MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS COMPLAINT
Paul D. Wilson, Justice
Plaintiff Benoit is a former employee of the Defendant City of Boston. Benoit recently resigned on the same day that he pleaded guilty to crimes he committed while performing his official duties. His resignation, he argues, entitles him to the resumption of workers' compensation payments that the City had been making before his indictment. In this Memorandum of Decision, I conclude that he is incorrect, and I dismiss this lawsuit.
The following facts are found in the Complaint, or in two decisions, described in more detail below, issued by the Department of Industrial Accidents and by Judge Giles of this court, respectively, in other litigation between these parties. I take these facts as true for purposes of a motion to dismiss. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008).
The Public Health Commission of Defendant City of Boston employed Benoit as a paramedic. In September 2011, Benoit filed a claim for a work-related injury, and the City made workers' compensation payments to him from September 5, 2011 until August 4, 2012.
Shortly thereafter, on October 31, 2012, Benoit was indicted by a Suffolk County grand jury on 73 counts of stealing controlled substances from city ambulances, adulterating the remaining controlled substances to hide his thefts, and leaving those adulterated medications in circulation for use on members of the public who received emergency care. The City suspended Benoit on November 8, 2012, eight days after his indictment.
Benoit filed a claim contesting termination of his workers' compensation benefits. In 2014, an Administrative Law Judge at the Department of Industrial Accidents (" DIA") issued a decision (the " DIA Decision") directing the City to pay workers' compensation benefits to Benoit. The DIA Decision did not mention the pending criminal charges, or the fact that Benoit was under suspension as a result. Believing that it could not pay workers' compensation to a suspended and indicted employee, the City did not comply with the DIA Decision, instead appealing it to a DIA review board.
That is where things stood on November 24, 2014, when Benoit filed an earlier lawsuit in this court entitled Benoit v. City of Boston, Civil Action No. 14-3686-B (the " First Lawsuit"). The City moved to dismiss the First Lawsuit. After a hearing, Judge Giles issued a Memorandum of Decision and Order dated February 5, 2015 (the " First Lawsuit Decision") dismissing the complaint. She reasoned that M.G.L.c. 268A, § 25 (" section 25") precluded enforcement of the DIA Decision because section 25 prevents the City from paying compensation, including specifically workers' compensation payments, to an employee while he is suspended and under indictment. Benoit has appealed the First Lawsuit Decision, and that appeal is still pending.
On August 5, 2015, exactly six months after Judge Giles issued the First Lawsuit Decision, Benoit pleaded guilty to one felony count and 17 misdemeanor counts. That same day, Benoit resigned his employment with the City.
On November 3, 2015, Benoit initiated this second lawsuit by filing a " Complaint Seeking a Short Order of Notice Enforcing the Decision and Order" of the DIA. After reviewing that Complaint, I scheduled a hearing to consider whether to issue the requested short order of notice, or whether to dismiss this lawsuit as duplicative of the First Lawsuit. The City then filed a motion to dismiss, to which Benoit responded. I held a hearing on December 8, 2015. In this Memorandum of Decision and Order, I will allow the City's motion to dismiss.
1. Pendency of a Prior Action
Mass.R.Civ.P. 12(b)(9) permits a court to dismiss a lawsuit based on " [p]endency of a prior action in a court of the Commonwealth." A court should dismiss a lawsuit if another pending action involves identical parties and issues. Harvard Cmty. Health Plan, Inc. v. Zack, 33 Mass.App.Ct. 649, 652, 603 N.E.2d 924 (1992). A lawsuit is pending within the meaning of Rule 12(b)(9) when a trial court decision in that lawsuit is on appeal. Keen v. Western New England Coll., 23 Mass.App.Ct. 84, 85, 499 N.E.2d 310 (1986).
The First Lawsuit is still pending, because the Appeals Court has not yet decided Benoit's appeal of the First Lawsuit Decision. Benoit argues, however, that this lawsuit raises different issues because two facts ...