Opinion
18-P-1344
12-05-2019
Claudia MURROW v. Louis MAKRIGIANNIS & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Claudia Murrow, appeals from a judgment dismissing her complaint, following the orders of two judges of the Superior Court dismissing her claims against the defendants, Louis Makrigiannis and Margaret Weeks. Concluding that Murrow's independent equity claim against Makrigiannis was untimely, see Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974), and that her claim against Weeks fails to state a claim for violation of G. L. c. 12, § 11I, see Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we affirm.
Background. We summarize the relevant allegations in Murrow's complaint, reserving certain facts for later discussion and adding procedural history as necessary to put Murrow's appeal in context. In April 2012, Makrigiannis, a business owner, obtained an ex parte harassment prevention order against Murrow, a community activist, pursuant to G. L. c. 258E. On May 30, 2012, after an evidentiary hearing, a judge in the District Court extended the harassment prevention order for one year and denied Murrow's special motion to dismiss pursuant to G. L. c. 231, § 59H. Weeks, an assistant clerk in the District Court, operated the court room recording system at the hearing. Approximately thirty-six minutes of the hearing were not recorded. Murrow requested an audiotape of the May 30 hearing, but was not made aware of the gap in the recording until November 2012. Murrow appealed the issuance and extension of the order; a panel of this court affirmed the order extension. See Makrigianis v. Murrow, 85 Mass. App. Ct. 1116 (2014).
In her complaint, Murrow alleges that Makrigiannis sought the harassment prevention order against her for the sole purpose of preventing her from opposing a development project in which he had a business interest.
This appears to be an alternate spelling of Makrigiannis's name.
On May 28, 2015, three years after the District Court judge's rulings and some two and one-half years after Murrow became aware that the recording of the hearing was incomplete, Murrow filed the underlying action in the Superior Court against Makrigiannis and Weeks. In count one, Murrow pleaded an independent equitable action under Mass. R. Civ. P. 60 (b), and sought to vacate and expunge the harassment prevention order on the ground that Makrigiannis obtained it by a fraud on the court. In count two, she alleged that both Makrigiannis and Weeks had violated her civil rights under G. L. c. 12, § 11I.
Makrigiannis and Weeks each filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6). Makrigiannis's motion to dismiss the equitable action, count one, was allowed based on the motion judge's determination that Murrow's two-and-one-half-to-three-year delay in filing her complaint was unreasonable under rule 60 (b). Murrow conceded that count one did not apply to Weeks. With respect to count two, the motion judge concluded that Murrow failed to state a claim against Weeks under G. L. c. 12, § 11I, and that, alternatively, Weeks enjoyed quasi judicial immunity from any such claim that Murrow did have against her. Although Murrow's civil rights claims against Makrigiannis survived the motion, Murrow ultimately moved to dismiss count two, and it was dismissed with prejudice.
On appeal, Murrow challenges the dismissal of her equitable action against Makrigiannis and her civil rights claim against Weeks. She also seeks reinstatement of the civil rights claim against Makrigiannis that was dismissed on her own motion.
Discussion. 1. Standard of review. We review de novo the allowance of a rule 12 (b) (6) motion to dismiss. See Coghlin Elec. Contrs., Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 553 (2015). See also Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340, 347 n.18 (2010) (standard applicable to dismissal of rule 60 claim raised in independent action). In order to demonstrate a right to relief above the speculative level, the pleading must set forth factual " ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief." Iannacchio v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
2. Independent equitable action. " Rule 60 sets forth a comprehensive framework for obtaining relief from a final judgment or order, balancing the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435 Mass. 396, 399-400 (2001). In addition to providing for relief by motion from a final judgment or order, see Mass. R. Civ. P. 60 (b), the rule enables a party to "seek [parallel] relief by way of an independent action." Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 346. A party seeking relief under the rule by motion is subject to explicit time limits and to the additional requirement that the action be brought "within a reasonable time." See Mass. R. Civ. P. 60 (b) (1)-(6). By contrast, "there is no specified time limit for bringing an independent action for relief from judgment." Mt. Ivy Press, L.P., supra at 347.
Murrow argues that her independent action should not have been dismissed because it was timely under G. L. c. 258E. We disagree. An independent action claiming fraud on the court is subject to the "reasonable time" limits of rule 60 (b), see Owens v. Mukendi, 448 Mass. 66, 77 (2006), and not, as Murrow argues, to the open-ended time frame established in G. L. c. 258E for a motion to vacate a harassment prevention order. See G. L. c. 258E, § 3 (e ) (upon motion by either party, court may modify an existing order "at any ... time"). "[A] party should not be able to avoid the one-year or ‘reasonable time’ limits of Rule 60(b) simply by commencing an independent action seeking the same relief." Mt. Ivy Press, L.P., 78 Mass. App. Ct. at 347, quoting Sahin, 435 Mass. at 401. Murrow offers no explanation for the two-and-one-half-year delay in bringing her independent action. We conclude, as did the judge below, that Murrow's independent action was not timely, where she was alerted to the grounds for relief from judgment at the latest in November 2012, and did not file her complaint until May 28, 2015. See Owens, supra at 76 (three and one-half year delay in filing rule 60 [b] [6] motion not reasonable where grounds for relief were known to defendant at time of judgment).
Although, as Makrigiannis argues, in opposing Makrigiannis's motion to dismiss Murrow did not specifically argue that G. L. c. 258E provided the appropriate framework for determining the timeliness of her rule 60 (b) action, she did argue the reasonableness of the timing on more general grounds. We consider the issue to have been raised with sufficient specificity to preserve it for appeal. See Jarosz v. Palmer, 436 Mass. 526, 535 n.6 (2002) (argument on issue before Appeals Court, while less extensive than argument before Supreme Judicial Court, was sufficient to preserve issue on appeal).
3. Civil rights claims. a. Makrigiannis. Murrow argues in her brief that the claim against Makrigiannis for violation of her civil rights under G. L. c. 12, § 11I, should be reinstated. Murrow moved to dismiss this claim, and the claim was dismissed with prejudice; she did not object. Her argument for reinstatement of this claim presupposes that her independent action against Makrigiannis was dismissed in error; as we conclude otherwise, we need not reach it.
b. Weeks. Section 11I of G. L. c. 12 proscribes actual or attempted interference with another's constitutional or legal rights "by threats, intimidation, or coercion." G. L. c. 12, § 11H. " ‘Threat’ in this context involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm. ‘Intimidation’ involves putting in fear for the purpose of compelling or deterring conduct" (quotations and citations omitted). Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474 (1994). "Coercion" means "the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done" (citation omitted). Id.
Murrow's complaint alleged that Weeks intentionally manipulated the recording system at the May 30, 2012 hearing in a way that created a gap in the recording of that hearing, that she knowingly failed to advise Murrow of the incomplete recording, and that in doing so, Weeks "facilitated, encouraged, and assisted" Makrigiannis in fraudulently obtaining and extending a harassment prevention order against Murrow. Accepting these allegations as true, as we must, see Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014), we conclude that the factual allegations in Murrow's complaint did not plausibly suggest an entitlement to relief. Id. Murrow's complaint did not articulate facts alleging that Weeks interfered with her rights by putting her in fear, or by applying physical or moral force in order to influence Murrow's conduct; accordingly, it failed to allege any threats, intimidation, or coercion within the meaning of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I. See Planned Parenthood League of Mass., Inc., 417 Mass. at 474.
Concluding, as we do, that Murrow failed to state a claim against Weeks under G. L. c. 12, § 11I, we do not reach the question whether Weeks enjoyed quasi judicial immunity from that claim in this case.
Makrigiannis has requested double attorney's fees and costs for having to defend a frivolous appeal. See Mass. R. A. P. 25, 481 Mass. 1654 (2019). The request is denied.
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Judgment affirmed.