Opinion
19-P-533
01-08-2020
GERALD N. PELLEGRINI v. NORTHEASTERN UNIVERSITY & another.
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 2014 the plaintiff brought suit against Northeastern University and one of its associate professors, Nian X. Sun, raising claims related to an academic article coauthored by Sun, the plaintiff, and others. A Superior Court judge (first judge) allowed the defendants' motion for summary judgment, denied the plaintiff's motion for partial summary judgment, and dismissed the complaint. On the plaintiff's appeal, a different panel of this court affirmed the judgment in an unpublished memorandum and order issued under our rule 1:28. See Pellegrini v. Northeastern Univ., 92 Mass. App. Ct. 1112 (2017). Further appellate review was denied. See Pellegrini v. Northeastern Univ., 478 Mass. 1108 (2018). Final judgment after rescript entered on January 5, 2018.
On December 6, 2018, the plaintiff filed a motion for relief from judgment under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974). A different Superior Court judge (second judge) denied the motion, rejecting the plaintiff's claims that the judgment was void because of supposed errors committed by the first judge in allowing the defendants' motion for summary judgment. The plaintiff's appeal from the order denying his motion for relief from judgment is now before us.
The plaintiff had earlier filed a motion for relief under Mass. R. Civ. P. 60 (b) (1) and (3), but he withdrew that motion and makes no argument regarding it on appeal.
A judgment is void under rule 60 (b) (4) if "the court from which it issue[d] lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law." Harris v. Sannella, 400 Mass. 392, 395 (1987). "A void judgment is one which, from its inception, was a complete nullity and without legal effect"; it "is to be distinguished from an erroneous [judgment], in that the latter is subject only to direct attack." Id., quoting Lubben v. Selective Serv. Sys., 453 F.2d 645, 649 (1st Cir. 1972). See Reporters' Notes to Rule 60 (b) (4), Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 1259 (LexisNexis 2019) ("An erroneous judgment is not a void judgment"). "In the interest of finality, the concept of void judgments is narrowly construed." Harris, supra, quoting Lubben, supra. Thus, a party may not use a rule 60 (b) (4) motion "as a substitute for a timely appeal." Harris, supra, quoting Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). See Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Comm'n, 394 Mass. 233, 236 (1985) ("Rule 60 does not provide for general reconsideration of an order or a judgment, . . . [n]or does it provide an avenue for challenging supposed legal errors, nor for obtaining relief from errors which are readily correctible on appeal").
The plaintiff contends that the judgment is void for two reasons: he was denied the right to present deposition testimony to a jury in violation of the Massachusetts Rules of Civil Procedure; and summary judgment entered prematurely, before completion of discovery. These claims do not bear on whether the judgment is void. They are claims of legal error, which could and should have been raised on direct appeal from the judgment. Cf. Harris, 400 Mass. at 396 (purported legal error in trial judge's determination of jurisdiction did not render judgment void). In fact, we rejected variants of these claims in the plaintiff's earlier appeal. The plaintiff's current arguments amount, in essence, to an improper collateral attack on the 2017 panel decision, that panel's denial of rehearing, and the Supreme Judicial Court's denial of further appellate review. They do not entitle him to relief under rule 60 (b) (4).
December 11, 2018, order denying relief from judgment affirmed.
By the Court (Hanlon, Lemire & Shin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 8, 2020.