{UAH} Response to Motion for Dismissal

PETITIONERS' MEMORANDUM IN OPPOSITION TO RESPONDENTS' RULE 12 MOTION

1. Petitioners (xxx and Joseph Musoke) hereby oppose Respondent Brian Kwesiga, Monday Atigo, Jude Sempungu, Aisha Ogwang, Timothy Gaburungyi, Irene Kasujja, Rebecca Namwase and Ugandan North American Association, Inc.'s Rule 12 Motion.  The Motion should be denied because venue was proper in Middlesex County, each of the Petitioners' claims for relief against the Respondents is viable and the Petition does not claim to bring action on behalf of unnamed persons.

Facts

2. For purposes of this Opposition, and so as not to burden the Court, the Petitioners rely on the facts alleged in the Petition, and limit the discussion herein to addressing factual inaccuracies raised by the Motion.

3. The Respondents/Defendants allege in paragraph one, that the majority of the Respondents/Defendants reside in Texas.  They rely on the face of the Petition to support this allegation.  However, as shown by the facts below, out of the eight Respondents, only two Respondents are known to reside in Texas.  This fact was discovered when the Petitioners tried to have the authorities serve the Petition on the Respondents.

4. The Petitioners relied on the addresses that the Respondents provided to the Corporation Division of the Commonwealth. see Petition Exhibits B, E and Q that show Brian Kwesiga as residing in Texas in 2014. G.L c. 180 s. 26A requires all corporations registered in the Commonwealth to provide the addresses of their officers, under pains and penalties of perjury. Since G.L c. 180 s. 26A requires correct addresses, Petitioners assumed that Respondents had actually provided correct addresses to the Corporation Division.

5. The Constable in Texas informed the Petitioners that Respondent Brian Kwesiga, UNAA's President, does not reside in Texas at the address that he has repeatedly provided to the Corporation Division of the Commonwealth. The Constable found out that Brian Kwesiga resides in Maryland. Memorandum Exhibit 1. The Constable's notes show that the current occupant at the dwelling has lived there for over a year and she does not know Brian Kwesiga. When Petitioner Joseph Musoke informed Brian Kwesiga that the Constable could not serve him at the address on file with the Corporation Division, Brian Kwesiga responded that the address was indeed correct. A true and accurate copy of the email from Brain Kwesiga reiterating that the address is correct is attached to this Memorandum as Exhibit 2.

6. Likewise, Monday Atigo, UNAA's Vice President, does not reside at the address that he had been providing to the Corporation Division of the Commonwealth. See Petition Ex B,E and Q. In fact, the Constable's notes specifically mention that the address that Monday Atigo had been providing does not exist in Irving, Texas. The Constable's note is attached as Memorandum Exhibit 3.

7. Respondent Jude Sempungu, UNAA's Treasurer, also provided a fictitious address. The Sheriff returned the documents as undeliverable because Jude Sempungu was unknown at the address that the Respondents had been providing to the Corporation Division of the Commonwealth. See Petition Exhibits B, E and Q. A true and accurate copy of the Sheriff's comments is attached to this Memorandum as Exhibit 4.

8. Despite repeated attempts, the Sheriff could not locate Respondent Rebecca Namwase, UNAA's Finance Director, at the address provided to the Corporation Division of the Commonwealth.  So, it is not clear that she resides where she claims to reside.  At true and accurate return of service is attached to this Memorandum as Exhibit 5.

9. Though several of the Respondents (President, Vice President, Treasurer and Finance Director) reside at unknown addresses, at the end of their term in Sept, 2015, they will have collected and spent about $800,000 of the corporation's funds. see Federal and State tax returns attached to the Petition as Exhibit M.  Typically, all/most of the money is spent in the year that it is collected. See Petition Ex M. id.

10. On November 9, 2010,UNAA's President then, Moses Wilson, sent an email to UNAA members and informed them that there were one thousand, three hundred and ninety eight (1,398) people that paid the convention fee.  The convention fee would include a $20 membership fee. See paragraph 3 of xxx's Affidavit attached as Memorandum Exhibit 6.  Moses Wilson's email  is attached to this Memorandum as Exhibit 7.  Only a small number of those 1,398 members were ineligible to vote due to age restrictions. See Respondents' Answer to the Petition, par 15.

11. Of the one thousand, three hundred and ninety eight (1,398) members, only one hundred and twenty three (123) members voted to approve the 2010 Constitution. See xxx Aff. paragraph 4.  

12. On March 24, 2015, the Petition was served on Timothy Gaburungyi. True and accurate copy of the return of service are attached to this Memorandum as Exhibit 8.

Two weeks later, on April 7, 2015, Respondents filed Articles of Amendment and certified that one hundred and ninety (190) members voted to approve the 2010 Articles and bylaws. They further certified under pains and penalties of perjury, that the 190 members constituted two-thirds (⅔) of the members qualified to vote at meetings of the association.  A true and accurate copy of the Articles of Amendment is attached to this Memorandum as Exhibit 9.

13. On April 15, 2015, the Respondents informed the members that a new Board had been appointed by the Respondents and its term started on April 8, 2015. As the attached announcement shows, the members were not given notice of impending Board nominations and the members were not given a chance to nominate any candidates for the Board. See Exhibit 10.

Standard of Review

14. When evaluating the sufficiency of a complaint pursuant to Mass. R. Civ. P. 12, the court must accept as true, the well pleaded factual allegations of the complaint, as well as any inference which can be drawn therefrom, in the plaintiff's favor. Nader v. Citron, 372 Mass. 96, 98 (1977).  Accordingly, a plaintiff's burden is "relatively light". Gibbs Ford, Inc. v. United Truck Leasing Corp., 399 Mass. 8, 13 (1987). "All that a plaintiff need do to resist such a motion is present a complaint that does no more than sketch [...] the bare silhouette of a cause of action." Brun v. Town of Dartmouth, 44 Mass. App. Ct. 318, 322 (1988), rev'd on other grounds, 428 Mass. 684 (1999) (internal quotations omitted). As a result, "dismissals on the basis of pleadings, before facts have been found, are discouraged." Gennari v. City of Revere, 23 Mass. Ct. 979 (1987).  Massachusetts courts have often described the review of a complaint's sufficiency as "extremely lenient." See, e.g., Brum, 44 Mass. App. Ct. at 322.

ARGUMENT

I. Venue is Proper in Massachusetts

15. Unlike the question of personal jurisdiction (where the Petitioner/Plaintiff has the burden to show that jurisdiction can be properly asserted), it is the Respondent/Defendant who bears the burden of establishing improper venue (forum non conveniens). New Amsterdam Cas. Co. v. Estes, 353 Mass. 90, 95. (1967).  The Respondents cannot meet this burden.  The only reason that the Respondents hinted at, was that most of the Respondents/Defendants reside in Texas.

16. As shown in paragraphs 1 to 9 above, nothing shows that the majority of the Respondents reside in Texas. In paragraph 1 of the Motion, it is clear that the Respondents relied on the addresses that the Petitioners listed in paragraphs 6 to 13 of the Petition, to assert that most Respondents reside in Texas.  As explained above in paragraphs 1 to 9, the Petitioners relied on the addresses provided by the Corporation Division of the Commonwealth. But as shown in paragraphs 1 to 9 above, the Respondents mostly provided fictitious addresses to the Corporation Division. In fact, the President, Brian Kwesiga, does not reside in Texas at all, while the Vice President,  

Monday Atigo's address is unknown since the Constable in Irving, Texas discovered that the address that Respondent Monday Atigo provided was fictitious. Since both Monday Atigo and Brian Kwesiga do not reside in Texas, the majority of Respondents do not reside in Texas.  Only two Respondents reside in Texas.

17. Even if most Respondents resided in Texas, the Respondents have not established that Massachusetts is an improper venue. A decision whether to dismiss an action under the doctrine of forum non conveniens involves the discretion of the motion judge, cannot be made by applying a universal formula, and depends greatly on the specific facts of the proceeding before the court. Universal Adjustment Corp. v. Midland Bank, Ltd., 281 Mass. 303, 316 (1933). An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Id. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;access to evidence; and all other practical problems that make trial of a case easy, expeditious and inexpensive. Id.  Here, the witnesses would probably be residents of Massachusetts.  For example, xxx resides in Massachusetts.  There may also be questions as to the enforceability of a judgment if one is obtained. Id. Here, it is obvious that the Corporation Division of Massachusetts and the Attorney General of Massachusetts would the two entities responsible for enforcing the judgement.

18. The court will weigh relative advantages and obstacles to fair trial. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Id.  Factors of public interest also have place in applying the doctrine. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. Id.  Here, the Respondents have requested for a jury trial.  See Respondents/Defendants' Counterclaims,par 29 (2).  Clearly, litigating this matter in Texas would impose jury burden on the people of Texas, who have no relation to this litigation since the action is aimed mainly at enforcing Massachusetts law. The presumption in favor of a plaintiff's choice of forum "may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum." New Amsterdam, at 96.   Respondents/Defendants have failed to show factors that clearly point to Texas as the alternative forum.

19. In addition, even if the majority of Respondents resided in Texas, venue would still be proper in Middlesex County because the nexus between Texas and the current action is no more than tenuous.  As the Respondents admit in the paragraph 1 of the Motion, the law governing the Petition is Massachusetts General Law. The Petitioners are members of a Massachusetts corporation (UNAA) and brought the Petition pursuant to G.L c. 180, §§ 3, 6A, 10C, 18 and c. 156B, §32. See paragraph 4 of the Petition.  

20. All the relevant documents referenced in the Petition were filed with the Corporation Division of Massachusetts.  Thus, enforcement action, if any, would be done by the Corporation Division and/or the Attorney General of the Commonwealth of Massachusetts.

II The Petition States Sufficient Claims:

21. In paragraph 2 of the Motion, the Respondents erroneously claim that the Petition/Complaint "admits 10% of the members are not Petitioners". There is no such admission in the Petition.  In addition, the Respondents falsely allege that 10% of the members have not petitioned for a meeting. However, the Motion does not indicate why the Petition would require 10% of the members yet M.G.L c. 180 s. 6A only requires 10% of the smallest quorum of members required for a vote upon any matter at the annual meeting of members. M.G.L c. 180 s. 6A provides that:

"Special meetings of the members may be called by the president or the directors, and shall be called by the clerk, or in the case of the death, absence, incapacity or refusal of the clerk, by any other officer, upon written application of members representing at least ten percent of the smallest quorum of members required for a vote upon any matter at the annual meeting of members. In case none of the officers is able and willing to call a special meeting, the supreme judicial or superior court, upon application of said number of members, shall have jurisdiction in equity to authorize one or more of such members to call a meeting by giving such notice as is required by law." (emphasis added).

Article 4.4 of UNAA's 2010 Constitution provides that:

"At all general meetings of Members of the Association which shall have been called and about which notice shall have been given in accordance with this Constitution, the presence of forty percent (40%) of the members registered to attend the meeting shall constitute a quorum. Such quorum shall not be broken by the subsequent absence or removal of Members during the meeting." (emphasis added)

22. The last sentence of 4.4 was intended to make it easy for UNAA to reach decisions even when most members have left the meeting. See the Affidavit of xxx attached to this Memorandum as Exhibit 6. Even one member is enough to vote upon any matter at the general meeting. See xxx's Aff.Id.

xxxx explained that the last line was inserted because UNAA typically has problems keeping members in a meeting room. Id.

23. It cannot be disputed that the vote to approve the 2010 Constitution did not get a two-thirds majority vote. See xxx Aff and the Respondents/Defendants admitted as much in their Answer to the Petition. See Answer, par 15.  Respondents admitted that though there were almost 1,400 members, only "a small number" of those members were ineligible to vote because of age restrictions.  It follows, therefore, that the vast majority of members were eligible to vote. Since only 123 members voted to approve the 2010 Constitution, it is obvious that that 123 did not constitute a two-thirds majority.

24. It is not disputed that the members were first notified of the 2010 Constitution at the 2010 annual meeting and it is not disputed that the members voted on it at the annual meeting in 2010. However, G.L c 180 s. 17 provides, in part, that "A by-law shall not be repealed or amended, or an additional by-law adopted, unless notice of such proposed action shall have been given at a previous meeting.   Therefore, there is a valid claim that the requirements of G.L c. 180 s.17  were not followed.

25. G.L c. 180 s. 17 provides, in part, that "by-laws may not restrict the right of the members thereof to offer nominations from the floor at the annual meeting of the corporation".  Article 5.1 of UNAA's Constitution provides that there shall be 7 Board members appointed by the Executive Committee and confirmed by the Council. It is not disputed that ordinary members of UNAA do not get a chance to nominate any candidates for the Board since the power is clearly reserved to the Executive and Council. All 7 Board positions were filled by the Respondents' appointees and they will serve until 2018. See Ex 10 attached to this Memorandum. Therefore, there is a valid claim, stated in the Petition, that the current bylaws violate state law. See Petition, par 25.

III Petition is not Vague

25. The Motion falsely alleges that the Petitioners claim to have brought the Petition on behalf of un-named individuals. The Motion does not mention any part of the Petition where the Petitioners made that claim.

CONCLUSION AND REQUEST FOR LEAVE TO AMEND

26. For the reasons set forth above, Petitioners/Plaintiffs respectfully request that the Court deny Respondents/Defendants' Rule 12 Motion to Dismiss. To the extent that the Court believe it appropriate to grant the Motion in any respect, Plaintiffs hereby respectfully request leave to amend pursuant to Mass. R. Civ. P. 15(a).

Dated: April 23rd, 2015 Respectfully Submitted,

xxx and JOSEPH MUSOKE

By their attorney__________________

Joseph Musoke*

*Application for Admission in Massachusetts Pending

CERTIFICATE OF SERVICE

I hereby certify that on this

day a true copy of the above

document was served upon the attorney

of record for each party by mail.

Date:__________

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