Opinion
19-P-832
07-06-2020
ROBERT WHELAN v. JAMES O'GARA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff, Robert Whelan, appeals from the dismissal of his civil complaint against defendant James O'Gara in the Superior Court. Whelan sued O'Gara after a background check performed by O'Gara resulted in the denial of the plaintiff's employment application. The judge dismissed the suit on the grounds that it was time barred -- the background check took place in June 2014 and the suit was filed in April 2018. The judge also found that G. L. c. 260, § 32, the savings statute, was inapplicable. On appeal, Whelan concedes that his action was time barred but argues that the savings statute indeed was applicable. He also raises a number of procedural arguments pertaining to the judge's rulings on the defendant's motion to dismiss. Finding no error in the judge's rulings, we affirm.
General Laws c. 260, § 32, referred to as the "savings statute," provides a one-year grace period for filing "a new action for the same cause" as an earlier, timely action. For the statute to apply, the plaintiff must show that the earlier action was "dismissed for insufficient service of process by reason of an unavoidable accident . . . or for any matter of form." G. L. c. 260, § 32.
He argues that (1) the judge failed to draw inferences in his favor; (2) the defendant was wrongly permitted to file materials outside the scope of the motion to dismiss; (3) the judge improperly denied him the opportunity to file additional materials related to the motion hearing; and (4) the defendant's motion to dismiss should have been treated as a motion for summary judgment.
Background. We summarize the procedural history of the case in brief. When Whelan applied for a position as a correction officer with the Department of Corrections (DOC) in March 2014, O'Gara was a Personal Analyst III with the DOC and the individual responsible for conducting a background check on Whelan. The background check revealed that Whelan had been charged with two independent domestic abuse incidents involving two separate women. The DOC denied his application for employment in June 2014. As was his right, Whelan appealed the denial to the Civil Service Commission (CSC) and to the Massachusetts Commission Against Discrimination (MCAD). Each appeal was denied. In November 2016 Whelan appealed the MCAD dismissal in the Suffolk Superior Court and named the DOC, the Commonwealth, and four DOC employees, including the defendant. The individual defendants -- including O'Gara -- were dismissed from the suit for lack of service of process, and the Commonwealth was dismissed on immunity grounds. The plaintiff appealed that decision to this court. That appeal was dismissed for lack of prosecution.
In April 2018, while that appeal was pending, Whelan filed the underlying action in the Superior Court in Bristol County raising identical claims against the individual defendants from his previous action filed in Suffolk County. The complaint was served only on the defendant. O'Gara moved to dismiss the complaint on grounds that the allegations were time barred. In response, Whelan argued that the action was timely under G. L. c. 260, § 32, the savings statute, because it was filed within a year after the Superior Court action in Suffolk County was dismissed. The judge ruled in favor of O'Gara and dismissed the complaint; this appeal ensued.
Discussion. We review the granting of a motion to dismiss de novo. Martinez v. Waldstein, 89 Mass. App. Ct. 341, 345 (2016). In doing so, we accept the plaintiff's well-pleaded factual allegations as true, and consider whether they "raise a right to relief above the speculative level" (quotation and citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). We may also consider "any favorable inferences reasonably drawn from" the plaintiff's factual allegations. Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). "[W]e do not accept legal conclusions cast in the form of factual allegations." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2010).
Here we agree with the motion judge, and the plaintiff concedes, that the suit, as filed, was untimely. Thus, for the savings statute to save the plaintiff's complaint, he must show that the earlier action was "dismissed for insufficient service of process by reason of an unavoidable accident . . . or for any matter of form." G. L. c. 260, § 32. Upon review of the plaintiff's pleadings and favorable inferences drawn therefrom, we conclude that the savings statute does not apply. To his peril, Whelan has failed to show any "due diligence" whatsoever in attempting to serve O'Gara in the earlier Suffolk action. See Cannonball Fund, Ltd. v. Dutchess Capital Mgt., LLC, 84 Mass. App. Ct. 75, 84 (2013). Whelan nakedly asserts that the defendant "could not be found." He offers no factual allegations explaining how much effort, if any, went into the attempted service of process. Additionally, Whelan failed to show that O'Gara knew of the Suffolk action within the limitations period, which under the savings statute would be necessary to show that the suit was dismissed "for any matter of form." See Liberace v. Conway, 31 Mass. App. Ct. 40, 44 (1991). Because dismissal was warranted we need not address the plaintiff's other arguments.
Indeed, it appears that no service upon the defendant was even attempted. There was no return of service in the record, which excludes the possibility of "'default or neglect' of the process server." Krasnow v. Allen, 29 Mass. App. Ct. 562, 566 (1990).
To the extent we do not address the plaintiff's other arguments, they "have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Sullivan, Henry & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 6, 2020.