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Pellegrini v. Northeastern University

Superior Court of Massachusetts, Suffolk

October 16, 2018

Gerald N. PELLEGRINI
v.
NORTHEASTERN UNIVERSITY et al.

          ORDER REGARDING PLAINTIFF’S MOTION FOR RELIEF UNDER RULE 60(B) (DOCKET ENTRY NO. 46.0)

          Brian A. Davis, Associate Justice of the Superior Court

          This is an action for, inter alia, breach of the implied covenant of good faith and fair dealing, fraud, and violation of G.L.c. 93A arising out of damages purportedly suffered by plaintiff Gerald N. Pellegrini ("Plaintiff") as a result of the publication of an academic article that calls into question an energy conversion theory promoted by Plaintiff. The defendants are one of the co-authors of the article and the university at which he is employed as an assistant professor (collectively, "Defendants"). A thorough recitation of the factual background for Plaintiff’s claims against Defendants is contained in the Massachusetts Appeals Court’s decision in Pellegrini v. Northeastern Univ., 92 Mass.App.Ct. 1112 (Rule 1:28 decision), rev. den., 478 Mass. 1108 (2017) (the "Appeals Court Decision"), which affirmed this Court’s July 2016 decision and order granting summary judgment in favor of Defendants based on Plaintiffs’ failure to offer any admissible evidence of damages allegedly caused by Defendants’ actions. Familiarity with the Appeals Court Decision is presumed. Final judgment, after rescript, in favor of Defendants entered on January 5, 2018. See Docket Entry No. 45.0.

         The case is before the Court again on Plaintiff’s Motion for Relief Under Rule 60(b) (the "Motion for Relief"). See Docket Entry No. 46.0. Plaintiff argues, in essence, that the Court erred in granting summary judgment in favor of Defendants in July 2016 based on Plaintiff’s failure to offer any evidence of damages because discovery on the issue of damages had been delayed or "phased" by the Court until after the Court heard Defendants’ motion for summary judgment. Plaintiff further argues that counsel for Defendants engaged in fraudulent conduct by allegedly failing to inform either this Court or the Appeals Court of the court-ordered delay in discovery on the issue of damages. Plaintiff requests, as a result, that the Court vacate the final judgment entered in favor of Defendants under Mass.R.Civ.P. 60(b)(1) ("mistake, inadvertence, surprise, or excusable neglect") and/or Mass.R.Civ.P. 60(b)(3) ("fraud ..., misrepresentation, or other misconduct of an adverse party").

         The Court has carefully reviewed Plaintiff’s Motion for Relief. After consideration of the motion, as well as the other supporting materials submitted by Plaintiff, Plaintiff’s Motion for Relief is DENIED for the reasons summarized, briefly, below.

         Plaintiff’s Request for Relief under Rule 60(b)(1)

         "Motions for relief from final judgment [per Rule 60(b)(1) ] are commended to the judge’s discretion, and a judge’s decision will not be overturned, except upon a showing of a clear abuse of discretion." Adoption of Quan, 470 Mass. 1013, 1014 (2014) (internal quotation marks and citation omitted). Relief under Rule 60(b)(1) may be granted "not only [for] mistakes, acts or omissions [made] by the parties, but also [for] those [made] by the court." Chavoor v. Lewis, 383 Mass. 801, 805 n.3 (1981). In cases in which a "mistake" is alleged to have occurred, "the moving party bears the burden of justifying the motion ... and must make some showing of why he was justified in failing to avoid [the] mistake ..." Cullen Enterprises, Inc. v. Massachusetts Prop. Ins. Underwriting Ass’n, 399 Mass. 886, 894 (1987) (internal quotation marks and citations omitted). Relief under Rule 60(b)(1) generally is not available, however, "on the basis of intentional action by the moving party." Lavoie v. Charbonneau, 2002 Mass.App.Div. 90, 91 (May 7, 2002). As articulated by the Massachusetts Supreme Judicial Court ("SJC"), "[i]t would not be the exercise of sound judicial discretion to vacate a judgment merely to relieve a party from the consequence of intelligent or intentional carelessness or laxity ..." Russell v. Foley, 278 Mass. 145, 148 (1932).

          The purported "mistake" cited by Plaintiff in his Motion for Relief is, as previously noted, this Court’s alleged error in granting summary judgment in favor of Defendants on account of Plaintiff’s failure to offer any evidence of damages despite the fact that damage discovery previously had been delayed by the Court. The Court is not persuaded, in the first instance, that any mistake actually occurred given that a claimant in Plaintiff’s position normally can be expected to possess at least some evidence of his or her own damages without the need for discovery. But even assuming, arguendo, that the Court’s decision to hear and decide Defendants’ motion for summary judgment was mistaken, Plaintiff easily could have corrected that mistake by asking the Court to defer consideration of Defendants’ motion for summary judgment by filing an appropriate request and affidavit under Rule 56(f). See Mass.R.Civ.P. 56(f) ("Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just"). Plaintiff, however, did not do so for reasons known only to himself.[1] His undeniable "intelligent or intentional carelessness or laxity" in this regard is fatal to his request for relief under Rule 60(b)(1). Russell, 278 Mass. at 148.

         Plaintiff’s Request for Relief under Rule 60(b)(3)

         In order to obtain relief from judgment under Rule 60(b)(3) based on "fraud ..., misrepresentation or other misconduct of an adverse party," the moving party "must demonstrate such misconduct by clear and convincing evidence." U.S. Steel v. M. DeMatteo Const. Co., 315 F.3d 43, 53 (1st Cir. 2002). See also Mass.R.Civ.P. 60 Reporter’s Notes-1973 ("Since neither the fraud nor misrepresentation is presumed the moving party has the burden of proving by clear and convincing evidence that the alleged fraud or misrepresentation exists and that he is entitled to relief"). The SJC has made it clear in this context that "[a] party’s nondisclosure to an adverse party ... or to the court ... of facts pertinent to a controversy before the court, without more, does not amount to ‘fraud on the court’ for purposes of vacating a judgment under rule 60(b)." In re Paternity of Cheryl, 434 Mass. 23, 36 (2001).

         Plaintiff has failed to demonstrate any misconduct on the part of Defendants’ counsel that would warrant relief under Rule 60(b)(3) in the circumstances of this case. The fact that discovery had been phased certainly was no secret to the parties or to the Court. And even if it was not known, the SJC’s decision in In re Paternity of Cheryl, supra, makes it clear that defense counsel’s silence on the issue during motion practice is insufficient, by itself, to justify vacating the final judgment entered in favor of Defendants in January 2018.[2] Id.

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Notes:

[1] The Appeals Court expressly noted and commented on Plaintiff’s failure to submit a Rule 56(f) request in footnote 9 of the Appeals Court Decision, stating, "[i]n his written opposition to the defendant’s motion for summary judgment, at the prolonged hearing on the summary judgment motions, and in his motion for reconsideration, [Plaintiff] made no argument that summary judgment should be delayed in order to give him time to complete discovery on damages."

[2] Plaintiff’s Motion for Relief completely ignores the uncomfortable fact that, in responding to Defendants’ motion for summary judgment, Plaintiff also failed to disclose to the Court the fact that discovery had been phased. Thus, to the extent that Defendants’ failure to disclose can be deemed a "fraud" on the court, Plaintiff’s own ...


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