Judge Allison D. Burroughs: ORDER. The Motion to Appeal in forma pauperis 54 is GRANTED. [Copy of ENF of electronic order mailed to plaintiff on 6/20/2018.] (PSSA, 3)
Mail sent to 8F8E731 re. 52 Order in 16-12076 Mail Returned as Undeliverable. (McDonagh, Christina)
52
Filed: 3/1/2018, Entered: 3/1/2018
Judge Allison D. Burroughs: ELECTRONIC ORDER entered denying 51 Motion to Correct PORTIONS OF ADDENDUM THAT WERE NOT FILED IN DISTRICT COURT. On February 12, 2018, Defendant-Appellee filed a motion under Federal Rule of Appellate Procedure 10(e) to strike pages 44 through 53 of Plaintiff-Appellant's appellate brief. ECF No. 51 . Plaintiff-Appellant has not responded to the motion. Rule 10(e) "governs the modification or correction of the record on appeal. In particular, Rule 10(e)(1) provides that, '[i]f any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.'" United States v. Cruz-Feliciano, 786 F.3d 78, 91 (1st Cir. 2015) (quoting Fed. R. App. P. 10(e)(1)). Although the Court understands Defendant-Appellee's intent in filing this motion under Rule 10(e), and despite the fact that the pages at issue were not part of the record before this Court, the Court views this filing as a motion to strike portions of an addendum to an appellate brief, as opposed to a motion to correct the record. Accordingly, the motion is likely better suited for the consideration of the court in which the appeal is pending. See, e.g., Town of Westport v. Monsanto Company, 877 F.3d 58, 61 n.1 (1st Cir. 2017) (First Circuit granting motion to strike a settlement agreement contained in an addendum to appellant's brief, because it was not presented to the district court and therefore could not be included in appellate briefing); Kyle v. United States, 915 F.2d 1556, 1990 WL 151373, at *2 (1st Cir. 1990) (First Circuit granting motion to strike pages of an addendum to appellant's brief on the ground that the material was "not presented to the district court"). Therefore, the motion is DENIED without prejudice. (McDonagh, Christina)
Judge Allison D. Burroughs: ELECTRONIC ORDER entered Plaintiff has proceeded in forma pauperis in this case to date, and his motion for leave to appeal reflects no change in his financial status. Accordingly, 46 Plaintiff's motion for leave to appeal in forma pauperis is GRANTED in case 1:16-cv-12076-ADB; granting 38 Plaintiff's motion for leave to appeal in forma pauperis in case 1:16-cv-12080-ADB. A copy of this Order has been mailed to the Plaintiff. Associated Cases: 1:16-cv-12076-ADB, 1:16-cv-12080-ADB(Montes, Mariliz)
MOTION for Leave to Appeal in forma pauperis by 8F8E731. (Attachments: # 1 Affidavit for Permission to Appeal in Forma Pauperis- case 16-12076, # 2 Affidavit for Permission to Appeal in Forma Pauperis- case 16-12080, # 3 Cover Letter)Associated Cases: 1:16-cv-12076-ADB, 1:16-cv-12080-ADB(Montes, Mariliz) (Attachment 1 replaced on 8/8/2017) (Paine, Matthew). (Attachment 2 replaced on 8/8/2017) (Paine, Matthew). Modified on 8/8/2017 (Paine, Matthew).
Judge Allison D. Burroughs: ELECTRONIC ORDER entered. The Court has carefully reviewed Plaintiff's Objections [ECF No. 42][ECF No. 34] to the Memorandum and Order Granting the Motions to Dismiss [ECF No. 40][ECF No. 32]. Nothing contained in the objections changes the reasoning set forth by the Court in its June 19, 2017 order [ECF No. 37][ECF No. 29]. Furthermore, the reasons set forth in the Court's June 27, 2017 Memorandum and Order would support dismissal of the case regardless of any additional defendants who could be served. Accordingly, Plaintiff's request for reconsideration is denied. A copy of this Order has been mailed to the Plaintiff. Associated Cases: 1:16-cv-12076-ADB, 1:16-cv-12080-ADB(Montes, Mariliz)
NOTICE of Objection and Request for Reconsideration by 8F8E731 re (37 in 1:16-cv-12076-ADB) Order on Motion to Strike,,,,,, (29 in 1:16-cv-12080-ADB) Order on Motion to Strike,,,,,, Associated Cases: 1:16-cv-12076-ADB, 1:16-cv-12080-ADB(Montes, Mariliz)
NOTICE OF APPEAL as to (32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 32 in 1:16-cv-12080-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB, 40 in 1:16-cv-12076-ADB) Order on Motion to Intervene,,,,,,,, Order on Motion to Dismiss for Failure to State a Claim,,,, Order on Motion to Certify Class,,,,,,,, Order on Motion to Amend,,,, Order on Motion to Appoint Counsel,,,,,,,,,,,,,,, by 8F8E731 NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 7/31/2017. Associated Cases: 1:16-cv-12076-ADB, 1:16-cv-12080-ADB(Montes, Mariliz)
Judge Allison D. Burroughs: ORDER entered. For the reasons explained in the Court's Memorandum and Order, Defendant B1FB0EE motions to dismiss are GRANTED, 8F8E731, ECF No. 9, 8F8E731 III, ECF No. 7. This order disposes of all of 8F8E731 pending claims in both 8F8E731 and 8F8E731 III. Accordingly, the following pending motions are DENIED AS MOOT: (1) 8F8E731 motion to certify class action, 8F8E731, ECF No. 11; (2) 8F8E731 motion to appoint class counsel, 8F8E731, ECF No. 15; (3) 8F8E731 motions to amend the complaints, 8F8E731, ECF No. 14; 8F8E731 III, ECF No. 10; and (4) the motions to intervene, 8F8E731, ECF Nos. 7, 8, 12, and 28. A copy of this Order has been mailed to the Plaintiff. Associated Cases: 1:16-cv-12076-ADB, 1:16-cv-12080-ADB(Montes, Mariliz)
Mail sent to 8F8E731 re. 31 Order in 16-12076 and 23 Order in 16-12080: Mail Returned as undeliverable. Associated Cases: 1:16-cv-12076-ADB, 1:16-cv-12080-ADB(Montes, Mariliz)
Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Federal Rule of Civil Procedure 42(a)(2) authorizes the Court to consolidate actions if they involve common questions of law or fact. Plaintiff seeks to consolidate case numbers 13-cv-11431, 16-cv-12076, and 16-cv-12080. Judge Casper denied Plaintiff's motion to consolidate in case number 13-cv-11431 on April 13, 2017. As to cases 16-cv-12076 and 16-cv-12080, both of which are pending before the same judge, the complaints make similar factual allegations and assert nearly the same legal claims, although each case concerns a different arrest and conviction. Therefore, the Court GRANTS 8F8E731 motion to consolidate in part [ECF No. 25] and consolidates case number 16-cv-12076 and case number 16-cv-12080. Upon consolidation of the cases, some motions become redundant. Accordingly, the Motion to Appoint Class Action Counsel [ECF No. 29] in case number 16-cv-12076 and the Motion to Appoint Class Action Counsel [ECF No. 9] in case number 16-cv-12080 are DENIED because they duplicate the pending Motion to Appoint Class Action Counsel [ECF No. 15] in case number 16-cv-12076. A copy of this Order has been mailed to the Plaintiff. (Montes, Mariliz)
Judge Allison D. Burroughs: ELECTRONIC ORDER entered.Upon consideration of Defendant's Response to the Order to Show Cause [ECF Nos. 33, 34], the Court concludes that Plaintiff never effected proper service on the remaining defendants. The defendants were sued in their individual capacities [ECF No. 1-3], but Plaintiff's documentation indicates that he served them at their place of employment, which is not a permissible method of service pursuant to Mass. R. Civ. P. 4. See Foley v. B1FB0EE, 600 N.E.2d 611, 612 (Mass. App. Ct. 1992) (where state police officer was sued for torts and civil rights violations, "leaving process at a defendant's place of employment does not satisfy the place of abode method of service"); Owens v. City of Boston, 66 Mass. App. Ct. 1118, 850 N.E.2d 621 (2006) ("To sue an official in his or her individual capacity, Mass. R. Civ. P. 4(d)... requires that the summons and complaint be delivered to the official personally or by leaving copies at the official's last and usual address. Service may only be made on an agent if authorized by appointment or if authorized by statute."). Plaintiff has not indicated that there is an agent authorized to accept service on behalf of defendants, and it appears that the Suffolk Superior Court did not appoint an agent to accept service on behalf of the remaining defendants. [ECF No. 27-3]. Accordingly, Plaintiff's Motion to Strike Due to Lack of Jurisdiction [ECF No. 17, 20, 21] is DENIED. A copy of this Order has been mailed via first class mail to the Plaintiff. (Montes, Mariliz) Modified on 6/20/2017 (Montes, Mariliz). NEF Regenerated.
Judge Allison D. Burroughs: ORDER entered. ORDER TO SHOW CAUSEDefendant B1FB0EE argues that Plaintiff's motion to remand the case to state court should be denied because Plaintiff did not serve any of the other defendants. Plaintiff, however, contends that he served the other defendants in October 2016, and he filed an affidavit and cover letters as proof. [ECF Nos. 27-2, 27-5]. It is not clear whether 8F8E731 filed proof of service in state court, but pursuant to Mass. R. Civ. P. 4(f), "[f]ailure to make proof of service does not affect the validity of the service." Accordingly, Defendant B1FB0EE is hereby ORDERED to show cause as to why removal was proper by June 15, 2017. Show Cause Response due by 6/15/2017.(Montes, Mariliz)
Plaintiff's Rebut to 19 Defendant's Opposition to 17 Plaintiff's MOTION to Strike 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by 8F8E731. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit A, # 5 Exhibit B)(Montes, Mariliz)
Plaintiff's Rebut of 18 Defendant's Opposition to 14 Plaintiff's MOTION to Amend Complaint filed by 8F8E731. (Attachments: # 1 Exhibit A)(Montes, Mariliz)
Opposition re 20 MOTION to Strike 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 21 MOTION to Strike 13 Opposition to Motion to Intervene and for Class Certification filed by B1FB0EE. (Anjomi, Nieve)
Plaintiff's MOTION to Strike 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by 8F8E731. (Attachments: # 1 Exhibit, # 2 Affidavit 8F8E731, # 3 Affidavit 076AC74 III, # 4 cover letter)(Montes, Mariliz)
MOTION to Strike 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by 8F8E731. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 cover letter)(Montes, Mariliz)
MEMORANDUM in Support re 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by B1FB0EE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Errata D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Anjomi, Nieve)
Notice of correction to docket made by Court staff. Correction: D.E. 1 corrected because: corrected to detach all exhibits from notice of removal and refile as separate attachments. (Franklin, Yvonne)
ELECTRONIC NOTICE of Case Assignment. Judge Allison D. Burroughs assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Marianne B. Bowler. (Abaid, Kimberly)
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