United States District Court, D. Massachusetts
ROBERT S. CABACOFF, Plaintiff,
JOHN FITZGERALD WILLIS, ESQ. Defendant.
MEMORANDUM OF DECISION
WILLIAM G. YOUNG DISTRICT JUDGE
Robert S. Cabacoff (“Cabacoff”) brings this
action for monetary damages against Defendant John Fitzgerald
Willis (“Willis”) for alleged misconduct arising
out of a foreclosure action in New Hampshire. The complaint
includes five claims: Intentional Misconduct (count 1), Abuse
of Process/Malicious Prosecution (count 2), Intentional or
Negligent Infliction of Emotional Distress (count 3), Breach
of Federal Rule of Civil Procedure 11 (count 4), and
Violation of Civil Rights (count 5). Compl. ¶ 2, ECF No.
1. On October 18, 2016, Willis moved to dismiss the
complaint, Def.'s Mot. Dismiss Compl., ECF No. 7. This
Court entered an Order dismissing the complaint with
prejudice on November 21, 2016. Order of Dismissal, ECF No.
19. This memorandum sets forth the analysis undergirding the
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must contain factual allegations,
“enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While Cabacoff's
pro se status holds him to a less stringent
standard, as “[a] document filed pro se is
‘to be liberally construed, '” Erickson
v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations
omitted), it nevertheless is not the job of the Court
“to ferret out the adequacy of a plaintiff's
pleaded allegations.” Foley v. Wells Fargo Bank,
N.A., 772 F.3d 63, 76 (1st Cir. 2014).
contends that Willis exhibited “intentional
misconduct” by representing Wells Fargo in its
attempted foreclosure on Cabacoff's property, despite
knowing that the mortgage instruments were unreformed. Compl.
¶ 30. The very premise, however, that Wells Fargo
engaged in illegal conduct in connection with Cabacoff's
mortgage, was repeatedly rejected by Judge Barbadoro in the
prior case, Cabacoff v. Wells Fargo Bank, N.A., No.
12-cv-56-PB, 2012 WL 5392545 (D. N.H. Nov. 5, 2012)
(dismissing entire complaint that alleged numerous violations
of law by Wells Fargo in connection with Cabacoff's
residential mortgage), aff'd No. 12-2344 (1st
Cir. Jul. 22, 2013), and therefore cannot be the basis for a
claim of misconduct. See also Cabacoff v. Wells Fargo
Bank, N.A., 14-cv-00345-PB (D. N.H. Dec. 12, 2014)
(dismissing all claims as barred by res judicata).
Abuse of Process / Malicious Prosecution
count 2, Cabacoff asserts a claim of abuse of process or
malicious prosecution, arguing that Willis's actions were
an “attempt to conceal wrongful foreclosure
improprieties.” Compl. ¶ 37. Under Massachusetts
state law, the tort of abuse of process requires that
“(1) ‘process' was used; (2) for an ulterior
or illegitimate purpose; (3) resulting in damage.”
Datacomm Interface, Inc. v. Computerworld, Inc., 396
Mass. 760, 775-76 (1986) (citations omitted). Furthermore,
“[t]o prevail on a claim for malicious prosecution, a
plaintiff must establish that he was damaged because the
defendant commenced the original action without probable
cause and with malice, and that the original action
terminated in his favor.” Hubbard v. Beatty &
Hyde, Inc., 343 Mass. 258, 261 (1961). Cabacoff
acknowledges that Willis was not involved in the over three
years of litigation prior to March 2, 2015. Accordingly,
Cabacoff has failed to allege any civil action initiated or
pursued for an illegitimate purpose by Willis, and thus he
has not adequately pleaded the essential elements of either
claim under count 2.
Intentional or Negligent Infliction of Emotional
next advances a claim for intentional or negligent infliction
of emotional distress. Compl. ¶¶ 42-46.
Massachusetts state law provides that in order to prevail on
a claim for intentional infliction of emotional distress, a
plaintiff must show: “(1) that the defendant intended
to cause, or should have known that his conduct would cause,
emotional distress; (2) that the defendant's conduct was
extreme and outrageous; (3) that the defendant's conduct
caused the plaintiff's distress; and (4) that the
plaintiff suffered severe distress.” Sena v.
Commonwealth, 417 Mass. 250, 263-64 (1994). A negligent
infliction of emotional distress claim requires: “(1)
negligence; (2) emotional distress; (3) causation; (4)
physical harm manifested by objective symptomatology; and (5)
that a reasonable person would have suffered emotional
distress under the circumstances of the case.”
Payton v. Abbott Labs, 386 Mass. 540, 577 (1982).
mere recitation of the elements in his complaint is
insufficient here. Cabacoff was merely on the losing side of
litigation and does not allege facts to suggest any more
invidious conduct by Willis. Losing a legal suit is an
unexceptional happenstance that is insufficient to establish
“that a reasonable person would have suffered emotional
distress under the circumstances, ” id., let
alone that the conduct was “extreme and outrageous,
” Sena, 417 Mass. at 264. Hence, Cabacoff has
failed to plead a cognizable claim for count 3.
Breach of Federal Rule of ...