Preview
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS SUPERIOR COURT
DEPARTMENT OF THE TRIAL COURT
CIVIL ACTION NO. 2185CV00615
H. CARR & SONS, INC.
Plaintiff,
Vv.
TOCCI BUILDING CORPORATION AND
ARCH INSURANCE COMPANY
Defendants.
UNOPPOSED H. CARR & SONS, INC.’S MOTION FOR LETTER ROGATORY TO
SUBPOENA AND CONDUCT DEPOSITION OF BRENDAN CLIFFORD
Pursuant to G.L. c. 223A, § 10, Plaintiff, H. Carr & Sons, Inc. (“H. Carr”), hereby moves
this Court for issuance of a Letter Rogatory to the appropriate courts and/or authorities in the State
of New Hampshire to seek the assistance of that authority, as necessary, requesting that process be
issued ordering Brendan Clifford (“Mr. Clifford”), a former employee of Defendant, Tocci
Building Corporation (“Tocci”), and superintendent for the construction project at issue, to appear
for the purpose of giving evidence upon oral examination at a deposition in the State of New
Hampshire, conducted via remote videoconferencing. H. Carr requires the testimony of Mr.
Clifford to prepare this case for trial.
As further grounds for this Motion, H. Carr states as follows:
1 On May 28, 2021, H. Carr filed its Complaint, alleging that Tocci breached its
contract concerning its role as general contractor for a construction project, owned by Trinity
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
Worcester Courthouse Limited Partnership and located at 2 Main Street, Worcester, MA (the
“Project”).
2 Tocci filed counterclaims alleging breach of contract and quantum meruit against
H. Carr.
3 The parties have exchanged tens of thousands of pages of documents in production
and received tens of thousands of additional documents through third-party subpoenas.
4 Several depositions have been noticed in the matter and which remain ongoing.
5 Mr. Clifford acted as Tocci’s Project superintendent for all, if not, most, of the
Project.
6 Accordingly, H. Carr must depose Mr. Clifford and obtain any information and
deposition testimony from him which is relevant to its claims and defenses on this action.
7 Mr. Clifford resides in the State of New Hampshire.
8 Accordingly, H. Carr requests this Court’s assistance in issuing Letters Rogatory
for Mr. Clifford’s deposition.
9 In accordance with G.L. c. 233A, § 10(a)(3), H. Carr attaches a Letter Rogatory
addressed “To the Appropriate Authority in New Hampshire.” (See Exhibit A).
10. H. Carr also attaches a draft form Subpoena for Mr. Clifford’s deposition (See
Exhibit B).
11. The issuance of this Letter Rogatory will result in the fair and expedient disposition
of this matter.
12. The issuance of Letter Rogatory will not unduly delay this lawsuit.
WHEREFORE, H. Carr requests that the Court ALLOW this Motion and issue a Letter
Rogatory to the appropriate authority in State of New Hampshire requesting that process be issued
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
ordering Mr. Clifford to appear for the purpose of giving evidence upon oral examination at a
deposition in the State of New Hampshire, conducted via remote videoconferencing.
Respectfully submitted,
Plaintiff,
H. CARR & SONS, INC.
By its attorney,
Mf
Michal B. Sams, Esq. BBO# 567812
mpsams@KSlegal.com
J. Nathan Cole, Esq., BBO# 658236
incole@KSlegal.con
M. Matthew Madden, Jr., BBO #685738
mmmadden@KSlegal.com
Herling D. Romero, Esq. BBO# 703870
hdromero@KSlegal.com
KENNEY & SAMS, P.C.
144 Turnpike Road, Suite 350
Southborough, MA 01772
(p) (508) 490-8500
(f) (508) 490-8501
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served by electronic mail
upon all attorneys and/or parties of record.
John W. DiNicola, II, Esq. BBO# 629618
jack.dinicola@dinicolalawgrp.com
DiNicola Law Group, LLC
399 Chestnut Street, Second Floor
Needham, MA 02492
Dated: October 19, 2023 Ul!
M. Matthew Madden.
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
EXHIBIT A
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS SUPERIOR COURT
DEPARTMENT OF THE TRIAL COURT
CIVIL ACTION NO. 2185CV00615
H. CARR & SONS, INC.
Plaintiff,
Vv.
TOCCI BUILDING CORPORATION AND
ARCH INSURANCE COMPANY
Defendants.
H. CARR & SONS, INC.’S LETTER ROGATORY
To the Appropriate Authority in the State of New Hampshire:
Pursuant to the Motion filed by Plaintiff, H. Carr & Sons, Inc. (“H. Carr”), in the above-
captioned case, which this Court allowed, this Court respectfully requests, as a matter of comity,
that a subpoena be issued or other order or process be entered by you to compel Brendan Clifford
(“Mr. Clifford”) to remotely testify at deposition in the Commonwealth of Massachusetts.
The Superior Court Department of the Trial Court of the Commonwealth of Massachusetts
requests this assistance to allow H. Carr to gather evidence and to prepare for trial. This Letter
Rogatory has been issued because Mr. Clifford resides in the State of New Hampshire and
accordingly is not subject to service of a subpoena in the Commonwealth of Massachusetts, and
Mr. Clifford’s appearance can only be compelled by process issued by the appropriate authority in
the State of New Hampshire.
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
Any correspondence or inquiries concerning this Letter Rogatory should be addressed to
this Court.
Dated at Worcester, in Worcester County, in the
Commonwealth of Massachusetts, on this day of +2023.
SO ORDERED:
Justice of the Superior Court
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
EXHIBIT B
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS SUPERIOR COURT
DEPARTMENT OF THE TRIAL COURT
CIVIL ACTION NO. 2185CV00615
H. CARR & SONS, INC.
Plaintiff,
Vv.
TOCCI BUILDING CORPORATION AND
ARCH INSURANCE COMPANY
Defendants.
DEPOSITION SUBPOENA
To Brendan Clifford
55B Park Ave.
Salem, NH 03079
YOU ARE HEREBY COMMANDED in the name of the Commonwealth of
Massachusetts in accordance with the provisions of Rule 45 of the Massachusetts Rules of Civil
Procedure, to appear and testify on behalf of the Plaintiff, H. Carr & Sons, Inc., before a Notary
Public of the Commonwealth of Massachusetts, via remote videoconferencing, commencing at
10:00 a.m. on Thursday, December 14, 2023, and to testify as to your knowledge at the taking
of a deposition in the above-entitled action. The oral examination will continue from day to day
until completed.
UPON RECEIPT OF THIS SUBPOENA, PLEASE CONTACT HERLING
ROMERO, ESQ. AT 508-490-8500 OR HDROMERO@KSLEGAL.COM TO CONFIRM
YOUR ARRANGEMENTS TO APPEAR.
Date Filed 10/19/2023 3:31 PM
Superior Court - Worcester
Docket Number 2185CV00615
HEREOF FAIL NOT AS YOU WILL ANSWER YOUR DEFAULT UNDER THE
PAINS AND PENALTIES IN THE LAW IN THAT BEHALF MADE AND PROVIDED.
Respectfully submitted,
Plaintiff,
H. CARR & SONS, INC.
By its attorneys,
Uff!
Michael P. Sams, Esq. BBO# 567812
mpsams@KSlegal.com
J. Nathan Cole, Esq., BBO# 658236
jncole@KSlegal.com
M. Matthew Madden, Jr., BBO#685738
mmmadden@KSlegal.com
Herling D. Romero, Esq. BBO# 703870
hdromero@K Slegal.cor
KENNEY & SAMS, P.C.
144 Turnpike Road, Suite 350
Southborough, MA 01772
(p) (508) 490-8500
(f) (508) 490-8501
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the above document was served by electronic mail
upon all attorneys and/or parties of record.
John W. DiNicola, II, Esq. BBO# 629618
jack.dinicola@dinicolalawgrp.com
DiNicola Law Group, LLC
399 Chestnut Street, Second Floor
Needham, MA 02492
Dated: October 19, 2023 Wl
M. Matthew Madden
Preview
Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2185CV00615 H. CARR & SONS, INC. Plaintiff, Vv. TOCCI BUILDING CORPORATION AND ARCH INSURANCE COMPANY Defendants. UNOPPOSED H. CARR & SONS, INC.’S MOTION FOR LETTER ROGATORY TO SUBPOENA AND CONDUCT DEPOSITION OF BRENDAN CLIFFORD Pursuant to G.L. c. 223A, § 10, Plaintiff, H. Carr & Sons, Inc. (“H. Carr”), hereby moves this Court for issuance of a Letter Rogatory to the appropriate courts and/or authorities in the State of New Hampshire to seek the assistance of that authority, as necessary, requesting that process be issued ordering Brendan Clifford (“Mr. Clifford”), a former employee of Defendant, Tocci Building Corporation (“Tocci”), and superintendent for the construction project at issue, to appear for the purpose of giving evidence upon oral examination at a deposition in the State of New Hampshire, conducted via remote videoconferencing. H. Carr requires the testimony of Mr. Clifford to prepare this case for trial. As further grounds for this Motion, H. Carr states as follows: 1 On May 28, 2021, H. Carr filed its Complaint, alleging that Tocci breached its contract concerning its role as general contractor for a construction project, owned by Trinity Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 Worcester Courthouse Limited Partnership and located at 2 Main Street, Worcester, MA (the “Project”). 2 Tocci filed counterclaims alleging breach of contract and quantum meruit against H. Carr. 3 The parties have exchanged tens of thousands of pages of documents in production and received tens of thousands of additional documents through third-party subpoenas. 4 Several depositions have been noticed in the matter and which remain ongoing. 5 Mr. Clifford acted as Tocci’s Project superintendent for all, if not, most, of the Project. 6 Accordingly, H. Carr must depose Mr. Clifford and obtain any information and deposition testimony from him which is relevant to its claims and defenses on this action. 7 Mr. Clifford resides in the State of New Hampshire. 8 Accordingly, H. Carr requests this Court’s assistance in issuing Letters Rogatory for Mr. Clifford’s deposition. 9 In accordance with G.L. c. 233A, § 10(a)(3), H. Carr attaches a Letter Rogatory addressed “To the Appropriate Authority in New Hampshire.” (See Exhibit A). 10. H. Carr also attaches a draft form Subpoena for Mr. Clifford’s deposition (See Exhibit B). 11. The issuance of this Letter Rogatory will result in the fair and expedient disposition of this matter. 12. The issuance of Letter Rogatory will not unduly delay this lawsuit. WHEREFORE, H. Carr requests that the Court ALLOW this Motion and issue a Letter Rogatory to the appropriate authority in State of New Hampshire requesting that process be issued Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 ordering Mr. Clifford to appear for the purpose of giving evidence upon oral examination at a deposition in the State of New Hampshire, conducted via remote videoconferencing. Respectfully submitted, Plaintiff, H. CARR & SONS, INC. By its attorney, Mf Michal B. Sams, Esq. BBO# 567812 mpsams@KSlegal.com J. Nathan Cole, Esq., BBO# 658236 incole@KSlegal.con M. Matthew Madden, Jr., BBO #685738 mmmadden@KSlegal.com Herling D. Romero, Esq. BBO# 703870 hdromero@KSlegal.com KENNEY & SAMS, P.C. 144 Turnpike Road, Suite 350 Southborough, MA 01772 (p) (508) 490-8500 (f) (508) 490-8501 CERTIFICATE OF SERVICE I hereby certify that a true copy of the above document was served by electronic mail upon all attorneys and/or parties of record. John W. DiNicola, II, Esq. BBO# 629618 jack.dinicola@dinicolalawgrp.com DiNicola Law Group, LLC 399 Chestnut Street, Second Floor Needham, MA 02492 Dated: October 19, 2023 Ul! M. Matthew Madden. Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 EXHIBIT A Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2185CV00615 H. CARR & SONS, INC. Plaintiff, Vv. TOCCI BUILDING CORPORATION AND ARCH INSURANCE COMPANY Defendants. H. CARR & SONS, INC.’S LETTER ROGATORY To the Appropriate Authority in the State of New Hampshire: Pursuant to the Motion filed by Plaintiff, H. Carr & Sons, Inc. (“H. Carr”), in the above- captioned case, which this Court allowed, this Court respectfully requests, as a matter of comity, that a subpoena be issued or other order or process be entered by you to compel Brendan Clifford (“Mr. Clifford”) to remotely testify at deposition in the Commonwealth of Massachusetts. The Superior Court Department of the Trial Court of the Commonwealth of Massachusetts requests this assistance to allow H. Carr to gather evidence and to prepare for trial. This Letter Rogatory has been issued because Mr. Clifford resides in the State of New Hampshire and accordingly is not subject to service of a subpoena in the Commonwealth of Massachusetts, and Mr. Clifford’s appearance can only be compelled by process issued by the appropriate authority in the State of New Hampshire. Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 Any correspondence or inquiries concerning this Letter Rogatory should be addressed to this Court. Dated at Worcester, in Worcester County, in the Commonwealth of Massachusetts, on this day of +2023. SO ORDERED: Justice of the Superior Court Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 EXHIBIT B Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 COMMONWEALTH OF MASSACHUSETTS WORCESTER, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2185CV00615 H. CARR & SONS, INC. Plaintiff, Vv. TOCCI BUILDING CORPORATION AND ARCH INSURANCE COMPANY Defendants. DEPOSITION SUBPOENA To Brendan Clifford 55B Park Ave. Salem, NH 03079 YOU ARE HEREBY COMMANDED in the name of the Commonwealth of Massachusetts in accordance with the provisions of Rule 45 of the Massachusetts Rules of Civil Procedure, to appear and testify on behalf of the Plaintiff, H. Carr & Sons, Inc., before a Notary Public of the Commonwealth of Massachusetts, via remote videoconferencing, commencing at 10:00 a.m. on Thursday, December 14, 2023, and to testify as to your knowledge at the taking of a deposition in the above-entitled action. The oral examination will continue from day to day until completed. UPON RECEIPT OF THIS SUBPOENA, PLEASE CONTACT HERLING ROMERO, ESQ. AT 508-490-8500 OR HDROMERO@KSLEGAL.COM TO CONFIRM YOUR ARRANGEMENTS TO APPEAR. Date Filed 10/19/2023 3:31 PM Superior Court - Worcester Docket Number 2185CV00615 HEREOF FAIL NOT AS YOU WILL ANSWER YOUR DEFAULT UNDER THE PAINS AND PENALTIES IN THE LAW IN THAT BEHALF MADE AND PROVIDED. Respectfully submitted, Plaintiff, H. CARR & SONS, INC. By its attorneys, Uff! Michael P. Sams, Esq. BBO# 567812 mpsams@KSlegal.com J. Nathan Cole, Esq., BBO# 658236 jncole@KSlegal.com M. Matthew Madden, Jr., BBO#685738 mmmadden@KSlegal.com Herling D. Romero, Esq. BBO# 703870 hdromero@K Slegal.cor KENNEY & SAMS, P.C. 144 Turnpike Road, Suite 350 Southborough, MA 01772 (p) (508) 490-8500 (f) (508) 490-8501 CERTIFICATE OF SERVICE Thereby certify that a true copy of the above document was served by electronic mail upon all attorneys and/or parties of record. John W. DiNicola, II, Esq. BBO# 629618 jack.dinicola@dinicolalawgrp.com DiNicola Law Group, LLC 399 Chestnut Street, Second Floor Needham, MA 02492 Dated: October 19, 2023 Wl M. Matthew Madden