United States District Court, D. Massachusetts
MERRILL, LYNCH, PIERCE, FENNER & SMITH, INC., Interpleader Plaintiff,
KATHERINE FLANDERS-BORDEN, WILLIAM J. SHERRY, DAVID E. FLANDERS, KARYN S. BEEDY, and BRETT L. PETERSON, Interpleader Defendants, WILLIAM J. SHERRY, DAVID E. FLANDERS, KARYN S. BEEDY, and BRETT L. PETERSON, Crossclaim Plaintiffs,
KATHERINE FLANDERS-BORDEN, Crossclaim Defendant.
A. O'Toole, Jr. United States District Judge
crossclaim defendant, Katherine Borden, has moved for
additional time to file an opposition to the crossclaim
plaintiffs' motion for summary judgment. The crossclaim
plaintiffs have opposed the motion.
request for additional time is denied. First, I find
Borden's claim that she never received a copy of the
crossclaim plaintiffs' motion for summary judgment, filed
October 11, 2018, to be unconvincing. In response to
Borden's request for additional time, the crossclaim
plaintiffs assert that they sent a copy of the documents via
the United States Postal Service to the address provided by
Borden to the Court, where she has received prior mailings
from the crossclaim plaintiffs and the Court. The crossclaim
plaintiffs also filed an affidavit containing the United
States Postal Service tracking No. for the shipment, which
indicates that the parcel was delivered on October 15, 2018
at 3:15 p.m. (Aff. of Hilary S. Schultz, Attach. B.)
as previously stated in the Court's Order on July 9,
2018, “[t]he Court has heretofore given [Borden] some
leeway because of her pro se status. She should not rely on
such leeway in the future. Going forward, Ms. Borden must
comply with the applicable rules of procedure and orders of
the Court.” (Order 5, July 9, 2018 (dkt. no. 32).) I
added those statements because of Borden's repeated
refusal to comply with the deadlines set by the Court. During
the conference held on October 1, 2018, which Borden
participated in, I set the briefing schedule for the summary
judgment motion. The crossclaim plaintiffs' motion was
due October 15, 2018,  and Borden was specifically advised at the
conference that she had twenty-one (21) days from that date
to file an opposition. (Elec. Clerk's Notes, Oct. 1, 2018
(dkt. no. 42).)
also reviewed the motion for additional time and the
corresponding memorandum filed by an attorney, who filed an
appearance for Borden on November 28, 2018. This motion
argues that the lack of discovery conducted in this case
warrants an extension of time to file an opposition. The
attorney moved to withdraw her appearance on December 14,
2018, and her withdrawal was permitted. Borden remains
unrepresented by an attorney.
event, Borden is in possession of her father's medical
records, which she argues demonstrates that he lacked the
mental capacity required to execute the Transfer on Death
Before she withdrew, Borden's attorney submitted medical
records detailing Borden's father's medical treatment
in October and November 2015, as evidence of Mr.
Flanders' diminished mental capacity at that time.
However, there are no records that bear on his mental state
at the time he executed the TOD in March 2016, which is where
the Court's inquiry into his capacity is focused. See
Sparrow v. Demonico, 960 N.E.2d 296, 303 (Mass. 2012);
accord Wright v. Marjem Recovery, LLC, No.
13-CV-12058-TSH, 2014 WL 4274528, at *6 (D. Mass. Aug. 27,
2014) (quoting Sparrow, 960 N.E.2d at 303).
line of argument is also unpersuasive. Borden has been in
possession of these documents since at least March 2018
because she submitted many of the same records previously in
support of a motion to dismiss. (See Mot. to Dismiss
(dkt. no. 26).) Had she filed a timely opposition to the
summary judgment motion, she could have submitted the records
again or merely pointed to their presence in the record to
argue the existence of genuinely disputed material facts.
Although Rule 56 permits a court to allow a nonmoving party
to conduct discovery if that party “cannot present
facts essential to justify its opposition, ” Fed. R. of
Civ. P. 56(d), this provision does not apply in this instance
because Borden not only has been in possession of these
documents, but she actually had filed some in the past. She
could have included them in a timely filed opposition.
these reasons, Borden's request for an extension (dkt.
no. 52) is DENIED.
 Although the tracking information
indicates that the shipment was delivered to Lake Worth,
Florida based on the zip code 33467, that zip code is also
used for addresses in Wellington, Florida. (Aff. of Hilary S.
Schultz ¶ 4 (dkt. no. 49).)
 The crossclaim plaintiffs filed their
motion for summary judgment on October ...