prima facie violation in Massachusetts

2019"In conducting the requisite analysis under the prima facie standard, we take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim." Cepeda , supra at 738, 819 N.E.2d 979 , quoting Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n , 142 F.3d 26 , 34 (1st Cir. 1998).

2019P. 12 (b) (2), 365 Mass. 754 (1974), without holding an evidentiary hearing, "[u]se of this prima facie standard ... preliminarily reserves the jurisdictional issue, unless waived by the defendant, for final determination at the [evidentiary hearing or] trial, pursuant to a preponderance of the evidence standard." Cepeda , supra at 737, 819 N.E.2d 979 .

2025Nonetheless, we take this opportunity to reiterate that where, as here, a defendant has established a prima facie violation of rule 36 by demonstrating that more than 365 days have elapsed between arraignment and trial, "the burden is on the Commonwealth to demonstrate that a delay should be excluded under rule 36 (b) (2)." Commonwealth v. Graham, 480 Mass. 516, 524 (2018).

2024Where the original arraignment occurred on April 4, 2017, and the defendant had not been tried by October 15, 2019, when he filed the motion to dismiss, 924 days later, "the defendant[] [has] established a prima facie violation of rule 36 because [he was] not brought to trial within twelve months of 6 arraignment." Commonwealth v. Graham, 480 Mass. 516, 523 (2018).

2019"In conducting the requisite analysis under the prima facie standard, we take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim." Cepeda , supra at 738, 819 N.E.2d 979 , quoting Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n , 142 F.3d 26 , 34 (1st Cir. 1998).

2008“In conducting the requisite analysis under the prima facie standard, we take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiffs jurisdictional claim.” Id. at 738 , quoting Massachusetts Sch of Law at Andover, Inc. v. American Bar Assn., 142 F.3d 26, 34 (1st Cir. 1998).

2020G.L. c. 276, § 58A(3) (emphasis added).[2] In the context of a speedy trial challenge under Rule 36, when a "defendant establishe[s] a prima facie violation of the rule, . . . [t]he burden shifts to the Commonwealth to justify the delay." Commonwealth v. Roman, 470 Mass. 85 , 92 — 93 (2014) (citations omitted); see also Commonwealth v. Denehy, 466 Mass. 723, 729 (2014) (same).

2018See Commonwealth v. Denehy , 466 Mass. 723 , 729, 2 N.E.3d 161 (2014).

1990“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in *406 venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364 (1979).

1986In Taylor v. Louisiana, 419 U.S. 522, 526-531, 538 (1975), and Duren v. Missouri, 439 U.S. 357, 359 (1979), the United States Supreme Court held that a criminal defendant has the right, under the Sixth and Fourteenth Amendments to the United States Constitution, to “a petit jury selected from a fair-cross-section of the community.” 15 Duren v. Missouri, supra at 364 , created a three-part test for establishing a prima facie violation of the fair cross section requirement of the Sixth Amendment: (1) the group must be a “distinctive” group in the community; (2) the venires must not fairly and re

2024Accordingly, the burden rests on the Commonwealth "to justify the delay, either by showing that it falls within one of the 'excluded periods' enumerated under rule 36 (b) (2) or by showing that 'the defendant acquiesced in, was responsible for, or benefited from the delay.'" Graham, 480 Mass. at 517 , quoting Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).

2014A defendant may establish a prima facie violation by demonstrating that more than one year elapsed between the return date, here the date of arraignment, and trial. 5 Commonwealth v. Spaulding, 411 Mass. 503 , 504 & n.3 (1992), citing Mass. R.

2019Unless and until an evidentiary hearing is held, "a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion." Cepeda , 62 Mass. App. Ct. at 738 , 819 N.E.2d 979 , quoting Marine Midland Bank, N.A. v. Miller , 664 F.2d 899 , 904 (2d Cir. 1981).

2004Use of this prima facie standard to determine personal jurisdiction preliminarily reserves the jurisdictional issue, unless waived by the defendant, for final determination at the trial, pursuant to a preponderance of the evidence standard. 7 See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981).

2011“The most fypical method of resolving a motion to dismiss for lack of personal jurisdiction allows the court ‘to consider only whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.’ ” Cepeda, 62 Mass.App.Ct. at 737 (stating that the court forgoes a full evidentiary hearing, reserving the issue of personal jurisdiction for final determination at trial), quoting Boit v. Gar-Tec Prod., Inc, 967 F.2d 671, 675 (IstCir. 1992). “[U]nder the prima facie standard, we take specific facts affirmatively alleged by the

2008“The prima facie showing of personal jurisdiction must be based on evidence of specific facts set forth in the record.” Id., quoting Boit v. Gar-Tec Prod., Inc., 967 F.2d at 675 .

2025See Dirico, 480 Mass. at 497 .

2019See also Blair , 522 F.3d at 112 ("Under Massachusetts law, an affidavit is sufficient to refute the prima facie presumption created by a return of service"). 4 At that point, the plaintiff must carry the ultimate burden of proving proper service.

2019Contrast Scarlett , 93 Mass. App. Ct. at 598 (evidence that only two teachers not renewed were black sufficient to support inference of unlawful racial discrimination).

2019See id . ; Rivera-Lopez , 979 F.2d at 887 ("once challenged, plaintiffs have the burden of proving proper service").

2014The second element required to rebut the presumption that the peremptory challenges were exercised properly is a showing that it is likely that the individuals were being excluded solely on the basis of their group membership. “[I]n evaluating the second part of the test, the judge was entitled ... to consider ‘other relevant circumstances’ available to him in deciding whether the defendant adequately rebutted the presumption that the prosecutor made . . . proper challenge^].” Commonwealth v. Issa, 466 Mass. 1, 10 (2013), quoting from Batson v. Kentucky, 476 U.S. at 96 .

2011See also Weber v. Community Teamwork, Inc., 434 Mass. 761, 782 (2001) (conclusion that supervisor unlawfully discriminated against plaintiff “might, but does not necessarily, support an inference of actual malice”). 8 Although unlawful discrimination might constitute a spiteful, malignant purpose, the evidence in the summary judgment record does not support a prima facie claim of unlawful discrimination.

2009MacCormack v. Boston Edison Co., 423 Mass. 652, 662 (1996).

2009“To state a prima facie claim of disability discrimination under the ADA, a plaintiff must prove by a preponderance of the evidence that: (1) he was disabled within the meaning of the Act; (2) he was a qualified individual, i.e. able to perform the essential functions of the position with or without reasonable accommodation; and (3) he was discharged because of his disability.” Ward v. Massachusetts Health Research Inst., Inc., 209 F.3d 29, 32-33 (1st Cir. 2000).

2007See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130 , 135 n.5 (1976).

2006See Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 540-41 (2001) (finding plaintiff in a sexual harassment claim survived summary judgment by providing evidence that her supervisors, foremen, and line workers collectively rubbed against or bumped her on a consistent basis, made sexually explicit comments about her body, and made sexually suggestive gestures in her direction, all over an extended period of time).

2006To establish a prima facie claim of legal malpractice, “(t]he principles and proof of causation ... do not differ from those governing an ordinary negligence case.” Girardi v. Gabriel 38 Mass.App.Ct. 553, 557 (1995), quoting RONALD E.

2006To establish a prima facie claim of legal malpractice, “(t]he principles and proof of causation ... do not differ from those governing an ordinary negligence case.” Girardi v. Gabriel 38 Mass.App.Ct. 553, 557 (1995), quoting RONALD E.

2004The burden is one of production, not one of persuasion. “[Pjrima facie evidence . . . [is] evidence which, standing alone and unexplained, maintains the proposition and warrants the conclusion to support which it is introduced.” Thomes v. Meyer Store, Inc., 268 Mass. 587, 588 (1929).

2001The c. 15 IB Claim 9 This court concludes that none of the issues raised by defendants are capable of resolution by summary judgment as there are numerous material factual disputes relative to certain elements of plaintiff s claim based upon defendants’ alleged unlawful termination due to disability or handicap in violation of G.L.c. 151B, §4(16) (1990). 10 The prima facie standard of unlawful employment discrimination on the basis of handicap is set forth in Dartt v. Browning-Ferris Industries, Inc., 427 Mass. 1, 3 (1998). “[A] plaintiff must present credible evidence that (1) he is handicapp

2001The c. 15 IB Claim 9 This court concludes that none of the issues raised by defendants are capable of resolution by summary judgment as there are numerous material factual disputes relative to certain elements of plaintiff s claim based upon defendants’ alleged unlawful termination due to disability or handicap in violation of G.L.c. 151B, §4(16) (1990). 10 The prima facie standard of unlawful employment discrimination on the basis of handicap is set forth in Dartt v. Browning-Ferris Industries, Inc., 427 Mass. 1, 3 (1998). “[A] plaintiff must present credible evidence that (1) he is handicapp

1998However, ‘[t]he delay may be excused by a showing that it falls within one of the “[ejxcluded [p]eriods” provided in rule 36 (b) (2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.’ ” Commonwealth v. Marable, 427 Mass. 504, 505 (1998), quoting Commonwealth v. Spaulding, 411 Mass. 503 , 504 n.3 (1992).

1998Cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1076-1077 (11th Cir. 1996), cert. denied, 117 S. Ct. 1819 (1997) (analyzing why ADA does not import “solely because of” standard for plaintiff’s ultimate burden of causation).

1990The prima facie requirement of proof of intent may be met by a "show[ing] that the employer's actions were deliberate, rather than accidental." Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 616 (1983).

1990The prima facie requirement of proof of intent may be met by a “showing] that the employer’s actions were deliberate, rather than accidental.” Sami Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 616 (1983).