreement (Exhibit C to the
Complaint)." JA174. Planet Fitness did not assert, in
this affirmative defense, that Conway's claims were
subject to arbitration pursuant the Amended and
Restated Limited Liability Company Agreement.
On August 6, 2014, Planet Fitness filed a Mass.
R. Civ. P. Rule 60(b) motion for relief from the
court's denial of the Rule 12(b)(6) motion. JA178.
Planet Fitness requested that the court reconsider its
prior denial and issue an opinion that Conway's
release and failure to tender back the consideration
she received required dismissal of all of her claims
or alternatively require Conway to deposit with the
court the consideration she received in connection
with the Separation and Settlement Agreement as a
condition for further prosecution of her claims in
this action. JA178-JA190. Again, Planet Fitness did
12
not reference or assert any agreement to arbitrate in
support of this motion. JA178-JA190. Conway opposed
this motion. JA191-JA200. After extensive briefing,
on October 31, 2014, the Court again denied the motion
to dismiss but allowed Planet Fitness' request that
Conway deposit the settlement consideration she
received at the time she executed the Separation and
Settlement Agreement as a condition for proceeding
with this action. JA210. The Court ordered Conway to
deposit these funds with the court within thirty days.6
JA210. The Court {Kirpalani, J.) issued a seven-page
memorandum setting forth the basis for the allowance
of the motion. JA211-JA217.
After the denial of the motion to dismiss, the
parties engaged in discovery. JA242-JA248. The parties
also entered into several stipulations and agreements
regarding discovery. JA242-JA248. Conway served
interrogatories and document requests on Planet
Fitness. Planet Fitness filed responses to these
discovery requests and produced documents in response
6 The parties subsequently negotiated and agreed, with the court's approval, that the funds would be deposited in plaintiff's counsel's IOLTA account. The funds are currently being held in an IOLTA account by plaintiff's counsel.
13
to the Rule 34 request. Planet Fitness served a
document request on Conway and Conway responded to
this request. Both parties noticed depositions,
including depositions of third parties. The discovery
deadline was extended on two occasions and Planet
Fitness joined in the requests for these extensions.
The parties also entered into various stipulations
regarding discovery, including a Stipulated Protective
Order and Confidentiality Agreement ("Protective
Order"). JA249-JA261
The Protective Order, which has the caption of
this lawsuit on the first page, governs the disclosure
and or use of documents designated as confidential
information in discovery including at depositions of
parties and non-parties. JA249-JA261. The Protective
Order addresses the method that confidential
information can be filed in court in this action. It
permits the disclosure of information designated as
"Confidential" to jurors, the Court and court
personnel. The Protective Order includes procedures
to be undertaken by the parties regarding disputes
over confidentiality including the filing of motions
(ex parte or otherwise) with this court for ultimate
resolution. It provides for the destruction of all
14
confidential documents "upon final termination of this
action, including all appeals" and further provides
that "[t]his Court retains jurisdiction over the
parties, counsel for the parties, and all persons,
firms, corporations or organizations to whom this
Order applies for purposes of enforcement of this
Order following the conclusion of this action". The
Order does not apply to documents "Admitted as
exhibits or through testimony at trial of this
action". The Protective Order, signed by Planet
Fitness' counsel, was filed by the Planet Fitness'
with the court on November 7, 2014. Later that day,
Planet Fitness' counsel delivered a CD-ROM containing
the initial production response to the document
request, marked as Confidential pursuant to the
Protective Order. JA245-JA246.
On December 22, 2014 Conway's counsel requested
that Planet Fitness produce all responsive documents
along with a privilege log no later than January 9,
2015 and served renewed Notices of Deposition
requiring Planet Fitness defendants to appear for
their depositions during the week of January 19, 2015.
JA248. On December 23, 204, during a conference call
between Conway's attorney and Planet Fitness' counsel,
15
Planet Fitness counsel stated that the Planet Fitness
witnesses would be available for their depositions
during the week of January 19. JA248. One week before
the dates set for Planet Fitness depositions, Planet
Fitness served a motion to compel arbitration and stay
these proceedings and advised Conway that they would
not comply with any further discovery requests pending
the resolution of their motion. JA237-JA239.
In their motion, Planet Fitness offered no
explanation for the eighteen-month delay in asserting
the right to arbitrate these claims, despite actively
litigating this civil action and repeatedly invoking
the court1s jurisdiction to its benefit for almost two
years, before abruptly changing course and attempting
to force Conway into arbitration. During the hearing
of the motion, Planet Fitness' counsel admitted not
filing the arbitration motion at the outset of the
case was a deliberate, conscious, decision and was not
inadvertent:
THE COURT: I mean, why? Why would you - why would you put yourselves and why would you put the plaintiff through motions to dismiss in two forums before you get to the contention that we should be in front of an arbitrator?
MR. WEBB: Well, to answer your question honestly, Your Honor, this is
16
a situation where my client is based in New Hampshire. The parties entered into an agreement that said everything is going to be resolved in New Hampshire. And my client wanted to have this court ruling that we7re having now be done in New Hampshire and asked us to file that motion and we did. That's the truthful answer, Your Honor.
JA276-JA277; Transcript of Hearing on Motion to Compel
Arbitration. Planet Fitness clearly wanted to wait to
see if they won their earlier motions to dismiss on
the merits.
The Superior Court denied the motion to compel on
June 1, 2015. ADD1-ADD14.7
SUMMARY OF ARGUMENT
The Superior Court correctly denied Planet
Fitness' motion to compel arbitration and stay the
court proceedings. The Court found, based on the
evidence presented, that Planet Fitness had engaged in
7 Ruling on an earlier motion to docket this appeal late, a Single Justice of this Court described the Superior Court's decision as "thoughtful and comprehensive." Memorandum and Order, Conway v Grondahl et al., Mass. Appeals Court No. 2016-J-0070 (February 23, 2016)(Milkey, J.). The Single Justice, in ruling on the substantive merit of Planet Fitness' appeal after receiving extensive briefing from both sides, called the question "exceptionally close" and further stated that Planet Fitness' "argument that [Judge Lang} erred in denying their motion is certainly not frivolous, neither does it strike me as particularly strong." Id.
17
litigation conduct for over eighteen months, to
Conway's prejudice, thus waiving any right to
arbitrate the dispute between the parties.
The decision of the Superior Court should be
affirmed because the appellants have not preserved
properly their appellate rights and because the
Superior Court did not abuse its discretion in denying
appellants' motion. Planet Fitness is not entitled to
a full three-judge panel appeal of the Superior
Court's interlocutory denial of their motion to compel
arbitration. The appeal of the denial of an
application to compel arbitration "shall be taken in
the manner and to the same extent as from orders or
judgments in an action". M.G.L. c. 251 § 18. The
denial of a motion to compel is an interlocutory
order.
If the Court determines that this appeal is
properly before it, it must apply the abuse of
discretion standard of review. An appellate court,
reviewing a trial judge's finding that a party has
waived arbitration, must determine whether the judge
abused his discretion. Martin v. Norwood, 395 Mass.
159 (1985).
18
A review of the Superior Court's denial of Planet
Fitness' motion establishes that the correct law was
applied to the facts and the trial court, being in the
best position to do so, found that Planet Fitness'
litigation conduct, established the waiver.
ARGUMENT
I. Standard of Review.A. The Court Determines Whether or Not this a
Proper Appeal de novo.
Conway asserts that this appeal must be dismissed
because Planet Fitness failed to bring it properly
under the single-justice petition procedures of G.L.
c. 231 § 118 (first para.) Whether an appeal is
properly before the Appeals Court is a matter of law
to determined by the Court de novo.
B. The Superior Court's Denial of a Motion to Compel Arbitration is reviewed using an abuse of discretion standard.
If this Court determines that Planet Fitness'
appeal has properly been brought, it must determine
whether the Superior Court judge abused his discretion
in finding that Planet Fitness have waived
arbitration.8 Martin v. Norwood, 395 Mass. 159, 162
8 Planet Fitness' argument that the proper standard of review here is de novo relies on cases not involving waiver-by-litigation, inapplicable to this appeal, see
19
(1985). See also, ZipRealty, Inc, v. Lopez, 72 Mass.
App. Ct. 1116 (2008); Safety Ins. Co. v. McLeod, 66
Mass. App. Ct. 1102 (2006). An abuse of discretion is
a "judgment 'characterized by arbitrary determination,
capricious disposition, whimsical thinking, or
idiosyncratic choice.'" Eagle Fund, Ltd, v. Sarkans,
63 Mass.App.Ct. 79, 85 (2005), quoting from Greenleaf
v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct.
426, 429 (1986). To prevail on this appeal, Planet
Fitness must demonstrate that "no conscientious judge,
acting intelligently, could honestly have taken the
view taken by him." Commonwealth v. Bys, 370 Mass.
350, 361, (1976), quoting from Davis v. Boston Elev.
e.g., Machado v System4 LLC, 471 Mass. 204, 208 (2015)(review of ruling that arbitration clause was unconscionable); Feeney v Dell, 454 Mass. 192, 199 (2009)[cite] (review of ruling that consumer contracts compelling individual arbitration versus class arbitration violated public policy); Commonwealth v Philip Morris, Inc., 448 Mass. 836, 844 (2007) (review of ruling that arbitration clause was enforceable), Carpenter v. Pomerantz, 36 Mass. App. Ct. 627, 632,634 N.E.2d 587, 590 (1994) (plaintiff's arbitration demand not time barred by a limitations statute),or cases that do not actually use a de novo standard of review. Home Gas Corp, of Massachusetts v. Walter's of Hadley, Inc., 403 Mass. 772 (1989) (no mention ofde novo standard of review and cites Martin v Norwood abuse of discretion case as source for standard of review). The one case waiver-by-litigation case Planet Fitness relies on Edwards v Lauro, 79 Mass App Ct 1111 (2011) relies on a non-waiver case (Feeney v Dell) for the proposition that the review is de novo.
20
Ry., 235 Mass. 482, 502 (1920). Planet Fitness will be
unable to meet this burden.
II. Planet Fitness' Appeal of the Denial of TheirMotion to Compel Must be Dismissed as It Is NotProperly before the Court.Planet Fitness' appeal is not properly before
this Court. Implicit in their appeal to the full
court is the assumption that they are entitled to
appeal the denial of the Superior Court's order
pursuant to G.L. c. 231 § 113, permitting appeals from
final judgment. However, the appeal of the denial of
an application to compel arbitration "shall be taken
in the manner and to the same extent as from orders or
judgments in an action". M.G.L. c. 251 § 18.9
Consequently and to the extent that they have a right
of appeal, Planet Fitness should have appealed the
denial of the motion to compel using the single
justice petition practice set forth in M.G.L. c. 231 §
9 The statute could not be clearer; appeals are to be taken "in the manner and to the same extent as from order or judgments." M.G.L. c. 251 § 18 (emphasis supplied.) This requires the appellant to follow the appropriate appellate route or risk dismissal of the appeal. See, Atkinson's Inc, v. Alcoholic Beverage Control Comm'n, 15 Mass. App. Ct. 325, 329 (1983) (where statute permits appeal of "orders or judgments", appeal of an interlocutory order, rather than final judgment, is not properly taken under c 231 § 113).
21
118 (first para.) Their failure to do so is fatal to
their appeal.
Planet Fitness do not contend that the denial of
their motion to compel arbitration constitutes a
"final judgment" within the meaning of § 113, nor
could they properly do so. Indeed they repeatedly
characterize this as an appeal of an interlocutory
order. The denial of a motion to compel arbitration
is an interlocutory order. Cf. J & G Construction Co.,
Inc, v Joseph E. Bennett Co., Inc., 16 Mass. App.
Ct.629 (1983). Interlocutory orders are appealable
only pursuant to the single-justice petition practice
set forth in M.G.L. c. 231 § 118 (first para.). See,
e.g. Johnson v Kindred Healthcare, Inc., 466 Mass.
779, 781 (2014) (in appealing decision on motion
relating to arbitration "plaintiff filed petition for
review under G.L. c. 231 § 118 seeking leave to pursue
an interlocutory appeal. A single justice allowed the
petition, and [the SJC] transferred the case ... on
[its] own motion."); Quirk v Data Terminal Systems,
Inc., 379 Mass. 762 (1980)(appeal from motion to
compel arbitration made through single-justice
petition).
22
Requiring the use of single-justice petition
process for interlocutory orders is consistent with
the Uniform Arbitration Act's public policy goals of
speed and efficiency in providing an expeditious
alternative to litigation. See Machado v System4 LLC,
471 Mass. 204, 209 (2015). See also, Henn, J.,
"Judicial Involvement in Arbitrations and in the
Review of Arbitration Awards," 94 Mass. L. Rev. 8
(2011) ("an order denying or compelling arbitration
would, at minimum, be interlocutory and subject to
review by a "single justice of the appellate court"
under § 118, First Paragraph.") Interlocutory appeals
utilizing the single-justice petition practice provide
a faster, less-expensive, method to review a Superior
Court's denial of a motion to compel arbitration.
Planet Fitness, while paying lip-service to the
desirability of speed and efficiency in arbitration,
inexplicably eschewed the speed and efficiency of
single-justice practice and opted instead to appeal
using a procedure reserved for the appeal of final
judgments. The appeal must be dismissed. See, Old
Pilgrim Ins. Agency, Inc. v. Monarch Life Ins. Co., 11
Mass. App. Ct. 893 (1980) (dismissal required where
sole claim of appeal was directed to interlocutory
23
order allowing Planet Fitness's motion for summary
judgment, rather than final judgment); Panesis v.
Loyal Protective Life Ins. Co., 5 Mass.App.Ct. 66
(1977) (Appeals Court would not review trial court's
refusal to grant insurer's motion for summary judgment
under c. 231, § 113 as such claim was not final
judgment).
III. The Superior Court Correctly Found that Planet Fitness Waived Any Right to Arbitrate This Dispute."Arbitration clauses are not set in cement: such
claims can be waived, either expressly or through
conduct." Joca-Roca Real Estate, LLC v Brennan, 772
F.3d 945 (1st Cir. 2014). Planet Fitness waived the
right to arbitrate any of Conway's claims expressly
and by deliberately waiting over eighteen months
before seeking to compel arbitration, and by actively
litigating the case in the Superior Court in the
meantime. Id. (denial of request to compel
arbitration made eight months after suit filed and
with discovery deadline close at hand affirmed as
undue delay worked waiver).
Planet Fitness entered into agreements during
this action expressly waiving any right or claim to
arbitrate. They entered into a Protective Order
24
conferring continued jurisdiction of this matter with
this court through trial and entered into agreements
stipulating to discovery, stipulating to discovery
extensions and stipulating to modifications of the
tracking order. By these actions, Planet Fitness have
expressly waived any claimed right to arbitrate this
dispute. Ziprealty, Inc, v Lopez, 72 Mass App. Ct.
1116 (2008) (Planet Fitness waived right to arbitrate
by agreeing to two joint motions to extend tracking
order and prolonging the discovery process).
A. The Planet Fitness have actively litigated thiscase and delayed in moving to arbitrateConway's claims.
Planet Fitness litigated and defended Conway's
claims on the merits for eighteen months before moving
to compel arbitration. None of the Planet Fitness
moved promptly to compel arbitration. Instead they:
a. Filed a motion to dismiss;
b. Filed a Rule 60(b) motion for relief asking the court to reconsider dismissing all of Conway's claims with prejudice;
c. Obtained an order requiring Conway to deposit funds totaling $500,000 with the court as a condition of permitting suit the suit to proceed in Court;
d. Negotiated and entered into the Protective Order governing discovery in this action and conferring jurisdiction on the court over all disputes;
25
e. Engaged in discovery, including responding to Conway's interrogatories and document requests, serving interrogatories and document requests on Conway, serving a notice of deposition on Conway, and serving a notice of deposition pursuant to Mass. R. Civ. P. 30(b)(6) on a third party witness;
f. Joined in motions and stipulations regarding discovery scheduling, and,
g. Made an Offer of Judgment.
Planet Fitness made no attempt to invoke any alleged
contractual right to binding arbitration until their
motions to dismiss were denied, Conway had been
ordered to deposit $500,000 with the Superior Court
and they had no other way of avoiding the completion
of discovery. The Superior Court correctly determined
that Planet Fitness waived any right to arbitration by
their litigation conduct.
A party's right to arbitrate may be lost through
a failure properly and timely to assert the right.
Home Gas Corp. of Massachusetts v. Walter's of
Hadley, Inc., 403 Mass. 772, 774-775 (1989) (internal
quotation marks and citation omitted); Second
Congregation Society v. Hugh Stubbins and Associates,
Inc., 108 N.H. 446 (1968) (right to arbitrate a
contract may be waived.) Whether or not a party has
waived its right to arbitration is a question of fact
26
for the trial court, to be determined from particular
circumstances of case. Id. To avoid a waiver of the
right to arbitrate "a party must 'proceed with
dispatch in seeking arbitration'" Home Gas, 403 Mass,
at 775, 532 N.E.2d 681 (internal quotation marks and
citation omitted) quoting Jones Motor Co. v.
Chauffeurs, Teamsters & Helpers, Local No. 633 of
N.H., 671 F.2d 38, 42 (1st Cir.), cert, denied, 459
U.S. 943, 103 S.Ct. 257, 74 L.Ed.2d 200 (1982),
quoting in turn E.T. Simonds Construction Co. v. Local
1330, Int1! Hod Carriers, 315 F.2d 291 (7th Cir.1963).
A party waives an agreement to arbitrate by "(1)
taking actions that are completely inconsistent with
any reliance on an arbitration agreement; and (2)
'delaying its assertion to such an extent that the
opposing party incurs actual prejudice.'" Johnson
Associates Corp. v. HL Operating Corp., 680 F.3d 713
(6th Cir.2012), quoting Hurley v. Deutsche Bank Trust
Co. Ams., 610 F.3d 334, 338 (6th Cir.2010), quoting in
turn O.J. Distrib., Inc, v. Hornell Brewing Co., 340
F.3d 345, 356 (6th Cir.2003). "[T]here is no bright-
line rule for a waiver of arbitral rights, and each
case is to be judged on its particular facts." Tyco
Int’1 Ltd, v. Swartz (In re Tyco Int*! Ltd. Sec.
27
Litig.) , 422 F.3d 41, 46 (1st Cir.2005); accord, e.g.,
Louisiana Stadium & Exposition Dist. v. Merrill Lynch,
Pierce, Fenner & Smith Inc., 626 F.3d 156, 159 (2d
Cir.2010); In re Mirant Corp., 613 F.3d 584, 589 (5th
Cir.2010).
Planet Fitness waived arbitration in this matter
by substantially invoking the "litigation machinery"
before asserting any claimed arbitration rights.
Hooper v. Advance America, 589 F.3d 917, 921 (8th Cir.
2009); Joca-Roca Real Estate, LLC v Brennan, 772 F.3d
945 (1st Cir. 2014); Shalaby v Arctic Sand
Technologies, Inc., 2014 WL 7235830 (Mass. Superior
Court December 15, 2014) (Salinger, J.).
Conway filed this action on May 10, 2013. The
Planet Fitness accepted service of process in June
2013. Thereafter, Planet Fitness actively litigated
this case for over twenty months, waiting until
January 15, 2015, to serve a motion to compel
arbitration and stay the proceedings. It is clear
that Planet Fitness deliberately delayed moving to
compel arbitration because they first wanted to press
their motions to dismiss and then obtain an order
requiring Conway to deposit the $500,000 she had
28
received pursuant to the Settlement Agreement in the
Superior Court.
Planet Fitness filed their motion to dismiss on
October 21, 2013. By moving to dismiss all of Conway's
claims under Mass. R. Civ. P. 12(b)(6), Planet Fitness
sought an adjudication and dismissal on the merits
that would have res judicata effect. See Mestek, Inc.
v. United Pacific Ins. Co., 40 Mass.App.Ct. 729, 731
(1996).10 By filing this motion Planet Fitness made a
deliberate choice to seek "an immediate and total
victory in the parties' dispute" in Superior Court,
and "to see how the case was going in ... court before
deciding whether it would be better off there or in
10 Planet Fitness' efforts to minimize the significance of the motion to dismiss or characterize it as merely an effort to move the forum do not square with the facts. The motion sought complete dismissal of Conway's claims under Mass. R. Civ. P. 12(b)(6) on the grounds of release, ratification and failure to tender back the consideration. The effort was redoubled when Planet Fitness filed the Rule 60(b) motion requesting an opinion that Conway's claims were barred by these same grounds. Because the Planet Fitness consistently encouraged the court to resolve the entire dispute, they have waived their rights to arbitrate. Hooper v Advance America, 589 F.3d 917, 921-923; In re Mirant Corporation, 613 F.3d 584, 589 (5th Cir. 2010) (effortto dismiss claims by asserting other grounds for avoiding claim (i.e. release) is more than a perfunctory motion to dismiss and consititutes effort to seek decision on merits thereby waiving claim to arbitration).
29
arbitration." Hooper v. Advance America, Cash Advance
Centers of Missouri, Inc., 589 F.3d 917, 922 (8th
Cir.2009).
Planet Fitness were happy to litigate Conway's
claims in the Superior Court so long they believed
they would obtain a judgment in their favor on the
merits. Planet Fitness' overt actions evinced "a
desire to resolve the arbitrable dispute through
litigation rather than arbitration." In re Mirant,
613 F.3d at 589. They only moved to compel
arbitration after the motion to dismiss was denied,
after they succeeded in obtaining an order requiring
Conway to deposit $500,000 with the court and when
they could no longer avoid appearing for their
depositions. Planet Fitness "'wanted to play heads I
win, tails you lose,' which 'is the worst possible
reason' for failing to move for arbitration sooner"
than they did. Hooper, 589 F.3d at 922, quoting
Cabinetree of Wisconsin, Inc, v. Kraftmaid Cabinetry,
Inc., 50 F.3d 388, 391 (7th Cir.1995).
Planet Fitness repeatedly acted in a manner
inconsistent with any right to arbitrate. The motion
to dismiss was "extensive and exhaustive, and
substantially invoked the litigation machinery". Id.
30
at 921 (defendant waived arbitration by moving to
dismiss claims under Fed.R.Civ.P. 12(b)(6), and
waiting until that motion was denied in part to file
separate motion seeking to compel arbitration). "A
party waives arbitration by seeking a decision on the
merits before attempting to arbitrate." Mirant Corp.,
613 F.3d at 589 (5th Cir.) (same), quoting Petroleum
Pipe Americas Corp. v. Jindal Saw, Ltd., 575 F.3d 476,
480 (5th Cir.2009); accord In re Pharmacy Benefits
Managers Antitrust Litigation, 700 F.3d 109, 118-122
(3d Cir.2012) (same); St. Mary's Medical Center of
Evansville, Inc, v. Disco Aluminum Products Co., Inc.,
969 F.2d 585, 589-590 (7th Cir.1992) (same).
In addition to moving to dismiss Conway's claims
and then filing an answer to the complaint, Planet
Fitness also invoked the court's jurisdiction by
asking for an order requiring Conway to deposit the
settlement proceeds with the Court, negotiating the
Protective Order, engaging in discovery and serving an
Offer of Judgment. At no point during these events
did Planet Fitness move to compel arbitration. In
August 2014 the parties filed a Joint Motion to extend
discovery. The Court ordered that discovery be
completed by December 5, 2014. In November 2014 the
31
parties again moved to extend discovery and further
requested that the court modify its order requiring
Conway to deposit funds with the Court. On each
occasion, the court resolved the issues raised by
these joint motions. At no time during this process
did Planet Fitness ever suggest that the Court*s
orders were invalid because Conway's claims were
subject to compulsory arbitration. In fact, in each
case Planet Fitness stipulated to the discovery in
this litigation.
Similarly, when Conway served discovery requests
on Planet Fitness and third parties, Planet Fitness
never suggested that Conway was not entitled to
discovery because she was required to arbitrate her
claims. In fact, Planet Fitness served responses to
interrogatories and document requests and noticed
depositions of Conway and a third party witness.
Planet Fitness also engaged in discovery by serving
document requests and interrogatories as well as
notices of deposition. When considered together,
these circumstances demonstrate that Planet Fitness
have "acted completely inconsistently with its right
to arbitration." See Johnson Assocs., 680 F.3d at 719
32
(Planet Fitness engaged in pattern of continued effort
to extend discovery deadlines).
B. Significant judicial resources have beendevoted to resolving two substantive motionsaddressing the merits of the case and the parties have committed the court to furtherjudicial involvement.
Significant judicial resources have been devoted
to this action. After full and extensive briefing by
both parties, the Superior Court heard and decided a
Rule 12(b)(6) motion resulting in a thirteen page
memorandum and decision issued two months after
hearing. After full and extensive briefing by both
parties, the court considered and decided a Rule 60(b)
motion resulting in a seven-page memorandum and
decision, three months after it was filed. Planet
Fitness sought and obtained an order requiring Conway
to deposit funds with the Court. The court considered
three separate motions to extend the tracking order.
The court considered a motion to amend its ruling to
require Conway to deposit funds with the court. The
matter has been transferred from Lawrence to
Newburyport for hearings and transferred back to
Lawrence. The Regional Administrative Justice was
required to rule on a motion to set aside a dismissal
that was entered in error.
33
By virtue of the Protective Order, Planet Fitness
committed the Superior Court to further judicial
involvement and devotion of additional attention to
the case. The Protective Order, governing the
disclosure and or use of documents, addressed the
method that confidential information could be filed in
the Superior Court, permitted disclosure of
information designated as "Confidential" to jurors,
the Court and court personnel, provided for filing of
all motions regarding disputes over confidentiality in
the Superior Court for ultimate resolution, and
further provided that the Superiot "Court retains
jurisdiction over the parties, counsel for the
parties, and all persons, firms, corporations or
organizations to whom this Order applies for purposes
of enforcement of this Order following the conclusion
of this action". The order also specifically exempted
documents "Admitted as exhibits or through testimony
at trial of this action." Planet Fitness filed the
Stipulation requesting that the court enter it as an
order.
34
C. Conway has been prejudiced by Planet Fitness'active litigation conduct and delay inrequesting arbitration.
There is no dispute that Conway has been
prejudiced by Planet Fitness' litigation activity and
long-delayed request to compel arbitration. In order
to comply with the court's order to deposit the funds,
Conway liquidated various investments and will suffer
tax consequences and other losses in excess of
$50,000. This prejudice alone is substantial and
required denial of Planet Fitness' motion.
Planet Fitness' extensive and active litigation
conduct has resulted in significant legal fees and
delays all to Conway's prejudice. Conway paid
considerable legal fees defending against Planet
Fitness' motions, negotiating the Protective Order,
conducting discovery, reviewing documents, responding
to discovery and litigating this matter. She agreed
to extensions of time to complete discovery that she
would not have agreed to if Planet Fitness had advised
her that they were going to use that time to prepare
and file a motion to compel arbitration.
'Prejudice can be substantive, such as when a
party loses a motion on the merits and then attempts,
in effect, to relitigate the issue by invoking
35
arbitration, or it can be found when a party too long
postpones his invocation of his contractual right to
arbitration, and thereby causes his adversary to incur
unnecessary delay or expense.'" Johnson Assocs., 680
F.3d at 719-720, quoting Kramer v. Hammond, 943 F.2d
176, 179 (2d Cir.1991). "To be sure, prejudice is
essential for a waiver—but the required showing is
'tame at best.' Some degree of prejudice ordinarily
may be inferred from a protracted delay in the
assertion of arbitral rights when that delay is
accompanied by sufficient litigation activity." Joca-
Roca Real Estate, LLC v. Brennan, 772 F.3d at 949-950,
quoting Rankin v Allstate Insurance Co., 336 F.3d 8,
14 (1st Cir. 2003). "The longer the delay and the more
extensive the litigation-related activities that have
taken place, the stronger the inference of prejudice
becomes." Id.
Planet Fitness' "failure to pursue the demand for
arbitration early in the proceedings caused the
parties and the court to expend a great deal of time,
expense, and resources" on litigating this matter in
court, "and caused the opportunity for an 'expeditious
alternative to litigation' to be lost." Home Gas, 403
Mass, at 776-777, 532 N.E.2d 681 (holding that party
36
waived arbitration as a result), quoting Danvers v.
Wexler Constr. Co.f 12 Mass.App.Ct. 160, 163, 422
N.E.2d 782 (1981). If Planet Fitness' motion to compel
arbitration ever had substantive merit, which is
denied, then the over eighteen month delay in filing
that motion—while Planet Fitness were vigorously
pressing its Rule 12(b)(6) motion to dismiss,
demanding deposits of funds with the court and
engaging in discovery—forced Conway to incur
unnecessary expense and delay.
Conclusion
For each of the above reasons, the Court should
affirm the Superior Court's denial of Planet Fitness'
Motion to Compel Arbitration and Stay the Proceedings
and remand the action for further proceedings,
including trial.
Respectfully submitted, JAYNE CONWAY By her attorneys,
Kenneth J. DeMouraBBO No. 548910kdemouraOdemourasmith.comDEMOURA|SMITH, LLPOne International Place, 14th FI.Boston, MA 02110(617) 535-7531
37
CERTIFICATION OF COMPLIANCE PURSUANT TO RULE 16(K) OF THE MASSACHUSETTS RULES OF APPELLATE PROCEDURE
Pursuant to Mass. R. App. P. 16(k), the undersigned certifies that this brief complies in all material respects with the rules of court pertaining to the filing of briefs, as applicable, including, but not limited to:
Mass. R. A. P. 16(a)(6) (pertinent findingsor memorandum of decision);
Mass. R. A. P. 16(e) (references to therecord);
Mass. R. A. P. 16(f) (reproduction ofstatutes , rules, regulations);
Mass. R. A. P. 16(h) (length of briefs);
Mass. R. A. P. 18 (appendix to the briefs);
Mass. R. A. P. 20 (form of briefs,appendices, and other papers).
Kenneth J. DeMoura
38
2013May 10,2013-Complaint FiledJuly 22, 2013-Defendant Serve Motion to Dismiss Pursuant to Sup,Ct. Rule 9A
October 21. 2013-Motion To Dismiss FiledNovember 21, 2013-Defendants request continuance of hearing onMotion to Dismiss
2014April 17, zoiA-tteertag on Motion to Dismiss
June 16,2014-Order Denying Motion to Dismiss
July 11,2014-Defendants File AnswerJuly 11, 2014-Defendants Serve Motion for Relief from Court's June
16 Order Pursuant to Rule 60(b) pursuant to Rule 9A
August 6, 2014-Defendants File Motion for Relief from Court's June
16 Order Pursuant to Rule 60(b)
August 28, 2014-Joint Motion to Amend Tracking Order Deadlines
Filed
September 3,2014-Motion to Amend Tracking Deadlines Denied In
Part and Allowed In PartSeptember 3,2014-Court Sends Parties Notice of Pre-Trial Conference for February 26,2015September 15,2014-Plaintiff serves Rule 34 Requests on Defendants September 15,2014-Ptalntiff Notices Deposition of Third Party
Witness (Keeper of Records)September 24,2015-Third Party Witness Complies with Deposition
Subpoena and produces documentsOctober 23, 2014-Defendants raise Confidentiality Agreement and
Protective Order as requirement for producing documents
October 30, 2014-Plaintiff notices depositions of all defendants October 31, 2014-Defendants serve Responses to Plaintiff's First Set Of interrogatoriesOctober 31,2014-Order Allowing Rule 60 Motion and Order that Plaintiff Deposit $500,000 with CourtNovember 3, 2014-Defendants serve Rule 34 Requests on Plaintiff November 3,2014-Defendants Notice Depositions of Third Party
Witnesses
November 3,2014-Defendants Notice Deposition of PlaintiffNovember 7, 2014-Defendants file Stipulated Protective Order andConfidentiality Agreement with CourtNovember 7, 2014-Defendants deliver CD-ROM containingdocument production marked CONFIDENTIALNovember 14,2014-Parties File Stipulation Regarding Pre-TrialProcedure and Deposit of FundsNovember 19,2014-Parttes File Emergency Motion Regarding Pretrial ProcedureDecember 1,2014-Plaintiff Flies Notice of Compliance Regarding
Deposit of $500,000December 22,2014-Plaintiff serves responses to Defendants'
requests for production of documentsDecember 22,2014-Plaintiff Serves Second Notices of Depositionson Defendants2015January 6, 2015-Defendants serve First Set of Interrogatories on
PlaintiffJanuary 6,2015-Oafendants advise Plaintiff they intend to fttt
Motion to Compel ArbitrationJanuary 8,2015-Defendants serve Offer of Judgment on Plaintiff
January 15,2015-Defendants serve Motion to Compel Arbitration
(Rule 9A)March 6, 2015-Defendants' Motion to Compel Arbitration Filed with
Court
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