The People vs. Eversource

Wednesday April 6, 2016 – Eversource filed a motion to dismiss and the judge said that he is not throwing this case away.

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, SS BARNSTABLE SUPERIOR CT
CIVIL ACTION NO. 1572CV494

*****************************************
Catherine T. Richardson,
Sandra Johnson,
David Greene,
and other unnamed entities and individuals,
Plaintiffs

v.

Eversource Energy Service Co., Inc., formerly dba
Northeast Utilities Service Co., Inc. and NStar,
formerly AKA NStar a Northeast Utilities Company, and
Vegetation Control Service, Inc., Lewis Tree Service Inc.,
and Lucas Tree,
Defendants
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PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT EVERSOURCE ENERGY’S MOTION TO DISMISS

Introductory Matters:
A. Plaintiffs in the above captioned matter waive argument at this time relative to dismissal of Count IV of Plaintiffs’ Complaint, conceding that at this time the Plaintiffs have indeed not satisfied the notice provisions of MGL 93A. It is the contention of the Plaintiffs, however, that dismissal of Plaintiffs’ 93A complaint at this time does not bar renewal of said count at a later date by way of a Motion to Amend. As to all other Counts in Plaintiffs’ Complaint the Plaintiffs’ argue that this Honorable Court must DENY defendant EVERSOURCE ENERGY’S (herein after Eversource) Motion to Dismiss.
B. Plaintiffs agree with Defendant Eversource that the terms of the Massachusetts Pesticide Control Act (MPCA) – MGL c. 132B – are relevant to an understanding of the Plaintiffs’ underlying causes of action. The Plaintiffs vigorously dispute, however, that the terms of 132B preempt any and all common law claims relating to the consequences of any negligence and/or breach of contract by defendant Eversource or its agents, or that allowing suit to proceed
Richardson v. Eversource, Barnstable Sup. Ct. , CA 1572CV494
Plaintiffs’ Memorandum in Opposition to Defendant Eversource’s Motion to Dismiss, Page 2.

has anything to do with the centralized regulation of pesticide use in the Commonwealth of Massachusetts.
Indeed, the Plaintiffs assert (1) that as a matter of statutory interpretation they are not precluded from pursuing their claims and (2) that more than ample and adequate grounds of breach have been asserted by the Plaintiffs such that this Honorable Court must DENY Defendant Eversource’s Motion to Dismiss.

Argument – Statutory Interpretation/Construction:
The express purpose of chapter 132B “… is to conform the laws of the commonwealth to the Federal Insecticide, Fungicide, and Rodenticide Act … and the regulations promulgated thereunder and to establish a regulatory process in the commonwealth. The exclusive authority in regulating the labeling, distribution, sale, storage, transportation, use and application, and disposal of pesticides in the commonwealth shall be determined by this chapter.” (Emphasis added.)
It is the Plaintiffs’ position that the conformity and “regulation” being referenced in the statute applies solely and exclusively to the “labeling, distribution, sale, storage, transportation, use and application, and disposal of pesticides in the commonwealth” and sets the standard whereby such pesticides shall be so regulated, distributed, stored, etc. The assertion that the creation of such a “regulatory scheme” is “comprehensive” and therefore “fundamentally incompatible with private common law claims” such as those asserted by the Plaintiffs herein, however, is clearly overreaching and in error.
In this regard, the long-standing canon regarding statutory construction mandates that “the starting point for interpreting a statute is the language of the statute itself” and “absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission etal. v. GTE Sylvania, Inc. etal., 447 U.S. 102 (1980). Indeed, “… in interpreting a statute a court should always … presume that a legislature says in a statute what it means and means in a statute what it says.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). A statute is to be interpreted “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause
of its enactment … and the main object to be accomplished.” Comm.
v. Galvin, 388 Mass. 326, 328 (1983), quoting Board of Educ. v.
Richardson v. Eversource, Barnstable Sup. Ct. , CA 1572CV494
Plaintiffs’ Memorandum in Opposition to Defendant Eversource’s Motion to Dismiss, Page 3.

Assessor of Worcester, 368 Mass. 511, 513 (1975). Our starting point is, therefore, the plain language of the statute, which this Court must read according to its plain and ordinary meaning where the text is clear and unambiguous. See also Foss v. Commonwealth, 437 Mass. 584, 586 (2002). In statutory interpretation, “[n]one of the words of a statute is to be regarded as superfluous.” Commonwealth v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Comm of Corps. & Taxation, 319 Mass. 81, 84-85 (1946).
See also Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 229 (2010) (preposition undefined in statute interpreted according to its plain meaning); and Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 802 (2003) (statute’s phrase interpreted using standard rules of statutory construction and grammar).
In its ordinary usage, the word “regulating” clearly applies in this statute solely to the words that follow it, i.e., labeling, distribution, sale, storage, transportation, use and application, and disposal of pesticides. There is no alternative usage of the word “regulating” available and
Section 5 of the statute – referring to the Powers and Duties of the Pesticide Board – make absolutely no reference to it.
Furthermore in Section 6 of the statute we are told “No person shall use a registered pesticide in a manner that is inconsistent with its labeling or other restrictions imposed by the department,” and that any breach or violation of the statute is inconsistent with the terms and conditions of said statute without any reference to retaining exclusive jurisdiction over alleged violations.
Thus, although the Plaintiffs’ Complaint references regulatory provisions found in the MPCA, the gravamen of Plaintiffs’ Complaint is in no way superseded by said Act which merely serves as part of the backdrop against which the Plaintiffs’ Complaint is to be assessed and evaluated. Indeed, is it well established in Massachusetts that proof of violation of a statute may be considered as some evidence of negligence. And any assertion that the statutory scheme relevant hereto bars such judicial determination of such complaints is misplaced. The Pesticide Control Act grants only the “exclusive authority” to “regulate” labeling, distribution, sale, storage, transportation, use, application, and disposal of pesticides. It cannot conceivably control when such activities are negligently carried out or create nuisances or breaches beyond the scope
of the statute’s controlling authority and in making such an assertion

Richardson v. Eversource, Barnstable Sup. Ct. , CA 1572CV494
Plaintiffs’ Memorandum in Opposition to Defendant Eversource’s Motion to Dismiss, Page 4.

Defendant Eversource erroneously expands the statutory purpose of centralized regulation of pesticide use.

Argument – Burden of Proof:
The Plaintiffs’ agree wholly with Eversource’s assertion that the Court must “accept as true the facts alleged in the plaintiffs’ complaint as well as any favorable inferences that can be drawn from them” and that “factual allegations are sufficient to withstand a motion to dismiss … if they plausibly suggest … an entitlement to relief” which Plaintiffs’ allegations herein clearly do. On such grounds alone Defendant’s Motion to Dismiss must be denied.

Argument – Contractual Relations:
Defendant Eversource incorrectly asserts that the Plaintiffs’ contend there is a contractual duty running from Eversource and its agents to the Plaintiffs originating exclusively from the delivery of electricity. The contractual obligation is rather that imposed on any seller of services as an invitee onto one’s property … an offer to enter with an implied obligation of respect and deference to one’s land rights and an equally credible implied acceptance of the terms of said invitation. Underlying any violation of those terms – especially by a provider who has exclusive control of certain fundamental services and who enters onto one’s land in breach of such obligations – is simultaneously a breach of an implied contractual obligation.

WHEREFORE, for all the arguments advanced herein, the Plaintiffs respectfully request this Honorable Court DENY Defendant Eversource’s Motion to Dismiss.

Respectfully submitted,
Catherine T. Richardson, Sandra Johnson, David Greene,
and other unnamed entities and individuals,
By their Attorney,

_____________________________
Bruce R. Taub, BBO No. 544080
Law Office of Bruce R. Taub, P.C.
P.O. Box 2712
Orleans, MA 02653
(617) 529-7129

The People VS. Eversource
_______________________
POCCA appeared with legal assistance and witnesses at a hearing that took place in
Barnstable Superior Court on
October 1st, at 2 p.m.
regarding the lawsuit:
The People vs. Eversource.
Since then, the judge has ordered Eversource to refrain from spraying on or near the abutter’s land. More abutters are invited to join the suit.
Contact Attorney Bruce Taub
 brt@brucetaub.net  
617-529-7129

Bruce Taub serves as advisor and legal counsel to POCCA. Bruce has been practicing law in Massachusetts for over thirty years, following years spent as a professor of anthropology and a senior public hospital administrator. The focus of his legal practice has always been on protecting the civil rights of individuals although of late he has expanded his attention to advocating for and protecting the needs and rights of Mother Earth and the environment. Bruce served in the US Army and lived for years on a farming commune in northern Vermont. He is a father, grandfather, occasional poet, and gardener.