Opinion
Civil Action 11-01476-B.
10-03-2012
Frank McCANN v. Michael SULLIVAN & another.[1]
MEMORANDUM OF DECISION AND ORDER ON: (1) DEFENDANTS' MOTION TO DISMISS (PAPER # 9), (2) DEFENDANT'S MOTION TO AMEND (PAPER # 10); AND (3) DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (PAPER # 11)
MAYNARD M. KIRPALANI, Associate Justice.
INTRODUCTION
In 2007, the plaintiff, Frank McCann (" McCann"), was temporarily suspended from his position as the Director of the Lawrence Department of Public Works. In connection with this suspension, he asserts claims against the defendants, the former mayor of Lawrence, Michael Sullivan (the " Mayor"), and the Mayor's brother, Kevin Sullivan (" Kevin") (collectively the " Defendants"). The matter is currently before the court on three motions: (1) the Defendants' Motion to Dismiss; the Mayor's Motion to Amend; and the Mayor's Motion for Judgment on the Pleadings. For the reasons explained below, the Motion to Dismiss will be ALLOWED; the Motion to Amend will be DENIED; and the Motion for Judgment on the Pleadings will be DENIED.
BACKGROUND
I. Facts
Facts recited are from the Complaint and taken as true for purposes of this motion. McCann began working for the City of Lawrence (the " City") in March 1972. In March 2002, he was appointed the Director of the City's Department of Public Works. On February 9, 2007, the Mayor sent McCann a letter, informing him that he was being placed on suspension for two weeks commencing February 12, 2007.
On February 11, 2007, Joseph Viel (" Viel"), another City employee, contacted McCann via telephone. Viel informed McCann that he had been told that if McCann did not resign from his employment with the City by 3 p.m., on February 12, 2007, the United States Attorney would take him out in handcuffs. Later, on May 15, 2007, Viel admitted that Kevin had told him this information and that Kevin had also told him to communicate it to McCann.
On this same date, Viel also called Patrick Blanchette (" Blanchette"), President of the Lawrence City Council. Viel informed Blanchette that, if McCann did not resign his employment with the City, he would face a criminal investigation by federal and state authorities. At some later point, the Mayor told Blanchette that Kevin had conveyed this message to Viel and had asked that Viel pass it along to Blanchette.
Between February 12, 2007 and February 15, 2007, McCann's attorney had meetings with Kevin concerning McCann's continued employment. During these conversations, Kevin stated that McCann would need to resign. McCann refused to resign. Following this refusal, on February 16, 2007, newspaper articles were published wherein the Mayor falsely accused McCann of misappropriation of public funds, failure to pay a $483, 000.00 bill for unauthorized fiber optics work, insubordination, and having an inappropriate relationship with a subordinate.
On February 26, 2007, McCann met with William Lantigua (" Lantigua"). Lantigua informed McCann that he had contacted Kevin. According to Lantigua, Kevin had told him to tell McCann that, if McCann resigned from his employment with the City, all his " issues" would go away. But, if he did not, more " issues" would be raised. Again, McCann refused to resign.
On March 4, 2007, the Mayor told the press that he had met with state investigators and delivered documentation to them related to unauthorized fiber optics projects involving McCann, which violated state law. The Mayor also told the press that McCann had mismanaged several other projects. On March 22, 2007, the Mayor repeated his allegations against McCann to a local news station.
According to McCann, the Mayor and Kevin asserted allegations against him in order to conceal their own involvement in unauthorized road and fiber optics projects, totaling more than $800, 000.00, which violated state bidding laws. And, specifically with respect to Kevin, McCann claims he was involved in the matter " in an effort to assist his brother, with full knowledge of the facts, and that the accusations being made against McCann were false ." The accusations were asserted against McCann to conceal the Mayor's involvement in the mismanagement of the City's funds and resources.
II. Procedural History
In November 2008, McCann filed suit in the United States District Court for the District of Massachusetts (the " Federal Action"), alleging federal and state claims against the Mayor, in his individual and official capacity, and against Kevin, in his individual and representative capacity. The Mayor and Kevin moved to dismiss all claims. On September 25, 2009, the United States District Court (Gorton, J.) dismissed all claims, declining to assert jurisdiction over McCann's state claims. McCann did not appeal.
Following the dismissal of the Federal Action, McCann, on September 15, 2009, filed suit in the Essex Superior Court (the " 2009 Action"), asserting claims against the Mayor, individually and in his official capacity, and against Kevin, individually and in his representative capacity. Included among the claims alleged in this action were claims for defamation as well as for intentional interference with contractual relations against the Mayor and Kevin. The Mayor and Kevin filed for dismissal of the 2009 Action, which, on August 12, 2010, the court (Cornetta, J.) allowed.
On August 8, 2011, almost a year after the dismissal of the 2009 Action, McCann filed the current action (the " 2011 Action"), asserting a claim against Kevin, individually, for intentional interference with advantageous relations (Count I) and a claim against the Mayor, individually, for defamation (Count II). On November 8, 2011, the Defendants filed a Motion to Dismiss, which was denied, without prejudice, for failure to comply with Superior Court Rule 9A. On December 6, 2011, the Defendants filed a second Motion to Dismiss, complying with Superior Court Rule 9A. Thereafter, on February 14, 2012, the Mayor filed a Motion to Amend and a Motion for Judgment on the Pleadings. On April 10, 2012, the court held a hearing in connection with the Motion to Dismiss as well as the Motion to Amend and the Motion for Judgment on the Pleadings.
DISCUSSION
THE MOTION TO DISMISS
In support of the Motion to Dismiss, the Defendants assert that McCann's claims are barred by claim preclusion as well as the applicable statute of limitations. In addition, they claim, even if not barred, his claims should be dismissed because McCann has failed to sufficiently plead his claims.
I. Res Judicata
The Defendants contend that res judicata prohibits McCann's claims because the plaintiff, the defendants, and the underlying facts in the 2011 Action are identical to those asserted, and dismissed, in the 2009 Action. In answer, McCann claims res judicata cannot bar his claims because the 2009 Action and the 2011 Action are not identical since, with respect to the latter, he has " reduced the number of claims and has eliminated the allegation that either defendant was acting in an official capacity." In addition, McCann claims res judicata does not apply because the 2009 Action was not dismissed with prejudice. After consideration, the court concludes the Defendants are correct.
The term " res judicata" encompasses both claim preclusion and issue preclusion. Kobrin v. Board of Registration in Medicine, 444 Mass. 837, 843 (2005), citing Heacock v. Heacock, 402 Mass. 21, 23 n. 2 (1988). For purposes of this case, the court is concerned with claim preclusion, which " makes a valid, final judgment conclusive on the parties, and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the [first] action." O'Neill v. City Manager of Cambridge, 428 Mass. 257, 259 (1998), quoting Blanchette v. School Comm. of Westwood, 427 Mass. 176, 179 n. 3 (1998). This rule is premised ‘ " on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.’ " Id., quoting Heacock, 402 Mass. at 24. Three conditions are required to invoke claim preclusion: (1) the parties in the present and prior action must be the same; (2) the causes of action must be identical; and (3) a final judgment on the merits must have entered in the previous action. DaLuz v. Department of Corr., 434 Mass. 40, 45 (2001), quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 (1933). The court addresses each of these requirements.
A. Identity of the Parties
There is clearly identity of the parties. In the 2009 Action, McCann asserted his suit against the City, the Mayor, individually and in his official capacity, and Kevin, individually and as a representative of the City. In the 2011 Action, McCann brought his claims against both the Mayor and Kevin individually. It is irrelevant that the original suit named an additional party or that it was brought against the Mayor and Kevin in both their individual and official capacities. The purpose of this requirement is to ensure that a litigant is not bound by a judgment where he was not a party to the action and had no opportunity to try his case on the merits. See Home Owners Federal Savings & Loan Ass'n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). Such a danger is not implicated by the situation presented here.
B. Identity of the Causes of Action
McCann argues that there is no identity of the causes of action because, in asserting the 2011 Action, he eliminated a number of claims that were present in the 2009 Action and thus, according to him, the two causes of action are different. McCann misunderstands the law as it pertains to claim preclusion. Claim preclusion does not merely bar those claims that were specifically asserted, it also bars those claims the plaintiff had an opportunity to assert. See O'Neill, 428 Mass. at 259 (preventing " relitigation of all matters that were or could have been adjudicated) (emphasis added). More specifically, " the entry of a ... final judgment extinguishes ... all rights of a plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose." Boyd v. Jamaica Plain Coop. Bank, 7 Mass.App.Ct. 153, 163 (1979) (internal quotations and citations omitted).
All legal theories supporting a claim must be presented " when the opportunity is available, not preserved for presentation through piecemeal litigation." Day v. Kerkorian, 61 Mass.App.Ct. 804, 811 (2004). If a claimant has had a full and fair opportunity to assert claims against a defendant, but has failed to do so, he is precluded from asserting those claims in a subsequent action. Id. at 811-812; see also Heacock, 402 Mass. at 23 (" claim preclusion ... bars litigation of all matters that were or should have been adjudicated in the [previous] action") (emphasis added). Both the 2009 Action and the 2011 Action arise out of the same series of events, i.e., the circumstances surrounding McCann's temporary suspension, and he clearly had a fair opportunity to assert his current claims in the earlier action. In fact, in the 2009 Action, McCann did assert a defamation claim against the Mayor that is nearly identical to the one he has now brought against the Mayor. The court concludes there is identity of the causes of action.
C. Final Judgment on the Merits
McCann claims he is allowed to assert the 2011 Action because there was no final judgment on the merits in connection with the 2009 Action since it was dismissed, without prejudice, under Mass. R. Civ. P. 12(b)(6). This argument is contrary to clearly established law. The 2009 Action was dismissed, pursuant to Mass. R. Civ. P. 12(b)(6), for failure to state a claim. And, in Massachusetts, such a dismissal operates as a binding adjudication on the merits, with res judicata effect. See Mestek, Inc. v. United Pacific Ins. Co., 40 Mass.App.Ct. 729, 731 (1996); see also Mass. R. Civ. P. 41(b)(3) (indicating dismissal under Mass. R. Civ. P. 12(b)(6) will " operate [ ] as an adjudication upon the merits"). The court concludes that the dismissal of the 2009 Action constitutes a judgment on the merits for purposes of claim preclusion.
Any assertion that the 2011 Action is different than the 2009 Action because the claims or parties are different is without merit. A different form of liability does not present a different cause of action, " provided it grows out of the same transaction, act, or agreement, and seeks redress for the same wrong." Fassas v. First Bank & Trust Co. of Chelmsford, 353 Mass. 628, 629 (1968), citing Mackintosh v. Chambers, 285 Mass. 594, 596 (1934). This principle is clearly illustrated by the present case. Both the 2011 Action and the 2009 Action involve claims stemming from McCann's temporary suspension, which took place in 2007, and, McCann had a full and fair opportunity to assert the current claims in the prior action. The court concludes the 2011 Action is barred by claim preclusion.
II. Failure to State a Claim— Statute of Limitations
The Defendants argue that, even if the 2011 Action is not barred by the doctrine of claim preclusion, McCann's claims for intentional interference with advantageous relations (Count I) and defamation (Count II) are both barred by the statute of limitations. In answer, McCann argues his claims are protected by the one-year grace period set forth in G.L.c. 260, § 32. After consideration, the court concludes the Defendants are correct.
Intentional interference with advantageous relations and defamation are tort claims, which must be " commenced ... within three years next after the cause of action accrues." G.L.c. 260, § 2A. Claims based in tort, such as these, begin to accrue when the injury occurs. See Doe v. Harbor Schools, Inc., 446 Mass. 245, 254 (2006). Here, the events underlying McCann's claims, i.e., his injuries, occurred in February and March 2007. Thus, the three-year statute of limitations expired, at the very latest, in March 2010. The 2011 Action was filed, on August 8, 2011, well after the expiration of the statute of limitations.
And, despite McCann's assertions otherwise, G.L.c. 260, § 32, provides no salvation. General Laws c. 260, § 32 gives a party an additional year to file a complaint if " an action duly commenced within [the applicable statute of limitations] ... is dismissed for insufficient service of process by reason of an unavoidable accident ... or is dismissed ... for any matter of form." Here, while the 2009 Action was " duly commenced, " within the applicable three-year statute of limitations, on September 15, 2009, it was not dismissed for " any matter of form." Rather, the 2009 Action was dismissed, under Mass. R. Civ. P. 12(b)(6), for failure to state a claim. And, as explained above, a dismissal of this type constitutes an adjudication on the merits, see Mestek, Inc., 40 Mass.App.Ct. at 731; see also Mass. R. Civ. P. 41(b)(3), and thus, the grace period set forth in G.L.c. 260, § 32 is irrelevant.
The Defendants also argue that McCann has failed to meet the minimum pleadings requirements necessary to assert a viable claim for either intentional interference with advantageous relations or defamation. Because the court concludes dismissal is warranted based upon claim preclusion as well as under the applicable statute of limitations, it need not address the arguments the Defendants assert under Mass. R. Civ. P. 12(b)(6).
MOTION TO AMEND AND MOTION FOR JUDGMENT ON THE PLEADINGS
Because the court allows the Motion to Dismiss, dismissing all claims against both Kevin and the Mayor, the Motion to Amend and Motion for Judgment on the Pleadings, which the Mayor filed after the Motion to Dismiss, are moot and will be denied.
ORDER
For the reasons explained above, it is hereby ORDERED that:
1. the Defendants' Motion to Dismiss (Paper # 9) be ALLOWED;
2. the Mayor's Motion to Amend (Paper # 10) be DENIED; and
3. the Mayor's Motion for Judgment on the Pleadings (Paper # 11) be DENIED.
SO ORDERED.