Opinion
No. 16–P–137.
12-30-2016
Kenneth GOLDMAN v. Stuart LEVINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a Superior Court judgment, entered on the defendant's motion under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), dismissing his request for injunctive relief and claim under G.L. c. 93A, § 11. He raises two arguments on appeal: (1) that res judicata prohibits the defendant from seeking disciplinary action against the plaintiff from the American Numismatic Association (ANA) after the Professional Numismatists Guild, Inc. (PNG), had already found the plaintiff liable for damages and disciplined him in a different arbitration; and (2) that the judge erroneously dismissed the plaintiff's c. 93A claim. We affirm.
"We review the allowance of a motion to dismiss de novo, accepting as true the facts alleged in the plaintiff's ... complaint and exhibits attached thereto, and favorable inferences that reasonably can be drawn from them." Burbank Apartments Tenant Assn. v. Kargman, 474 Mass. 107, 116 (2016). In order to withstand a motion to dismiss, the factual allegations must "raise a right to relief above the speculative level." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Where the factual allegations do not plausibly suggest an entitlement to relief, the complaint must be dismissed. Iannacchino, supra.
1. Res judicata. The plaintiff sought to enjoin the defendant from pursuing disciplinary action against him with the ANA. The plaintiff argues that the doctrine of res judicata prohibited the defendant from filing a claim against the plaintiff with the ANA because the claim was already litigated at an arbitration hearing with the PNG. "Three elements are essential for invocation of claim preclusion: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." Beals v. Commercial Union Ins. Co., 61 Mass.App.Ct. 189, 194 (2004) (quotation omitted). Claim preclusion is applicable to arbitration proceedings, id., at 193, but "does not apply when the court [that] heard the first action did not have subject matter jurisdiction (or was limited by some other formal barrier) over the subject in the second action." Bradford v. Richards, 11 Mass.App.Ct. 595, 597 (1981).
Here, the plaintiff is unable to invoke claim preclusion as a defense because the disciplinary request filed with the ANA could not have been satisfied during the PNG arbitration. The ANA is a separate numismatic organization with different bylaws and standards to apply. The PNG has no authority in regard to ANA's membership or discipline of its members. "Although an arbitration proceeding can preclude subsequent claims under principles of res judicata, this is only true if the party was required to pursue such claims as part of the arbitration." Bogdanow, Massachusetts Tort Damages § 13–10 (2d ed. Supp.2016). The defendant could not have pursued his claim with the ANA at the PNG arbitration. Furthermore, the defendant was not seeking monetary relief from the ANA. His ANA amended complaint only requested that the ANA take disciplinary actions against the plaintiff. The plaintiff's request for injunctive relief was properly dismissed.
The defendant was awarded a total of $77,000 from the PNG arbitration. The relief he sought with the ANA complaint was limited to a request for disciplinary action to be taken against the plaintiff.
The defendant's initial complaint with the ANA requested that the plaintiff should be responsible for removing the statements he made from the Web site "ripoffreport.com," along with the request for disciplinary action. The Web site matter was already decided in the PNG arbitration where the defendant was awarded monetary damages to remove the information himself. The judge allowed the defendant's motion to dismiss, subject to the defendant amending his filing with the ANA to remove any request for relief from the Web site posting.
2. General Laws c. 93A. The plaintiff argues that the trial judge's dismissal of his c. 93A claim was erroneous because the defendant used his ANA complaint to force and/or coerce the plaintiff into providing the defendant with additional remedies. General Laws c. 93A, § 11, "requires that there be a commercial transaction between a person engaged in trade or commerce [and] another person engaged in trade or commerce," Szalla v. Locke, 421 Mass. 448, 451 (1995), and "has never been read so broadly as to establish an independent remedy for unfair or deceptive dealings in the context of litigation." Morrison v. Toys "R" Us, Inc., 441 Mass. 451, 457 (2004).
Here, the plaintiff's c. 93A claim arose from the defendant's claim for mediation with the ANA. "[T]he purpose of G.L. c. 93A is to improve the commercial relationship between consumers and business persons and to encourage more equitable behavior in the marketplace." Ibid. (quotation omitted). Mere perception by one party that the claim is unfair is not a sufficient ground for a claim under c. 93A. See id., at 458. The plaintiff's claim does not plausibly suggest an entitlement to relief. See Iannacchino, 451 Mass. at 636.
Judgment affirmed.