MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff Jacques Mitri appeals from the dismissal of his complaint against the Holliston Police Department and one of its detectives, alleging violation of (1) a 2020 State eviction and foreclosure moratorium, (2) a 2020 Federal executive order providing assistance to renters and homeowners, and (3) a District Court order and agreement with a district attorney concerning a criminal case. We affirm.
Background. The plaintiffs complaint makes the following allegations. In February 2018, Holliston police officers served the plaintiff with a G. L. c. 209A abuse prevention order, obtained by his wife, requiring him to vacate his home. In December 2018, after his wife had moved out of the house, the restraining order was modified to allow him to return to the house, but only with permission of the then current property owner, a bank.
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In February 2019, the plaintiff noticed a sign at the property indicating that the house was for sale. When the plaintiff sought to enter the open house, the realtor who was showing the house called the police. Subsequently, the Holliston police served the plaintiff with a “Letter of Disinvitation (Trespass),” dated March 7, 2019, on behalf of the bank. In August 2019, the plaintiff noticed activity at the house, including his possessions being moved to a dumpster. He called the Holliston police for assistance, but he was instead arrested and criminally charged. He received a pretrial probation disposition, which required him to stay away from the property until July 2020.
Upon the termination of his pretrial probation, the plaintiff returned to the property to find that the locks had been changed. He called the Holliston police for assistance, but they sent him by ambulance to a hospital for a psychiatric evaluation.
Discussion. On appeal, the plaintiff contends that the judge erred in dismissing his complaint because the defendants failed to file an answer within twenty days as required by Mass. R Civ. P. 12(a)(1), 365 Mass. 754 (1974). The docket reflects that the defendants filed a notice of intent to file a motion to dismiss, pursuant to Superior Court Rule 9E. As the defendants properly filed a motion to dismiss, which was ultimately allowed, no answer was required.
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See Mass. R. Civ. P. 12(a)(2).
The plaintiff next contends that the appearances of the defendants’ counsel were wrongly filed and docketed. Although the record reflects that one attorney for the defendants was initially misidentified, the other attorney was properly identified and noted in the docket. Nor was a separate “appearance of counsel” required to be filed. See Mass. R. Civ. P. 11(b)(1), as amended, 456 Mass. 1401 (2010) (“The filing of any pleading, motion, or other paper shall constitute an appearance by the attorney who signs it, unless the paper states otherwise”). The fact that an attorney for the defendants who had signed the motion to dismiss, later filed a notice of appearance, does not in any way invalidate the properly filed motion to dismiss.
Finally, the plaintiff contends that the judge erred in dismissing his complaint because the decision was premised on the erroneous belief that the plaintiff had been evicted in 2015. Although the judge noted that the plaintiff had been issued a notice of eviction in 2015, the decision to dismiss the complaint was not grounded on the assumption that the plaintiff had been lawfully evicted. Rather, the judge dismissed the complaint for its “failure to state a claim for which relief may be granted.” See Mass. R. Civ. P. 12(b)(6).
Under Rule 12(b)(6), the plaintiffs factual allegations in the complaint must be “ ‘enough to raise a right to relief above the speculative level’ ․ What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief” (citations omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). After reviewing the three counts in the plaintiffs complaint, the judge determined that the plaintiff had failed to set forth claims for which he could be entitled to relief. We review the judges determination de novo. See Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012).
In count I of the complaint, the plaintiff alleges that the defendants violated the 2020 State moratorium on evictions and foreclosures. In general, the moratorium prohibited landlords and property owners from pursuing evictions, creditors and mortgagees from pursuing foreclosures of residential properties, and courts and law enforcement from assisting in these efforts. See St. 2020, c. 65, §§ 3 & 5. Yet, the factual allegations in the complaint do not establish that the defendants participated in foreclosing on his property or in evicting him from his home.
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Moreover, nearly all of the complained of conduct of the defendants took place before the moratorium was issued in April 2020. The only conduct of the defendants taking place while the moratorium was in effect was the police neglecting to assist the plaintiff, after the locks had been changed on the house, and instead sending him to a hospital for psychiatric evaluation. The complaint thus failed to establish that the defendants violated the 2020 state moratorium on evictions and foreclosures.
In count II of the complaint, the plaintiff alleges that the defendants violated a 2020 Federal executive order providing assistance to renters and homeowners. See Executive Order No. 13945 (August 8, 2020). The executive order set out a policy to minimize residential evictions and foreclosures through the provision of federal governmental financial assistance to renters and homeowners. Id. As with count I, the factual allegations largely predate the executive order and, in any event, they do not suggest that the defendants in any way violated the executive order. Moreover, the order itself provides that it does not create any rights enforceable in law or in equity against any person. Id.
Count III of the complaint simply asserts a violation of a Framingham District Court order and an agreement with a district attorney regarding a criminal case. None of the factual allegations in the complaint elucidate the nature of the order or agreement. Moreover, the complaint does not set forth any facts suggesting that the defendants are somehow responsible for violation of a court order or agreement with a district attorney.
Under the circumstances, the complaint failed to set out a claim for which relief could be granted in favor of the plaintiff.
Judgment affirmed.
FOOTNOTES
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. The plaintiff claims in his brief that a bank had foreclosed on the property in August 2011. Although the bank had obtained a judgment for possession after a summary process jury trial in December 2014, a district court judge granted Mitris motion for relief from judgment in December 2015. A. 86. See Aurora Loan Services, LLC vs. Mitri, Framingham District Court, No. 1449SU00411 (docket entry 49, December 18, 2015). Consequently, the plaintiff contends that he continued to reside in the premises until his February 2018 ouster, occasioned by the abuse prevention order.
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. Although the plaintiff moved to strike the motion to dismiss as untimely, the judge, within his discretion, determined that the plaintiff was not prejudiced.
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. The plaintiffs complaint describes a series of events where he was prevented from entering the premises due to restraining orders, no trespass notices, and terms of his probation; however the complaint does not allege that the defendants took part in any proceeding to foreclose or evict the plaintiff from his residence during the timeframe of the moratorium.