Carmack v. Massachusetts Bay Transportation Authority et alMOTION to Dismiss Counts II Through XV of Plaintiff's First Amended ComplaintD. Mass.December 9, 2005UNITED STATES DISTRICT COURT for the DISTRICT OF MASSACHUSETTS ____________________________________ ) JOSEPH T. CARMACK, ) Plaintiff ) ) v. ) ) MASSACHUSETTS BAY ) C.A. NO. 05-11430-PBS TRANSPORTATION AUTHORITY ) and MASSACHUSETTS BAY ) COMMUTER RAILROAD COMPANY, ) Defendants ) ____________________________________) DEFENDANT MASSACHUSETS BAY TRANSPORTATION AUTHORITY’S MOTION TO DISMISS COUNTS II THROUGH XV OF THE PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED. R. CIV.P. 12(b)(6) AND THE PRIOR PENDING ACTION DOCTRINE Now comes Defendant Massachusetts Bay Transportation Authority (“MBTA”) and moves that this Honorable Court dismiss Counts II through XV of the Plaintiff’s First Amended Complaint as against the MBTA pursuant to Fed.R.Civ.P. 12(b)(6), as said Counts fail to state claims against the MBTA upon which relief can be granted, or, in the alternative, pursuant to the prior pending action doctrine. As grounds therefore, the MBTA states that the allegations set forth in Counts II through XV of the Plaintiff’s First Amended Complaint are wholly unrelated to the MBTA in that they neither pertain to, nor involve the MBTA. Additionally, the MBTA states that the allegations that the Plaintiff sets forth against the MBTA in Counts II through XV of his First Amended Complaint are virtually identical to the allegations that he set forth against the National Railroad Passenger Corporation in the matter of Carmack v. The National Railroad Passenger Corporation, Civil Action No. 03-12488- PBS, which is currently pending in this Court. In further support of this Motion, the MBTA refers to its Memorandum of Law in Support of its Motion to Dismiss filed herewith. Wherefore, the MBTA moves that this Honorable Court dismiss Counts II through XV of the Plaintiff’s First Amended Complaint as against the MBTA. Case 1:05-cv-11430-PBS Document 18 Filed 12/09/2005 Page 1 of 2 2 Respectfully submitted For the MBTA By its attorney, /s/Todd M. Valicenti Todd M. Valicenti BBO# 632800 Assistant General Counsel MBTA Legal Dept. Ten Park Plaza, Suite 7760 Boston, MA 02116 Tel: (617) 222-4579 E-mail: tvalicenti@mbta.com Dated: December 9, 2005 CERTIFICATE OF COMPLIANCE WITH LR 7.1(A)(2) I, Todd M. Valicenti, hereby certify that I conferred with the pro se Plaintiff, Joseph T. Carmack, on the 17th day of November 2005, in a good faith attempt to resolve or narrow the foregoing issues. /s/Todd M. Valicenti Todd M. Valicenti CERTIFICATE OF SERVICE I, Todd M. Valicenti, hereby certify that I have caused a copy of the foregoing document to be served by first class mail, postage prepaid, upon pro se Plaintiff, Joseph T. Carmack, 398 Columbus Avenue, PMB 130, Boston, MA 02116, on this 9th day of December, 2005. /s/Todd M. Valicenti Todd M. Valicenti Case 1:05-cv-11430-PBS Document 18 Filed 12/09/2005 Page 2 of 2
