Opinion
18-P-963
04-11-2019
NICCOLÒ FINOTTO v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE.
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
In this now third successive action against the President and Fellows of Harvard College (college), Niccolò Finotto again alleges in substance that the college wrongfully terminated his employment. A Superior Court judge dismissed Finotto's complaint. We affirm.
Although Finotto's legal theories have varied to some extent from case to case, the gravamen of each has been identical, with Finotto asserting, in substance, that the college (i) promised to employ Finotto for life; (ii) wrongfully terminated Finotto's employment; and (iii) wrongfully refused to pay Finotto an agreed amount in liquidated damages in the event that the college terminated its relationship with him. Finotto filed his first action in October 2015. In March 2016 the first action was dismissed with prejudice. Finotto did not appeal. About six months later, in September 2016, Finotto filed his second action against the college. A judgment dismissing the second action entered in October 2016 and, again, Finotto did not appeal. A bit more than one year later, in December 2017, Finotto filed this, his third, action against the college.
In his first action Finotto alleged that the agreed liquidated damages amount was $12 million. In his second and third actions, Finotto alleged that the agreed amount was €20 million.
We do not agree that the record before us fairly supports an inference that the first action was dismissed for want of personal jurisdiction. First, that judgment specifically recites that it entered with prejudice. Second, we take judicial notice that the college is located in Cambridge, Massachusetts.
Finotto, asserting that he had served the summons and the complaint on the college but that the college had not responded, moved for the college's default. Default entered. The college then moved to vacate, in its supporting papers asserting that Finotto had not, in fact and contrary to his allegations, served the college; the college also brought to the judge's attention the first and the second actions, as well as certain other pertinent matters. The judge vacated the college's default and, sua sponte, dismissed Finotto's complaint in this, the third, action on the ground that Finotto's claims are barred by the judgments in the first and the second actions.
The judge did not abuse his discretion when he vacated the college's default. See Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974); Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 188 (2017). We do not consider whether Finotto knowingly filed a falsified proof of service but instead observe only that the judge's basic finding and rationale -- that Finotto did not in fact serve the complaint and the summons on the college -- is both well supported and constitutes "good cause shown" under rule 55 (c).
Neither did the judge erroneously dismiss Finotto's present complaint. "The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action." Bagley v. Moxley, 407 Mass. 633, 637 (1990), quoting Heacock v. Heacock, 402 Mass. 21, 23 (1988). The doctrine will be invoked to prevent a party from raising anew claims previously reduced to judgment when (i) the parties are the same (or are in privity); (ii) the gravamen of the claims is the same; and (iii) there is a prior final judgment on the merits. See Bagley, supra; Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386, 390 (1994). In this instance the judge properly applied the claim preclusion doctrine to dismiss Finotto's present complaint because (i) both Finotto and the college were parties in all three actions; (ii) the gravamen of Finotto's present claims is identical to, and arises from, the same basic set of operative alleged facts and transactions as those raised in the first and the second actions; and (iii) final, valid, merits-based judgments entered in the first and the second actions.
See note 2, supra. See also Mass. R. Civ. P. 41 (b) (3), as amended, 454 Mass. 1403 (2009) (involuntary dismissal or "any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction . . . operates as an adjudication upon the merits"); Bagley, 407 Mass. at 637, quoting Boyd v. Jamaica Plain Coop. Bank, 7 Mass. App. Ct. 153, 157-158 n.8 (1979) ("dismissal with prejudice of [prior action] constituted 'an adjudication on the merits as fully and completely as if the order had been entered after trial'").
To the extent we understand Finotto's procedural objections, we observe that "it cannot be seriously doubted that the records of the earlier [action] were 'available' to the judge" and properly were considered in this context. Saisi v. Trustees of State Colleges, 6 Mass. App. Ct. 949, 949 (1978). Although it might have been better practice had the college formally moved to dismiss, we also have no doubt that, in the unusual circumstances here, the judge properly could dismiss Finotto's untenable complaint on his own motion. See and compare Juliano v. Simpson, 461 Mass. 527, 529 (2012) (judge properly dismissed amended claims and ordered entry of judgment sua sponte); Cummings Props., LLC v. Cepoint Networks, LLC, 78 Mass. App. Ct. 287, 288 (2010) (judge properly dismissed guarantor from summary process action and ordered entry of judgment sua sponte). To the extent we have not specifically commented we have considered and found Finotto's remaining arguments to be without merit.
Judgment affirmed.
By the Court (Meade, Desmond & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 11, 2019.