Opinion
No. 12–P–703.
2013-04-25
James MURPHY v. COMMONWEALTH & others.
By the Court (KATZMANN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In December, 2007, the plaintiff filed suit in Superior Court against Officer O'Leary, Officer Swenson, the Commonwealth, and all police departments within the Commonwealth, asserting violations of G.L. c. 258; G.L. c. 12, §§ 11H and 11I; 42 U.S.C. § 1983; and both the United States and Massachusetts Constitutions. The plaintiff appeals from (1) a Superior Court judgment dismissing his claims against Officer O'Leary, and (2) the judgment dismissing his claims against Officer Swenson, the Commonwealth, and all police departments within the Commonwealth. The plaintiff filed his notice of appeal on December 29, 2011. We affirm the trial court judgments.
Discussion. 1. Dismissal of claims against Trooper Swenson, the Commonwealth, and all police departments within the Commonwealth. On appeal, the plaintiff requests that the court reinstate his dismissed claims and reverse the entries of final judgment. After the trial judge dismissed the plaintiff's claims against Trooper Swenson, the Commonwealth, and all police departments within the Commonwealth, and granted their motion for entry of separate and final judgment on March 1, 2010, the plaintiff had sixty days from the entry of judgment on March 4, 2010, to file a timely notice of appeal. See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). The plaintiff failed to do so. Accordingly, the plaintiff has waived his appellate rights to his claims against Trooper Swenson, the Commonwealth, and all police departments within the Commonwealth. See Muir v. Hall, 37 Mass.App.Ct. 38, 40 (1994). 2. Dismissal of claims against Trooper O'Leary. On December 5, 2011, the trial judge dismissed the plaintiff's claims against Trooper O'Leary for failure to prosecute, and judgment entered for the defendant. The plaintiff then filed a timely notice of appeal on December 29, 2011.
In support of his order on Trooper O'Leary's motion to dismiss, the trial judge issued the following endorsement:
“After hearing on 11/30/11 motion is Allowed for the reasons contained in the plaintiff's memorandum in support of the motion. This case has been pending for five years and the plaintiff has refused to give discovery and has failed to attend his noticed deposition THREE TIMES.... The plaintiff has repeatedly and intentionally failed to give requested discovery (e.g. failure to attend his scheduled deposition on three occasions, failure to respond to interrogatories with responsive answers under oath.... This court orders this civil action DISMISSED and judgment is to enter for the defendant, James O'Leary.”
Rule 41(b)(2) of the Massachusetts Rules of Civil Procedure, 365 Mass. 804 (1974), provides that “[o]n motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute ....“ “The dismissal will only be reversed upon a determination that it is so arbitrary, capricious, whimsical or idiosyncratic that it constitutes an abuse of discretion.” Monahan v. Washburn, 400 Mass. 126, 128 (1987), citing Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641–642 (1986). Given the duration of the litigation in this case and the plaintiff's repeated failure to cooperate with the scheduled discovery, we conclude that the trial judge did not abuse his discretion in dismissing the plaintiff's action pursuant to
Mass.R.Civ.P. 41(b)(2).
In the conclusion of his brief, Trooper O'Leary, without citing any authority or presenting any argument, makes a vague request that he be awarded “sanctions.” This is an insufficient appellate argument and we decline to consider it. See McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 236 (1984).
Judgments affirmed.