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

Filing 7

ANSWER to Counterclaim, COUNTERCLAIM FOR INDEMNIFICATION against Wareham, Town of 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

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Case 1:07-cv-11807-RGS

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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 v. THE TOWN OF WAREHAM, 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 / Plaintiffs in Counterclaim

ANSWER TO COUNTERCLAIM

1.

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

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

Counterclaim. Otherwise, denied. 3. deny. 4. 5. 6. 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. Defendants in Counterclaim are without sufficient knowledge to admit or

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7. 8. 9. 10. 11. 12. 13.

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. 18. 19. 20. 21. 22. 23. 24. deny. 25. Denied. Admitted. Admitted. Denied. 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

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26.

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, except for characterization of Defendants in Counterclaim as "De Facto

Public Trustees" and allegation that their method of appointment is derived from the 2005 Bylaws. 32. 33. 34. denied. 35. denied. 36. denied. 37. Admitted, except for characterization of Defendants in Counterclaim as "De Facto Admitted that the Board of Selectmen made the alleged statements. Otherwise, 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,

Public Trustees." 38. 39. 40. Denied. Denied. Denied.

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41. 42. 43.

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. 45. 46. Denied. The document speaks for itself. Admitted, except for characterization of Defendants in Counterclaim as "De Facto

Public Trustees." 47. 48. 49. Denied. Denied. Admitted that Defendants in Counterclaim gave funds to Friends of the Wareham

Free Library, Inc. to purchase equipment for the Spinney Memorial Branch Library, intended as a branch of Wareham Free Library. Otherwise, denied. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Denied. The document speaks for itself. Denied.

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60. 61. 62. 63.

Denied. Denied. Denied. Denied. COUNT I ­ CONVERSION

64. 65. 66. 67.

Defendants in Counterclaim repeat their responses to paragraphs 1 through 63. Denied. Denied. Denied.

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. 5

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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.

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. Defendants in Counterclaim repeat their responses to paragraphs 1 through 88. Denied. Denied. 6

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92. 93.

Denied. Denied.

COUNT VII ­ DECLARATORY JUDGMENT VIOLATION OF G.L. c. 44, § 53A 94. 95. 96. 97. 98. 99. Defendants in Counterclaim repeat their responses to paragraphs 1 through 93. Denied. Denied. 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

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(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. 112. 113. 114. 115. 116. Admitted. Admitted. Admitted. Admitted. 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. 4. 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.

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5. 6. 7. 8. 9. 10. Counterclaim.

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

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.

COUNTERCLAIM FOR INDEMNIFICATION 1. Plaintiffs in Counterclaim for Indemnification are the Trustees of Wareham

Free Library, Inc., officially and individually. 2. Defendant in Counterclaim for Indemnification is the Town of Wareham.

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3.

Defendant in Counterclaim for Indemnification has asserted claims in this

action against Plaintiffs in Counterclaim for Indemnification. 4. Plaintiffs in Counterclaim for Indemnification have sustained and continue to

sustain personal financial loss and expense, including legal costs and fees, as a result of claims asserted against them by Defendant in Counterclaim for Indemnification. 5. On information and belief, Defendant in Counterclaim for Indemnification has

adopted M.G.L. c. 258, § 13, which provides for indemnity of municipal officials.

COUNT I ­ INDEMNIFICATION 6. Plaintiffs in Counterclaim for Indemnification repeat all allegations stated in

paragraphs 1 through 5. 7. M.G.L. c. 258, § 13 requires Defendant in Counterclaim for Indemnification to

indemnify municipal officials for any personal financial loss and expense, including legal costs and fees, arising out of any claim, suit, or judgment by reason of their official actions. 8. Pursuant to M.G.L. c. 258, § 13, Plaintiffs in Counterclaim for Indemnification

are entitled to indemnification by Defendant in Counterclaim for Indemnification for any personal financial loss and expense, including legal costs and fees, sustained by them as a result of claims asserted against them in this action.

WHEREFORE, Plaintiffs in Counterclaim for Indemnification request the following relief: 1. Judgment for Plaintiffs in Counterclaim for Indemnification;

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2.

Indemnification of Plaintiffs in Counterclaim for Indemnification for any personal

financial loss and expense, including legal costs and fees, sustained as a result of claims asserted against them in this action, pursuant to M.G.L. c. 258, § 13; 3. 4. 5. Award of legal costs and fees; Interest; Such other relief as the Court may deem just and proper.

Respectfully submitted by PLAINTIFFS / DEFENDANTS IN COUNTERCLAIM By their Attorneys, BEAUREGARD, BURKE & FRANCO

/ S / Timour Zoubaidoulline ________________________________________ PHILIP N. BEAUREGARD, BBO # 034870 TIMOUR ZOUBAIDOULLINE, BBO # 656212 32 William Street, New Bedford, MA 02740 Tel. No.: 508-993-0333 Dated: October 17, 2007

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