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Barrow v. Barrow

United States District Court, D. Massachusetts

July 5, 2017

ANITA M. BARROW, Plaintiff,
v.
HERBERT A. BARROW, JR., et al., Defendants.

          MEMORANDUM AND ORDER ON DEFENDANT WILLIS'S MOTION TO DISMISS

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         This action arises out of the partition by sale of a property in Falmouth, Massachusetts, formerly owned by Emma Barrow, the mother of plaintiff Anita Barrow. Plaintiff is proceeding pro se.

         In her will, Emma Barrow granted a life estate in the Falmouth property to one of her daughters, Willinda Powell Gray. Anita, Willinda, and a third sibling named Herbert Barrow were devised equal shares of the proceeds from the sale of the property as remaindermen. Willinda occupied the property after Emma's death, but allegedly allowed the property to fall into a state of disrepair. Willinda also allegedly failed to pay the mortgage on the property, and took out a new loan, secured by the property, on which she subsequently defaulted.

         The property was ultimately sold for substantially less than its fair market value. Anita then filed this action, contending that her siblings and various other individuals-those allegedly involved in either the decline in the property's value or its ultimate sale-discriminated against her on the basis of race in violation of federal and state law. This Court has already granted the motions to dismiss of all other defendants named in this case. Defendant B. Grant Willis has now moved to dismiss the claims against him for the failure to state a claim upon which relief can be granted. For the reasons stated below, the motion will be granted.

         I. Background

         A. Factual Background

         The facts are set out fully in this Court's prior Memorandum and Order on Plaintiff's Motion for Lis Pendens, Plaintiff's Motion to Strike, and Defendants' Motion to Dismiss. (See Docket No. 58 at 2-5). As is relevant here, the facts are as follows.

         Anita Barrow is an African-American woman. (Compl. ¶ 33). Defendant Grant Willis is an attorney in Falmouth, Massachusetts, who represented Anita's mother, Emma Barrow, in preparing her will. (Id. at ¶¶ 64-65). The will devised Emma's property in Falmouth to her three children. (Id. at ¶ 33, 35, 48). The will granted Willinda Powell Gray-the half-sister of Anita and Herbert Barrow-a life tenancy in the property. The will further provided that upon Willinda's option or at her death, the property was to be sold, with the proceeds divided equally between Willinda, Herbert, and Anita or their issue. (Id. Ex. 2). She named Michelle Maldonado, Willinda's daughter, as executor of her estate. (Id. at ¶ 49).

         Following Emma's death, Willis represented Maldonado, as executor, in the probate of Emma's estate. (Id. at ¶ 5). The complaint alleges that Willis prepared and recorded in the Barnstable County Registry of Deeds an Executor's Deed, which was a “void instrument” that included “discriminatory provisions to the detriment of the Plaintiff.” (Id. at ¶¶ 52, 66). The complaint further alleges that Maldonado used the Executor's Deed to attempt to sell the property to SDSB Investment Group “to the detriment of Plaintiff, in a wasted condition for $385, 000.00 without the knowledge or consent of Plaintiff . . . .” (Id. at ¶¶ 52). The property was ultimately sold to Falmouth Realty Investments for $385, 261.14. (Id. at ¶¶ 19, 196).

         B. Procedural Background

         On July 18, 2016, plaintiff filed the complaint in this action. The complaint alleges that the twenty named defendants discriminated against her on the basis of her race in violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq. (Count 1); 42 U.S.C. §§ 1981, 1982, and 1983 (Count 2); and Massachusetts General Laws chapter 151B (Count 3). The complaint also asserts a number of state-law tort claims for breach of fiduciary duty (Count 4); waste (Count 5); and fraud (Count 6). It also asserts an action to quiet title (Count 7).

         On November 29, 2106, this Court granted the motions to dismiss of all other named defendants. On January 13, 2017, the Court entered a default as to defendant Willis, who, at that time, had not submitted either an answer or motion to dismiss. On February 15, 2017, plaintiff filed a motion for default judgment as to Willis. On April 12, the Court issued Willis an order to show cause why default judgment should not enter against him. On May 3, counsel entered an appearance on behalf of Willis and filed a response to the order to show cause and an opposition to the motion for default judgment. Willis demonstrated good cause why default judgment should not enter against him, stating that he has been in ill health and that the summons was served upon him when he was in the process (at age 75) of closing down his solo law practice and reviewing each client file in his office. On May 4, the Court set aside the earlier default entered against him and denied plaintiff's motion for default judgment.

         On May 25, 2017, defendant Willis filed a motion to dismiss the claims against him. For the reasons stated below, that motion will be granted.

         II. L ...


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