Opinion
No. 15–P–1440.
10-07-2016
Christopher P. LORETI v. Joseph F. TULIMIERI & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the plaintiff, Christopher P. Loreti, from a denial by a judge of the Middlesex Superior Court of his motion for relief from judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), alleging errors of law. We affirm.
Discussion. Motions for relief from judgment under rule 60(b) are reviewed under an abuse of discretion standard. See Adoption of Gillian, 63 Mass.App.Ct. 398, 411 (2005). See also Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 433 (1979). Under the abuse of discretion standard, the issue is whether the judge's decision resulted from “a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014). Because we agree with the motion judge that all of the plaintiff's issues raised in his motion were available in time to file a direct appeal to this court, we conclude that there was no such abuse.
“Rule 60 is not a substitute for the normal appellate process.” Jones v. Boykan, 464 Mass. 285, 291 (2013), quoting from Smith & Zobel, Rules Practice § 60.1, at 364 (2nd ed.2006). Furthermore, “[r]ule 60 does not provide for general reconsideration of an order or a judgment.... Nor does it provide an avenue for challenging supposed legal errors, nor for obtaining relief from errors which are readily correctible on appeal .” Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 236 (1985).
In this case the plaintiff, in his rule 60(b)(2) motion, bears the burden of demonstrating that “(1) the evidence has been discovered since the [judgment]; [and] (2) the evidence could not by due diligence have been discovered earlier by the movant.” Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 361 (2008), quoting from United States Steel v. M. DeMatteo Constr. Co ., 315 F.3d 15, 19 (1st Cir.(2002). Here, the reappointment of the plaintiff's successor to a five-year term occurred early in 2014, over one year before the plaintiff's rule 60(b) motion, and months before the judge's entry of summary judgment. The plaintiff makes no argument as to why this evidence was not discoverable prior to January, 2015, through ordinary due diligence.
In addition, we agree with the motion judge that the judgment is not void under rule 60(b)(4). “An erroneous judgment is not a void judgment. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or where it acted in a manner inconsistent with due process of law.” Reporters' Notes to Mass.R.Civ.P. 60(b)(4), Mass Ann. Laws Court Rules, Rules of Civil Procedure, at 2828 (LexisNexis 2016). See O'Malley v. O'Malley, 419 Mass. 377, 382 (1995). In this case, the plaintiff participated in all stages of the matter. He accepted the judge's invitation to submit a memorandum on the issue of the dismissal of the plaintiff's Federal claims. As the motion judge concluded, “[the court gave the plaintiff ample notice and an opportunity to be heard, which is all that due process requires.” Therefore, the motion judge did not err in denying the plaintiff's rule 60(b) motion.
Order denying motion for relief from judgment affirmed.
Juliana Rice and the town of Arlington. Tulimieri and Rice are sued both individually and in their official capacities.