burden rule in Massachusetts

2010National Ass’n of Gov’t Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 231 (1979), cert. denied, 446 U.S. 935 (1980).

1991Defendants, however, “must still meet the usual burden under rule 56 of demonstrating by evidence ‘considered with an indulgence in the plaintiff’s favor,’ the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.” Godbout v. Cousens, 396 Mass. 254, 258 (1985), quoting National Ass’n of Gov’t Employees, Inc. v. Central Broadcasters Corp., 379 Mass. 220, 231 (1979), cert, denied, 446 U.S. 935 (1980).

2012Rather, the court’s evaluation is governed by Rule 56(c): Motions and Proceedings Thereon. 4 The defendants, as the moving parties, have “the burden under rule 56(c) to show by credible evidence from [their] affidavits and other supporting materials that there is no genuine issue of material fact and that [they are] entitled, as matter of law, to a judgment.” Smith v. Masimiano, 414 Mass. 81, 85 (1993) (citations omitted).

1993Smith v. Massimiano, 414 Mass. 81, 85-86 (1992); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

2010DISCUSSION As stated in Godbout v. Cousens, 396 Mass. 254, 258-59 (1985), “while we favor the use of summary judgment procedures in defamation cases, New England Tractor-Trailer Training of Conn., Inc v. Globe Newspaper Co., 395 Mass. 471, 480 (1985), the defendants must still meet the usual burden under rule 56 of demonstrating by evidence ‘considered with an indulgence in the plaintiffs favor,’ the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.

2006Defendants, however, “must still meet the usual burden under rule 56 of demonstrating by evidence ‘considered with an indulgence in the plaintiffs favor,’ the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.” Godbout v. Cousens, 396 Mass. 254, 258 (1985), quoting Nat'l Ass’n of Gov’t Employees, Inc. v. Cent.

1993Smith v. Massimiano, 414 Mass. 81, 85-86 (1992); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

1993Smith v. Massimiano, 414 Mass. 81, 85-86 (1992); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

2026Id.

2015Corp., 7 Mass. App. Ct. 494, 498 (1979) (if discrepancy is subtle, and if reasonable, conscientious contractor examining design “might miss a requirement which is out of sequence or ineptly expressed, the burden of the error falls on the issuer of the specifications”). 6 *557 Until today, we have not considered whether the owner’s implied warranty of the designer’s plans and specifications applies in public construction management at risk projects.

2010DISCUSSION As stated in Godbout v. Cousens, 396 Mass. 254, 258-59 (1985), “while we favor the use of summary judgment procedures in defamation cases, New England Tractor-Trailer Training of Conn., Inc v. Globe Newspaper Co., 395 Mass. 471, 480 (1985), the defendants must still meet the usual burden under rule 56 of demonstrating by evidence ‘considered with an indulgence in the plaintiffs favor,’ the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.

1985While we favor the use of summary judgment procedures in defamation cases, New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480 (1985), the defendants must still meet the usual burden under rule 56 of demonstrating by evidence “considered with an indulgence in the plaintiff’s favor,” the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.

2025See Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433, 437 (2007) (mental health referral at time of allegation insufficient to require disclosure of privileged records).

2022See Eliot Discount Corp. v. Dame, 19 Mass. App. Ct. 280, 285 (1985) (burden of proof usually borne by party arguing irregularity or "seeking to alter the status quo to another party's disadvantage").

2017See Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender Registry Bd., 477 Mass. 361 , 367 n.7 (2017).

2016See State v. Johnson, 335 Or. 511, 521 (2003) (burden to prove reasonableness remains with State where evidence seized without warrant even though search warrant ultimately obtained).

2012The defendant bears the burden on a claim of ineffective assistance of counsel to show “behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2012As to the latter point, this court has said that “there ought to be some showing that better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

2008Section 59H of G.L.c. 231 states in pertinent part that “[i]n any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss.” The Legislature thereby “provided a means through which persons who have been made the subject of civil litigation in retaliation for the exercise of their right to petition may be spared the expense and the burden of defense of the action.” Fisher v.

2004Commonwealth v. Williams, supra at 684 (affidavit of member of grand jury or prosecutor, or submission of grand jury testimony adequate); Commonwealth v. Trigones, supra (indictment, affidavit, and uncontroverted statements of prosecutor made and recorded in open court adequate). 11 The Commonwealth’s motion in the present case should be handled in the manner prescribed in Commonwealth v. Trigones, supra. As in Trigones , the request comes after criminal charges have been brought.

2002Although a peremptory challenge is presumed to be proper, this presumption can be rebutted by a showing that “(1) there is a pattern of excluding members of a discrete group and (2) it is likely that individuals are being excluded solely on the basis of their membership within this group.” Commonwealth v. Garrey, 436 Mass. 422, 428 (2002), quoting Commonwealth v. Curtiss, 424 Mass. 78, 80 (1997).

2002Although a peremptory challenge is presumed to be proper, this presumption can be rebutted by a showing that “(1) there is a pattern of excluding members of a discrete group and (2) it is likely that individuals are being excluded solely on the basis of their membership within this group.” Commonwealth v. Garrey, 436 Mass. 422, 428 (2002), quoting Commonwealth v. Curtiss, 424 Mass. 78, 80 (1997).

1998The petitioner thus has the burden under the rule of “set[ting] forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any adveree final judgment in the trial court or by other available means.” He has not met this burden simply by stating that “no appeal lies from the action” of the Superior Court. 1 We are not unmindful of the petitioner’s reliance on our opinion in Averett, petitioner, 404 Mass. 28, 29-31 (1989), in which we discussed some differences between a petition for a writ of habeas corpus and a request for relief under Mass. R.

1997Co. v. Peter Francese & Son, Inc., 21 Mass.App.Ct. 47, 52 (1985) (quoting John F. Miller Co. v. George Fichera Construction Corp., 7 Mass.App.Ct. 494, 499 (1979)).

1996See, e.g., Commonwealth v. Cook, 419 Mass. 192, 204 (1994) (evidence plus reasonable inferences must result in proof beyond a reasonable doubt).

1995Finally, although the Supreme Judicial Court has stated repeatedly that summary judgment is favored in cases alleging defamation, e.g., Mulgrew v. City of Taunton, 410 Mass. 631, 632 (1991); King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987), cert, denied, 485 U.S. 962 (1988), defendants seeking summary judgment in defamation cases must still meet the usual burden under rule 56 of demonstrating by evidence “considered with an indulgence in the plaintiffs favor,” the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.

1995Finally, although the Supreme Judicial Court has stated repeatedly that summary judgment is favored in cases alleging defamation, e.g., Mulgrew v. City of Taunton, 410 Mass. 631, 632 (1991); King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987), cert, denied, 485 U.S. 962 (1988), defendants seeking summary judgment in defamation cases must still meet the usual burden under rule 56 of demonstrating by evidence “considered with an indulgence in the plaintiffs favor,” the absence of disputed issues of material fact and their entitlement to judgment as a matter of law.

1993See Thomas, supra at 1365 .

1993See Thomas, supra at 1365 .

1992See Sandstrom v. Montana, supra at 518 n.7.