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Opposition to Motion to Strike

Opposition to Motion to Strike

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Published by Duxbury Clipper

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Published by: Duxbury Clipper on Apr 18, 2012
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04/18/2012

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1
COMMONWEALTH OF MASSACHUSETTSMIDDLESEX, SS.SUPERIOR COURT DOCKETNO. 08-04641-B JOHNSON
 
GOLF
 
MANAGEMENT,
 
INC.,
 
P
LAINTIFF
V.TOWN
 
OF
 
DUXBURY,
AND
NORTH
 
HILL
 
ADVISORY
 
COMMITTEE,
CONSISTING OF
M
ICHAEL
D
OOLIN
,
 
C
HAIRMAN
,S
COTT
W
HITCOMB
,
 
OBERT
M.
 
M
USTARD
,
 
J
.,M
ICHAEL
M
ARLBOROUGH
,
 
A
NTHONY
F
LOREANO
,
 
M
ICHAEL
T.
 
UFO
,
 
T
HOMAS
K.G
ARRITY
,
 
ICHARD
M
ANNING
,
 
W.
 
J
AMES
F
ORD
,
AND
G
ORDON
C
USHING
(
EX OFFICIO
) and CALM
 
G
OLF
,
 
I
NC
.,
AND
C
HARLES
L
ANZETTA 
D
EFENDANTS
and P
ILGRIM
G
OLF
,
 
LLC
 
I
NTERVENER 
Opposition of The Plaintiff to Defendant, Town of Duxbury’sMotion to Strike & Duxbury’s Motion for Sanctions(Dated March 15, 2012)
As a preliminary matter, Duxbury’s Motions appear to be predicated upon the fact thatthe Plaintiff’s Opposition to Duxbury’s most recent Motion for Summary Judgment is not probative of facts that would lead a finder of fact to the conclusion that Duxbury has beenengaged in a conspiracy to violate the Massachusetts Uniform Procurement Act, G. L.c.30B. Thediscovery to date is replete with evidence that Duxbury officials engaged in a conspiracy toassure that Johnson Golf would not obtain the contract to manage the North Hill Country ClubGolf Course in 2008, 2009 and thereafter.
 
2It is well established under Massachusetts case law that a conspiracy can be proven viacircumstantial evidence. Indeed, it is well settled that conspiracies are seldom proved in anyother way."A conspiracy may be proved by circumstantial evidence, and this is the usualmode of proving it, since it is not often that direct evidence can be had. The acts of different persons who are shown to have known each other, or to have been incommunication with each other, directed towards the accomplishment of the sameobject, especially if by the same means or in the same manner, may be satisfactory proof of a conspiracy."
Commonwealth v. Smith,
 163 Mass. 411, 417, 418.
Commonwealth v. Rogers,
Commonwealth v. Clancy,
 187 Mass.191, 195.
Commonwealth v. Riches,
 219 Mass. 440, 442. It is not essential to aconspiracy that the parties meet or that they confer and formulate their plans.Common purpose may be inferred from concerted action converging to a definiteend.” A
 
ttorney General v. Tufts, 239 Mass. 458, 494 (1921
)
The issue of circumstantial evidence in cases involving conspiracy was again addressedin the case of Commonwealth v. Anselmo, 33 Mass. App. Ct. 602, 604 (1992 ):A conspiracy is a "combination of two or more persons, by some concerted action,to accomplish some criminal or unlawful purpose, or to accomplish some purpose,not in itself criminal or unlawful, by criminal or unlawful means." Commonwealthv. Beneficial Fin. Co.,360 Mass. 188, 249 (1971), cert. denied, 407 U.S. 914(1972), quoting from Commonwealth v. Hunt,4 Met. 111, 123 (1843). Aconspiracy need not be proved, however, by direct evidence of participation or byan admission of participation. See Commonwealth v. Nelson,370 Mass. 192, 200(1976). "A conspiracy may be proved by circumstantial evidence, and this is theusual mode of proving it, since it is not often that direct evidence can be had. Theacts of different persons who are shown to have known each other, or to have beenin communication with each other, directed towards the accomplishment of thesame object, especially if by the same means or in the same manner, may besatisfactory proof of a conspiracy." Id. at 200-201, quoting from Commonwealth v.Smith,163 Mass. 411, 417-418 (1895). "Circumstances must be shown from whicha reasonable inference can be drawn that the defendant participated in the particular conspiracy charged." Commonwealth v. Nelson, supra at 201, quoting fromCommonwealth v. Schnackenberg,356 Mass. 65, 74 (1969).Perhaps even more pertinent to the present action is the language used by the SupremeJudicial Court in the case of 
 
Commonwealth v. Meserve 154 Mass.64, (1891)
 
3“ But conspiracy may be proved by circumstantial evidence, and proof of what wasactually done is evidence tending to show what was agreed to be done.”Contrary to the assertions in Duxbury’s Motions, its most recent Motion for SummaryJudgment does not raise issues which have not been addressed in the past decisions, which deniedtheir Motions for Summary Judgment. Since Duxbury has declared that the allegations againstTown Counsel are somehow not advanced in good faith, a review of the relevant facts isnecessary and appropriate.Despite his repeated statements to this Court and to others that Duxbury hired a“consultant” to draft the RFPs in question, it has now been established that Attorney Troy was not being truthful. On January 27, 2009 Attorney Troy stated to this Court“The Town hired a consultant to do this because they wanted to open it upto people other than people running municipal golf courses. And for thatreason, that’s why they talk about comparable business experience.”[Transcript of hearing before Judge Herman Smith dated January 27, 2009, page 22, lines 16-20] (Copy attached as
Exhibit “A
”)In the statement of undisputed facts associated with Duxbury’s Motion for SummaryJudgment filed on April 1, 2010 Attorney Troy stated to the Court:“Further responding, the Committee hired a consultant to draft a new RFPfor North Hill in 2008.”[Undisputed Facts, April 1, 2010, Paragraph 22] (Copy attached as
Exhibit “B”
)Addressing the Duxbury Selectmen on October 4, 2010, Attorney Troy was even moreemphatic in his continuing misrepresentation concerning the RFPs and the alleged “consultant.”On October 4, 2010 Attorney Troy stated:

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