Dow v. Donovan
| Decision Date | 19 June 2001 |
| Docket Number | No. CIV. A. 00-11655-REK.,CIV. A. 00-11655-REK. |
| Citation | 150 F.Supp.2d 249 |
| Parties | Andrea C. DOW, Plaintiff, v. George E. DONOVAN, et al., As partners of Lyne, Woodworth and Evarts, LLP, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Jody L. Newman, Dwyer & Collora, Jill R. Gaulding, Dwyer & Collora, LLP, Boston, MA, for Andrea C. Dow, Plaintiffs.
Thomas C. Cameron, Milton, Kenneth A. Johnson, Burns & Levinson, Boston, MA for George E. Donovan, as partner of Lyne, Woodworth and Evarts, LLP, Joseph F. Ryan, Edward P. McPartlin, Walter J. Connelly, Norman M. Goldberg, Frances X. Hogan, Edward S. Rooney, Norman C. Sabbey, John P. Carr, Kenneth A. Johnson, Domenic P. Aiello, Joseph H. Skerry, III, Stephen T. Kunian, Joshua J. Vernaglia, Michael J. Owens, Defendants.
Bearing on matters pending for decision are the following filings:
(1) Defendant's Motion for Summary Judgment (Docket No. 24, filed November 6, 2000), with Statement of Material Facts as to Which There Is No Genuine Issue (Docket No. 25, filed November 6, 2000), Memorandum in Support (Docket No. 26, filed November 6, 2000) and Affidavit of Joseph F. Ryan with Exhibits 1-23 (Docket No. 27, filed November 6, 2000).
(2) Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (Docket No. 30, filed December 5, 2000) with Statement of Material Facts of Record as to Which There Exist a Genuine Issue to Be Tried (Docket No. 29, filed December 5, 2000) and Affidavit of Jody L. Newman with Exhibits 1-18 (Docket No. 31, filed December 5, 2000).
(3) Defendants' Memorandum in Response to Court's Questions Concerning Limited Liability Partnerships (Docket No. 38, filed March 26, 2001).
(4) Plaintiff's First Amended Complaint for Trial by Jury (Docket No. 40, filed April 10, 2001).
(5) Plaintiff's Response to Defendants' Memorandum in Response to the Court's Questions Concerning Limited Liability Partnerships (Docket No. 41, filed April 10, 2001).
(6) Memorandum Summarizing Defendant's Positions (Docket No. 46, filed April 26, 2001).
(7) Plaintiff's Supplemental Memorandum on Partnership Liability for Discriminatory Decisions and Personal Liability of LLP Partners for Partnership Wrongs (Docket No. 47, filed April 26, 2001).
(8) Plaintiff's Response to Memorandum Summarizing Defendant's Positions (Docket No. 48, filed May 16, 2001).
(9) Response Memorandum Summarizing Defendant's Positions (Docket No. 49, filed May 16, 2001).
Plaintiff, an attorney, was employed as an associate of the defendant Lyne, Woodworth & Evarts LLP (the "LLP defendant") from 1989 until 1997. Plaintiff's employment with the LLP defendant was terminated in February of 1997. In July of 1997, plaintiff filed a charge of discrimination with the Massachusetts Commission Against Discrimination ("MCAD"). In August of 1999, the LLP defendant gave notice to the MCAD that it intended to preserve its right to a jury trial. By order dated March 27, 2000, the MCAD dismissed so the case could proceed to a final factual adjudication in court. Plaintiff filed suit in this court on August 17, 2000. The LLP defendant's first filed document in this court was a Motion for Summary Judgment (Docket No. 24, filed November 6, 2000).
On February 20, 2001, the parties submitted a Joint Local Rule 16.1 Statement in preparation for a scheduling conference set for March 1, 2001 (Docket No. 33, filed February 20, 2001). The Statement included the following "Proposed Agenda for Scheduling Conference":
A. The plaintiff request [sic] that this Court address a preliminary legal issue, namely the proper identity of the defendant to this action. Plaintiff named as defendants the individual partners of Lyne, Woodworth and Evarts, LLP based upon well-settled Massachusetts law. See Shapira v. Budish, 275 Mass. 120, 126 (1931) (); M.G.L. c. 108A, § 15(3)(c) (). Defense counsel appeared solely on behalf of the partnership entity, Lyne, Woodworth and Evarts, LLP and uses a caption which designates the partnership entity as the sole defendant to this action. Plaintiff's understanding that the individual partners are the proper defendants to this action is the basis of her pending motions to default two individual defendants who are former partners of Lyne, Woodworth & Evarts, LLP. See Request for Entry of Default Against Defendant John P. Carr and Request for Entry of Default Against Defendant Joseph H. Skerry, III, filed October 10, 2000, and Defendant's Opposition to Plaintiff's Requests for Default filed October 18, 2000.
Joint Local Rule 16.1 Statement, Docket No. 33, filed February 20, 2001, at 1-2.
At the scheduling conference held on March 1, 2001, the court deferred ruling on defendant's motion for summary judgment in light of the dispute as to the proper defendants in this action. The court, having directed the parties to brief the issues of limited liability partnership and successor liability, set a case management conference for oral argument on this issue for April 11, 2001. In response to the court's order, the LLP defendant filed a Memorandum in Response to the Court's Questions Concerning Limited Liability Partnerships (Docket No. 38, filed March 26, 2001). In this document, the LLP defendant asserted:
the undersigned counsel represents only the LLP defendant. If plaintiff is asserting claims against present and/or past partners individually, with the intention of reaching those partners' personal assets, the undersigned counsel has no authority to speak for any of the individual partners.
Docket No. 38 at 1. The LLP defendant further argued that if the plaintiff intended to reach the assets of those individual partners, a potential conflict of interest among the partners exists, and a continuance to enable those partners to obtain separate counsel would be necessary. Id. at 5-6.
Plaintiff responded by filing both a First Amended Complaint (Docket No. 40, filed April 10, 2001) and the document captioned Plaintiff's Response to Defendants' Memorandum in Response to the Court's Questions Concerning Limited Liability Partnerships (Docket No. 41, filed April 10, 2001). The First Amended Complaint added a "Count III" to the original two counts of the complaint (Count I for sex discrimination under Title VII, 42 U.S.C. § 2000e-5 and Count II for sex discrimination under Massachusetts General Laws c. 151B). Count III of the First Amended Complaint is entitled "Liability for Partnership Wrongs," and includes the following paragraph:
71. The liability of the defendant law firm for discriminating against plaintiff arises in whole or in part from each individual partner's own negligence, wrongful acts, errors or omissions. Thus, through the above-described conduct, each of the partners is jointly and severally liable to plaintiff under M.G.L c. 108A, § 15(3) for the damage caused by the law firm's discriminatory decision to deny her partnership.
First Amended Complaint, Docket No. 40, filed April 10, 2001, at 14. Plaintiff's Memorandum addressing the question of partnership liability in a Limited Liability Partnership contained, among other things, the following argument:
Naming the partnership through its partners does not change the essence of Dow's discrimination suit. Because anti-discrimination statutes target decisions rather than decisionmakers, Dow is not required to prove that each partner who voted against her harbored conscious gender-based animus. See Thomas [v. Eastman Kodak Co., 183 F.3d 38, 60 (1st Cir.1999)]. "If the plaintiff [shows] that she was treated less favorably because of her gender, ... `the fact that some or all of the partners ... may have been unaware of that motivation, even within themselves, neither alters the fact of its existence nor excuses it.'" Id. (quoting Hopkins v. Price Waterhouse, 825 F.2d 458, 469 (D.C.Cir.1987)); see also Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment at 18 ().
. . . . .
If the decision to reject Dow is found to be discriminatory, the LLP defendant will be liable, that is, it will be responsible for satisfying the judgment from LW & E assets. But as defense counsel acknowledges, individual partners may also be liable for this partnership debt, if the debt "aris[es] in whole or in part from such partner's own negligence, wrongful acts, errors, or omissions."
Plaintiff's Response to Defendants' Memorandum in Response to the Court's Questions Concerning Limited Liability Partnerships, Docket No. 41, filed April 10, 2001, at 5-6.
The parties appeared before this court for a case management conference on April 11, 2001. At that case management conference, faced with conflicting arguments from the parties as to the status of the First Amended Complaint, the status of the individual partners as parties in this case, and the effect of the Limited Liability Partnership statute on partnership liability, this court ordered the parties to file simultaneous submissions, setting forth each and every argument they wished to make, to be filed April 25, 2001. The court also ordered simultaneous responses to be filed on May 16, 2001, and set oral argument on these matters for May 31, 2001, at 12:00. The parties filed the ordered submissions (see Memorandum Summarizing Defendant's Positions (Docket No. 46, filed April 26, 2001); Plaintiff's Supplemental Memorandum on Partnership Liability for Discriminatory Decisions and Personal Liability of LLP Partners for Partnership Wrongs (Docket No. 47, filed April 26, 2001); Plaintiff's Response to Memorandum...
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