Opinion
15-P-445
03-28-2016
EILEEN C. CASTILLO v. TD AUTO FINANCE, LLC & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Eileen C. Castillo, appeals from a judgment of the Superior Court dismissing her complaint after the defendants' motions to dismiss were allowed. We affirm.
On July 2, 2014, the plaintiff, acting pro se, filed a one paragraph complaint informing the lower court that she was suing each of the defendants for $25,000 in damages; she did not include any facts whatsoever about any action taken by either defendant to defraud her. On August 11, 2014, TD's motion to dismiss, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), was allowed, without prejudice, giving the plaintiff an opportunity to refile her complaint in compliance with Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974); the plaintiff's motions for reconsideration were denied. On August 28, 2014, Colonial filed its motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6) and 9(b); the motion was set for hearing. On November 14, 2014, TD filed another motion to dismiss, this time under Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974), based on the plaintiff's failure to comply with the judge's August 11, 2014, order and failure to prosecute her alleged claim. On January 2, 2015, after a hearing on each defendant's motion to dismiss and the plaintiff's oral opposition, a different judge allowed both motions, finding that the plaintiff did not allege "any particulars or details" to support the allegations of fraud after "[s]he has been given several opportunities by the court to amend her complaint to satisfy the requirements of Rule 9(b), but she has utterly and repeatedly failed to do so." Judgment entered dismissing the complaint.
Papers submitted by the plaintiff to this court suggest that this action arises from her purchase of a new car on July 19, 2012, from Colonial Nissan of Medford, Inc. (Colonial), and the financing of a car loan through TD Auto Finance, LLC (TD).
In his order denying the plaintiff's second motion for reconsideration, the judge reiterated that the plaintiff's complaint was dismissed without prejudice, and that "[s]he has not lost her day in court by this ruling and is urged to secure the consulting of counsel going forward."
The plaintiff submitted to the court on November 28, 2014, a three page letter, treated by the judge as a motion for leave to file a second amended complaint. The defendants argued in their oppositions that, on its face, the motion was futile as the plaintiff again failed to state a claim; the judge agreed and denied the motion. Because the plaintiff does not appear to address in her brief the denial of this motion, we consider the issue waived.
"In reviewing a rule 12(b)(6) dismissal of an action, we accept as true the allegations in the complaint as well as any inferences reasonably drawn therefrom in the plaintiff's favor." Karty v. Mid-America Energy, Inc., 74 Mass. App. Ct. 25, 26 (2009). A rule 12(b)(6) motion "is to be denied unless 'it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Ibid., quoting from Nader v. Citron, 372 Mass. 96, 98 (1977).
"[W]hen a judge considers a [rule] 12(b)(6) motion to dismiss a complaint alleging fraud . . ., the requirement that there be an 'exceedingly liberal reading' of a complaint, must include consideration of the requirements of Mass.R.Civ.P. 9(b)." Equipment & Sys. for Indus., Inc. v. Northmeadows Constr. Co., 59 Mass. App. Ct. 931, 932 (2003) (citation omitted). "The requirement that fraud must be pleaded with particularity is standard to notice pleading, and appears in our rules of civil procedure: 'In all averments of fraud, . . . the circumstances constituting fraud . . . shall be stated with particularity.' Mass.R.Civ.P. 9(b), 365 Mass. 751 (1974)." Billings v. GTFM, LLC, 449 Mass. 281, 293-294 (2007). "At a minimum, a plaintiff alleging fraud must particularize the identity of the person(s) making the representation, the contents of the misrepresentation, and where and when it took place. In addition, the plaintiff should specify the materiality of the misrepresentation, its reliance thereon, and resulting harm." Equipment & Sys. for Indus., Inc., supra at 931-932.
We agree with the judge's determination that the plaintiff's complaint fails to state particularized facts in alleging fraud against the defendants. See Mass.R.Civ.P. 9(b). In addition, because the plaintiff's complaint fails to provide the grounds of entitlement to relief, we see no error in the dismissal of her complaint. See Mass.R.Civ.P. 12(b)(6); Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
The plaintiff's brief merely reiterates that she was defrauded and that she was never given a hearing in the Superior Court; although the handwritten document is difficult to decipher, it does not appear that she specified any specific action taken by either defendant to defraud her.
Judgment affirmed.
By the Court (Katzmann, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 28, 2016.