O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Avon Tape, Inc. v. Stephen Shuman, 2004 Mass. Super. LEXIS 356
(September 27, 2004 BLS) (Van Gestel, J.).

In Avon Tape, the Court granted in part and denied in part a motion for summary judgment on “counterclaims” against the plaintiffs and a third-party defendant. The Court described the underlying litigation as “an unfortunate suit by two closely-held corporations, founded and controlled by [the father] against his son, over matters relating to the businesses, in which [the son] was once employed and/or had interests.” Id. at *2. The court granted judgment on a counterclaim asserted under Chapter 93A on the grounds that the dispute was not based upon “trade or commerce” within the meaning of the statute. Rather, it was properly viewed as either an employee/employer dispute, a close corporation shareholder dispute, or a dispute between members of the same entity.

The counterclaim plaintiff also asserted various claims for breach of fiduciary

duty, accounting, declaratory judgment, and breach of the covenant of good faith and fair dealing. The Court characterized these claims as derivative and dismissed them to the extent they were asserted on behalf of a corporation in which the counterclaim plaintiff was not a shareholder. The others survived for the time being, although the court clearly intimated that a motion to dismiss for failure to comply with the pre-suit demand provisions of Mass. R. Civ. P. 23.1 would be viewed favorably.

Particularly when read in conjunction with the August 2, 2004 Demoulas decision (discussed below), Avon Tape suggests that the Court grows weary of inter-family, close corporation squab-bling. Plaintiffs considering bringing such claims should analyze their merit carefully before filing and be careful to comply with pre-suit demand requirements for any derivative claims.

In re Sonus Networks, Inc. Derivative Litigation, 2004 Mass. Super. LEXIS 351
(September 27, 2004 BLS) (Van Gestel, J.).

The Court dismissed with prejudice a derivative action against a Delaware corporation for failure to comply with Mass. R. Civ. P. 23.1. Plaintiffs did not make a pre-suit demand upon the board of

Earth Tech Env’t and Infrastructure, Inc. v. Perini/Kiewit/Cashman
2004 Mass. Super. LEXIS 358 (September 23, 2004 BLS) (Van Gestel, J.).

In Earth Tech, the Court rejected a claim by a contractor charged with clearing away contaminated waste from the Big Dig, who sought an “equitable adjustment” of its contractual obligations under a provision of the contract incorporating by reference M.G.L. ch. 30, § 39N (“Section 39N”). Section 39N affords contractors on a public works project the right to seek extra

compensation when they encounter “materially different conditions from those predicted in the plans,  specifica-tion, preliminary borings and estimates.” Id. at *9 (quoting Glynn v. City of Gloucester, 9 Mass. App. Ct. 454, 460-61 (1980)). The contractor, however, waited four years before bringing its claim. It thus failed to bring the claim “promptly, and before [the different site conditions were] disturbed.” Id. at *8-9.