Motion,Ex Parte: Berg, Daniel et al vs. Commonwealth of Massachusetts et al

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                                COMMONWEALTH            OF MASSACHUSETTS

SUFFOLK, ss.
                                    ’




                                                         CIVIL ACTION NO.       2184-cv-1848‘F
DANIEL BERG, ANDREW FERRARA,
LOCAL S-28, INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS, AFL-CIO,
and LOCAL 8-29, INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS, AFL-CIO,

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COMMONWEALTH OF MASSACHUSETTS,                                                      Egg ’0 gig
EXECUTIVE OFFICE OF PUBLIC SAFETY                                                   gm         _     311::
AND SECURITY, MILITARY DIVISION, And                                                .33“ (:1         §g
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HUMAN RESOURCES DIVISION,                                                           :4         MT          .23
                   Defendants.


                 PLAINTIFFS’ MOTION FOR JUDGMENT ON THE PLEADINGS

         Now comes the Plaintiffs, Daniel Berg and     Andrew
                                                          Ferrara (“Plaintiff Employees”),

Local S-28, International        Association
                                      of Fire Fire?ghters, AFL-CIO, and Local S-29,

International Association of Fire Fighters, AFL—CIO(“Unions”) (collectively, “Plaintiffs”) and

hereby moves this Honorable Court pursuant to Mass.R.Civ.P. 12(0) to grant judgment in favor

of the Plaintiffs because there are no material factual disputes for which discovery or a trial is

necessary. The sole issue is whether Defendants Commonwealth of Massachusetts

(“Commonwealth”),Executive Of?ce of Public Safety and Security,Military Division, and

Human Resources Division (collectively, “Defendants”) are appropriately applying M.G.L. c. 33,

§   59 in the administration of paid military leave. Speci?cally, Defendants are interpreting “day”

to mean the      equivalent of one-fifth of an average work week, whereas Plaintiffs seek application
                                                       period, regardless of calendar day. See
of the statutory de?nition of “day” as a twenty—four—hour

M.G.L.c. 33, § 59.

       For these reasons, and the reasons set forth in the Plaintiffs’ attached memorandum,

Plaintiffs respectfully request that judgment be granted in favor of the Plaintiffs.

                                                       Respectfully submitted,

                                                       DANIEL BERG, ANDREW FERRARA,
                                                       LOCAL S-28, INTERNATIONAL
                                                       ASSOCIATION OF FIREFIGHTERS, and
                                                       LOCAL S—29,INTERNATIONAL
                                                       ASSOCIATION OF FIRE FIGHTERS

                                                       By their attorney,


                                                          4wWI”
                                                       James Hykel
                                                       Pyle, Rome, Ehrenberg, RC.
                                                       2 Liberty Square, 10th Floor
                                                       Boston, MA 02109
                                                       (617) 367-7200
                                                       jhykel@pylerome.com

Dated: December 20, 2022




                           CERTIFICATE OF CONFERENCE
                       PURSUANT TO SUPERIOR COURT RULE 9C

        I herebycertify that, pursuant to Superior Court Rule 9C, a conference was held Via email
on December 19, 2022, between James Hykel (counsel for Plaintiffs) and Eric Haskell (counsel
for the Defendants) in which the parties made a good-faith effort to narrow areas of disagreement
to the fullest extent.




                                               James    ykel
                              CERTIFICATE       OF SERVICE

       I hereby certify that on December 20, 2022, I served the above documenton counsel for
the Defendants by ?rst class mail and email.



                                                  James   ykel