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Bostwick v. 44 Chestnut Street

United States District Court, D. Massachusetts

November 15, 2019

RICHARD D. BOSTWICK and RICHARD D. BOSTWICK as a CLASS OF ONE, Plaintiffs,
v.
44 CHESTNUT STREET, et al., Defendants.

          MEMORANDUM AND ORDER ON DEFENDANT LEONARD J. SIMS' MOTION FOR SUMMARY JUDGMENT

          BURROUGHS, D.J.

         Plaintiff 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 GRANTED.

         I. BACKGROUND

         A. Procedural History

         On 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].

         B. Factual Background

         As 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)).

         The 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.[1] 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.[2] 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].

         On June 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].

         Plaintiff 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].

         2. 2010 Action Against the Massachusetts Department of Public Health

         On May 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. [Id.].

         On 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.].

         3. 2015 Action Against Sims and Others

         On 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 ...


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