Opposition Brief — Sullivan v. Choquette

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Supreme Court of the Anited Fi ried

Octoszr TzrM, 1969

No. 1345

JAMES D. SULLIVAN a

PETITIONER,

v.

EDWARD J. CHOQUETTE

HARVEY BEIT

JONATHAN G. WELLS ITI

and

T. FRANCIS KELLEHER,

RESPONDENTS.

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

Bensamin GotpMan

6 Beacon Street

Boston, Massachusetts 02108

Attorney for Respondents

Choquette and Kelleher

Joun F, Cocan, Jr.

28 State Street

Joun Kimpatt, Jr. Boston, Massachusetts 02109

Davip S. Mortexsen Attorney for Respondents

28 State Street Wells and Beit

Boston, Massachusetts

Of Counsel for Respondents

Wells and Beit

Bianchard Press, Inc.. Boston. Mass. — Law Printers

. -~-- “oe _——— =

Opinions Below

Jurisdiction

Argument

Conclusion

Appendices

CITATIONS

Cases

Acree v. Air Lines Pilots Assoc., 390 F.2d 199, 201 (5th

Cir. 1968)

Astron Industrial Assoc. v. Chrysler Motor Corp., 405

F.2d 958, 961 (5th Cir. 1968) 12, 13

Dangel v. Offset Printing, Inc., 342 Mass. 170 (1961) .. 14

Fiumara v. Sinclair Refining Company, 385 F.2d 395

(3d Cir. 1967) 12

Francis v. Crafts, 203 F.2d 809 (1st Cir. 1953), cert.

denied, 346 U.S. 835 (1953)

Francis v. Lyman, 108 F.Supp. 884, 885 (D.Mass.

1952)

Gabriel v. Borowy, 324 Mass. 231, 236 (1949)

Hubbard v. Beatty & Hyde, 343 Mass. 258 (1961)

Ledgehill Homes, Inc. v. Chaitman, 348 Mass. 777

(1964)

Index

Quaranto v. Silverman, 345 Mass. 423 (1963)

Ross v. Peck Iron & Metal Company, 264 F.2d 262,

268 (4th Cir. 1959)

Sullivan v. Choquette, 289 F.Supp. 780 (D.Mass.

1968), appeal dismissed, No. 7253, Feb. 12,

1969) 2, 8, 12, 14

Sullivan v. Choquette, Essex Superior Court, No. 139,

788 (filed Dee. 1, 1967; dismissed Oct. 14, |) a |

Sullivan v. Choquette et al., Mass. Supreme Judicial

Court for Essex County, No. 2663

Sullivan (Kimberly) v. Choquette, Civil Action No.

68-984-G (D.Mass. 1969, unreported)

Sullivan v. Kelleher, Civil Action No. 67-919-C (D.

Mass. 1968) 2, 7, 13

Sullivan v. Kelleher, 405 F.2d 486 (1st Cir.1968) .. 2,7,18

United States v. International Building Co., 345 US.

502, 504 (1953)

42 U.S.C. § 1983

I oh cactus tee sso Seed TANS .

42 U.S.C. § 1986

Mass. G. L. c. 260,§ 2A ...

Zn the

Supreme Court of the United States

Octoser Term, 1969

No. 1345

JAMES D. SULLIVAN,

PETITIONER,

Vv.

EDWARD J. CHOQUETTE

HARVEY BEIT

JONATHAN G. WELLS III

and

T. FRANCIS KELLEHER,

RESPONDENTS.

BRIEF IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

The Respondents oppose the petition and pray that a

writ of certiorari will not issue to review the judgment

of the United States Court of Appeals for the First Cir-

cuit, entered in the case of James D. Sullivan v. Edward--

J. Choquette et al., on December 30, 1969.

2

Opinions Below

The United States District Court for the District of

Massachusetts wrote a Memorandum of Decision and Or-

der of Dismissal granting respondents’ motions to dismiss.

That opinion has not been reported. It was not included

in petitioner’s Petition but is printed as Appendix A to

this brief.

The opinion of the United States Court of Appeals for

the First Circuit is reported at 420 F.2d 674. It is also

printed as Appendix B to this brief.

Companion Cases

This petition is the latest of a long series of actions

brought by petitioner against the respondents and others.

Petitioner has reproduced some but not all of these in the

Petition (p. 2). The complete list, which is relevant to an

understanding of the Petition and of this brief, is as

follows:

The District Court for the District of Massachusetts on

June 26, 1968 wrote an opinion allowing the respondent

Kelleher’s motion to dismiss on the ground of judicial

immunity. Sullivan v. Kelleher, Civil Action No. 67-919-C.

That opinion has not been reported.

The United States Court of Appeals for the First Cir-

cuit affirmed in an opinion reported in 405 F.2d 486. That

opinioa is printed at page 4a in the Appendices to the

Petition.

In a second action the United States District Court for

the District of Massachusetts granted the respondent

Wells’ motion for summary judgment. Sullivan v. Cho-

quette, Civil Action No. 67-961-C. The opinion is reported

in 289 F.Supp. 780.

The United States Court of Appeals for the First Cir-

cuit dismissed petitioner’s appeal on February 21, 1969

for lack of prosecution. Sullivan v. Choquette, No. 7253.

Jurisdiction

The judgment of the Court of Appeals was entered on

December 30, 1969. The jurisdiction of this Court is in-

voked under 28 U.S.C., Section 1254(1).

Statutes Involved

42 U.S.C. § 1983 Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, sub-

jects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. § 1985 Conspiracy to interfere with civil rights —

Preventing officer from performing duties

(1) If two or more persons in any State or Territory

conspire to prevent, by force, intimidation, or threat, any

person from accepting or holding any office, trust, or place

of confidence under the United States, or from discharg-

ing any duties thereof; or to induce by like means any

officer of the United States to leave any State, district, or

place, where his duties as an officer are required to be

performed, or to injure him in his person or property on ac-

count of his lawful discharge of the duties of his office, or

while engaged in the lawful discharge thereof, or to injure

his property so as to molest, interrupt, hinder, or impede

him in the discharge of his official duties ;

a

Obstructing justice; intimidating party, witness or

juror

(2) If two or more persons in any State or Territory

conspire to deter, by force, intimidation, or threat, any

party or witness in any court of the United States from

attending any such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to injure

such party or witness in his person or property on account

of his having so attended or testified, or to influence the

verdict, presentment, or indictment of any grand or petit

juror in any such court, or to injure such juror in his per-

soa or property on account of any verdict, presentment, or

indictment lawfully assented to by him, or of his being or

having been such juror; or if two or more persons conspire

for the purpose of impeding, hindering, obstructing, or de-

feating, in any manner, the due course of justice in any State

or Territory, with intent to deny to any citizen the equal

protection of the laws, or to injure him or his property for

lawfully enforcing, or attempting to enforce, the right of

any person, or class of persons, to the equal protection of

the laws;

Depriving persons of rights or privileges

(3) If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the pre-

mises of another, for the purpose of depriving, either di-

rectly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and im-

munities under the laws; or for the purpose of preventing

or hindering the constituted authorities of any State or

Territory from giving or securing to all persons within

such State or Territory the equal protection of the laws;

or if two or more persons conspire to prevent by force, in-

timidation, or threat, any citizen who is lawfully entitled to

5

vote, from giving his support or advocacy in a legal manner,

toward or in favor of the election of any lawfully qualified

person as an elector for President or Vice President, or

as a Member of Congress of the United States; or to in-

jure any citizen in person or property on account of such

support or advocacy; in any case of conspiracy set forth

in this section, if one or more persons engaged therein do,

or cause to be done, any act in furtherance of the object

of such conspiracy, whereby another is injured in his per-

son or property, or deprived of having and exercising any

right or privilege of a citizen of the United States, the

party so injured or deprived may have an action for the

recovery of damages, occasioned by such injury or depriva-

tion, against any one or more of the conspirators.

42 U.S.C. § 1986 Same; action for neglect to prevent

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section 1985

of this title, are about to be committed, and having power

to prevent or aid in preventing the commission of the

same, neglects or refuses so to do, if such wrongful act be

committed, shall be liable to the party injured, or his legal

representatives, for all damages caused by such wrongful

act, which such person by reasonable diligence could have

prevented; and such damages may be recovered in an ac-

tion on the case; and any number of persons guilty of such

wrongful neglect or refusal may be joined as defendants

in the action; and if the death of any party be caused by

any such wrongful act and neglect, the legal representatives

of the deceased shall have such action therefor, and may

recover not exceeding $5,000 damages therein, for the bene-

fit of the widow of the deceased, if there be one, and if

there be no widow, then for the benefit of the next of kin

of the deceased. But no action under the provisions of this

section shall be sustained which is not commenced within

one year after the cause of action has accrued.

6

Mass. G.L. c. 260,§ 2A Statute of Limitations.

Except as otherwise provided, actions of tort, actions of

contract to recover for personal injuries, and actions of

replevin, shall be commenced only within two years next

after the cause of action accrues.

Questions Presented

1. Did the Court of Appeals correctly hold that peti-

tioner’s complaint was barred by the statute of limitations?

9. Did the Court of Appeals correctly hold that peti-

tioner’s complaint, to the extent that it alleged a claim for

abuse of process, was barred by res judicata!

3. Did the Court of Appeals correctly hold that peti-

tioner’s complaint, to the extent that it alleged a claim for

malicious prosecution, failed to state a cause of action upon

which relief could be granted?

4. Did the Court of Appeals correctly hold that, since

petitioner without dispute received actual notice of the

pendency of a state court action, there was no constitutional

defect in the service of process so as to warrant a federal

court’s granting equitable relief from the effects of the

state court’s judgment?

Statement of the Case

Petitioner commenced this action in the United States

District Court for the District of Massachusetts on October

30, 1968. The Complaint purported to state claims for abuse

of process and for malicious prosecution. The complaint

also purported to state a claim under the Civil Rights Act

of 1871. 42 U.S.C. §1983, 1985 and 1986.

The respondent Kelleher was sued in his capacity as

Clerk of the District Court of Newburyport, Massachusetts.

The respondent Choquette was sued as the former lessor

7

to Sullivan of a house in Newburyport. The respondents

Wells and Beit are law partners in N ewburyport. No facts

were alleged pertaining to the respondent Beit except that

he was associated with Wells in the practice of law.

The District Court allowed motions to dismiss filed by

all respondents on May 27, 1969. See Appendix A hereto..

The petitioner appealed, and the United States Court of

Appeals for the First Circuit on December 30, 1969 affirmed

the decision below. See Appendix B hereto.

The complaint below was the latest of a long series of

actions brought in the federal courts by petitioner, pro se,

against the various respondents. A brief description of

those suits is essential to a description of this case, and to

respondent’s argument that the petition for certiorari

should be denied.

Plaintiff first sued respondent Kelleher for damages

for deprivation of petitioner’s constitutional rights in that

Kelleher, as clerk of the state court, allegedly entered a

default judgment against petitioner in an eviction action

with knowledge that legal notice of the suit had not been

properly given. The United States District Court for the

District of Massachusetts dismissed the complaint on June

26, 1968 on the ground of judicial immunity. Sullivan v.

Kelleher, Civil Action No. 67-919-C. The Court of Appeals

affirmed. Sullivan v. Kelleher, 405 F.2d 486 (1st Cir. 1968).

Petitioner also filed a petition for a writ of error in the

Superior Court for Essex County, Massachusetts on De-

cember 1, 1967, which was dismissed for lack of jurisdiction

on October 14, 1968. Sullivan v. Choquette, Essex Superior

Court No. 139,788. No appeal was ever taken from that

judgment. (See Court of Appeals Appendix, p. 133).

Petitioner also brought suit for abuse of process, mali-

cious prosecution, slander and breach of the lease of the

premises from which he had been evicted, against respon-

8

dents: Choquette and Wells and one Jean MacDonald. The

District Court on September 30, 1968: granted summary

judgment for the defendants.on all three counts. Sullivan

v. Choquette, 289 F.Supp. 780 (D.Mass. 1968), appeal dis-

missed for want of prosecution, No. 7253 (1st Cir., Feb. 21,

1969).?

The petitioner then instituted the present action, again

alleging abuse of process, malicious prosecution and vio-

lation of his civil rights.

There is presently pending in the Massachusetts Supreme

Judicial Court for Essex County a petition for a writ of

error, instituted by petitioner on February 7, 1970 — since

the time of the Court of Appeals decision here complained

of — against the respondent Choquette and the Justices

of the District Court of Newburyport, involving the same

subject matter. Sullivan v. Choquette et al., Supreme

Judicial Court for Essex County No. 2663.

- Through all of petitioner’s repeated suits against the

respondents, there has run a common, recurring thread of

allegations. In the case below petitioner alleged that he is a

resident of New Jersey; that in July 1965 he entered into a

written lease with the respondent Choquette for one year’s

occupancy of a house in ‘Newburyport; that in November

1965, while petitioner was absent from Massachusetts on

business, Choquette commenced an action -of eviction

against petitioner for non-payment of rent in ‘the District

Court of Newburyport, Massachusetts, and caused a four-

1 Petitioner has brought suit on behalf of his minor daughter against

the four respondents and MacDonald seeking to perpetuate the testi-

mony of some seventeen persons including respondents, in anticipation

of a tort action allegedly arising from events connected with the trans-

action at bar. On May 27, 1969 the District Court granted motions

by all defendants to dismiss that petition for failure to state a claim

and for failure to show, as required by Rule 27(a) (1), Fed. R. Civ. P.,

that petitioner was presently unable to bring or cause the cause of

action to be brought. Kimberly Sullivan v. Edward J. Choquette et al.,

Civil Action No. 68-984-G (D.Mass.).

teen-day notice to quit to be served upon petitioner; that

a Deputy Sheriff made service of the writ or summary

process (eviction) by leaving a copy of the writ at the

rented house,? which was the petitioner’s last and usual

place of abode and where petitioner’s wife found it; that

petitioner’s wife telephoned petitioner in Florida and

advised him of the pendency of the action; that petitioner

wrote to the Court from Florida stating thet he viewed the

service as improper and would accept service only by mail

at an address in California (Court of Appeals Appendix,

pp. 9, 30); that petitioner then returned to Massachusetts

and was physically present in Newburyport between De-

cember 14 and December 20, 1965; that the case was con-

tinued ; and that, the defendant having failed to answer or

otherwise appear in the case, the state court summary

process action terminated in a judgment for Choquette on

December 30, 1965 and the issuance of an execution for

petitioner’s eviction on January 7, 1966 (Court of Appeals

Appendix, pp. 9, 56-59). '

The complaint below also alleged that, on January 29,

1966, in exchange for a five-day extension, the petitioner,

-then represented by counsel, signed a written agreement

that he would voluntarily quit the premises within that

period ; and that the premises were in fact vacated by that

time (Court of Appeals Appendix, pp. 13-14).

The complaint is replete with additional allegations

which, in substance, sought to challenge the underlying

procedure in the District Court of Newburyport and which

describe unrelated and irrelevant events. No factual alle-

gations were addressed to actions of the respondent Beit

excepi broad charges of conspiracy.

? With each retelling, petitioner’s version of the story becomes

embellished. In Paragraph V of the Complaint (Court of Appeals

Appendix, P. 7) petitioner states that service was made by leaving

the notice “in the storm porch enclosure”. In his present petition

(P. 8) he for the first time says the notice was found “lying on the

front lawn of the premises”.

10

All four defendants filed motions to dismiss the com-

plaint, and the District Court granted all such motions

on May 27, 1969. See Appendix A. The District Court’s

decision was based on four separate grounds:

1. That the suit, whether in tort or for violation of

the Civil Rights Act, was barred by the statute of

limitations ;

2. That the suit was barred by the doctrine of res

judicata in view of judgments in several earlier

actions involving the same parties;

3. That the complaint failed to state a cause of action

upon which relief could be granted; and

4. That, as to the respondent Kelleher, the suit was

barred by the doctrine of judicial immunity.

In view of its decision the District Court, because of lack

of independent jurisdiction, did not rule on the respondent

Kelleher’s counterclaim for an order enjoining petitioner

from bringing additional suits arising from the transaction

at bar.

The Court of Appeals affirmed on December 30, 1969.

See Appendix B. This petition seeks to challenge that

decision.

Argument

This case is not appropriate for review by this court on

a petition for certiorari for several compelling reasons.

1. This case presents no important or significant quest-

ion of law to be resolved by this Court. The issues which

petitioner seeks to raise do not involve questions which

affect persons other than the litigants. The case, rather,

is uniquely confined to the narrow, factual allegations of

this particular litigation.

This is not a case involving a conflict between the

11

decisions of more than one circuit, nor does it concern a

ruling below which conflicts with a prior decision of this

court. No question of important constitutional dimension

is raised. The case, instead, involves comparatively clear-

cut issues as to the statute of limitations, judicial immunity

and the res judicata effect of prior decisions on the identi-

cal questions.

2. There is presently pending in the Massachusetts

Supreme Judicial Court for Essex County a petition for a

writ of error commenced by petitioner against the respon-

dent Choquette and others. That action involves an attack

against the lower state court proceeding from which

petitioner’s alleged grievance — underlying this action and

all his earlier actions — stems. It involves the same basic

challenge to the underlying state court action which petit-

ioner sought to raise in the lower federal courts, as indi-

cated by the statement in Paragraph II of the Complaint

that petitioner ‘‘is seeking a judgment equivalent to the

Massachusetts State Court ‘Writ of Error’, primarily’’,

and as buttressed by his assertion at page 18 of his brief

in the Court of Appeals:

‘These errors are only correctable by a Writ of Error

on the state latitude .”.. ””

Thus petitioner is now ‘having his day, once again, in the

state court, and this court with its crowded docket should

decline to hear this case.

In that connection, this court should also consider that

the present petition and supporting record are so cluttered

with vague and confusing material that an inordinate de-

mand would be placed on this Court were it to grant the

petition.

3. The decisions below were clearly correct, and were

based on several compelling grounds, any one of which

justifies this court’s declining to grant the petition.

12

(a). BES.JUDICATA. The courts below correctly

held that petitioner was barred from maintaining this

action against the respondents for abuse of process and

malicious prosecution by the res judicata effect of the

earlier proceeding in which essentially the same grounds

for relief were asserted against the respondents. In Sullivan

v. Choquette, 289 F.Supp. 780, 782-83 (D.Mass. 1968), the

district court ruled that these claims were insufficient as a

matter of law and entered judgment for the respondent

Wells.

‘A judgment is an absolute bar to a subsequent action

on the same claim.’ United States v. International Building

Co., 345 U.S. 502, 504 (1953). A judgment also serves as a

bar to later actions on the same claim against persons (in

this instance, respondent Beit) who were in privity with

the parties to the prior suit. Mendez v. Bowie, 118 F.2d 435,

440 (1st Cir. 1941). Thus the court below was correct in

ruling that the prior judgment barred this action insofar

as the complaint alleged abuse of process and malicious

prosecution.

The courts below likewise correctly held that the

prior judgment barred the allegations in this suit that

petitioner’s civil rights were violated. A prior judgment

serves as a bar to a subsequent suit which, although differ-

ing in form, is identical in substance. Astron Industrial

Assoc. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.

1968) ; see Fiumara v. Sinclair Refining Company, 385 F.2d

395 (3rd Cir. 1967). Some of the various tests advanced

for determining whether subsequent actions are identical

were outlined in Acree v. Air Line Pilots Assoc., 390 F.2d

199, 201 (5th Cir. 1968) : :

‘Js the same right infringed by the same wrong?

Would a different judgment in the second action

impair rights under the first judgment? Would the

same evidence sustain both judgments?’’

13

See Astron Industrial Assoc. v. Chrysler Motors Corp.,

supra, and cases therein: cited at 961-62. By any of these

tests, petitioner’s effort to breathe fresh air into his now

exhausted claim must fail. The courts below correctly held

that res judicata also barred the asserted claim of a cause

of action under the Civil Rights Act.

By the same token, the courts below properly held that

petitioner’s claims against the respondent Kelleher were

barred by the rulings that he was protected by the doctrine

of judicial immunity, as had previously been held in the

case of Sullivan v. Kelleher, Civil Action No. 67-919-C,

affirmed, Sullivan v. Kelleher, 405 F.2d 486 (1st Cir. 1968).

(b) STATUTE OF LIMITATIONS. The courts

below were clearly correct in ruling that this action was

barred by the statute of limitations.

The causes of action asserted against the respondents

sought recovery for abuse of process and for malicious

prosecution, both of which are torts under Massachusetts

law. Ledgehill Homes, Inc. v. Chaitman, 348 Mass. 777

(1964); Quaranto v. Silverman, 345 Mass. 423 (1963);

Hubbard v. Beatty ¢ Hyde, 343 Mass. 258 (1961). The

Massachusc' is statute of limitations applicable to actions in

tort, Mass. G.L. c. 260, §2A, establishes a limitation period,

absent specific exceptions not here relevant, of two years

after the cause of action accrues. The causes of action here

accrued, at ‘the atest, on February 4, 1966 — the last date

complained of in the complaint. Yet the complaint in the

present action was not filed until more than two years

later, on October 30, 1968. Accordingly, the district court

was correct in ruling that Mass. G.L. c. 260, §2A barred

so much of the complaint as alleged abuse of process and

malicious prosecution. —

Petitioner’s complaint also purported to assert a cause

of action under the Civil Rights Act of 1871. It is well-

settled, however, ‘that actions brought under the Civil

14

Rights Act are governed by the applicable state statute of

limitations. O’Sullivan v. Feliz, 933 U.S. 318, 322 (1914) ;

Francis v. Lyman, 108 F.Supp., 984, 885 (D.Mass. 1952),

affirmed sub nom. Francis v. Crafts, 203 F.2d 809 (1st Cir.

1953), cert. denied, 346 U.S. 835 (1953). Thus the district

court below correctly ruled that the two-year statute of

limitations of Mass. G.L. c. 260, §2A also barred any cause

of action under the Civil Rights Act.

(c) FAILURE TO STATE A CLAIM. The Court

of Appeals was clearly correct, as was the district court in

an earlier proceeding, Sullivan v. Choquette, 289 F.Supp.

780, 782 (D.Mass. 1968), in ruling that petitioner’s com-

plaint failed to state a cause of action for malicious prose-

cution. There is no allegation that the prior proceedings

terminated in a manner favorable to plaintiff, an indis-

pensable element of the tort. Dangel v. Offset Printing,

Inc., 342 Mass. 170 (1961).

Likewise, the courts below rightly held that the complaint

failed to state a cause of action for abuse of process, as had

another judge of the district court in the earlier decision of

Sullivan v. Choquette, 289 F.Supp. 780, 782-83 (D.Mass.

1968), for there was no allegation that the process here was

used for some ulterior motive other than that for which it

was intended. Gabriel v. Borowy, 324 Mass. 231, 236 (1949) ;

Noyes v. Shanahan, 395 Mass. 601, 605 (1950) ; Ross v.

Peck Iron & Metal Company, 964 F.2d 262, 268 (4th Cir.

1959).

The district court below was also plainly correct in

ruling that the case failed to state an actionable claim under

the Civil Rights Act.

The courts below were justified in ruling that the com-

plaint failed to state a claim based upon defects in service

of process. There has never been any dispute but that

petitioner here actually received notice of the pendency

of the state court action, or that he had in fact returned

15 ‘

to Massachusetts long prior to the entry of judgment

against him on December 30, 1965.

For this reason, the Court of Appeals was also clearly

correct in ruling thet petitioner’s case did not justify the

exercise of equitable jurisdiction to relieve petitioner from

the effects of the state court judgment.

Conclusion

For the reasons stated it is respectfully submitted that

the petition for a writ of certiorari should be denied.

May 6, 1970

BenJaMin GoLDMAN

Attorney for Respondents

Choquette and Kelleher

Joun F. Cocan, Jr.

Attorney for Respondents

Wells and Beit

16

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 68-983-G

Civil Action No. 68-983-G

JAMES D. SULLIVAN,

PLAINTIFF

v.

EDWARD J. CHOQUETTE ET AL.,

DEFENDANTS

MEMORANDUM OF DECISION

AND ORDER OF DISMISSAL

May 27, 1969

Ganarry, J. This case arises upon plaintiff’s complaint

against four individual defendants brought for the stated

purpose of effecting reversal of a writ of summary pro-

cess entered by the Newburyport District Court and for

damages allegedly arising from the fraudulent issuance

and procurance of the writ. The court presently has before

it various motions, including motions by each defendant

to dismiss the complaint and a motion by the plaintiff for

summary judgment on defendant Kelleher’s counterclaim

for an order enjoining plaintiff from bringing additional

suits arising from the transaction at bar.

The facts upon which this complaint is premised have

been before this court twice previously’ and are reported

in Sullivan v. Choquette, D. Mass., 1968, 289 F.Supp. 780.

For the purposes of consideration of the defendant’s

1 In Sullivan v. Kelleher, Civil Action No. 67-919-C, defendant's

motion to dismiss was allowed on June 26, 1968, on the ground that

defendant was judicially immune. The judgment was affirmed, Sullivan

v. Kelleher, 1 Cir., 1968, 405 F.2d 486.

In Sullivan v. Choquette, Civil Action No. 67-961-C, defendants’

motions to dismiss were allowed on September 30, 1968, reported at

289 F.Supp. 780. A docketed, No. 7253, 1 Cir., was dismissed

17

presently pending motions, the facts alleged by the resist-

ing party are, of course, assumed to be true.

I

Each defendant asserts multiple grounds in support of

his motion for dismissal. Since the motions must be grant-

ed, only some of these grounds need be specifically discuss-

ed by the court.

1. Statute of Limitations, All defendants have moved

to dismiss on the ground that the statute of limitations has

run. This suit, whether in tort or for violation of the Civil

Rights Act, 42, U.S.C. §§¢1983, 1985 and 1986, is governed

by the applicable Massachusetts statute of limitations. The

most analogous and applicable Massachusetts statute of

limitations is that of Mass. G.L. ¢. 260, §2A, which pro-

vides a two-year limitation for all but certain specified

actions which are not related to that at bar. Cf. Mulligan

v. Schlachter, 6 Cir., 1968, 389 F.2d 231, Henig v. Odorioso,

3 Cir., 1967, 385 F.2d 491, cert. den. 390 U.S. 1016, rehear-

ing den. 391 U.S. 929. Since the last of the defendants’ acts

complained of took place not later than February 4, 1966,

this suit, which was filed on October 30, 1968, is barred by

the statute of limitations.

2. Judicial immunity. Defendant Kelleher has moved

to dismiss on the ground of judicial immunity. All of

Kelleher’s acts which are complained of where acts within

the scope of his duties as clerk of the Newburyport District

Court. Kelleher is therefore immune from suit on the

ground of judicial immunity. Sullivan v. Kelleher, 1 Cir.,

1968, 405 F.2d 486.

3. Res judicata. Each defendant has moved to dismiss

on the ground of res judicata. The facts recited in the

complaint in this case are identical to those in two suits in

this court previously brought by plaintiff and dismissed.?

Each defendant in this case was a defendant in one of those

2 See footnote 1 above.

18

two cases except defendant Beit, who is joined here solely

as a law partner of defendant Wells and who is not alleged

to have otherwise been involved. The previous suit against

defendant Kelleher (C.A. No. 67 .919-G) was premised both

in tort and under the Civil Rights Act of 1871, as is this

case, and is therefore res’ judicata on all issues raised in

this case against defendant Kelleher. The previous suit

against defendants Choquette and Wells (C.A. No. 67-961-

C) was brought in tort with jurisdiction based upon divers-

ity of citizenship; that suit did not claim a cause of action

under the Civil Rights Act of 1871. To the extent that

plaintiff’s claim is in tort for malicious prosecution or

abuse of process, the judgment in that case (C.A. No. 67-

961-C) is res judicata since it involves the identical cause

of action and facts. Restatement of Judgments $50 (1942) ;

1B, Moore, Federal Practice, Para. 0.409(1) at 1005 (2nd

ed. 1965). Plaintiff’s claim against defendant Beit is barred

to the same extent that it is against defendants Choquette

and Wells by C.A. 67-961-C since his alleged involvement

in a malicious prosecution of abuse of process is no more

than derivative from that of defendant Wells. The remaind-

er of this suit, plaintiff’s claim under the Civil Rights

Act of 1871 that defendants Choquette, Wells and Beit

have by conspiracy prevented plaintiff from receiving due

process of law in courts of the Commonwealth of Massa-

chusetts, is of the same purport and substance as plain-

tiff’s prior suit for malicious prosecution and abuse of

process (C.A. 67-961-C) and therefore is also barred under

the doctrine of res judicata. See Mendez v. Bowie, 1 Cir.,

1941, 118 F.2d 435; see also 1B, Moore, Federal Practice,

Para. 0.409(1) at 1005-1008 and Para. 0.410(1) and (2) at

1151-1184 (2nd ed. 1965) ; Developments in the Law—Res

Judicata, 65 Harv. L. Rev. 826-828.

4. Failure to state a cause of action. Plaintiff’s com-

plaint alleges that the defendants have conspired and act-

19

ed under the color of law to deprive plaintiff of his civil

rights. ‘‘State proceedings do not become civil rights

matters by generalized, not to mention unsupported, alle-

gations... ’’ Ronan v. Stone, 1 Cir., 1968, 396 F.2d 502, 503.

There is in this complaint no statement of a claim as re-

quired by Fed. R. Civ. P. 8 to support plaintiff’s allegation

of a denial of his civil rights. Plaintiff’s complaint, there-

fore, fails to state a cause of action upon which relief may

be granted.

II

In view of the allowance of defendants’ motions to dis-

miss, the motion of defendant Wells to dissolve attachment

is granted, all other motions pending in this case are

denied, and defendant Kelleher’s counterclaim is dismissed

for want of independent jurisdiction. Cf. Strachman v.

Palmer, 1 Cir., 1949, 177 F.2d 427; see also United Mine

Workers v. Gibbs, 1966, 383 U.S. 715.

So ordered.

(s) W. Arruur Garrity, Jr.

United States District Judge

20

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 7404.

JAMES D. SULLIVAN,

PLAINTIFF, APPELLANT

v.

EDWARD J. CHOQUETTE,

JONATHAN G. WELLS III,

HARVEY BEIT

and

T. FRANCIS KELLEHER,

DEFENDANTS, APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Before Aupricu, Chief Judge,

McEwtee and Corrtn, Circuit Judges

James D. Sullivan pro se.

Benjamin Goldman for Edward J. Choquette et al., appellees.

David S. Mortensen, with whom John Kimball, Jr., and Hale and

Dorr were on brief, for Jonathan G. Wells et al., appellees.

December 30, 1969

Pzr Curt. This is an action for malicious prosecution,

abuse of process and for relief from a judgment of eviction

of the Newburyport District Court of Massachusetts.’ Our

given. That action was dismissed by the district court on grounds of

judicial immunity and we affirmed. Sullivan v. Kelleher, 405 F.2d

21

jurisdiction is invoked under the civil rights provisions, 28

U.S.C. $1343 (1964) and 42 U.S.C. §§1983, 1985 (1954), and

the diversity statute, 28 U.S.C. §1332 (1964). Plaintiff

appeals from the dismissal of his complaint by the district

court, for, inter alia, failure to state a claim upon which

relief can be granted. The essential facts are set out in the

district court’s opinion in Sullivan I, supra, note 1.

It is plain that an action for malicious prosecution will

not lie unless there has been a termination of the prior

proceedings in a manner favorable to the plaintiff. Dangel

v. Offset Printing, Inc., 342 Mass. 17 (1961); W. Prosser,

Torts §$113-14 (3rd ed. 1964). As the judgment of eviction

rendered by the state court still stands, plaintiff has no

cause of action unless relief is granted against that judg-

ment. Hence, we proceed to consider that aspect of the case.

Plaintiff claims that service of process in the eviction ac-

tion was constitutionally defective. that the state court

therefore did not have jurisdiction, and that we should

grant a ‘‘writ of error’’ to the state court, reversing or

vacating the judgment. While we do not have the power to

“annul, vacate, correct or otherwise alter the prior judg-

ment’’ of a state court, we do have equitable jurisdiction

to grant relief from the effects of such a judgment in an

appropriate casé.? 7 J. Moore, Federal Practice 60.36 (2nd

ed. 1968). This is not, however, such a case.

486 (1st Cir. 1968). He next brought suit for breach of the lease

of the premises from which he was evicted, abuse of process, and

slander against defendants Choquette and Wells and one Jean Mac-

Donald. The district court granted summary judgment for the de-

fendants on all three counts. Sullivan v. Choquette, 289 F.Supp 780

(D. Mass. 1968), appeal dismissed for want of prosecution, No. 7253

(1st Cir., Feb. 21, 1969) [hereinafter cited as Sullivan I].

To the extent that this action states a claim for abuse of process,

the district court was correct in dismissing it. Such a claim is plainly

concluded by the decision in Sullivan I as well as barred by the statute

of limitations, Moreover, the dismissal of the complaint as to defendant

Kelleher was clearly proper, as his immunity from suit was conclu-

sively determined by our decision in Kelleher, supra. :

2 Equitable relief against the state judgment, under some circum-

22

Service of process in the state case was made by leaving

the writ at the demised premises in accordance with Mass.

G.L.A. ch. 223, §31. Plaintiff received actual notice of

service from his wife, who informed him of the contents

of the writ over the telephone. In actions concerning rights

in property within the state, due process requires only that.

reasonable notice and an opportunity to be heard be afford-

ed. Mullane v. Central Hanover Bank & Trust Co., 339 US.

306 (1950); F. James, Civil Procedure §§12.1, 12.7, 12.11

(1965) ; Restatement of J udgments §32, comments a, f, and

g (1942); see Wagner v. Wagner, 293 F.2d 533 (D.C. Cir.

1961); Schultz v. Walker, 130 F.2d 907 (7th Cir. 1942).

While some commentators have expressed doubts as to the

constitutionality of service made by simply leaving process

at the last and usual place of abode, the doubts have con-

cerned the likelihood of the defendant not receiving actual

notice of the action. James, supra §12.11, at 650-51. Since

plaintiff in this case had actual notice, we find no defect

in the service of process. The district court was therefore

correct in dismissing this aspect of the complaint for failure

to state a claim and, since there has not been a favorable

termination of the state eviction proceeding, the court was

also correct in dismissing the malicious prosecution count.

Affirmed.

stances, could constitute a favorable termination of the prior

suit for purposes of ging an action for malicious prosecution. Since

we do not grant relief against the state judgment, however, we express

no opinion on the merits of this issue.