Opinion
December 17, 1981.
Maurice Epstein, pro se.
John T. Daley for the defendant.
Even by the generous standards of notice pleading, the plaintiff's complaint is "grievously murky." See Charbonnier v. Amico, 367 Mass. 146, 153 (1975). It says that, upon the demand of the defendant bank, the plaintiff paid $9,875 more than was due on a mortgage note given by the plaintiff to the bank. Whether the overpayment was induced by duress (the theory on which the parties have briefed the appeal) or was brought about by mistake, or some other reason allowing the plaintiff to recover, is left to conjecture. Cf. International Underwater Contractors, Inc. v. New England Tel. Tel. Co., 8 Mass. App. Ct. 340, 342 (1979). But the test on a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), is that the moving party must establish "beyond doubt that there is no set of facts which the plaintiff could prove in support of his claim which would entitle him to relief." Howard v. G.H. Dunn Ins. Agency, Inc., 4 Mass. App. Ct. 868 (1976). White v. Spence, 5 Mass. App. Ct. 679, 683 (1977). Fabrizio v. Quincy, 9 Mass. App. Ct. 733, 734 (1980). See also Nader v. Citron, 372 Mass. 96, 98 (1977); Coolidge Bank Trust Co. v. First Ipswich Co., 9 Mass. App. Ct. 369 (1980). See generally 5 Wright Miller, Federal Practice and Procedure §§ 1355-1357 (1969). We are constrained, therefore, to reverse the judgment of dismissal. The defendant is not without means to smoke out the nature of the plaintiff's grievance. See e.g., Mass.R.Civ.P. 12(e), 365 Mass. 756 (1974) (motion for more definite statement). The plaintiff's pleadings may then succumb to a motion for summary judgment. See Kipp v. Kueker, 7 Mass. App. Ct. 206, 213 n. 7 (1979).
Judgment reversed.