Cole v. Citibank, N.A.

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SJC-13517

JONATHAN S. COLE vs. CITIBANK, N.A.

February 26, 2024.

Supreme Judicial Court, Superintendence of inferior courts.

The petitioner, Jonathan S. Cole, appeals from a judgment

of a single justice of this court denying his petition pursuant

to G. L. c. 211, § 3. We affirm.

Cole is the defendant in a debt collection action in the

District Court. He moved to dismiss the complaint in that case,

and a judge denied the motion after a hearing. Cole subsequently

filed several additional motions. Among other things, he sought

to appeal from the denial of his motion to dismiss to a single

justice of the Appellate Division pursuant to G. L. c. 231,

§ 118A; he moved for the District Court judge who had denied the

motion to dismiss to recuse himself; and he filed a motion to

stay with a single justice of the Appeals Court. None of these

motions was successful.1 Cole then filed his G. L. c. 211, § 3,

petition in the county court, seeking a variety of relief,

including, among other things, dismissal of the debt collection

1 The petitioner's appeal to a single justice of the

Appellate Division was dismissed on the basis that relief

pursuant to G. L. c. 231, § 118A, was not available (i.e., that

the statute did not apply in the circumstances). As to the

motion to recuse, the District Court docket indicates that the

motion is moot, although there is no indication in the record as

to why. And, as to the motion to stay filed in the Appeals

Court, a single justice denied the motion essentially on the

basis that the motion was not properly before that court.

2

action, on the basis of "fraud on the court"; referral of

counsel representing the plaintiff in the debt collection action

to the Board of Bar Overseers, as well as a stay of any

proceedings in any Massachusetts court in which plaintiff's

counsel is involved on the basis that counsel is not registered

to conduct business in Massachusetts; and referral of the

District Court judge who denied Cole's motion to dismiss to the

Commission on Judicial Conduct. The single justice denied the

petition without a hearing.

Cole has now filed what appears to have been intended as a

memorandum and appendix pursuant to S.J.C. Rule 2:21, as

amended, 434 Mass. 1301 (2001). That rule, which applies here

only to the extent that Cole seeks relief from an interlocutory

ruling in the trial court, i.e., the denial of his motion to

dismiss, requires a showing that "review of the trial court

decision cannot adequately be obtained on appeal from any final

adverse judgment in the trial court or by other available

means." S.J.C. Rule 2:21 (2). Cole has not made, and cannot

make, such a showing. There is no reason why review of the

denial of Cole's motion to dismiss cannot adequately be obtained

on appeal from any final adverse judgment in the trial court.

See Foley v. Lowell Div. of the Dist. Court Dep't, 398 Mass.

800, 802 (1986) ("Where a petitioner can raise his claim in the

normal course of trial and appeal, relief will be denied").

Cole also claims that he has filed various motions in the

District Court that have not been docketed, and has included in

the record what appear to be copies of those motions with date

stamps from the District Court. It is difficult to discern from

the record, and from the District Court docket, whether those

motions have in fact been docketed, but if they have not, we see

no reason why not. We trust that if the motions were properly

filed, they will be properly docketed.2 Finally, to the extent

that Cole raises issues regarding plaintiff's counsel or the

District Court judge, the proper place to raise those issues is

not via G. L. c. 211, § 3. Rather, he might raise his concerns

with the Board of Bar Overseers or the Commission on Judicial

Conduct, respectively.

2 If there was in fact a basis for rejecting the

petitioner's motions, or declining to docket them, it would

behoove the clerk, and aid the appellate courts, to indicate any

such basis. See, e.g., Skandha v. Clerk of the Superior Court

for Civ. Business in Suffolk County, 472 Mass. 1017, 1019

(2015).

3

The single justice did not err or abuse her discretion in

denying relief under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by

a memorandum of law.

Jonathan S. Cole, pro se.