MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Raymond Wilson III, appeals from an order of a single justice of this court denying his motion to docket his appeal late. Discerning no abuse of discretion in the single justices determination that the plaintiff failed to show a meritorious case on appeal, we affirm.
1. Standard of review. An appellant who wishes to docket an appeal late must demonstrate excusable neglect and, except where the lateness was caused by failure to receive notice, “a showing of a meritorious case.” Howard v. Boston Water & Sewer Commn, 96 Mass. App. Ct. 119, 122 (2019), quoting Tisei v. Building Inspector of Marlborough, 3 Mass. App. Ct. 377, 379 (1975). A meritorious appeal is “one which is worthy of judicial inquiry because raising a question of law deserving some investigation and discussion.” Commonwealth v. Nash, 486 Mass. 394, 403 (2020), quoting Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979). We review for “an abuse of discretion or clear error of law.” Howard, supra at 123, quoting Commonwealth v. Springfield Terminal Ry. Co., 77 Mass. App. Ct. 225, 229 (2010).
2. Meritorious case. The single justice denied the motion solely on the ground that the plaintiff had not shown a meritorious case. In December 2018, the plaintiff filed a lawsuit in Superior Court against the defendant, EHVC, LLC, for medical malpractice and for releasing the plaintiffs medical records in response to a subpoena. On May 21, 2019, a Superior Court judge dismissed the complaint for failure to state a claim. Judgment entered the next day, and the plaintiff did not appeal. Instead, seven days later, the plaintiff filed a new lawsuit against the defendant alleging the same causes of action, on the expressed belief that the dismissal of the first lawsuit was not “with prejudice.”
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On October 10, 2019, a different Superior Court judge dismissed the lawsuit, explicitly without prejudice. Judgment entered on October 16, 2019, and again the plaintiff did not appeal.
On November 5, 2019, the plaintiff filed a third complaint alleging the same causes of action, which was dismissed on the grounds of res judicata. Res judicata, or claim preclusion, “requires 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.” Santos v. United States Bank Natl Assn, 89 Mass. App. Ct. 687, 692 (2016), quoting Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). Here, the parties and the causes of action are the same. “At least for res judicata purposes, ․ a dismissal under Mass. R. Civ. P. 12 (b) (6) is considered an adjudication on the merits.” Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 19 n.9 (2018).
The plaintiff provides no explanation why his third complaint was not properly dismissed on res judicata grounds, other than to call it “res judicata crap” and to assert that “[t]he judge did a bad job from the start of the first case.” The plaintiff, however, never appealed from the judgment in the first case or asked for permission to file an amended complaint in that case. He cannot sidestep these methods of remedying errors in the first case simply by filing a new action. See Howard, 96 Mass. App. Ct. at 124. Accordingly, the single justice acted within his discretion in denying the motion to docket the appeal late.
Order of single justice entered February 22, 2021, denying motion to docket appeal late affirmed.
FOOTNOTES
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. A dismissal for failure to state a claim operates as a dismissal with prejudice. Mass. R. Civ. P. 41 (b) (3), as amended, 423 Mass. 1406 (1996).