MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Richard D. Bostwick filed a pro se complaint
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against multiple defendants, raising claims that all relate in some way to his residence at 44 Chestnut Street in Wakefield. A Superior Court judge (first judge) allowed motions to dismiss filed by four sets of defendants: (1) Santander Bank, N.A. (Santander), and Federal National Mortgage Association (Fannie Mae); (2) Massachusetts Department of Public Health, Paul N. Hunter, Donna Levin, Warren M. Laskey, Massachusetts Appeals Court, and Middlesex Superior Court (together, Commonwealth defendants); (3) Kyle Barnard and Philip Bates; and (4) Orlans Moran, PLLC (Orlans). The first judge also allowed a motion for summary judgment filed by Leonard J. Sims, Leonard J. Sims Co., General Contractors, and Leonard J. Sims Custom Carpentry (together, Sims defendants). A judgment of dismissal later entered as to the unknown defendants for failure of service of process under Superior Court Standing Order 1-88, and a second judge denied Bostwicks motion to vacate the dismissal. A third judge then allowed a motion to dismiss filed by Richard F. Gantt, relying on the reasons set forth in the first judges memorandum of decision dismissing the claims against Barnard and Bates.
Bostwick appeals from the judgments of dismissal.
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He also appeals from an order of a single justice of this court denying his request for leave to file a ninety-five page reply brief. We conclude that Bostwicks claims against Santander and Fannie Mae should not have been dismissed to the extent they challenge the foreclosure on 44 Chestnut Street; we therefore vacate that portion of the applicable judgment and remand for further proceedings. In addition, we report that part of the appeal concerning the claims against the Appeals Court to the Supreme Judicial Court pursuant to G. L. c. 211A, § 12. Otherwise, we affirm.
Single justice order. After the single justice denied Bostwicks motion for leave to file a ninety-five page reply brief, Bostwick filed a second motion for leave on November 23, 2020, which was referred to this panel and which seeks permission to file a 179-page reply brief as an accommodation under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). We allow the November 23, 2020, motion and accept the 179-page reply brief for filing. As a result, Bostwicks appeal from the single justices order is moot.
Judgments of dismissal. 1. Standard of review. We review the allowance of a motion to dismiss de novo, “accept[ing] as true the facts alleged in the plaintiff[s] complaint as well as any favorable inferences that reasonably can be drawn from them.” Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). “What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Our review of the allowance of a motion for summary judgment is also de novo. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 231 (2015). We must “determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’ ” Id., quoting Juliano v. Simpson, 461 Mass. 527, 529-530 (2012).
2. Santander and Fannie Mae. Santander and Fannie Mae contend that all of the claims and issues raised in the complaint -- including the question of Santanders authority to foreclose on 44 Chestnut Street -- are barred by res judicata.
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Their argument is based on a 2009 Superior Court action that Bostwick filed against Santander (then known as Sovereign Bank) and Fannie Mae, in which he asserted, among other things, that Santander conducted a “wrongful foreclosure” on 44 Chestnut Street. Bostwick v. Sovereign Bank, 85 Mass. App. Ct. 1101 (2014). The judge in that case dismissed Bostwicks “wrongful foreclosure” claim on the ground that “there ha[d] been no foreclosure,” and we affirmed the dismissal on appeal. Id.
Given the disposition of the 2009 action, we conclude that res judicata does not preclude Bostwick from challenging Santanders authority to foreclose. “The term ‘res judicata’ includes both claim preclusion and issue preclusion.” Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). Santander and Fannie Mae appear to rely on claim preclusion, which has three elements: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Id., quoting DaLuz v. Department of Correction, 434 Mass. 40, 45 (2001). The third element is not met here because Bostwicks claim was not adjudicated on the merits in the 2009 action; it was dismissed as not ripe, i.e., for want of an actual controversy. This type of dismissal is not an adjudication on the merits giving rise to claim preclusion. See Bevilacqua v. Rodriguez, 460 Mass. 762, 780 (2011) (“dismiss[al] for lack of jurisdiction is not an adjudication on the merits,” and it is “inappropriate to attach preclusive effects to the dismissal beyond the matter actually decided -- the absence of subject matter jurisdiction”); Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 383 (2004), citing Restatement (Second) of Judgments § 26 comment c (1982) (“where formal barriers, such as limitations on subject matter jurisdiction, existed in first action, plaintiff is not barred from bringing those claims in subsequent action”).
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Issue preclusion is also inapplicable because the parties did not actually litigate in the 2009 action whether Santander had the authority to foreclose. See Kobrin, 444 Mass. at 844 (“Issue preclusion can be used only to prevent relitigation of issues actually litigated in the prior action”).
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We also reject the argument, to the extent made, that Bostwick is precluded from relitigating the question of ripeness itself. While no foreclosure had occurred when Bostwick initiated this action in 2015,
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that did not necessarily render his claim premature; he might still have had remedies, including a declaratory judgment, if he could demonstrate the existence of an actual controversy. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 835 (2015). Whether an actual controversy existed in 2015 is not the same question that was litigated years earlier in the 2009 action and is therefore not barred by issue preclusion. See School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518 (1946) (for there to be actual controversy, “the circumstances attending the dispute [must] plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation”).
Santander and Fannie Mae did not move to dismiss for want of an actual controversy, and there is no question that one now exists. This is because on April 29, 2016, just days after the first judge allowed Santanders and Fannie Maes motion to dismiss on res judicata grounds, Orlans conducted a foreclosure sale on behalf of Santander. Thus, because there is an actual controversy, and because Bostwicks challenge to the foreclosure should not have been dismissed as barred by res judicata, the case must be remanded for further proceedings.
We emphasize that the scope of the remand is limited to claims concerning the foreclosure. As best we can discern, Bostwicks claims under 42 U.S.C. § 1983 and the ADA are based on events that occurred during litigation of the 2009 action. We agree with Santander and Fannie Mae that these claims were correctly dismissed. The complaint contains no allegations plausibly suggesting that either Santander or Fannie Mae acted “under color of state law,” as is required to state a claim under 42 U.S.C. § 1983. See Appleton v. Hudson, 397 Mass. 812, 818 (1986). Similarly, the complaint does not plausibly allege that either defendant qualifies as a “public entity” under the ADA, see 42 U.S.C. §§ 12131-12132, nor does it suggest how either defendants actions during the 2009 litigation otherwise implicated the ADA.
3. Orlans. The complaints sole factual allegation against Orlans is that Santander, “through Orlans,” issued “a Land Court, Order of Notice against Bostwicks [p]roperty.” This is insufficient to establish a plausible right to relief, and so all claims against Orlans were correctly dismissed. See Iannacchino, 451 Mass. at 636.
4. Sims defendants. The claims against the Sims defendants were correctly dismissed as barred by claim preclusion. All of these claims appear to relate to deleading work that the Sims defendants performed at 44 Chestnut Street in 2001 and 2002. But the same deleading work was the subject of a previous complaint that Bostwick filed against the Sims defendants in 2004. After years of litigation and a seven-day jury trial, that action resulted in a judgment in the Sims defendants favor. Although Bostwick appealed from the judgment, the appeal was dismissed by this court for lack of prosecution.
Bostwicks current complaint, even construed liberally, raises no claims that survive the application of claim preclusion. The claims involve the same parties and derive from the same transaction (the deleading work) as those in the 2004 action, which resulted in a final judgment on the merits. As the requirements for preclusion have been met, see Kobrin, 444 Mass. at 843, all claims against the Sims defendants were correctly dismissed.
5. Barnard, Bates, and Gantt. The complaint raises numerous claims against Barnard, Bates, and Gantt, as officers or directors of the Classic Group, Inc. (Classic). As best we can discern, some of the claims assert violations of the automatic-stay provision of the Bankruptcy Code, 11 U.S.C. § 362, arising out of Classics bankruptcy filing in 2011. Other claims appear to be based on deleading work that Classic performed at 44 Chestnut Street in 2001 and 2002; the complaint alleges in particular that Classic did not have the required licenses or permits to perform that work.
The claims based on Classics bankruptcy filing were correctly dismissed because they are barred by issue preclusion. “The preclusive effect of a Federal court judgment is governed by Federal common law.” Alicea v. Commonwealth, 466 Mass. 228, 234 (2013). Under Federal common law, issue preclusion bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, whether or not the issue arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-749 (2001). Here, Bostwick commenced an adversary proceeding in 2012 in the United States Bankruptcy Court for the District of Massachusetts (bankruptcy court), naming Classic, Barnard, Bates, and Gantt as defendants, among others. Bostwick claimed that the defendants violated the automatic stay, but the bankruptcy court judge concluded that Bostwick “lack[ed] standing to pursue causes of action for violation of the automatic stay as the obligation to seek enforcement of the automatic stay ․ [is] vested in the Chapter 7 trustee.” The bankruptcy court judges decision was affirmed, first by a judge of the United States District Court for the District of Massachusetts, and then by the United States Court of Appeals for the First Circuit. Bostwick is thus precluded from relitigating the issue of whether he has standing to enforce the automatic stay. See Underwriters Natl Assur. Co. v. North Carolina Life & Acc. & Health Ins. Guar. Assn, 455 U.S. 691, 706 (1982) (issue preclusion applies to threshold jurisdictional issues). Accord National Assn of Home Builders v. Environmental Protection Agency, 786 F.3d 34, 41 (D.C. Cir. 2015).
The respective limitations periods bar Bostwicks claims for misrepresentation, fraud, breach of contract, breach of warranties, unjust enrichment, negligence, and negligent infliction of emotional distress, as well as his claims under G. L. c. 93A and the Massachusetts home improvement contractor law, G. L. c. 142A. The longest of these limitations periods is the six-year period that governs certain actions in contract. See G. L. c. 260, § 2.
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According to the complaint, Bostwick learned in November 2007 that Classic did not have the required licenses or permits for the deleading work it performed, and Bostwick sent Classic a G. L. c. 93A demand letter a month later. The limitations periods therefore began running in November 2007 at the latest. Because Bostwick did not file his complaint until September 2015, almost eight years later, these claims were correctly dismissed as time-barred.
The remaining claims assert violations of the Massachusetts lead poisoning prevention laws, 42 U.S.C. § 1983, and the ADA. Even assuming these claims were timely, they were correctly dismissed for failure to establish a plausible entitlement to relief. See Iannacchino, 451 Mass. at 636. Bostwick has no viable claim for damages or contribution arising out of any violation of the lead poisoning prevention laws, given the complaints assertion that “[no] children were ever living or visiting or harmed at Bostwicks [p]roperty.” See G. L. c. 111, § 199 (a) (“the owner of any premises shall be liable for all damages to a child under six years of age at the time of poisoning”). The complaint also fails to state a claim under 42 U.S.C. § 1983 because it does not plausibly allege that Barnard, Bates, or Gantt acted “under color of state law.” See Appleton, 397 Mass. at 818. Likewise, the complaint fails to state a claim under the ADA because it does not plausibly allege that any of these defendants qualify as a “public entity” under the ADA, see 42 U.S.C. §§ 12131-12132, or suggest how the ADA is otherwise implicated.
6. Commonwealth defendants. The complaint raises various civil rights claims against the Massachusetts Department of Public Health (DPH) and its employees, all of which stem from an administrative “[u]nauthorized [d]eleading” complaint that DPH issued to Bostwick in 2008. Bostwick alleges that he requested an adjudicatory hearing on the administrative complaint, but that DPH denied the request on the ground that, because “lead violations remain[ed] on [Bostwicks] property,” he was not entitled to a hearing pursuant to 105 Code Mass. Regs. § 460.900. As best we can discern, all of the claims against DPH and its employees are challenging that denial.
These claims were correctly dismissed as barred by claim preclusion. In 2010 Bostwick sued DPH and others in Superior Court, asserting a claim for judicial review of DPHs refusal to hold an adjudicatory hearing and seeking a declaration that 105 Code Mass. Regs. § 460.900 is unconstitutional. A judge allowed DPHs motion to dismiss, concluding that the regulation was “not unconstitutional as applied” and that Bostwick “ha[d] no present right to a hearing” because he did “not claim that his premises [was] free of lead.” Bostwick did not file an appeal. The judges dismissal order therefore became a final judgment on the merits. See Mestek, Inc. v. United Pac. Ins. Co., 40 Mass. App. Ct. 729, 731 (1996). As the requirement of identity or privity of parties is also satisfied, see DeGiacomo v. Quincy, 476 Mass. 38, 41 (2016); Giedrewicz v. Donovan, 277 Mass. 563, 569 (1931), the final judgment rendered in the 2010 action precludes Bostwick from relitigating his challenges to DPHs denial of a hearing.
Additionally, the claims for money damages against DPH and the DPH employees in their official capacities are barred by sovereign immunity. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 64 (1989); Laubinger v. Department of Revenue, 41 Mass. App. Ct. 598, 601-602 (1996). And to the extent Bostwick seeks damages from the DPH employees in their individual capacities, the complaints allegations fail to plausibly suggest that the employees individual actions violated Bostwicks constitutional rights. See Iannacchino, 451 Mass. at 636. Likewise, the complaints allegations do not plausibly suggest a violation of a “clearly established” constitutional right, as is necessary to overcome the employees assertion of qualified immunity. District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).
We construe the claims against the Middlesex Superior Court to be principally seeking money damages based on events that occurred in Bostwicks 2009 lawsuit against Santander and Fannie Mae and in his 2010 lawsuit against DPH. In particular, as best we can discern, the complaint alleges that Bostwicks disabilities -- emotional distress; depression; anxiety; inability to think, concentrate, and sleep; and physical impairments -- entitled him to some unspecified ADA accommodation at the summary judgment stage of the 2009 action. The complaint also alleges that the judge in the 2010 action violated Bostwicks civil rights by holding a motion to dismiss hearing, purportedly in violation of the automatic stay, and by not recusing himself.
The ADA claim was correctly dismissed for lack of factual allegations plausibly suggesting an entitlement to relief. The complaint sets forth no facts suggesting that Bostwick was “excluded from participation in or denied the benefits of [the Middlesex Superior Courts] services, programs, or activities or was otherwise discriminated against” by the judge in the 2009 action “by reason of [Bostwicks] disability.” Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000). Rather, the complaint alleges at most that Bostwicks disabilities made it difficult for him to oppose Santanders and Fannie Maes summary judgment motion in the 2009 action. Bostwick fully litigated that matter through appeal, however, including the question whether the judge should have continued the summary judgment hearing pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974).
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Even construing the complaint liberally, we conclude that its allegations are insufficient to state a viable claim under the ADA. See Iannacchino, 451 Mass. at 636.
The civil rights claims for damages were correctly dismissed under the doctrine of sovereign immunity. See Will, 491 U.S. at 64; Laubinger, 41 Mass. App. Ct. at 601-602. Injunctive relief, to the extent requested, was also unavailable because the Middlesex Superior Court is not a “person” within the meaning of 42 U.S.C. § 1983. See Will, supra; Lopes v. Commonwealth, 442 Mass. 170, 179-180 (2004). Moreover, even had Bostwick sued an individual court actor, the complaint contains no allegation of an ongoing constitutional violation; thus, it does not plausibly suggest an entitlement to prospective injunctive relief. See Papasan v. Allain, 478 U.S. 265, 277-278 (1986); Lopes, supra.
We construe the claims against this court to be seeking money damages for asserted violations of the ADA. In his reply brief, Bostwick objects to a panel of this court resolving these claims. In these circumstances we conclude that it would serve “the efficient administration of justice” to report this part of the appeal to the Supreme Judicial Court pursuant to G. L. c. 211A, § 12. Commonwealth v. Vasquez, 75 Mass. App. Ct. 446, 462 (2009), S.C., 456 Mass. 350 (2010).
7. Unknown defendants. The second judge denied Bostwicks motion to vacate the judgment of dismissal as to the unknown defendants, finding that Bostwick did “not ask[ ] for an extension of time to make service” and that there was “no good cause to extend time for service.” Bostwick has failed to demonstrate that this was an abuse of discretion. See McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 612 (2002), quoting Tai v. Boston, 45 Mass. App. Ct. 220, 224 (1998) (appellate court will not reverse denial of motion to vacate judgment “except upon a showing of a clear abuse of discretion”). The claims against the unknown defendants were therefore properly dismissed.
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Conclusion. So much of the judgment dated September 27, 2016, dismissing Bostwicks claims against Santander and Fannie Mae, to the extent they challenge the foreclosure on 44 Chestnut Street, is vacated. So much of the appeal from the judgment dated May 17, 2018, as concerns the Appeals Court is reported to the Supreme Judicial Court pursuant to G. L. c. 211A, § 12. The judgment dated July 11, 2017, as to the unknown defendants is amended to include dismissal of all claims against 44 Chestnut Street, Wakefield, Mass.; as so amended, the judgment is affirmed. The remaining judgments are also affirmed, and the matter is remanded for further proceedings consistent with this memorandum and order.
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So ordered.
Affirmed in part; vacated in part; remanded.
FOOTNOTES
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. We refer to the first amended complaint, filed on December 2, 2015.
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. A separate and final judgment entered as to Santander, Fannie Mae, and Orlans in September 2016, and as to the Sims defendants in October 2016. Bostwick timely appealed from those judgments, but in April 2017 a single justice of this court vacated the appeals, stating that they “may be re-entered upon the conclusion of all proceedings in the Middlesex Superior Court.” In July 2017 judgment entered as to the unknown defendants, and in May 2018 judgment entered as to the Commonwealth defendants, Barnard and Bates, and Gantt. Within ten days of the entry of the May 2018 judgment, Bostwick served a motion for relief from the judgment. That motion was denied on July 17, 2018, and Bostwick filed a timely notice of appeal on August 14, 2018. We deem Bostwicks August 14, 2018, notice of appeal to revive the earlier notices of appeal, consistent with the order of the single justice.
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. While the claims are nominally brought under the ADA and 42 U.S.C. § 1983, we construe the complaint, as the first judge did, to include a claim that Santander lacked the authority to foreclose on 44 Chestnut Street. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 835 (2015). This is consistent with how Santander and Fannie Mae have briefed their arguments on appeal.
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. In arguing otherwise, Santander and Fannie Mae point out that the judge in the 2009 action dismissed Bostwicks claim on summary judgment. But the case they cite, Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683 (1974), does not stand for the proposition that a summary judgment automatically operates as an adjudication on the merits. To the contrary, the court there acknowledged that, depending on the “characteristics of the type of summary judgment” entered, it may or may not “constitute a determination on the merits of a claim and a bar to subsequent proceedings involving the same parties and the same claim.” Id. at 692.
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. To the extent the complaint alleges that Santander had the obligation to remediate lead contamination and to offer Bostwick a loan modification, these issues were actually litigated in the 2009 action and cannot be relitigated. See Bostwick v. Sovereign Bank, 85 Mass. App. Ct. 1101 (2014).
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. In August 2015 Santander filed a complaint pursuant to the Servicemembers Civil Relief Act in the Land Court. Bostwick filed this action the following month.
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. See G. L. c. 260, § 2A (three-year statute of limitations for actions in tort); G. L. c. 260, § 5A (four-year statute of limitations for “[a]ctions arising on account of violations of any law intended for the protection of consumers”).
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. On appeal we rejected Bostwicks argument that the judge erred, stating that “[t]he judge continued the hearing at least once, and Bostwick ․ failed to identify any material fact that he might hope to uncover with additional time.” Bostwick v. Sovereign Bank, 85 Mass. App. Ct. 1101 (2014). Nowhere in his current complaint does Bostwick allege facts plausibly suggesting that the judge violated the ADA by not granting further continuances.
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. 44 Chestnut Street, Wakefield, Mass. was among the defendants on whom no service was made and thus should have been included in the judgment of dismissal under Superior Court Standing Order 1-88. Furthermore, 44 Chestnut Street, Wakefield, Mass. is not an entity that is capable of being sued. Accordingly, the judgment is amended to include dismissal of the claims against this defendant.
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. To the extent we have not specifically addressed any of Bostwicks arguments, we see nothing in them warranting relief.