Gerald N. PELLEGRINI
NORTHEASTERN UNIVERSITY et al.
ORDER REGARDING PLAINTIFFâS MOTION FOR RELIEF UNDER
RULE 60(B) (DOCKET ENTRY NO. 46.0)
A. Davis, Associate Justice of the Superior Court
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 Plaintiffâs
claims against Defendants is contained in the Massachusetts
Appeals Courtâs 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 Courtâs July 2016
decision and order granting summary judgment in favor of
Defendants based on Plaintiffsâ failure to offer any
admissible evidence of damages allegedly caused by
Defendantsâ 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.
case is before the Court again on Plaintiffâs 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 Plaintiffâs 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 Defendantsâ 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").
Court has carefully reviewed Plaintiffâs Motion for Relief.
After consideration of the motion, as well as the other
supporting materials submitted by Plaintiff, Plaintiffâs
Motion for Relief is DENIED for the reasons
summarized, briefly, below.
Request for Relief under Rule 60(b)(1)
for relief from final judgment [per Rule 60(b)(1) ] are
commended to the judgeâs discretion, and a judgeâs 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 Assân, 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).
purported "mistake" cited by Plaintiff in his
Motion for Relief is, as previously noted, this Courtâs
alleged error in granting summary judgment in favor of
Defendants on account of Plaintiffâs 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 Plaintiffâs 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
Courtâs decision to hear and decide Defendantsâ motion for
summary judgment was mistaken, Plaintiff easily could have
corrected that mistake by asking the Court to defer
consideration of Defendantsâ 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. 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.
Request for Relief under Rule 60(b)(3)
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 Reporterâs 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] partyâs nondisclosure to an
adverse party ... or to the court ... of facts pertinent to a
controversy before the court, without more, does not amount
to âfraud on the courtâ for purposes of vacating a judgment
under rule 60(b)." In re Paternity of Cheryl,
434 Mass. 23, 36 (2001).
has failed to demonstrate any misconduct on the part of
Defendantsâ 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
SJCâs decision in In re Paternity of Cheryl, supra,
makes it clear that defense counselâs 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. Id.
 The Appeals Court expressly noted and
commented on Plaintiffâs failure to submit a Rule 56(f)
request in footnote 9 of the Appeals Court Decision, stating,
"[i]n his written opposition to the defendantâs 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
 Plaintiffâs Motion for Relief completely
ignores the uncomfortable fact that, in responding to
Defendantsâ motion for summary judgment, Plaintiff also
failed to disclose to the Court the fact that discovery had
been phased. Thus, to the extent that Defendantsâ failure to
disclose can be deemed a "fraud" on the court,
Plaintiffâs own ...