Order: Turner, Gregory P. vs. Marjim Solutions, Inc. f/k/a Hubbard Systems Inc. d/b/a Jim Hubbard and Associates et al

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COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. Civil Action No: 1881CV1038 #f
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Gregory P. Turner, ) =
Plaintiff INTHE OFFICE OF THE

™ ; con REE STE
v. ) *
Hubbard Systems, Inc., formerly known as ) NOV 2 6 “018
and also doing business as Jim Hubbard —)
and Associates, Inc., ) FEL Oe?
And, Jim Hubbard Associates, Inc., ) Lae EAN.
Defendants. )

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JG Oo oR lok i iotoi doko icici do ioick tod deed aka

PLAINTIFF GREGORY P TURNER’S
MOTION FOR RECONSIDERATION OF
DECISION AND ORDER ON DEFENDANTS’S MOTION [sic] TO DISMISS

(Paper #8)

Now comes the plaintiff Gregory P. Turner and moves this honorable court, pursuant to
MLR, Civ. P 59 and Superior Court Rules 9A and 9D, to reconsider its dismissal of the complaint
pursuant to Decision and Order on Defendants’ Motion [sic] to Dismiss. (Paper #8)

As grounds for this motion, the plaintiff says:

I. Erroneous Construction of M.G.L. Ch. 260 §32 as the Basis of the Order

The court was probably unaware that the facts in Coffin v. Cottle, 33 Mass. 383 (1835),
which the plaintiff cited and on which this court relied, are identical in all material aspects to this
case, and that the SIC reached the exact opposite conclusion of this court; in Coffin the SIC
found that the Section 32 extension of the Chapter 260 statutes of limitations in Chapter 260 runs
from the date of the conclusion of the appeal of the dismissal not from the date of dismissal by
the trial court. The actual order at the conclusion of Paper 8 omits any other basis for allowing
the motions.

Page 1 of 3II. Ancillary Issues Addressed by the Court but Not Included in the Order

A. Issue Preclusion

The court was probably unaware that the cases which it adopted from Hubbard’s motion
require an adjudication on the merits in order for issue preclusion to lie. A dismissal without
prejudice is not an adjudication on the merits. Therefore, issue preclusion cannot lic. The
cursory adoption of the defendants’ arguments on issue preclusion, without consideration of this
fundamental requirement, appears to be an afterthought to this court’s incorrect analysis of
Section 32 where it was omitted from the actual order appearing at the conclusion of Paper #8.

B. “Same Cause” under Section 32

The court was probably unaware that upon refiling pursuant to Section 32, and Rule 15,
a new complaint may allege as “the same cause”, new legal theories, where they are intertwined
with the original legal theories and based on the same facts as the original complaint. The
cursory treatment of this issue by the court appears to be an afterthought to its incorrect analysis
of Section 32 where it was omitted from the actual order at the conclusion of Paper 8.

C. The Effect of the Merger

The court was probably unaware that PDRK stands in the same shoes as the Hubbard
entities being one and the same as a result of its merger with those entities. As such PDRK is
indeed subject to Section 32 to the same extent as the Hubbard entities. Further, PDRK’s actions
of merger and acquisition occurred in 2017 and are well within the statutes of limitations as to
those actions. The court’s disregard of this fundamental aspect of the law of merger and the
cursory treatment by the court, appear to be an afterthought to its incorrect analysis of Section 32
where it was omitted from the actual order at the conclusion of Paper #8.

For these reasons and additional reasons stated in the memorandum accompanying this

Page 2 of 3“f

motion, reconsideration is imperative to avoid a miscarriage of justice.

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P.O, Box 504810
Waltham, MA 02454-0268
Tel: (781) 647 5535

Fax: (781) 647 0764

BBO: 504810

Email: gregturner@gptlawma.com