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Court

Massachusetts Unified County

Massachusetts

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Case Information

Filed 2023-02-16
Status Closed
Type Miscellaneous|Ota Other
Docket 22 entries

Parties

Plaintiff Pullard Road Llc
Defendant Duncan Family Holdings, Co.,

Lawyers

Docket Entries

  1. Complaint filed.
  2. Case assigned to the Average Track per Land Court Standing Order 1:04.
  3. Land Court miscellaneous filing fee Receipt: 438377 Date: 02/16/2023
  4. Land Court surcharge Receipt: 438377 Date: 02/16/2023
  5. Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
  6. Land Court summons Receipt: 438406 Date: 02/17/2023
  7. The case has been assigned to the A Track. Notice sent.
  8. The Court has reviewed Dr. Myerson's complaint. He alleges that he's an "owner" of Pullard Road LLC. He alleges that the LLC owns 25 Pullard Road in Grafton, Massachusetts. He alleges that an abutter, defendant Duncan Family Holdings, Co., has trespassed and encroached on 25 Pullard Road. In order to bring an action for trespass (or for "encroachment"; there's no substantive difference under Massachusetts law), the plaintiff must hold title to the property that's the subject of the action. According to the deed he attached to his complaint, Dr. Myerson doesn't hold title to 25 Pullard Road-the LLC does. Dr. Myerson also hasn't alleged in his complaint what gives him the right, as an "owner" of the LLC, to seek a declaration of the LLC's rights. The Court thus ORDERS Dr. Myerson, by March 1, 2023, to file a memorandum explaining why he has standing to bring this action. In the alternative, Dr. Myerson may amend his complaint by March 1, 2023, to substitute the LLC for himself as plaintiff. (He also should review paragraph 4 of his complaint, which suggests that Steven Duncan is a "principal" of Pullard Road LLC.) SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Sent On: 02/21/2023 14:04:18
  9. Amended Complaint, filed.
  10. Event Scheduled Judge: Vhay, Hon. Michael D. Event: Case Management Conference Date: 03/27/2023 Time: 10:00 AM
  11. Defendants' Answer to Plaintiff's Amended Complaint, filed.
  12. Summons returned to Court with service on Duncan Family Holdings, CO., filed.
  13. Joint Case Management Conference Memorandum, filed.
  14. Event Resulted: Case Management Conference scheduled on: 03/27/2023 10:00 AM Has been: Held via telephone Hon. Michael D. Vhay, Presiding
  15. Alternative Dispute Resolution: Early Intervention Event held. Judge: Vhay, Hon. Michael D.
  16. Telephonic case management conference and initial intervention event held. The parties appeared through counsel. Plaintiff Pullard Road LLC claims defendant Duncan Family Holdings Co. is encroaching, trespassing, and damaging its property at 25 Pullard Road through construction work on Duncan's abutting property. After hearing from the parties, the Court finds that it lacks subject matter jurisdiction over the case at the moment because (1) Pullard Road is an out-of-state corporation (and therefore lacks standing to bring a lawsuit in the Commonwealth); and (2) there's no dispute over right, title, or interest in land, as Duncan does not dispute the location of the parties' boundary and admits it has trespassed. The Court therefore ORDERS, by April 21, 2023, either: (1) the parties to file a stipulation of dismissal, or (2) Pullard Road to file a second amended complaint that corrects the current complaint's jurisdictional defects. The Court otherwise STAYS the proceedings in the case. If the Court does not receive either a stipulation or dismissal or an amended complaint by April 21, 2023, the Court likely will dismiss the case for lack of subject matter jurisdiction. The parties assent to filing all materials with the Court, and serving such materials on each other, by email. SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Defendant: George P Kiritsy, Esq. [email protected] Sent On: 03/27/2023 13:13:13
  17. Second Amended Complaint, filed.
  18. Defendants' Answer (to Second Amended Complaint), filed.
  19. Defendant's Motion to Dismiss (Amended Complaint), filed.
  20. Plaintiff's Opposition to Defendant's Motion to Dismiss, filed.
  21. Affidavit of David Myerson in Support of Opposition to Defendant's Motion to Dismiss, filed.
  22. The Court has reviewed Duncan Family Holdings's motion to dismiss Pullard Road's second amended complaint, and Pullard's opposition to the motion. The Court GRANTS the motion and DISMISSES Pullard's second amended complaint, without prejudice, for lack of subject-matter jurisdiction. Pullard's principal claims against Duncan are for trespass and nuisance. While Pullard alleges in connection with these claims that the boundary between Pullard and Duncan's abutting properties is disputed, Duncan admitted at the case-management conference in this case that it didn't dispute where Pullard contends the boundary lies. Instead, Duncan challenges only the relief Pullard seeks. This Court's subject-matter jurisdiction over trespass and nuisance actions, however, is limited to those that "involve[e] title to real estate." G.L. c. 185, sec. 1(o). If a defendant who's accused of trespass doesn't claim title or other interest in the plaintiff's land, the Land Court lacks subject-matter jurisdiction to hear the case. See Kubic v. Audette, 18 LCR 486 (2010) (Cutler, J.). SO ORDERED. Judge: Vhay, Hon. Michael D. Notice of Docket Entry was generated and sent to: Plaintiff: Howard J Potash, Esq. [email protected] Defendant: George P Kiritsy, Esq. [email protected] Sent On: 05/10/2023 11:52:33

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