United States District Court, D. Massachusetts
RICHARD D. BOSTWICK and RICHARD D. BOSTWICK as a CLASS OF ONE, Plaintiffs,
44 CHESTNUT STREET, et al., Defendants.
MEMORANDUM AND ORDER ON DEFENDANT LEONARD J.
SIMS' MOTION FOR SUMMARY JUDGMENT
Richard D. Bostwick (“Plaintiff”) asserts various
claims including civil rights violations, breach of contract,
negligence, and fraud, among others, which allegedly stem
from the provision of deleading and related services at his
home in approximately 2001, subsequent foreclosure
proceedings, and decisions made by the Land Court, Middlesex
Superior Court, and the Massachusetts Appeals Court in
various civil suits surrounding ongoing issues at his
property. [ECF No. 1 (“Complaint” or
“Compl.”)]. Defendant Leonard J. Sims
(“Sims”) has moved for summary judgment on all
claims asserted against him on the grounds that they are
barred by res judicata, the statute of limitations, or the
statute of repose. [ECF No. 138]. For the reasons set forth
below, Sims' motion for summary judgment [ECF No. 138] is
December 6, 2017, Plaintiff filed the Complaint in this
action, which attaches and repeatedly references the first
amended complaint from a previous action filed in the
Superior Court for Middlesex County (“Superior
Court”) in 2015. See [Compl.; ECF No. 1-1]. On
March 26, 2018, Sims served an answer to the Complaint, which
he amended on March 29, 2018. [ECF Nos. 48, 52]. By March 27,
2019, all defendants other than Sims had been dismissed from
the action pursuant to Rule 12 motions or sua sponte
for lack of jurisdiction or failure to effect service of
process. See [ECF Nos. 80, 93, 109, 117-20, 122-23].
On March 27, 2019, the Court requested a joint status report
and a proposed schedule from Sims and Plaintiff. [ECF No.
124]. On June 10, 2019, Sims filed the instant motion for
summary judgment. [ECF No. 138]. On June 13, 2019, Plaintiff
filed a status report and proposed schedule. [ECF No. 142].
In receipt of Plaintiff's proposed schedule and Sims'
motion for summary judgment, the Court stayed discovery
pending resolution of the motion for summary judgment. [ECF
No. 143]. On July 30, 2019, Plaintiff opposed the motion for
summary judgment. [ECF Nos. 147, 148].
here, where the Plaintiff is proceeding pro se, the
Court holds Plaintiff's pleadings to “less
demanding standards than those drafted by lawyers and
endeavors, within reasonable limits, to guard against the
loss of pro se claims due to technical
defects.” Santiago v. Action for Bos. Cmty. Dev.,
Inc., No. 17-CV-12249-ADB, 2018 WL 5635014, at *2 (D.
Mass. Oct. 31, 2018) (quoting Dutil v. Murphy, 550
F.3d 154, 158 (1st Cir. 2008)).
following facts are either uncontroverted pursuant to Federal
Rule of Civil Procedure 56 and Local Rule 56.1 or stated in
the light most favorable to Plaintiff, the
non-movant. Because the Court has stayed discovery in
this action, the facts presented in the summary judgment
record concern prior litigation between the parties in
support of a claim of res judicata. The Court supplements its
recitation of the facts with court records of which it may
take judicial notice. See Maher v. Hyde, 272 F.3d
83, 86 n.3 (1st Cir. 2001) (“It is well-accepted that
federal courts may take judicial notice of proceedings in
other courts if those proceedings have relevance to the
matters at hand.” (quoting Kowalski v. Gagne,
914 F.2d 299, 305 (1st Cir. 1990)); see also Mandarino v.
Pollard, 718 F.2d 845, 849 (7th Cir. 1983) (concluding
that a district court may take judicial notice of a state
court judgment for res judicata). 1. 2004 Action Against
Sims Plaintiff owns a multi-family home at 44 Chestnut
Street in Wakefield, MA (“the Property”). [Compl.
¶ 1]. In 2001, Bostwick entered into a contract with
Sims to have work performed at the Property, which became the
subject of protracted litigation. [ECF No. 140 at 1- 2; ECF
No. 140-1 ¶ 4].
14, 2004, Plaintiff sued Sims and his businesses, Leonard J.
Sims Co., and Leonard J. Sims Custom Carpentry, in Superior
Court. See [ECF No. 140-6 at 4]. Plaintiff alleged a
violation of Massachusetts General Laws ch. 93A, § 9
(“Chapter 93A”), breach of contract, breach of
warranties, unjust enrichment, misrepresentation, and fraud
based on his claim that Sims improperly represented himself
or his businesses as qualified deleading experts who could
and did obtain the necessary permits for the deleading work
to occur at the Property. [ECF No. 140-1]. On February 14,
2008, Sims moved for summary judgment, which the court
allowed in part on May 14, 2009 after a hearing. See
[ECF No. 140-6 at 6-7]. The court allowed Sims' motion
for summary judgment as to Plaintiff's claims for breach
of warranty and unjust enrichment but denied the motion as to
the breach of contract, misrepresentation, and Chapter 93A
claims. [ECF No. 140-6 at 7]. On March 11, 2014, the breach
of contract and fraud claims were tried before a jury, and
the jury returned a verdict for Sims after a seven-day trial.
[ECF No. 140-3 at 3; ECF No. 140-6 at 18-19]. Plaintiff
reserved his Chapter 93A claim for the court, which found in
favor of Sims on that claim as well. [ECF No. 140-3 at 3].
The court then entered judgment in favor of Sims on all
counts. [ECF Nos. 140-2, 140-3].
appealed the jury verdict but noticed his “Voluntary
Dismissal of This Appeals Court Case” without filing an
appellate brief. [ECF No. 140-4 at 3; ECF No. 140-5]. After
Plaintiff filed this notice, Sims moved to dismiss the appeal
and the Appeals Court informed Plaintiff that it would
dismiss his appeal with prejudice if a motion for an
extension was not filed. [ECF No. 140-4 at 3-4]. Plaintiff
opposed Sims' motion to dismiss but did not comply with
the Appeals Court's order to request an extension for his
appellate brief. [Id.]. Therefore, the Appeals Court
dismissed his appeal with prejudice. [Id. at 3-4].
Plaintiff unsuccessfully appealed this dismissal to a single
justice of the Appeals Court. [Id. at 4].
2010 Action Against the Massachusetts Department of
30, 2008, Plaintiff submitted to the Massachusetts Department
of Public Health (“DPH”) a “Report and
Evidence of Unauthorized Deleading” at the Property by
Sims and the Classic Group. [ECF No. 149 at 26]. After an
August 2008 inspection, DPH notified Plaintiff by letter
dated August 21, 2008 that deleading activities had been
conducted without the required permits and that the Property
still had lead hazards. [Id. at 27]. On September 2,
2008, an unauthorized deleading complaint was filed against
the Property (“Deleading Complaint”), which
stated that DPH would not issue a “Letter of
Unauthorized Deleading” for the Property until
Plaintiff remediated the remaining lead hazards.
March 2, 2010, Plaintiff served DPH with a “Notice of
Claim for Adjudicatory Proceeding” concerning the
Deleading Complaint. [Id. at 28]. DPH denied the
request on April 12, 2010 and informed Plaintiff that
“[p]ursuant to 105 CMR 460.900, you are not entitled to
an adjudicatory hearing since as you know, lead violations
remain on your property . . . .” [Id. at 29].
On May 7, 2010, Plaintiff filed an action in Superior Court
against DPH, Sims, Sims' businesses, and others seeking
judicial review of this decision (“DPH
Litigation”). See Bostwick v. Dep't of Pub.
Health, No. 2010-1775 (Mass. Super. Ct.). On March 2,
2011, the Superior Court dismissed the complaint and entered
a declaratory judgment that “105 [C.M.R.] 460.900 is
not unconstitutional as applied to the facts of this
case” and “[t]hat the plaintiff has no present
right to a hearing, inspection or other relief from the
Department of Public Health or to include Leonard J. Sims or
The Classic Group, Inc. in any present claim against the
Department of Public Health.” [Id.].
2015 Action Against Sims and Others
September 4, 2015, Plaintiff filed an action in Superior
Court alleging claims against 20 defendants, including Sims
(“2015 Action”). See [ECF Nos. 140-7,
140-8]. The claims asserted in the 2015 Action substantially
mirror the claims brought in the action currently before the
Court. Compare [ECF No. 140-7], with
[Compl.]. On April 14, 2016, Sims moved for summary judgment
pursuant to the doctrine of res judicata. [ECF No. 140-8 at
10]. On May 26, 2016, the Superior Court granted Sims'
motion for summary judgment. [ECF No. 140-8 at 12; ECF No.
140-9]. The Superior Court ruled that the doctrine of claim
preclusion barred ...