Bank's negligence in releasing funds is a question of fact, precluding summary judgment:
Candelario
Del-Moral v. UBS Fin. Services Inc. of Puerto Rico, No. 10-1275 (1st
Cir. 11/9/12)(Before Appellate Judges Howard, Selya, Thompson, Opinion by Justice Thompson).
In plaintiff's
suit against a bank claiming that it was negligent as a matter of law in letting
her ex-husband withdraw millions from certain accounts, by negligently relying
on a defective "minutes" order vacating a multi-million dollar attachment
plaintiff obtained against her ex-husband in divorce proceedings, the judgment
of the district court is vacated and remanded where: 1) although the "minutes"
order was facially defective because it was not signed by the judge nor notice
given to the parties, a reasonable jury could find that the defendant acted
reasonably, which makes a trial necessary as this would be a genuine issue of material fact precluding summary judgment on this issue (reasonableness is generally a question for the jury and the issue in negligence is whether the defendant acted "reasonably"); and since this is remanded, the rulings on damages are of necessity vacated as well to be addressed upon remand; and 2) defendant's request to remand
the case to a new judge is denied - there were no showings requiring recusal upon remand, as such would be the exception and not the rule and this case is not the exception. Finally, "Our work finally over, we vacate the summary judgment for
Candelario and remand for further proceedings
consistent with this opinion, though we do not think that we are crossing any
lines in "suggesting that this is a case best resolved by settlement." See Bos. Edison Co. v. Fed. Energy Regulatory Comm'n, 233
F.3d 60, 69 (1st Cir. 2000). Again, we intimate no view on the ultimate outcome."
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Starbuck violated Tips Act by allowing managers to share in wait staff's tips:
Matamoros v.
Starbucks Corp., No. 12-1189 (1st Cir. 11/9/12)(Before Appellate Judges Thompson, Selya, Lipez, Opinon by Justice Selya).
In employees'
class action suit against Starbucks, claiming that its policy of allowing shift
supervisors to share in the pooled gratuities violated the Tips Act, judgment of
the district court is affirmed where: 1) the plain language of the [Massachusetts] Tips Act
states unequivocally that only employees who possess "no managerial
responsibility" may qualify as "wait staff"; and 2) remainder of parties'
contentions are without merit. "After careful consideration of a fundamental (and previously unanswered)
interpretative question, we hold that the plain language of the Tips Act
prohibits the defendant's tip-pooling policy. We also reject the parties' other
claims of error. When all is said and done, we leave the combatants where we
found them."
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