COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
HAROLD H. MURPHY, ET AL,
TRANSCRIPT OF THE PROCEEDINGS MOTION TO COMPEL
BEFORE: Justice Diane M. Kottymyer Suffolk Superior Courthouse
Boston, Massachusetts Civil Session,
Courtroom 227 Tuesday, May 11, 1999
NICOLE C. GAGNON, M.E., CVR
5 CHAP IN COURT MENDON, MASSACHUSETTS 01756
ALPHONSE MOURAD, 125 West Street Hyde Park, Massachusetts (617) 361-2793
Pro Se Plaintiff,
Attorney at Law
Hanify & King
One Federal Street
Boston, Massachusetts 02110
Representing the Defendants, Harold Murphy, Donald Farrell and Hanify & King.
WITNESS DIRECT CROSS REDIRECT RECROSS (No testimony given.)
(No exhibits offered.)
PROCEEDINGS Tuesday, May 11. 1999
THE CLERK: Civil Action 99-1470 Alphonse Mourad versus Harold Murphy, Donald Farrell, Hanify & King, Stephen Gray. This is a motion to compel.
THE COURT: Would you just identify yourself, please?
MR. MOURAD: Yes. My name is Alphonse Mourad. I'm the plaintiff. Also, I'm pro se.
THE COURT: And you, sir?
MR. JEFFREY: Ethan Jeffrey, Your Honor, on behalf of Harold Murphy, Donald Farrell and Hanify & King.
THE COURT: All right. Now, there's a very limited matter before me which has to do with Mr. Mourad's motion that I compel you to permit him to enter on to the premises of Hanify & King to make service. He says that the receptionist at Hanify & King refused to accept service and that he has not been able to effectuate service for that reason. And what is Hanify & King's position on this?
MR. JEFFREY: Your Honor, we have two positions on this. As a procedural matter, this matter has been removed to the Federal Court. I have a copy of the Notice of Removal, which under the case law means that this Court, until or unless it's remanded, has no subject matter jurisdiction over this action any further. That's number one.
And number two is, it is my understanding, ,Your Honor, that a sheriff arrived and neither Mr. Murphy nor Mr. Farrell nor any representative of Hanify & King were available to accept service at the time. The receptionist is not authorized to accept service. The sheriff only appeared once. Hanify & King, Mr. Murphy and Mr. Farrell are willing to accept service, they just ask that service be properly performed.
THE COURT: Well, what does properly performed mean? Does the sheriff have to keep going back until one of them makes himself available in the reception area?
MR. JEFFREY: Well, one time I think, Your Honor, is insufficient as a reasonable
6 attempt at service. I'm not entirely sure what time the sheriff arrived but I do know that Mr. Murphy and Mr. Farrell were not present nor was a representative who is authorized to accept service for Hanify & King present at the time.
And again, I will state at this point the matter has been removed. The proceeding is now pending in front of the Bankruptcy Court for the District of Massachusetts. I don't believe that the motion can be ruled on by this Court at this time in any case.
THE COURT: All right. I'm not sure what date this came across my desk. I know that my instructions were to schedule a hearing with notice to Hanify & King. When did you receive notice of the hearing?
MR. JEFFREY: Your Honor, I apologize, I don't know. I think --My understanding in speaking to Mr. Murphy, who would have been here had he been available, unfortunately was that they received notice that the hearing actually was on today. They had initially understood that the hearing was not on I believe due to the fact that it had been removed.
THE COURT: All Hanify & King had to do was basically file something in this session notifying the Court as a courtesy that the case had been removed to Federal Court, and therefore that it was not necessary to hold a hearing this afternoon.
MR. JEFFREY: Your Honor, I appreciate that.
THE COURT: That would have been much appreciated.
Mr. Mourad, what I'm being told is that the case has been removed to Federal Court. That there is therefore no jurisdiction in this Court and that consequently your motion is effectively mooted at this time.
And I take it you have evidence of the removal?
MR. JEFFREY: I do, Your Honor. I have a Notice of Removal that was filed with the Court on May 5th, which I can hand up to Your Honor if you'd like to see it.
THE COURT: It was filed with this Court?
MR. JEFFREY: Yes, Your Honor.
THE COURT: I'm sure it's on file then.
Do you understand, Mr. Mourad, the case apparently has been removed to Federal Court and the case will be docketed in Federal Court and you will proceed then to prosecute the case in Federal Court.
MR. MOURAD: May I ask one question, Your Honor, maybe you can help me with. The
case of bankruptcy, I just received an order from the appellate, from the Appeals Court, the
case is being dismissed on the bankruptcy. There's no case open. How could they transfer a
malpractice suit, which it is --
THE COURT:As I understand it there's
a bankruptcy of one of the individuals named as a defendant; is that correct?
MR. JEFFREY:No, Your Honor, it's a
bankruptcy that relates to -- One of the defendants was the bankruptcy trustee and is the
bankruptcy trustee.that's why tne matrer was removed. It relates to his actions as the bankruptcy trustee.
THE COURT: It was removed to Federal
MR. JEFFREY: It's removed. And Your Honor, I do have a --
THE COURT: I'm going to have to tell
you, Mr. Mourad, that to the extent that you
need answers to any questions at this point, you're going to have to go to the Federal Court to the clerk's office and inquire as to the
status of the case there. It is no longer pending in this Court.
MR. MOURAD: One question. If they haven't been summoned, how could Hanify & King and the other parties be removed? They're not part of the case. I just spoke to the attorney before I came here, they said they're not a party to it anymore. They still belong here.
MR. JEFFREY: Mr. Gray removed the case. Your Honor. It's effective as to all defendants. If Mr. Mourad would like to take some action to attempt to have the Court remand it to this Court, he can take that action in the Federal Court. The jurisdiction is with the Federal Court.
MR. MOURAD: This is a case of
10 prejudice. I mean, I'm going there for another matter.
THE COURT: Mr. Mourad, I think it's outrageous that the Court and you were not notified of this prior to the hearing today. Obviously it's distressing that such a motion had to take up the time of the Court and that you had to be inconvenienced by coming here today. But it appears that --
MR. JEFFREY: I do apologize. Your Honor, but the Notice of Removal was filed and -
THE COURT: Yes, but every piece of paper that's filed in every case in Suffolk County does not come across the Court's desk. And even if it did, lining it up with a case in which a hearing has previously been scheduled would not automatically be done by the Court.
All Hanify & King had to do was either number one, notify the sheriff that it was prepared to accept service at someone at Hanify & King who was in a position to accept service would accept service in the first instance. And in the second instance, when Hanify & King
11 received notice from the Court that I had scheduled this hearing and requested that they please send someone up here, that you notify the Court that the case had been removed.
MR. JEFFREY: I understand. Your Honor.
THE COURT: You'll have to go to Federal Court and inquire of the clerk's office
as to the status there, Mr. Mourad. I don't have jurisdiction.
MR. MOURAD: So that means I can't serve them. I'm a hostage.
THE COURT: Well, I don't know if the gentleman who is here has authority to accept service from you.
MR. MOURAD: The sheriff told me they had to be there.
THE COURT: If he does not, I'm going to instruct him as an officer of the Court to obtain your address and notify you in writing as to the individual who will accept service on behalf of Hanify & King.
MR. MOURAD: I would appreciate that.
THE COURT: And as to a date and time
12 at which such service may be effected.
MR. MOURAD: I would appreciate some help. Your Honor, just to serve them.
THE COURT: Thank you.
MR. JEFFREY: Thank you. Your Honor.
(Whereupon, the proceedings were concluded,)
I, Nicole C. Gagnon, Certified Verbatim Reporter, do hereby certify that the foregoing pages 1 -12 represent a true and accurate record of the proceedings held concerning the aforementioned matter before Justice Diane M. Kottmyer on May 11, 1999 to the best of my knowledge, skill and ability.
/Nicole C. Gagnoa/, CVR, M.E.
THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT DOES NOT APPLY TO ANY REPRODUCTION OF THE SAME BY ANY MEANS UNLESS UNDER THE DIRECT CONTROL AND/OR DIRECTION OF THE CERTIFYING REPORTER.