Wareham Free Library et al v. Wareham, Town of et al

Filing 41

(Proposed) Amended ANSWER to 3 Answer to Complaint, Counterclaim by Wareham Free Library, Inc.,, Priscilla Porter, Mary Nyman, Hazal Taber, Michelle Baum, Sandra Wheeler, John Lanci, Martha Maguire, Yelena Farioli-Beaupre, Diane Lazarus.(Zoubaidoulline, Timour)

Wareham Free Library et al v. Wareham, Town of et al

Doc. 41

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS DOCKET NO. 07-CV-11807 RGS WAREHAM FREE LIBRARY, INC. and PRISCILLA PORTER, MARY NYMAN, HAZEL TABER, MICHELLE BAUM, SANDRA WHEELER, JOHN LANCI, MARTHA MAGUIRE, YELENA FARIOLI-BEAUPRE, and DIANE LAZARUS, Individually and As Trustees of Wareham Free Library, Inc. Plaintiffs / Defendants in Counterclaim / Third Party Plaintiffs v. THE TOWN OF WAREHAM Defendant / Plaintiff in Counterclaim and BRENDA ECKSTROM, BRUCE SAUVAGEAU, JOHN CRONAN, JAMES POTTER, and M. JANE DONAHUE, Individually and As Members of The Board of Selectmen of Wareham Defendants v. FRIENDS OF THE WAREHAM FREE LIBRARY, INC., and THE WAREHAM LIBRARY FOUNDATION, INC. Defendants in Counterclaim v. MASSACHUSETTS INTERLOCAL INSURANCE ASSOCIATION Third Party Defendant (PROPOSED) AMENDED ANSWER TO COUNTERCLAIM BY PLAINTIFFS WAREHAM FREE LIBRARY, INC. AND ITS INDIVIDUALLY NAMED TRUSTEES

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Admitted, but denied that the Defendant Selectmen (officially) have the right or

authority to assert the subject Counterclaim. 2. Admitted that the current Trustees of the Wareham Free Library, Inc., Friends of the

Wareham Free Library, Inc., and The Wareham Library Foundation, Inc. and some of its officers and directors are named as defendants in counterclaim. All other factual allegations are denied. No response is required to legal conclusions. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Defendants in Counterclaim are without sufficient knowledge to admit or deny. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. Admitted as to status as Trustee of Wareham Free Library, Inc. No response is required because allegations in this paragraph are not directed at

Defendants in Counterclaim. 14. No response is required because allegations in this paragraph are not directed at

Defendants in Counterclaim. 15. 16. 17. Admitted. Admitted. Denied.

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18. 19. 20. 21. 22. 23. 24. 25. 26.

Denied. Denied. This paragraph states a legal conclusion to which no response is required. Denied. Admitted. This paragraph states a legal conclusion to which no response is required. Defendants in Counterclaim are without sufficient knowledge to admit or deny. Denied. Admitted, except to the extent that allegations in this paragraph suggest that the

Library is funded solely by Town money. 27. 28. Denied. Admitted that Defendants in Counterclaim were the legally appointed Trustees of

Wareham Free Library, Inc. Otherwise, denied. 29. 30. 31. The document speaks for itself. Denied. Admitted that plaintiff Trustees were not appointed by the Board of Selectmen.

Otherwise, denied. 32. 33. 34. denied. 35. denied. Admitted that the Board of Selectmen made the alleged statements. Otherwise, The document speaks for itself. The document speaks for itself. Admitted that the Board of Selectmen made the alleged statements. Otherwise,

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36. denied. 37.

Admitted that the Board of Selectmen made the alleged statements. Otherwise,

Admitted that plaintiff Trustees did not complete applications for reappointment.

Otherwise, denied. 38. 39. 40. 41. 42. 43. Denied. Denied. Denied. The document speaks for itself. The document speaks for itself. Admitted that Defendants in Counterclaim transferred privately donated funds to

The Wareham Library Foundation, Inc. Otherwise, denied. 44. This paragraph states a legal conclusion to which no response is required.

Otherwise, denied. 45. 46. The document speaks for itself. Admitted that some gifts, donations and bequests were transferred into a fund held

with Franklin Templeton Investments. Otherwise, denied. 47. This paragraph states a legal conclusion to which no response is required.

Otherwise, denied. 48. 49. Denied. Admitted that Friends of The Wareham Free Library, Inc. received funds for the

purpose of purchasing equipment for the Spinney Memorial Branch Library, which was (and is) intended to be a branch of Wareham Free Library. Otherwise, denied. 50. Denied.

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51.

This paragraph states a legal conclusion to which no response is required.

Otherwise, denied. 52. This paragraph states a legal conclusion to which no response is required.

Otherwise, denied. 53. 54. Denied. This paragraph states a legal conclusion to which no response is required.

Otherwise, denied. 55. This paragraph states a legal conclusion to which no response is required.

Otherwise, denied. 56. 57. 58. 59. 60. 61. 62. 63. Denied. Denied. The document speaks for itself. Denied. Denied. Denied. No response is required to legal conclusions. Denied. Denied.

COUNT I ­ CONVERSION 64. 65. 66. 67. Defendants in Counterclaim repeat their responses to paragraphs 1 through 63. Denied. Denied. Denied.

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COUNT II ­ VIOLATION OF THE PUBLIC RECORDS LAW 68. 69. 70. 71. 72. 73. Defendants in Counterclaim repeat their responses to paragraphs 1 through 67. Denied. Denied. Denied. Denied. Denied.

COUNT III ­ CIVIL CONSPIRACY 74. 75. 76. Defendants in Counterclaim repeat their responses to paragraphs 1 through 73. Denied. Denied.

COUNT IV ­ NEGLIGENCE 77. 78. 79. 80. 81. Defendants in Counterclaim repeat their responses to paragraphs 1 through 76. Denied. This paragraph states a legal conclusion to which no response is required. Denied. Denied.

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COUNT V ­ VIOLATION OF THE CONFLICT OF INTEREST LAW 82. 83. 84. 85. 86. 87. 88. Defendants in Counterclaim repeat their responses to paragraphs 1 through 81. Denied. Denied. Denied. Denied. Denied. Denied.

COUNT VI ­ DECLARATORY JUDGMENT VIOLATION OF THE ANTI-AID AMENDMENT 89. 90. 91. 92. 93. Defendants in Counterclaim repeat their responses to paragraphs 1 through 88. Denied. Denied. Denied. Denied.

COUNT VII ­ DECLARATORY JUDGMENT VIOLATION OF G.L. c. 44, § 53A 94. 95. 96. Defendants in Counterclaim repeat their responses to paragraphs 1 through 93. Denied. Denied.

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97. 98. 99.

Denied. Denied. Denied.

COUNT VIII ­ VIOLATION OF G.L. c. 44, § 53 100. 101. 102. Defendants in Counterclaim repeat their responses to paragraphs 1 through 99. Denied. Admitted that Defendants in Counterclaim did not deposit privately donated funds

with the Town Treasurer. Otherwise, denied. 103. Admitted that Defendants in Counterclaim maintained privately donated funds in

separate accounts. Otherwise, denied. 104. 105. Denied. Denied.

COUNT IX ­ DECLARATORY JUDGMENT (The Wareham Free Library is a Department of the Town of Wareham) 106. 107. Defendants in Counterclaim repeat their responses to paragraphs 1 through 105. Admitted, except that Defendants in Counterclaim contend that the Library is a

hybrid public / private entity. 108. 109. 110. 111. Admitted. Admitted. Admitted. Admitted. 8

112. 113. 114. 115. 116.

Denied. This paragraph states a legal conclusion to which no response is required. Denied. Denied. Denied.

AFFIRMATIVE DEFENSES 1. Plaintiff in Counterclaim fails to state claims upon which relief can be granted,

Fed.R.Civ.P. 12(b)(6). 2. Plaintiff in Counterclaim has not complied with G.L. c. 258 and other applicable

statutory requirements. 3. 4. 5. 6. 7. 8. 9. 10. 11. Counterclaim. 12. Liability of Defendants in Counterclaim is limited by M.G.L. c. 231, § 85K. Plaintiff in Counterclaim lacks standing to assert all claims. Defendants in Counterclaim are immune. Plaintiff in Counterclaim's claims are barred by applicable statutes of limitations. Plaintiff in Counterclaim's claims are barred by laches. Plaintiff in Counterclaim's claims are barred by waiver. Plaintiff in Counterclaim's claims are barred by estoppel. Plaintiff in Counterclaim is contributory negligent. Plaintiff in Counterclaim has not sustained any damages. Plaintiff in Counterclaim's damages, if any, were not caused by Defendants in

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13.

Liability of individual Trustees of Wareham Free Library, Inc. is limited by

M.G.L. c. 180, § 6C. 14. Liability of individual Trustees of Wareham Free Library, Inc. is limited by

M.G.L. c. 180A, § 8. 15. Liability of individual Trustees of Wareham Free Library, Inc. is limited by

M.G.L. c. 231, § 85W.

WHEREFORE, Defendants in Counterclaim respectfully request the following relief: 1. 2. 3. Judgment for Defendants in Counterclaim on all counts of the Counterclaim; Dismissal of the Counterclaim, with prejudice; Indemnification for any personal financial loss and expense, including legal costs

and fees, sustained by Defendants in Counterclaim as a result of claims asserted by Plaintiff in Counterclaim, pursuant to M.G.L. c. 258, § 13; 4. Award of legal costs and fees for the defense of the Counterclaim, including

attorney's fees pursuant to M.G.L. c. 231, § 6F; 5. Such other relief as the Court may deem just and proper.

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Respectfully submitted by PLAINTIFFS / DEFENDANTS IN COUNTERCLAIM / THIRD PARTY PLAINTIFFS By Their Attorneys, BEAUREGARD, BURKE & FRANCO / S / Timour Zoubaidoulline ________________________________________ TIMOUR ZOUBAIDOULLINE, BBO # 656212 32 William Street, New Bedford, MA 02740 Tel. [phone] [e-mail] Dated: July 22, 2008

CERTIFICATE OF SERVICE In accordance with the Electronic Case Filing ("ECF") Administrative Procedures of the United States District Court for the District of Massachusetts, I, Timour Zoubaidoulline, hereby certify that the foregoing document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing ("NEF") and that paper copies will be sent to those indicated as non-registered participants by first class mail on July 22, 2008. / S / Timour Zoubaidoulline ________________________________________ TIMOUR ZOUBAIDOULLINE, BBO # 656212

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