Johnson & Borenstein, LLC

Open Meeting Law and Coronavirus Update

2020-07-02T12:41:21Z

On March 12, 2020, Governor Baker issued an Order suspending certain provisions of the Open Meeting Law that governs various public meetings, such as the meetings of Zoning Boards, Planning Boards, Conservation Commissions, and many others. The Governor’s Order is intended to protect public health, while allowing municipalities and the Commonwealth to continue to function lawfully during this difficult time.

Specifically, the Order relieves public bodies from the requirement to hold in-person meetings, provided that adequate alternative means of public access are provided. This may include conference calls, video conferences, or other means, provided that the members of the public body and the public may interact in real time and at no cost to the public. The Order also permits members of public bodies to participate by remote access, suspending the requirement that a quorum of a board must attend a meeting in-person.

The Governor’s Order should allow many public boards to function remotely over the coming weeks and to carry on their business and duties. It appears the practical means of implementing remote public hearings will be determined on a town-by-town or board-by-board basis, and preparation for conducting business in this manner is likely still very much being developed.

Despite the unprecedented challenges created by Covid-19 (coronavirus) Johnson & Borenstein remains fully operational during this time and ready to represent and protect our clients’ interests and objectives on all fronts, By taking practical protective measures at our Andover office and by leveraging our robust technical infrastructure and cloud computing capabilities, we remain available to you. Please do not hesitate to reach out to us.

A Message to Our Clients Regarding Covid-19

2020-07-02T12:41:11Z

In response to the coronavirus threat, Johnson & Borenstein has been taking active measures to ensure the safety and well-being of our employees, clients, and guests, while at the same time ensuring that we continue to provide the same high quality legal services to our clients on a day-to-day basis. We have taken preventative measures at our Andover office and are leveraging technology, including our recent upgrade to a robust cloud-computing system, to permit our staff to continue to operate and serve our clients with the same professional expertise and personal commitment Johnson & Borenstein is known for. We will remain available to you throughout this difficult time and will keep you fully updated as to the current status of your matters.

Please do not hesitate to contact us should you have any questions, concerns, or require assistance.

SJC Affirms Test for Standing in Zoning Appeals

2020-07-02T12:41:30Z

In a highly unusual move, only one day after hearing oral argument the Supreme Judicial Court on Friday (March 6, 2020) reversed an Appeals Court decision concerning standing in land use cases. The decision upheld the Land Court decision and reaffirmed what had been considered an undisputed legal standard.

The Appeals Court decision in Murchison v. Zoning Bd. of Appeals of Sherborn, 96 Mass. App. Ct. 158 (2019), had been a source of concern amongst the land-use community since it was issued in September of 2019. The Appeals Court reversed a 2018 Land Court decision which had concluded that the Plaintiffs lacked standing to challenge the issuance of a foundation permit to their neighbors who were seeking to build a single-family home on their three-acre lot across the street from Plaintiffs’ property. The only issue was whether the lot had the sufficient “minimum lot width” as set forth in the Sherborn zoning bylaw. The Plaintiffs raised density concerns based upon the purported lack of required minimum lot width. Relying upon a long line of cases discussing standing in land use cases, the Land Court judge determined that any harm to the Plaintiffs was, at most, de minimis, and therefore the Plaintiffs lacked standing to challenge the permit. Based upon the testimony of Mr. Murchison the Court concluded that the Plaintiffs simply did not want any construction on the lot in dispute.

The Appeals Court reversed the Land Court’s determination with respect to the Plaintiffs’ lack of standing. The Appeals Court’s conclusion that the Plaintiffs had standing simply because they alleged a density-related harm, without analyzing the amount of harm and without giving any credence to the argument that such harm was de minimis, flew in the face of long-standing case law. As the Land Court stated in a later case applying Appeals Court’s standard in Murchison, “since all of the Abutters allege harm from an increase in density and they are abutters or abutters to abutters of the proposed project, they have established that they will suffer harm to an interest protected by G. L. c. 40A and the ordinance (namely the interest in regulating density), and therefore are persons aggrieved by the remand decision. They are entitled to . . . [a declaration that] they have standing.” Chilton v. City of Medford Zoning Bd. of Appeals, 27 LCR 574, 577 (2019).

The new standard for standing as set forth in the Appeals Court’s decision had the potential to open the floodgates to abutter appeals where no harm need be alleged other than a density-related zoning violation. The SJC granted further appellate review on the matter. At oral argument the Court appeared highly skeptical of the arguments made by the Plaintiffs, and such an interpretation of the Court’s questions is supported by the almost-immediate issuance of a decision stating that the Land Court’s opinion is affirmed. A full decision will follow, and we will be closely watching to see what additional analysis and direction the SJC may provide with respect to this issue.

A Contractor’s Best Friend: The Statute of Repose and Time Limits on a Homeowner’s Tort Claims

2021-07-09T08:23:24Z

Good news for contractors, developers, and design professionals – Massachusetts’ highest court has recently confirmed that you cannot be held liable for negligent design, planning, or construction activities more than six (6) years after you finish that work. Practically speaking, this means that a homeowner cannot make you pay them to fix mistakes (such as Code violations) if the homeowner discovers that violation more than six (6) years after you complete their project. The Supreme Judicial Court set this precedent in two (2) recent cases: Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349 (2018), and Stearns v. Metropolitan Life Insurance Co., No. SJC-12544 (Mar. 1, 2019). G.L. c. 260 § 2B is a statute of repose – a statute of repose establishes a time limit for a party (such as the homeowner in the example above) to file suit. The clock starts to run on the once a triggering event happens (such as the creation of Code violations). The homeowner doesn’t need to know about the violations in order to be “on the clock” for filing a suit under the statute of repose. This differs from a statute of limitations, which requires a party to file suit within a certain amount of time after they know or should have known that the contractor’s work was negligent. The distinction between a statute of repose and a statute of limitations is typically convoluted and based on the precise statutory language. However, in short, the statute of repose is a better friend to the contractor than a statute of limitations. In Bridgwood, the SJC said that G.L. c. 260 § 2B bars a homeowner from bringing claims against a contractor for violating the Home Improvement Contractor statute (c. 142A) and the Consumer Protection statute (c. 93A) where the homeowner discovers the negligent work more than six (6) years after the contractor finished working at the home. Plaintiff Terry Bridgwood hired a contractor to renovate her home in 2000. The contractor’s electrical work was not up to Code. Twelve years later, the faulty electrical work led to a fire that caused more than $40,000.00 worth of damage to the house. The SJC held that the statute prevented the homeowner from pursuing her claims. In doing so, the Court focused on the purpose of the statute of repose – “to shield contractors from the burden of liability throughout their careers and into retirement for work that had long since been completed.” Just six months later, the SJC applied a similar line of reasoning in determining that a mesothelioma plaintiff could not pursue a claim against a contractor because the mesothelioma was not diagnosed until almost forty years after the plaintiff was allegedly exposed to asbestos by the defendant contractor. Stearns v. Metropolitan Life Insurance Co., No. SJC-12544 (Mar. 1, 2019). The Court held that: “[c]onsistent with our precedent, we conclude that § 2B completely eliminates all tort claims arising out of any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property after the established time period has run, even if the cause of action arises from a disease with an extended latency period and even if a defendant had knowing control of the instrumentality of injury at the time of exposure. In so doing, we recognize that, considering the latency period for asbestos-related illnesses, this will have the regrettable effect of barring all or nearly all tort claims arising from negligence in the use or handling of asbestos in construction-related suits. Nonetheless, the appropriate recourse is in the Legislature, not this court.” The SJC’s recent decisions have made this statute of repose one of the most effective tools for contractors in combatting litigation. Expect to see this become a more common defense in litigation involving homeowners. (Written by Attorney Thomas Orr)

No Variance Necessary to Increase Preexisting Nonconformity; c. 40A § 6 Finding Sufficient

2020-07-02T12:42:42Z

Land use practitioners in Massachusetts are well aware of the “difficult and infelicitous” language of the first two sentences of G. L. c. 40A, § 6 concerning single and two-family dwellings. The statute reads: Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. The courts have repeatedly grappled with this statute, with the Supreme Judicial Court previously determining that it allows extensions and changes to preexisting conforming homes provided that “(1) the extensions or changes themselves comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures.” Rockwood v. Snow Inn Corp., 409 Mass. 361, 364 (1991). A question arises when the proposed change will alter or extend the non-conformity; is the existing structure entitled to protection or is a variance required from the dimensional requirements of the bylaw that the structure plus addition will not comply with? Recently the SJC again reviewed the above language in Bellalta v. Zoning Bd. of Appeals of Brookline, No. SJC-12516, at *2-3 (Feb. 8, 2019)and concluded that: “the statute requires an owner of a single- or two-family residential building with a preexisting nonconformity, who proposes a modification that is found to increase the nature of the nonconforming structure, to obtain a finding under G. L. c. 40A, § 6, that ‘such change, extension or alteration shall not be substantially more detrimental that the existing nonconforming use to the neighborhood.’ The statute does not require the homeowner also to obtain a variance in such circumstances.” In this case an abutter appealed a decision of the Brookline Zoning Board which granted a special permit to homeowners to allow modification of the roof of their two-family home and to add a dormer, even though doing so would increase the preexisting nonconforming floor area ratio. The Board found increasing the FAR would not be substantially more detrimental to the neighborhood than the existing home. The abutters challenged the grant of the special permit, alleging that the homeowners needed to obtain a variance because the increase in the FAR meant that the home would not comply with the zoning bylaw. The Land Court upheld the Board’s issuance of a special permit, and on further appeal SJC affirmed. The SJC’s analysis focused on the “second ‘except’ clause” of c. 40A § 6, which affords additional protections to owners of single- and two-family preexisting nonconforming structures who seek to intensify those nonconformities. Recognizing the long-standing principle that elimination of nonconformities is desirable, the SJC also noted that construing the statute to require a variance in addition to a finding of no substantial detriment would “render it nearly impossible for the homeowners to renovate, modernize, or make any substantial improvements to an older home, particularly if those improvements would increase the nonconforming nature of the structure,” and that this could “make it economically infeasible to modify a nonconforming home in any but the most minimal ways, could curtail the ability to sell such a house, and, accordingly, could result in a reduction in the amount of available affordable housing, as well as potentially reducing the town's population and the municipal tax base.” Bellalta , at *19-20. This eminently practical decision is based on solid statutory analysis and is consistent with a long line of case law in Massachusetts, case law which has not been disturbed by the Legislature as it has amended (or declined to amend) the statute over the years. This decision should provide some measure of relief and certainty to homeowners that they may seek to expand a preexisting nonconforming structure that will not comply with the local bylaw without the requirement to obtain a variance, which can be a lengthy, expensive, and uncertain proposition.

An Adverse Possession Decision With A Twist

2020-07-02T12:42:53Z

An otherwise-normal adverse possession case took an interesting turn when, in a recent decision, the Land Court judge declined to quiet title to the plaintiff’s property after denying the defendants’ counterclaim for adverse possession. In Borawski v. Gralinski (Land Ct. July 18, 2018), Judge Cutler heard plaintiff Robert A. Borawski’s request to quiet title to his property in the face of adverse possession assertions made by defendants Edward J. Gralinski, Jr. and Diane Gralinski. The adverse possession claims were typical – the defendants claimed adverse possession through acts of farming on the subject parcel. The judge found that a multi-year interruption in the farming activities prevented the defendants from gaining title by adverse possession. The unusual portion of the decision came when the judge declined to grant plaintiff’s request to quiet title to the parcel in his name. Pointing to deficiencies in the plaintiff’s demonstrating his title to the parcel in question, specifically: a different town name in the plaintiff’s deed, lack of evidence as to plaintiff’s chain of title other than the one deed submitted, and a lack of expert testimony confirming that the parcel in the submitted deed was in fact the subject parcel, the judge declined to quiet title in plaintiff’s name. That the defendants had stipulated to plaintiff’s record title was legally insufficient where the Court assesses the merits of the quiet title action separately from the adverse possession action. While judgment entered that defendants had not acquired title to the parcel by adverse possession, the judgment likely will not put the plaintiff’s mind entirely at ease. The judge’s concerns regarding the plaintiff’s deed raises questions as to who has record title to the parcel. It is possible that further title examination would demonstrate that the plaintiff did in fact have record title to the parcel in question, but the judgment in this matter is far from ideal. It serves as a reminder that those who bring quiet title actions bear the burden of proof in demonstrating that they have good title to their property and cannot simply rest on a declaration that the named defendants have failed to prove any interest in the property. It also demonstrates that the Court will not simply rubber-stamp a quiet title action in these circumstances.

Massachusetts Rule Confirmed, No Legal Remedy for Damage Caused by Neighbor’s Healthy Tree

2020-07-02T12:43:02Z

Frank Lloyd Wright said “the best friend on earth of man is the tree,” but perhaps the epigram is less true if the tree is on your neighbor’s property and causing damage to your property. In Massachusetts, it has long been the rule that a property owner may not hold a neighbor liable for damage caused by the neighbor’s healthy tree, regardless of the extent or type of the damage. The Supreme Judicial Court has now affirmed the continued operation of the Massachusetts rule in its recent decision of Shiel v. Rowell, SJC-12432 (July 16, 2008). In that case, Mary Schiel sued her neighbors, the Rowells, for damage to her roof caused by the Rowells’ 100-foot sugar oak tree. She also sought an injunction requiring the Rowells to cut back the offending overhanging branches. When her case was dismissed, Schiel appealed, and the SJC granted her application for direct appellate review. Schiel argued that the Massachusetts rule, which effectively barred her from any recovery against the Rowells, was outdated and inappropriate considering the smaller lot sizes of modern development, and that the Court should adopt the “Hawaii rule” instead. The Hawaii rule grants neighbors a right of action to resolve disputes in court over healthy trees and allows a neighbor to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, sensible harm to the neighbor's property. The Rowells, unsurprisingly, argued that the Massachusetts rule continues to be the correct method of addressing tree issues and should be upheld on grounds of stare decisis. The SJC, while acknowledging that stare decisis does not require adherence to precedent in all situations and that, were it to find that the Massachusetts rule no longer appropriate given contemporary realities, determined that the Massachusetts rule was not outdated and remains controlling law in the Commonwealth. Despite criticism of the Massachusetts rule by other jurisdictions, the Court found that the proper resolution of neighborly tree issues continues to be to authorize the cutting back of overhanging branches and intruding roots by the abutting owner. The Court also recognized that a move away from the Massachusetts rule would likely create vexatious and costly lawsuits. So, if your neighbor’s healthy tree extends over your property and causes damage to your property, you cannot sue your neighbor, but you may remove the offending branches or roots on your side of the property line to prevent damage.

Johnson & Borenstein win subdivision appeal against Town of Lunenburg in Land Court

2020-07-02T12:43:12Z

Johnson & Borenstein partner Donald F. Borenstein represented developer O’Brien Homes, Inc. in a long-running dispute between O’Brien and the Town of Lunenburg over the subdivision of a former egg farm and other adjacent property in Lunenburg, MA, totaling 135 acres. The Lunenburg Planning Board rejected O’Brien’s original subdivision plan in 2009, and again rejected O’Brien’s revised plans in 2013. Johnson & Borenstein appealed and undertook extensive discovery into the Board’s alleged reasons for twice denying O’Brien’s plans. This included electronic discovery of e-mails exchanged among town staff and board members outside the public hearing process. This effort revealed several damming communications, including a conservation commissioner’s message explaining that, “The town prompted an executive session to inquire . . . how (town boards) could find fault with O’Brien and act upon such . . . I would assume if one of those boards had a way to stick it to him, they would support that.” After a 3-day trial and extensive briefing by both parties, the Land Court ruled squarely in O’Brien’s favor, finding that the Planning Board had no basis to deny the subdivision plans; that the project was benefitted by a zoning freeze and protected from the town’s attempt to double the minimum lot area requirement; and that O’Brien had standing to pursue the appeal. Having previously put O’Brien’s claims of bad faith on hold, the Court also invited Johnson & Borenstein to schedule further proceedings to address those claims and to consider the entry of sanctions against the Town.

Appeals Court Affirms Anti-SLAPP Relief Not Available in Land Court Try Title Action Where Defendants Named Based on Claim of Property Rights, Not Petitioning Activity

2020-07-02T12:43:21Z

In 1994, the Massachusetts Legislature enacted a so-called “anti-SLAPP” statute, G.L. c. 231, § 59H, to provide a procedural remedy for early dismissal of suits which seek to use litigation to intimidate opponents into foregoing the valid exercise of their constitutional rights of free from of speech and petition for redress of grievances. In other words, the Statute provides an opportunity to file a special motion to dismiss, with an award of costs and fees if successful, against a claim which is based on one’s petitioning activities, such as (but not limited to), statements to a legislative, executive, or judicial body, or in a governmental proceeding. The special motion to dismiss procedure is intended to quickly dispose of, and discourage, litigation based on such protected statements. The anti-SLAPP statute has been invoked in many situations since then, with the SJC recently, and critically, interpreting the statute and the applicable tests thereunder in Blanchard v. Steward Carney Hosp., 477 Mass. 141 (2017). However, sometimes the anti-SLAPP statute is invoked in unusual situations. A recent unpublished Appeals Court decision considers such a situation. The Decision, Roscioli v. Sanderson, No. 17-P-499 (App. Ct. May 15, 2018), relates to an interlocutory appeal from an anti-SLAPP motion to dismiss denied by the Land Court. The trial court litigation is ongoing and complicated by the sheer number of parties involved – at one time there were more than 185 defendants, including the Town of Sturbridge. The underlying issue concerns the parties’ rights, or lack thereof, in a way which runs next to the Plaintiffs’ property. Before filing their Complaint, the Plaintiffs complained to the Town about members of the public trespassing on the way, which Plaintiffs alleged was their exclusive right of way. The Town requested statements from members of the public with respect to their historic use of the way, and over 180 affidavits were submitted in response, some of which alleged use of the way back to the mid-1900’s. After receipt of the affidavits the Town determined that it would not enforce its trespassing laws regarding the way. That being the wrong decision from the Plaintiffs’ point of view, they filed suit in the Land Court seeking to try title to the way and naming, surprise surprise, all those who filed affidavits with the Town as defendants, including John and Ellen Welch, whose affidavit claimed use of the way back to 1983. The Welches filed a special motion to dismiss, arguing that the claims against them were based upon their protected petitioning activity, namely, the affidavit that they filed with the Town. The Land Court judge denied their motion to dismiss, stating: “While the defendants' submissions to the Town allowed the plaintiffs to identify the persons who claim rights in their properties, the case is not about those submissions but, instead, about the existence and scope of the rights so claimed. As such, it is a proper 'cloud on title' case, properly brought before this court, G. L. c. 240, § 6, and is not precluded by the Anti-SLAPP statute.” The Welches appealed. They argued that the Plaintiffs’ litigation was is based exclusively on petitioning activity because the only people who were sued were those who submitted affidavits to the Town concerning the historic use of the way. The Appeals Court, like the Land Court, was not persuaded. After setting forth the legal framework within which the Welches’ motion should be considered — were the plaintiffs’ claims based solely on the Welches’ petitioning activity? If they were, were the claims not primarily brought to chill the Welches’ legitimate petitioning activities considering the totality of the circumstances — the Appeals Court concluded “the underlying case, on its face, involves the adjudication of rights to a way; the dispute began not with petitioning activity by the defendants, but when the plaintiffs complained about trespassers . . . It is evident from the pleadings and the facts alleged by the Welches that the plaintiffs have little interest in the Welches' communications with the town but rather wish to settle the question of their title in the way. Accordingly, whether we view this as a failure to demonstrate that the suit was brought ‘solely’ based on the Welch's petitioning activities, or a failure to show that the claims were not primarily brought to chill the Welches' legitimate petitioning activities, the judge correctly denied relief” under the anti-SLAPP statute. Other defendants apparently took notice of the Welches’ anti-SLAPP motion and filed similar motions to dismiss, all of which were denied by the Land Court judge. This is not the first instance of an anti-SLAPP special motion to dismiss in a Land Court matter, see Kirk v. Li, 25 LCR 725 (Mass. Land Ct. 2017), and its invocation here, as in that matter, seems to be a stretch of the plain language of the statute. While there may be instances where the use of an anti-SLAPP special motion to dismiss is appropriate in a Land Court action, it remains to be seen what those circumstances are.

Lack of Standing Leads to Dismissal of Zoning Appeal

2020-07-02T12:43:52Z

Johnson & Borenstein has successfully challenged a zoning appeal on standing grounds as well as the merits. In Zuk v. Pairseau, 2018 Mass. LCR LEXIS 15 (Land Ct. Feb. 8, 2018), an abutter appealed a decision of the Town of Danvers Board of Appeals approving a modification of a site plan of a long-existing nursing home which, among other changes, permitted additional parking spaces on the nursing home property. J&B represented the nursing home in the appeal. The Complaint was quite vague on the specific harm alleged, but long on claims of procedural defects in the Board’s hearing process and Decision, namely, that site plan review was required because of 1) a change in use, 2) a purported increase in impervious surface area, or 3) as a modification of a prior approved site plan. Shortly after the Complaint was filed, the abutter passed away. The Defendants, the Board and the nursing home, challenged the Plaintiff’s standing in a motion to dismiss, arguing that it was impossible for a deceased individual to claim aggrievement. The court ruled against Defendants as the deceased’s son, personal representative of the estate, was substituted as Plaintiff. The Defendants then conducted discovery, including deposing the son, before reiterating their standing challenge in a motion for summary judgment, which also argued that the Board’s decision was correct on the merits. The son as personal representative of his father’s estate owned the abutting property, and therefore was entitled to a presumption of aggrievement. However, the Defendants successfully rebutted that presumption by demonstrating, through discovery, that the son had no reasonable expectation of proving a legally cognizable injury. The son’s answers to interrogatories and deposition testimony demonstrated that, whatever aggrievement his father may have thought existed, his son was completely unaware of any potential harm to his property as a result of the Board’s decision and relied entirely on his attorney, who was also counsel for his father, to draft answers to interrogatories and to argue aggrievement. In fact, the Court stated that the son did “not articulate[] anything that could be interpreted as a harm to an interest protected by G.L. c. 40A or the bylaw.” In an unsuccessful bolster his position, the son filed an affidavit in opposition to the defendants’ motion for summary judgment in which he son adopted his deceased father’s statements of aggrievement as set forth in the complaint and in the answers to interrogatories which his counsel had prepared without the son’s input. However, a person cannot contradict by affidavit statements previously made under oath at deposition, O'Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993), and therefore the later efforts were to no avail where the son explicitly testified at his deposition that he had no knowledge of any harm that would result from the Board’s decision. Where the son only claimed “aggrievement on the grounds that the [Board] Decision increases the impact of the facility on the Zuk property and its inhabitants, with no more specificity,” the claims did “not go far enough to allege a harm to a legally protected interest.” Having decided that the Plaintiff had “utterly failed to articulate any harm from the decision that could be cognizable under G.L. c. 40A or the Town of Danvers Zoning Bylaws,” the Court went on to address the merits of the appeal. The Plaintiff lost on the merits as well, with the Court determining that site plan review was not required as 1) there was no change in use as the nursing home had been operating as such since 1970, 2) the uncontroverted affidavit from Defendants’ engineer stated that there was in fact a slight decrease in impervious area, and 3) there was no prior approved Site Plan for the nursing home property requiring modification. The Plaintiff failed to support his own motion for summary judgment with affidavits (other than son’s affidavit discussed above). Exercising the appropriate deference to the Board’s interpretation of its own zoning bylaw, the Court affirmed the Decision of the Board and dismissed the Plaintiff’s complaint with prejudice. It remains to be seen whether the Plaintiff will appeal.