Opinion
No. 96-2543C
April 8, 1997
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT INTRODUCTION
On November 25, 1996, the plaintiff, Cheryl Brady, brought suit against the defendants, NYNEX Information Resources Company (NYNEX) and Ganick, O'Brien Sarin (Ganick), alleging a number of causes of action. More particularly, she asserted: (1) a violation of G.L.c. 93A, §§ 2 and 9, against NYNEX and Ganick; (2) fraud, against NYNEX; (3) misrepresentation, against NYNEX; (4) a violation of 15 U.S.C. § 41, § 1692, against Ganick; (5) a violation of G.L.c. 93, § 49, against Ganick; (6) negligence, against Ganick; (7) intentional infliction of emotional distress, against Ganick and NYNEX; and (8) negligent infliction of emotional distress, against Ganick and NYNEX. On March 7, 1997, the matter came before this Court for hearing on NYNEX's motion to dismiss or, in the alternative, motion for summary judgment., For the reasons discussed below, NYNEX's motion to dismiss is ALLOWED.
In the complaint, the claims for intentional infliction of emotional distress and negligent infliction of emotional distress are listed in separate counts. However, both claims are listed as Count VII. The Court assumes this is a typographical error and will refer to the claim for negligent infliction of emotional distress as Count VIII.
On March 17, 1997, this Court ordered that Nynex serve and file, on or before March 31, 1997, a certified copy of the complaint from the related Boston Municipal Court action. The document was received and filed on March 24, 1997, but has played no role in the decision upon this motion.
Because I limit the grounds for this decision to the pleadings, the motion will be treated as a motion to dismiss.
BACKGROUND
For the purposes of this motion, I accept as true the following facts alleged in the complaint. In December, 1993, Cheryl Brady (Brady) and Arthur Plasse (Plasse) lived together in Brady's apartment in Millbury, Massachusetts. Plasse was the sole owner of a business operating under the name New England Seamless Gutters. Its usual place of business was in Oxford, Massachusetts.
In December, 1993, Plasse sought to purchase advertising in the NYNEX yellow pages. He desired, however, to take out a smaller advertisement than he previously had placed in the yellow pages. Because Plasse was unavailable to discuss the details of his advertising needs, a representative of NYNEX met with Brady at her apartment. The representative knew that Brady did not have, and never had, any ownership interest in New England Seamless Gutters or authority to make decisions on behalf of New England Seamless Gutters. The representative exerted undue influence over Brady and intimidated her into signing for more advertising than Plasse had intended for his business. The representative told Brady to sign the order form and assured her that her signature was not binding because Plasse had to approve the final proof of the advertising. Moreover, the representative told Brady that, if she did not then sign the order form, the time for Plasse to buy the advertising would expire. Brady signed the order form in reliance on the representative's statement that it was not binding.
In April, 1996, Brady received a form letter from Ganick, which had been sent to the business address of New England Seamless Gutters, reciting that Brady was in arrears on a debt owed to NYNEX in the amount of eleven thousand, three hundred seventy-two dollars and eighty-three cents ($11,372.83). On April 29, 1996, counsel for Brady sent a letter to Ganick stating that Brady was represented by counsel and that any further communication regarding the matter should be addressed to counsel's office. Further, the letter denied the assertion that Brady was in debt to NYNEX.
On August 9, 1996, Ganick sent a letter to Brady stating that Ganick had obtained a Boston Municipal Court judgment against Brady in the amount of eleven thousand, eight hundred seventy-two dollars and twenty-seven cents ($11, 872.27). Brady now claims that she was never served with process regarding the action underlying the judgment. Further, Brady maintains that all correspondence from Ganick regarding the Boston Municipal Court action were sent to the address of New England Seamless Gutter and were delivered to Brady by Plasse. Brady contends that this address is not, and has never been, her place of residence or abode or her place of work. Brady asserts, accordingly, that the return of service document in the Boston Municipal Court file, which shows that service was made "by leaving at the last and usual place of abode of Brady, Cheryl, 137 Main Street, Oxford, MA and by mailing first class to the above address on 06/06/96", was not good service.
On August 21, 1996, counsel for Brady sent NYNEX and Ganick certified demand letters pursuant to G.L.c. 93A, §§ 2 and 9. NYNEX did not respond to the demand letter. Ganick responded to the demand letter and offered to settle the claims against Ganick and NYNEX for a payment of twenty-five dollars ($25.00). On November 25, 1996, Brady commenced the present action against NYNEX and Ganick.
DISCUSSION
When evaluating the sufficiency of a complaint pursuant to Mass.R.Civ.P. 12 (b)(6), 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. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). The facts recited supra, are, therefore, taken as true for purposes of the instant motion. Additionally, "[the] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); See also Charbonnier v. Amico, 367 Mass. 146, 152 (1975); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979).
"[A] complaint is not subject to dismissal if it would support relief on any theory of law." Whitinsville Plaza, Inc., 378 Mass. at 89. Further, a complaint should not be dismissed simply because it asserts a new or extreme theory of liability. New England Insulation Co. v. General Dynamics Corp., 26 Mass. App. Ct. 28 (1988); Jenkins v. Jenkins, 15 Mass. App. Ct. 934 (1983); Bell v. Mazza, 394 Mass. 176 (1985). All inferences should be drawn in the plaintiff's favor, so as to do substantial justice. Ourfalian v. Aro Mfg. Co., Inc., 31 Mass. App. Ct. 294, 296 (1991). Notwithstanding the deference the law thus requires be paid to a complaint, the circumstances at bar demand that the present complaint not survive.
In support of its motion to dismiss, NYNEX argues three points. First, NYNEX contends that Brady is collaterally estopped from bringing this lawsuit because she had an opportunity to litigate these claims in the Boston Municipal Court action brought by NYNEX against Brady. Second, NYNEX maintains that the complaint should be dismissed because Brady's claims arise out of the same transaction or occurrence that were the subject of the Boston Municipal Court action and were required to be filed as compulsory counterclaims in the Boston Municipal Court pursuant to Mass.R.Civ.P. 13 (a). Third, NYNEX insists that Brady's claim for intentional infliction of emotional distress be dismissed because Brady failed to allege extreme and outrageous conduct on the part of NYNEX. Because this Court concludes that the complaint should be dismissed because the claims against NYNEX were required to be filed as compulsory counterclaims in the Boston Municipal Court, there is no occasion to address NYNEX's first and third proposals for dismissal.
A pleading must present, as a counterclaim, "[a]ny claim for relief the court has power to give which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim. . . ." Mass.R.Civ.P. 13 (a). If the counterclaim arises out of the transaction or occurrence which is the subject of the plaintiff's claim, the requirement that it be included in the response is mandatory; the defendant must assert the counterclaim, or forever lose the claim. Reporters' Notes to Mass.R.Civ.P. 13 (1973). Accordingly, the classification of a counterclaim as compulsory depends upon whether it emanated from the same "transaction or occurrence" as gave birth to the original claim.
A claim is not compulsory if it requires for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction or constitutes an action required by law to be brought in a county or judicial district, as the case may be, other than the county or judicial district in which the court is sitting. Mass.R.Civ.P. 13 (a). Moreover, the pleader is not required to assert the counterclaim if:
(1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13, or (3) if part or all of the pleaders's claim is based upon property damage arising out of a collision, personal injury, including actions for consequential damages, or death. . . .
Mass.R.Civ.P. 13 (a).
Because the foregoing exceptions to the compulsory counterclaim rule have no pertinence to the case at bar, this Court will focus on whether Brady's claims against NYNEX for violation of G.L.c. 93A, fraud, misrepresentation, intentional infliction of emotional distress and negligent infliction of emotional distress are claims which Brady had against NYNEX at the time NYNEX "served" the pleading on Brady in the Boston Municipal Court action and whether those claims arise out of the same transaction or occurrence as did the subject matter of the prior court action.
The term "transaction" has been employed to describe the situation where "[b]oth causes of action proceed from the same wrong." Potier v. A.W. Perry, Inc., 286 Mass. 602, 608 (1934). As the Supreme Judicial Court noted in Potier, the governing rule should not be construed narrowly or technically; rather, it should be construed "[i]n a sense to effectuate the settlement in one proceeding of controversies so closely connected as appropriately to be combined in one trial in order to prevent duplication of testimony, to avoid unnecessary expense to the parties and to the public, and to expedite the adjudication of suits." Id. Furthermore, in addressing the interplay between the words "transaction" and "occurrence", the Reporters' Notes to Mass.R.Civ.P. 13 (1973) state:
The use of the word `occurrence' in the rule in connection with the word `transaction' can serve no other purpose than to make clear the meaning of the word `transaction.' . . . The word `transaction' commonly indicates an act of transacting or conducting business but in the rule under consideration it is not restricted to such sense. It is broad enough to include an occurrence. . . . The words `transaction' and `occurrence' probably mean, whatever may be done by one person which affects another's rights and out of which a cause of action may arise. . . . A familiar test may be applied by inquiring whether the same evidence will support or refute the opposing claims.
Id. quoting Williams v. Robinson, 1 F.D.R. 211, 213 (D.D.C. 1940).
A fair review of the instant complaint in the light most favorable to Brady suggests that Brady's claims in the case at bar arise out of the same transaction or occurrence as the claim asserted by NYNEX in the Boston Municipal Court case. In the Boston Municipal Court action, NYNEX claimed that Brady was in arrears of a debt owed to NYNEX in the amount of eleven thousand, three hundred and seventy-two dollars and eighty-three cents ($11,372.83) on account of advertising ordered by Brady for inclusion in the NYNEX Yellow Pages. Brady's claims against NYNEX, in the present case, arise out of the very same alleged contract between Brady and NYNEX upon which NYNEX relied in suing Brady for the advertising fee.
More specifically, Brady's claims for fraud and misrepresentation are responsive to the claim for breach of contract. Brady maintains that NYNEX, through its sales representative, induced Brady to sign the order form by making the representations to her that she could sign the order without assuming legal responsibility for payment. At the time of the signing, NYNEX, through its sales representative, knew that Brady did not have any ownership interest in New England Seamless Gutters. Brady claims that NYNEX's acts of coercion were fraudulent and constitute intentional misrepresentation, causing Brady to act to her detriment. Her claims surely arise from the same transaction and occurrence as did NYNEX's contract lawsuit.
Brady's claim against NYNEX for violation of G.L.c. 93A similarly arises out of NYNEX's actions toward Brady in connection with her alleged debt. As noted supra, an employee of NYNEX represented to Brady that she could sign an application for directory advertising without binding her personally because Plasse had to authorize the final copy of advertising. Brady asserts that NYNEX's reliance upon those circumstances to impute liability to Brady is a violation of the Massachusetts Consumer Protection Statute. Moreover, Brady maintains that NYNEX, through its agent, the law firm of Ganick, O'Brien Sarin, has violated G.L.c. 93A by harassing and intimidating her, through a notice of collection, in an attempt to collect on a debt for which she is not liable. The genesis of both NYNEX's and Brady's causes of action are indisputably the same.
Finally, Brady's claims for intentional and negligent infliction of emotional distress plainly arise out of the same transaction or occurrence as did the alleged debt. Brady argues that she has suffered considerable emotional and physical trauma due to the egregious behavior of NYNEX in connection with its pursuit of satisfaction for Brady's alleged debt to NYNEX. After NYNEX promised not to hold Brady responsible for the document she signed, NYNEX sent Brady a notice of collection and informed Brady that a lawsuit would be initiated if NYNEX did not receive immediate payment. The trauma thus allegedly visited upon Brady was spawned by NYNEX's "contract" with Brady and was patently a product of the same transaction and occurrence.
In opposition to NYNEX's compulsory counterclaim argument, Brady does not refute the assertion that her claims are compulsory counterclaims to NYNEX's suit against her in the Boston Municipal Court. Instead, Brady argues that she was not given the opportunity to file counterclaims in the Boston Municipal Court action because she was never served with process. In light of the facts alleged in the complaint, Brady may have a compelling argument for setting aside the default judgment entered against her in the Boston Municipal Court pursuant to Mass.R.Civ.P. 55 (c) and 60 (b). Brady did not, however, seek to remove the default entered against her in the Boston Municipal Court, but rather filed a complaint in the Superior Court and brought claims against NYNEX which should ought to have been brought in the form of counterclaims in the Boston Municipal Court case. Because this Court finds that Brady's claims against NYNEX are compulsory with respect to the Boston Municipal Court action, the claims are improperly before the Court. Accordingly, NYNEX's motion to dismiss will be allowed.
Massachusetts Rule of Civil Procedure 55 (c), which provides an avenue for setting aside a default, reads: "For good cause shown the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with Rule 60 (b)." Massachusetts Rules of Civil Procedure 60, Relief From Judgment Or Order, encompasses two situations: (a) the correction of mere clerical mistakes in the judgment or other part of the record, and (b) substantive relief from a final judgment. The Court may relieve a party from final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from the operation of the judgment. Mass.R.Civ.P. 60 (b).
As previously discussed, the proper procedural mechanism, to seek relief against NYNEX for its alleged fraud, misrepresentation, violation of G.L.c. 93A, and intentional and negligent infliction of emotional distress, lies in the Boston Municipal Court. First, Brady must file a motion for relief from judgment pursuant to Mass.R.Civ.P. 60 (b). The motion shall be made within a reasonable time. Specifically, if the reason given in support of the motion is included in Mass.R.Civ.P. 60 (b)(1), (2), or (3), the motion shall be made not more than one year after the judgment, order or proceeding was entered or taken. Mass.R.Civ.P. 60 (b). However, "[t]his rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court." Mass.R.Civ.P. 60 (b). If the default judgment is removed, Brady may then file an answer and assert her claims against NYNEX for fraud, misrepresentation, violation of G.L.c. 93A, and intentional and negligent infliction of emotional distress as counterclaims. This Court is not, of course, empowered to provide relief for Brady from the Boston Municipal Court judgment with which she is now burdened.
ORDER
For the foregoing reasons, it is hereby ORDERED that NYNEX Information Resources Company's motion to dismiss is ALLOWED.
______________________________ Daniel F. Toomey Justice of the Superior Court
DATED: April 8, 1997