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Date Filed 1/2/2024 4:00 PM
‘Superior Court - Bristol
Docket Number 2373CV00479
#8
COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT
BRISTOL, ss.
TRIBORO PROPERTY
Plaintiff
HOLDINGS Hf&FOL,SS SUPERIOR COURT
Docket No. 2373CV00479
FILED
Vv.
JAN ~'2 2024 1
27-39 SOUTH MAIN ST., LLC.,
Defendant JENNIFER A. SULLIVAN, ESQ.
CLERK / MAGISTRATE
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO AMEND COMPLAINT.
I INTRODUCTION
This matter came before this Honorable Court on Plaintiff's August 2, 2023 complaint. The
gravamen of Plaintiff's Complaint was a series of encroachments upon its property located at 41
South Main Street in Attleboro, Massachusetts, over a period beginning in April, 2022. The
Defendant owns the neighboring property at 27-39 South Main Street, and was conducting
demotion of one building and construction of a new building. (Compl., 7.) During the course of
that construction, the Defendant has repeatedly and without permission caused construction
equipment to be parked on the parking lot located at 41 South Main Street. (Compl. {| 8-9.)
Defendant also rendered a ten-foot right of way unusable, by blocking it with construction
equipment, and debris. Defendants also damaged the right-of-way to install new drainage, which
contributed to the right-of-way becoming unusable. (Compl., {| 8-9.)
Plaintiffs initial Complaint was for trespass and negligence. After being granted an
extension, the Defendant answered the Complaint on or about September 21, 2023. The parties are
discussing potential resolution. Defendant served written discovery requests on or about November
21, 2023. However, at this juncture, Plaintiff has determined to amend its complaint to add a count
for nuisance, as the nuisance theory may better describe the claims regarding the Defendant’s
Date Filed 1/2/2024 4:00 PM
‘Superior Court - Bristol
Docket Number 2373CV00479
overburdening and misuse of the right of way.
i. ARGUMENT
Amendments to complaints are governed by Mass. R. Civ. P. 15(a), which provides in
pertinent part:
(a) Amendments. A party may amend his pleading once as a matter of course at
any time before a responsive pleading is served and prior to entry of an order of
dismissal or, if the pleading is one to which no responsive pleading is permitted
and the action has not been placed upon the trial calendar, he may so amend it at
any time within 20 days after it is served. Otherwise a party may amend his
pleading only by leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires.
(Emphasis added.)
Mass. R. Civ. P. 15 is consciously modelled after Fed.R.Civ.P. 15, tracking the language of
its federal counterpart almost verbatim. See Sullivan v. Iantosca, 409 Mass. 796 (Mass. 1991).
Consonant with the federal rule, ct, 'a motion to amend should be allowed unless some good reason
appears for denying it.” James-Brown v. Commerce Ins. Co., 14-P-1289, at *3 (Mass. App. Ct.
Sep. 15, 2015). A “good reason” to deny a motion to amend may include “ “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party . . . [,] futility of amendment, etc."” Id.
Here, there are no factors that should prohibit amendment. There have been no previous
motions to amend. There is no undue prejudice to the opposing party, because the written discovery
has barely begun. Accordingly, Rule 15’s policy of liberal allowance of amendment of pleadings
should apply.
Ill. CONCLUSION
For the above-stated reasons, Plaintiff's Motion to Amend should be granted.
Date Filed 1/2/2024 4:00.PM
‘Superior Court - Bristol
Docket Number 2373CV00479
Plaintiff
By its attorney,
/s/ Vicki J. Bejm:
Vicki J. Bejma (BBO# 653699)
Robinson & Clapham
123 Dyer Street, Suite 135
Providence, RI 02903
(401) 331-6565
(fax) 331-7888
ybejma@smrobinsonlaw.com
CERTIFICATE OF SERVICE
I, Vicki J. Bejma hereby certify that on this 2™ day of January, 2024, a true
copy of the foregoing document was served via electronic mail upon all parties.
4s/ Vicki J. Bejma
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Date Filed 1/2/2024 4:00 PM ‘Superior Court - Bristol Docket Number 2373CV00479 #8 COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BRISTOL, ss. TRIBORO PROPERTY Plaintiff HOLDINGS Hf&FOL,SS SUPERIOR COURT Docket No. 2373CV00479 FILED Vv. JAN ~'2 2024 1 27-39 SOUTH MAIN ST., LLC., Defendant JENNIFER A. SULLIVAN, ESQ. CLERK / MAGISTRATE MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO AMEND COMPLAINT. I INTRODUCTION This matter came before this Honorable Court on Plaintiff's August 2, 2023 complaint. The gravamen of Plaintiff's Complaint was a series of encroachments upon its property located at 41 South Main Street in Attleboro, Massachusetts, over a period beginning in April, 2022. The Defendant owns the neighboring property at 27-39 South Main Street, and was conducting demotion of one building and construction of a new building. (Compl., 7.) During the course of that construction, the Defendant has repeatedly and without permission caused construction equipment to be parked on the parking lot located at 41 South Main Street. (Compl. {| 8-9.) Defendant also rendered a ten-foot right of way unusable, by blocking it with construction equipment, and debris. Defendants also damaged the right-of-way to install new drainage, which contributed to the right-of-way becoming unusable. (Compl., {| 8-9.) Plaintiffs initial Complaint was for trespass and negligence. After being granted an extension, the Defendant answered the Complaint on or about September 21, 2023. The parties are discussing potential resolution. Defendant served written discovery requests on or about November 21, 2023. However, at this juncture, Plaintiff has determined to amend its complaint to add a count for nuisance, as the nuisance theory may better describe the claims regarding the Defendant’s Date Filed 1/2/2024 4:00 PM ‘Superior Court - Bristol Docket Number 2373CV00479 overburdening and misuse of the right of way. i. ARGUMENT Amendments to complaints are governed by Mass. R. Civ. P. 15(a), which provides in pertinent part: (a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. (Emphasis added.) Mass. R. Civ. P. 15 is consciously modelled after Fed.R.Civ.P. 15, tracking the language of its federal counterpart almost verbatim. See Sullivan v. Iantosca, 409 Mass. 796 (Mass. 1991). Consonant with the federal rule, ct, 'a motion to amend should be allowed unless some good reason appears for denying it.” James-Brown v. Commerce Ins. Co., 14-P-1289, at *3 (Mass. App. Ct. Sep. 15, 2015). A “good reason” to deny a motion to amend may include “ “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . [,] futility of amendment, etc."” Id. Here, there are no factors that should prohibit amendment. There have been no previous motions to amend. There is no undue prejudice to the opposing party, because the written discovery has barely begun. Accordingly, Rule 15’s policy of liberal allowance of amendment of pleadings should apply. Ill. CONCLUSION For the above-stated reasons, Plaintiff's Motion to Amend should be granted. Date Filed 1/2/2024 4:00.PM ‘Superior Court - Bristol Docket Number 2373CV00479 Plaintiff By its attorney, /s/ Vicki J. Bejm: Vicki J. Bejma (BBO# 653699) Robinson & Clapham 123 Dyer Street, Suite 135 Providence, RI 02903 (401) 331-6565 (fax) 331-7888 ybejma@smrobinsonlaw.com CERTIFICATE OF SERVICE I, Vicki J. Bejma hereby certify that on this 2™ day of January, 2024, a true copy of the foregoing document was served via electronic mail upon all parties. 4s/ Vicki J. Bejma