Preview
ww
g.)
V4
COMMONWEALTH OF MASSACHUSETTS
16 010
Hampshire Superior Court Department
Hampshire, SS CIVIL ACTION No.: 1680CV00010
Kk KR RR Rk RR RR KR KR RR RR kk
Jerzy R. Bielski, *
Plaintiff
vs.
James B. Crocker,
Defendant
HAMPSHIRE SUPERIOR COURT
VS.
JUN ~1 2016
James J. Rutter,
HARRY JEKANOWSKI, JR.
Third-Party Defendant CLERK / MAGISTRATE
kk RK RR KR RR RR RR RR kk RR
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION
TO FILE AN AMENDED COMPLAINT TO ADD THE
THIRD PARTY DEFENDANT AS DIRECT DEFENDANT
PROCEDURAL HISTORY
The Complaint on the instant case was filed on January 8, 2016. The Complaint alleged
that the Defendant, James B. Crocker was negligent in the operation of motor vehicle. On
February 11, 2016, the Defendant answered the complaint and filed a Third Party Complaint
against the Third Party Defendant, James J. Rutter. The Third Party Complaint alleges that
James Rutter was the operator of a motor vehicle in which the Plaintiff, Jerzy R. Bielski was a
passenger. The Third Party Complaint further alleges that the Defendant, Crocker was not
KL
negligent and that the accident was caused in whole or in part by the Third Party Defendant,
James J. Rutter. The Third Party Complaint seeks contribution from the Third Party Defendant.
Under the tracking order from the Franklin County Superior Court, motions to amend are
to be served by May 12, 2016. This Motion was being served on May 10, 2016. The delay in
filing this motion is that Plaintiff's counsel wanted to obtain the consent of his client before
filing this motion.
Law and Argument
In 1988, the Massachusetts Legislature amended M.G.L. c. 231, Section 51 to provide:
“In all civil proceedings, the Court may at any time, allow amendments, adding a party,
discontinuing as to a party or changing the form of the action, and may allow any other
amendment of form or substance in any process, pleading or proceeding, which may
enable the plaintiff to sustain the action for the cause or for recovery for the injury for
which the action was intended to be brought, or enable the defendant to make a legal
defense. Any amendment allowed pursuant to this section or pursuant to the
Massachusetts Rules of Civil Procedure shall relate to the original pleading. (emphasis
added).
In the preamble to M.G.L. ¢.231, Section 51, the Legislature stated:
“Whereas, the deferred operation of this act would tend to defeat its purpose which is
relative to amendments to pleadings in civil proceedings, therefore, it is hereby declared
to be an emergency law, necessary for the immediate preservation of the public
convenience.” Civil Proceedings-Amendments, 1988 Mass. Legis. Serv. C.141, Section
1 (West Publ.)
Clearly, in M.G.L. c. 231, Section 51, the intent of the Massachusetts Legislature was to
permit parties, both plaintiff and defendants, to freely amend their pleadings. The 1988 statute
appears to have been intended by the Legislature to offset (in essence, to overrule) the 1988
decision of the Massachusetts Supreme Judicial Court in the Bengar case. See, Pieper Café, Inc.
vy. Commercial Union Insurance Cos., 27 Mass. App. Ct. 317, 324 (1989). The Court, in Beg:
v. Clark Equip. Co., 401 Mass. 554 (1988) held that the allegations against a new defendant
stating a theory of liability may be time-barred even if the same plaintiff had brought the action
NA
in a timely fashion for the same injury. “The Bengar court, thus, placed limits on the so-called
liberal Massachusetts rule for relation lack of amendments.” Wood v. Jaeger-Sykes, Inc., 27
Mass. App. Ct. 199, 200 (1989); Stark v. Patalano Ford Sales, Inc., 30 Mass. App. Ct. 194, 1988
(1991).
M.G.L. c. 231, Section 51 enables a plaintiff and/or defendant to amend its complaint or
answer or to file a cross-claim to “assert new theories of liabilities” The second sentence of
M.G.L. c. 231, Section 51 provides that any amendment made pursuant to Section 51 “or
pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original pleading.”
(emphasis added).
The plaintiff states that since the Third Party Defendant is already a party to this lawsuit,
he would not be prejudiced by allowance of this motion. The instant motion is filed in good faith
and based upon the representation of the Defendant/ Third Party Plaintiff that the Third Party
Defendant is responsible for the accident.
BY PLAINTIFF’S ATTORNEY,
Stobrerbla & Connor
John J. Stobierski, Esquire
BBO #: 549222
Christopher M. Browne, Esquire
BBO #: 556382
377 Main Street
Greenfield, MA 01301
413-774-2867
DATED May 9, 2016
Ne
CERTIFICATE OF SERVICE
I, Christopher M. Browne, attorney for the plaintiff, hereby certify that I have mailed by
first class mail, postage pre-paid, a copy of the foregoing to the attorney for the defendant,
Michael J. Mascis, Esq., Law Office of Jacqueline L. Allen, 53 State Street, 5th Floor, Boston,
MA 02109 and Darlene Thebaud, Law Offices of Sherry, lack, Geller, Cain & Vaschereau, 10
St. James Avenue, 5" Floor, Boston, MA 02116 on this day of May, 2016.
Preview
ww g.) V4 COMMONWEALTH OF MASSACHUSETTS 16 010 Hampshire Superior Court Department Hampshire, SS CIVIL ACTION No.: 1680CV00010 Kk KR RR Rk RR RR KR KR RR RR kk Jerzy R. Bielski, * Plaintiff vs. James B. Crocker, Defendant HAMPSHIRE SUPERIOR COURT VS. JUN ~1 2016 James J. Rutter, HARRY JEKANOWSKI, JR. Third-Party Defendant CLERK / MAGISTRATE kk RK RR KR RR RR RR RR kk RR MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION TO FILE AN AMENDED COMPLAINT TO ADD THE THIRD PARTY DEFENDANT AS DIRECT DEFENDANT PROCEDURAL HISTORY The Complaint on the instant case was filed on January 8, 2016. The Complaint alleged that the Defendant, James B. Crocker was negligent in the operation of motor vehicle. On February 11, 2016, the Defendant answered the complaint and filed a Third Party Complaint against the Third Party Defendant, James J. Rutter. The Third Party Complaint alleges that James Rutter was the operator of a motor vehicle in which the Plaintiff, Jerzy R. Bielski was a passenger. The Third Party Complaint further alleges that the Defendant, Crocker was not KL negligent and that the accident was caused in whole or in part by the Third Party Defendant, James J. Rutter. The Third Party Complaint seeks contribution from the Third Party Defendant. Under the tracking order from the Franklin County Superior Court, motions to amend are to be served by May 12, 2016. This Motion was being served on May 10, 2016. The delay in filing this motion is that Plaintiff's counsel wanted to obtain the consent of his client before filing this motion. Law and Argument In 1988, the Massachusetts Legislature amended M.G.L. c. 231, Section 51 to provide: “In all civil proceedings, the Court may at any time, allow amendments, adding a party, discontinuing as to a party or changing the form of the action, and may allow any other amendment of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause or for recovery for the injury for which the action was intended to be brought, or enable the defendant to make a legal defense. Any amendment allowed pursuant to this section or pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original pleading. (emphasis added). In the preamble to M.G.L. ¢.231, Section 51, the Legislature stated: “Whereas, the deferred operation of this act would tend to defeat its purpose which is relative to amendments to pleadings in civil proceedings, therefore, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.” Civil Proceedings-Amendments, 1988 Mass. Legis. Serv. C.141, Section 1 (West Publ.) Clearly, in M.G.L. c. 231, Section 51, the intent of the Massachusetts Legislature was to permit parties, both plaintiff and defendants, to freely amend their pleadings. The 1988 statute appears to have been intended by the Legislature to offset (in essence, to overrule) the 1988 decision of the Massachusetts Supreme Judicial Court in the Bengar case. See, Pieper Café, Inc. vy. Commercial Union Insurance Cos., 27 Mass. App. Ct. 317, 324 (1989). The Court, in Beg: v. Clark Equip. Co., 401 Mass. 554 (1988) held that the allegations against a new defendant stating a theory of liability may be time-barred even if the same plaintiff had brought the action NA in a timely fashion for the same injury. “The Bengar court, thus, placed limits on the so-called liberal Massachusetts rule for relation lack of amendments.” Wood v. Jaeger-Sykes, Inc., 27 Mass. App. Ct. 199, 200 (1989); Stark v. Patalano Ford Sales, Inc., 30 Mass. App. Ct. 194, 1988 (1991). M.G.L. c. 231, Section 51 enables a plaintiff and/or defendant to amend its complaint or answer or to file a cross-claim to “assert new theories of liabilities” The second sentence of M.G.L. c. 231, Section 51 provides that any amendment made pursuant to Section 51 “or pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original pleading.” (emphasis added). The plaintiff states that since the Third Party Defendant is already a party to this lawsuit, he would not be prejudiced by allowance of this motion. The instant motion is filed in good faith and based upon the representation of the Defendant/ Third Party Plaintiff that the Third Party Defendant is responsible for the accident. BY PLAINTIFF’S ATTORNEY, Stobrerbla & Connor John J. Stobierski, Esquire BBO #: 549222 Christopher M. Browne, Esquire BBO #: 556382 377 Main Street Greenfield, MA 01301 413-774-2867 DATED May 9, 2016 Ne CERTIFICATE OF SERVICE I, Christopher M. Browne, attorney for the plaintiff, hereby certify that I have mailed by first class mail, postage pre-paid, a copy of the foregoing to the attorney for the defendant, Michael J. Mascis, Esq., Law Office of Jacqueline L. Allen, 53 State Street, 5th Floor, Boston, MA 02109 and Darlene Thebaud, Law Offices of Sherry, lack, Geller, Cain & Vaschereau, 10 St. James Avenue, 5" Floor, Boston, MA 02116 on this day of May, 2016.