COMMONWEALTH OF MASSACHUSETTS BERKSHIRE, SS. SUPERIOR COURT DEPARTMENT Civil Action No.
Morgan MHP MASS, LLC and and Morgan Manaqernent, LLC1 Plaintiffs, Vs. Commonwealth of Massachusetts, Town of Williamstown Defendants
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PLAINTIFFS' MOTION TO AMEND TO ADD ADDITIONAL PARTIES, THE ALTERNATIVE. MOTION FOR CLASS CERTIFICATION
Now come the Plaintiffs, Morgan MHP MASS, LLC and Morgan Management, LLC (hereinafter "Morgan") in the above-captioned action and moves this Honorable Court, pursuant to Mass. R. Civ. P. 15(a) for leave to amend the Plaintiffs' complaint to add approximately one hundred nine (109) different individuals who
occupy some eighty-seven (807) different manufactured homes in the Park, as Defendants in this matter (the "Residents Class"), Or in the alternative, for an
order pursuant to Mass. R. Civ. P. 23 to certify all of Residents Class who are residing in manufactured homes within the manufactured housing community whose electricity
known as the "Spruces" (hereinafter the "Spruces'l or "Park"),
was impacted by Tropical Storm Irene on August 28, 2011, as a class defendant. The Plaintiffs are seeking to amend their complaint to add these individual parties for purposes on encompassing them within the scope of any orders this Honorable Court might issue.
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As grounds for this motion, Plaintiffs state that: 1. The Residents Class is so numerous that joinder of all individual members is potentially 2. 3. impracticable;
There are questions of law or fact common to the Residents Class; and The claims or defenses of the Residents Class are typical of the claims or defenses and the issues of each such individual and they are all similarly situated.
On August 28, 2011, Tropical Storm Irene struck the manufactured housing community located in Williamstown, MA. As a result, substantial flooding resulted The flooding occurred in the Park and
and as a result, the Park was evacuated.
destroyed all electrical panels and systems of approximately eighty-seven (87) homes once occupied by one hundred nine (109) different individuals in the Park, speclflcally affecting Bachand Avenue, Emerald Lane, Nutmeg Lane, Riverside Drive and Higgins Drive. In the process of attempting to reconstruct and to reconfigure the Park, certain residents have gone into the Western Division Housing Court and obtained orders from the court to restore the electricity. This process is tedious,
impracticable and uneconomical (see Affidavit of Richard Puricelli attached hereto as Exhibit A). Moreover, if individuals who come in piecemeal, which presently being done. The Park will have to undo much of the work that it has already performed at further expense (see Exhibit A, Affidavit of Richard Puricelli). Park is attempting The
to ascertain how many of the Residents Class desire to return to
the Park. In particular, the homes that were affected as set forth on the attached
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map are homes located at 71, 73, 75, 77, 79, 81, 83, 85, 87, 89, 91 Bachand Avenue; 125 through 143 Higgins Drive; 100 through 112 and 125 through 142 Riverside Drive; all homes located on Nutmeg Lane and all homes located on Emerald Lane (see Exhibit 8 attached hereto). The individuals who resided in
those homes as of the day of Tropical Storm Irene are listed on the attached document (see Exhibit C attached hereto). The list attached contains one hundred eighty-seven (87)
nine (109) different individuals who once occupied approximately
different sites located within the Park. These individuals were the registered owners and/or occupants of the homes at the time of the storm.' The Plaintiffs wish to either amend their complaint to include the Residents Class individually or alternatively, certify them as a class. The Plaintiffs maintain
that the class certification requested herein would be more economical. Marilyn Kirby, who is a member of the Residents Class, is willing to be the class representative and who resided at 77 Bachand Avenue in the affected area (see Consequently, the Plaintiffs are seeking to
Exhibit D, Affidavit of Marilyn Kirby).
add the Residents Class to this action so that they can in earnest commence the process of addressing the future of the Park, such as it is and may be.
II. A. Standard
Under Rule 15, "the expressed tendency is in favor of allowing amendments and a motion to amend should be allowed unless some good reason appears for denial". See Castellucci v. United States Fid. and Guar. Co., 372 Mass. 288, 289
[Of the homes in the affected area, 84 Emerald Lane was a vacant lot, and76 Nutmeg Lane was empty. Page 3 of9
Motions to amend the pleading can be allowed at the time of trial and at
the close of evidence. See Novel Ironworks, Inc. v. Wexler Construction Co., 26 Mass. App. Ct. 401 (1988); Hall v. Horizons Microwave Co., 24 Mass. App. Ct. 84, 88 (1987). The general rule is that a Rule 15(a) motion to amend "shall be granted unless there are good reasons for denying the motion." Plaza Ltd. Partnership, 41 Mass App. Ct. 409,413 (1996). Manfrates v. Lawrence Absent a showing of
prejudice upon the non-moving party, motions to amend pleadings should be allowed. Novel Ironworks, Inc. v. Wexler Construction Co., 26 Mass. App. Ct. 401, 406 (1988). In the matter at hand, no discovery has been conducted, no orders have been filed and only the Attorney General has filed an answer to the complaint. case is in its early stages and neither amending the complaint to include these individuals as defendants or as an alternative, as a class certification, will not be unduly burdensome. B. Massachusetts Rules of Civil Procedure 23 The Plaintiff is requesting the Court to certify the as a class Residents Class. Mass. R. Civ. P. 23(a) establishes certain prerequisites to the maintenance of a class action: 1. the class must be so numerous that joinder of members is impracticable; 2. 3. there are questions of law or fact common to the class; the claims or defenses of the representative party are typical of the claims and/or defenses of the class. This
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In addition, Mass. R. Civ. 23(b) imposes further requirement that questions of law or fact predominate over any questions affecting only individual members and that a class action be superior to other methods for the fair and efficient adjudication of the controversy. The class which the Plaintiffs seek to bring in satisfies each of those prereq uisites.
The Class Is So Numerous That Joinder Of The Members Is Impracticable In determining whether the size requirement of Rule 23(a)(1) is met in a
particular case the Court must look to aI/ the circumstances of the case to determine whether the number of person in the class is so large to make joinder of the parties impracticable. See Hansberry v. Lee, 311 U.S. 32 (1940). The key to
the fulfillment of Rule 23(a)(1) is the impracticability
of jolnder, not the mere The Supreme
number of class members or the absolute impossibility of joinder.
Judicial Court has looked at whether "a few individuals are fairly representative to the legal and equitable rights of a large number who cannot be readily joined as partles." See Spear v. H. V. Green Co., 246 Mass. 259, 266-67 (1923). In as
accordance with this precedent, the Appeals Court has defined "impracticable" Impracticable, performed." 735 (1978). unwise or imprudent rather tha impossible or incapable of being
See Brophy v. School Committee of Worcester, 6 Mass. App. Ct. 731,
In this case, there are approximately eighty-seven (87) homes situated in the Park once occupied by one hundred nine (109) different residents who lived there in the area where Tropical Storm Irene caused damage. Some of these
homes are occupied by single individuals and some of them are occupied by several
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In federal cases, the courts have certified classes with far fewer See Accord Cross v.
persons than this because of the impracticability of joinder.
National Trust Life Ins. Co., 553 F.2d 1026, 1030 (6th Cir. 1977) (approving seven member class); Afro American Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974) (holding that the class with thirty-five members was sufficient); Grant v.
Sullivan, 131 F.R.D. 436, 446 (M.D. Pa. 1990) (noting that "[t]his Court may certify a class even if it is composed of as few as 14 members."): Bruce v. Christian, 113
F.R.D. 554, 557 (S.D.N.Y. 1986) (numerosity found even though plaintiffs' could identify only 16 class members in action brought by present and future tenants of housing authority where numerous individuals would be affected in the future). Thus, in this case, joining each and every tenant would be impracticable, unwise or imprudent and would make the administration of this case virtually impossible.
There Are Questions Of Law Common To The Class Under Rule 23, there must be common questions of law and fact in order to
certify a class action. See Baldarassi v. Public Finance Trust, 369 Mass. 33, 39-40 (1975). The common questions of fact and law are identical for all of the Residents
Class, among other things, whether these residents are going to return to the Park, whether their manufactured homes can be reoccupied so as to restore the electrical power, and whether, and to what extent, the responsibilities of the Plaintiffs extend to rebuilding the Park. The Plaintiffs are requesting this class so that they can determine who what homes will be occupied so that they can how the Park can be
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reconfigured so as to develop the new electrical system with the appropriate authorities (see Exhibit A, Affidavit of Richard Puricelli).
Representative Capacity The purpose of the "typicality" of Mass. R. Civ. P. 23(a) is to ensure that
representative parties will fairly protect the interests of the class as a whole. It is necessary, therefore, that their claims be similar or arise out of a common event. It is undisputed that the issues and claims arise out of the common event of Tropical Storm Irene. See Spear v. Green, 246 Mass. 266 (1923). It is difficult for
the parties to nominate or specify a representative party at this time without first knowing what residents will be returning or wish to return to the Park and the areas
effected." Once the class individuals come forward, the proposed class will satisfy
the requirements of the rule as "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other methods available for the fair and efficient adjudication of the controversy." those requirements are met here. In the matter at hand, Ms. Kirby has volunteered in a representative capacity, however, there is no individual that is needed to pursue any individual rights of the residents. The order that the Plaintiffs will be seeking through an See Mass. R. Civ. P. 23(b). Both of
amended complaint and necessary injunctive relief is that the aforementioned individuals either come forward by a date certain to announce their intentions
2As mentioned previously, six individuals have filed claims in the Western Division Housing Court to have
electricity restored. Those individuals DIeDonna Bishop, Laura Brodeur, Linda Bell, Linda Chesbro, Mr. & Mrs. Michael Dolan and Raymond Cox and all electricity has been restored to those homes. Page 7 of9
relating to their homes, whether they intend to commence repairs to their homes so that they can be reoccupied in order to enable the Park to determine what homes are necessary to rebuild the electrical system, and what if any intentions they have should they be abandoning their manufactured homes.
For the foregoing reasons, the Plaintiffs respectfully request that this Honorable Court either (a) issue an order allowing the amendment to the complaint adding the ninety-nine individuals comprising the approximately eighty-seven (87) manufactured homes that have been abandoned as a result of Tropical Storm
Irene, or in the alternative, (b) issue an order that these residents be added as a class defendant and requests that such class be certified for the purposes of this litigation.
BBO #279535 r. kra email@example.com Joseph E. Kelleher, Esq. BBO #567327 j .firstname.lastname@example.org Kraus & Hummel LLP 99A Court Street Plymouth, MA 02360
November 16, 2011
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CERTIFICATE OF SERVICE I, Robert Kraus, Esq., hereby certify that pursuant to Superior Court Rule 9A, on this day I served, via First Class Mail, postage prepaid, a copy of the within Plaintiffs' Motion to Amend to Add Additional Parties, or in the Alternative, Motion for Class Certification upon the Defendants, or their counsel, as follows: Jonathan B. Engel Asst. Attorney General Commonwealth of Massachusetts One Ashburton Place Boston, MA 02108 Town of Williamstown 31 North Street Willia . ' M 01267
MDt for Class Certification
November 16, 2011
MHP\Hurric:ane Irene Dlsaster\Ps'
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