Miller, Keith L Vs. Paul Lundberg As Member Of The Gloucester City Council Et Al

JUDGMENT on Defendants, Paul Lundberg As member of The Gloucester City Council, Joseph A Ciolino As member of The Gloucester City Council, Greg Verga As member of The Gloucester City Council, Robert Whynott As member of The Gloucester City Council, Paul McGeary As member of The Gloucester City Council, Melissa Cox As member of The Gloucester City Council, Steven LeBlanc As member of The Gloucester City Council, Robert Stewart As member of The Gloucester City Council, William Fonyielle As member of The Gloucester City Council 12(b) motion to dismiss against Plaintiff(s) Keith L Miller. It is ORDERED and ADJUDGED: that , the defendants' motion to dismiss for lack of standing is ALLOWED as to Count II of the complaint, the only remaining count of the complaint. Therefore, the plaintiff's complaint is hereby DISMISSED. Judge: Karp, Hon. Jeffrey

MEMORANDUM & ORDER: ON DEFENDANT'S MOTION TO DISMISS COUNT I (PAPER #19).... CONCLUSION/ORDER, Miller failed to timely appeal the ZBA's December Decision, in accordance with the twenty-day period set forth G.L.c.40A, s 17. He cannot, now, use the declaratory judgment statue to circumvent this requirement. Thus, for the reasons stated herein, it is hereby 0RDERED that the Motion to Dismiss Count I (Paper #19) be ALLOWED.

Endorsement on motion to compel (#31.0): DENIED For the reasons cited in the opposition the motion is DENIED.

Opposition to motion filed to quash plaintiff's subpoena seeking to take deposition of Suzanne Egan filed by Keith L Miller

Joint Pre-Trial Memorandum filed:

Affidavit of compliance with Superior Court Rule 9A Applies To: Roelofs, Esq., Jeffrey L. (Attorney) on behalf of Greg Verga As member of The Gloucester City Council, Joseph A Ciolino As member of The Gloucester City Council, Melissa Cox As member of The Gloucester City Council, Paul Lundberg As member of The Gloucester City Council, Paul McGeary As member of The Gloucester City Council, Robert Stewart As member of The Gloucester City Council, Robert Whynott As member of The Gloucester City Council, Steven LeBlanc As member of The Gloucester City Council, William Fonyielle As member of The Gloucester City Council (Defendant)

Service Returned for Defendant SBA Towers V, LLC: Service via certified mail;

JUDGMENT entered on this date. Judgment After Finding After Hearing Drechsler, Hon. Thomas Judgment For: Paul Lundberg As member of The Gloucester City Council / Joseph A Ciolino As member of The Gloucester City Council / Greg Verga As member of The Gloucester City Council / Robert Whynott As member of The Gloucester City Council / Paul McGeary As member of The Gloucester City Council / Melissa Cox As member of The Gloucester City Council / Steven LeBlanc As member of The Gloucester City Council / Robert Stewart As member of The Gloucester City Council / William Fonyielle As member of The Gloucester City Council Judgment Against: Miller, Keith L Terms of Judgment: Jdgmnt Date: 03/17/2016 Further Orders: Motion to Dismiss Count 1 is ALLOWED

Summons, returned SERVED Applies To: New Cingular Wireless PCS, LLC (Defendant)

Defendants SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust's Request for the scheduling of a final pre-trial conference and trial

other document, returned SERVED Affidavit of Service Applies To: Paul Lundberg As member of The Gloucester City Council (Defendant); Joseph A Ciolino As member of The Gloucester City Council (Defendant); Greg Verga As member of The Gloucester City Council (Defendant); Robert Whynott As member of The Gloucester City Council (Defendant); Paul McGeary As member of The Gloucester City Council (Defendant); Melissa Cox As member of The Gloucester City Council (Defendant); Steven LeBlanc As member of The Gloucester City Council (Defendant); Robert Stewart As member of The Gloucester City Council (Defendant); William Fonyielle As member of The Gloucester City Council (Defendant); SBA Towers V, LLC (Defendant); New Cingular Wireless PCS, LLC (Defendant); Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust (Defendant); Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust (Defendant)

ORDER: on Applicant's Motion to Compel Production of Documents and Answers to Interrogatories (P#22)

Original civil complaint filed.

Endorsement on motion to quash (#32.0): DENIED After full consideration of the arguments presented in both memos, the motion to quash is DENIED.

Defendants SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust's Motion in limine of concerning the permitting of and litigation with respect to an irrelevant cell tower

Defendants SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust's Motion in limine of concerning the propriety of the variance

Endorsement on Motion to Continue Trial Date (#35.0): ALLOWED New date to issue. Dated 3/8/17

Endorsement on Motion for Reconsideration of court's allowance of defendants' motion to dismiss, or in the alternative, for relief from judgment under MRCP Rule 60(B)(6) (#62.0): DENIED after thorough review. This is not a "genuine" motion for reconsideration as plaintiff has failed to show a change in circumstances of "a particular and demonstrable error in the original ruling." Commonwealth v Demirtshyan, 87 Mass App Ct 737, 741 n.8 (2015). Moreover, plaintiff has failed to establish "extraordinary circumstances" warranting relief under Rule 60(b)(6). Satin v Sahin, 435 Mass 396, 406 (2001). Furthermore, the court notes that the only "new" legal argument plaintiff advances herein is that the court misapplied the holding in Hiles v Episcopal Diocese of Mass, 437 Mass 505 (2002). However, plaintiff's reliance on Hiles is misplaced. In Callahan v First Cong. Church of Haverhill, 441 Mass 699, 709-710 (2004) the SJC clarified its holding in Hiles and ruled that a "factual attack" on subject matter jurisdiction under Rule 12(b)(1) may be properly supported by "other materials outside the pleadings that are not affidavits." 441 Mass E 710. Judge: Karp, Hon. Jeffrey

Affidavit of compliance with Superior Court Rule 9A Applies To: Parnagian, Esq., Steven K (Attorney) on behalf of Miller, Keith L (Plaintiff)

Plaintiff Keith L Miller's Motion for Reconsideration of court's allowance of defendants' motion to dismiss, or in the alternative, for relief from judgment under MRCP Rule 60(B)(6)

Notice of appeal filed. Applies To: Miller, Keith L (Plaintiff)

ORDER: Memorandum of Decision and Order on Defendants' Motion to Dismiss for Lack of Standing (P#39) the defendants' motion to dismiss for lack of standing is ALLOWED as to Count II of the complaint, the only remaining count of the complaint. Therefore, the plaintiff's complaint is hereby DISMISSED. Judge: Karp, Hon. Jeffrey

Endorsement on Motion to dismiss for lack of standing (#39.0): ALLOWED after hearing on 1/3/18. See memorandum of decision and order. Judge: Karp, Hon. Jeffrey

List of exhibits Applicants' Contested Trial Exhibits With Plaintiff's Objections, filed 12/11/2017

List of exhibits (Joint List) filed on 12/11/2017

Wayne F Dennison, Esq., Edward David Pare, Jr., Esq., Blair M Rinne, Esq.SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust's Memorandum Pretrial Memorandum of Law, filed 12/11/2017

Defendant SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust files proposed Findings of Fact filed on 12/11/2017 Applies To: SBA Towers V, LLC (Defendant); New Cingular Wireless PCS, LLC (Defendant); Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust (Defendant); Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust (Defendant)

Endorsement on Motion to reconsider The Court's Dismissal of count one of the complaint(with proposed first amended complaint) (#38.0): DENIED This motion is untimely and provides no legal basis for reconsideration. Trial is scheduled for 1/3/18. this motion was filed on 11/7/17 requsting reconsideration of a 1/15/16 decision. The motion sets forth no valid basis for any change in the prior ruling. Judge: Drechsler, Hon. Thomas

Plaintiff Keith L Miller's Request for Findings

Plaintiff Keith L Miller's Memorandum of requested conclusions of law

Response to Applicants' proposed findings of fact filed by Keith L Miller

Plaintiff, Defendants Keith L Miller, Paul Lundberg As member of The Gloucester City Council, SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust's Joint Statement of Agreed Facts

Keith L Miller's Surreply Memorandum regarding defendant's motion to dismiss

Endorsement on Motion for leave to file surreply regarding defendants' motion to dismiss (#41.0): ALLOWED Judge: Tabit, Hon. Salim

Plaintiff Keith L Miller's Motion for leave to file surreply regarding defendants' motion to dismiss

Opposition to Motion to Dismiss for Lack of Standing filed by Keith L Miller

Jeffrey L Roelofs, Esq., Wayne F Dennison, Esq.'s Memorandum in support of Defendant's Motion to Dismiss for Lack of Standing.

Defendants Paul Lundberg As member of The Gloucester City Council, Joseph A Ciolino As member of The Gloucester City Council, Greg Verga As member of The Gloucester City Council, Robert Whynott As member of The Gloucester City Council, Paul McGeary As member of The Gloucester City Council, Melissa Cox As member of The Gloucester City Council, Steven LeBlanc As member of The Gloucester City Council, Robert Stewart As member of The Gloucester City Council, William Fonyielle As member of The Gloucester City Council, SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust's Motion to dismiss for lack of standing.

Opposition to Motion for Reconsideration filed by SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trustand Gloucester City Council

Affidavit of compliance with Superior Court Rule 9A Applies To: Parnagian, Esq., Steven K (Attorney) on behalf of Miller, Keith L (Plaintiff)

Plaintiff Keith L Miller's Motion for Reconsideration of Memorandum & Order on Defendant's Motion to Dismiss Count I Dated 01/15/2016 (with proposed first amended complaint)

Endorsement on Motion to bifurcate trial (#36.0): ALLOWED The motion is unopposed. A status hearing shall be scheduled in October at which the parties will consider the process for determining the plaintiff's standing. It is unclear whether the parties agree that standing can be determined without an evidentiary hearing.

ORDER: Pre-Trial Order

Affidavit of compliance with Superior Court Rule 9A Applies To: Rinne, Esq., Blair M. (Attorney) on behalf of Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, SBA Towers V, LLC (Defendant)

Defendants SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust's Request for hearing

SBA Towers V, LLC, New Cingular Wireless PCS, LLC, Pamela J Fryklund Trustee of The Donald L. Fryklund Living Trust, Carrie Fryklund Trustee of The Donald L. Fryklund Living Trust's Memorandum in support of Motion to bifurcate trial