Opposition Brief — Davis v. Lauria

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JUN 16 1999

No. 98-1867

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In The seis

Supreme Court of the United States

FRED DAVIS,

Petitioner,

ANTHONY LAURIA,

Respondent.

On Petition For Writ Of Certiorari

To The Massachusetts Supreme Judicial Court

+

BRIEF IN OPPOSITION

Georce R. Sustak

Counsel of Record

STANTON & LANG

P.O. Box 1080

200 Broadway

Lynnfield, MA 01940

(781) 595-1440

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

RESPONDENT’S OBJECTIONS

TO THE QUESTIONS

PRESENTED FOR REVIEW

The Petitioner, in his writ of Certiorari, has presented

seven (7) issues for this Court to review. Respondent

maintains that none of the questions presented merits this

Court’s review. Issues II, IV, V, VI and VII do not even

mention a federal question or a constitutional issue.

Those purported issues that at least mention the Consti-

tution (i.e., Issues I and III) do so in such an unspecified,

incomprehensible manner that no “compelling reason”

for review by this Court - as stated in Rule 10 of the

United States Supreme Court Rules — is even remotely

presented.

Importantly, the Massachusetts Appeals Court held

that “principles of res judicata preclude the plaintiff from

asserting that there was no settlement of this action by

our decision in Davis v. Hanover Ins. Co., 40 Mass.App.Ct.

1127 (1996), cert. denied, 117 S.Ct. 685 (1997), and thus

retransfer to the Superior Court would be futile” [see

App. 24].

Therefore, and regardless of Petitioner’s strained and

contrived issues, there was an independent and entirely

state-based foundation for the state disposition of this

case. “If the state court decision indicates clearly and

expressly that it is alternatively based on bona fide sepa-

rate, adequate, and independent grounds, we, of course,

will not undertake to review the decision.” Michigan v.

Long, 463 U.S. 1032, 1041 (1983); quoted in Caldwell v.

Mississippi, 472 U.S. 320, 327 (1985).

More specifically, the Petition, on its face, fails to

identify any “important federal question” or “important

—— COU

il

RESPONDENT’S OBJECTIONS

TO THE QUESTIONS

PRESENTED FOR REVIEW - Continued

question of federal law”, within the meaning of said Rule

10(b) or (c):

1. In Issue I, Petitioner makes a virtually

unintelligible argument about some amorphous

“Constitutional Rights” of the “disabled, partial

disabled, pro se litigants and minorities”. Even

if these issues were properly raised and argued

in the Petition, they would not be properly

before this Court since that was not the issue

before the state courts and that issue, quite

properly, was not passed upon by those courts.

2. In Issue II, Petitioner makes an even

more unintelligible and incoherent argument

presumably concerning “stealing monies from

the petitioner”. The Petitioner has failed to iden-

tify what specific statute is to be reviewed by

this Court and by what authority this Court

could review the matter. Further, this issue was

not raised before either the Massachusetts

Appeals Court or the Massachusetts Supreme

Judicial Court. Lastly, Petitioner’s vague allega-

tions, such as they are, are directed at Hanover

Insurance Company and its counsel, neither of

whom are parties to this action. Despite Peti-

tioner’s inclusion of Hanover Insurance Com-

pany as a defendant on the cover sheet to his

Petition to this Court, Hanover is not and never

has been a party to this action, nor has its coun-

sel, George R. Suslak (“Suslak”).

3. In Issue III, Petitioner makes what

appears to be a “due process” argument con-

cerning what he suggests was “an incorrect

docket sheet entry”. Petitioner alleges that the

docket sheet inaccurately noted that his claim

iil

RESPONDENT'S OBJECTIONS

TO THE QUESTIONS

PRESENTED FOR REVIEW - Continued

had settled. Petitioner denies having ever set-

tled the underlying tort claim against Mr. Lau-

ria. Even if this were true (which Respondent

vigorously disputes below), by the time the

issue was raised, the Massachusetts Appeals

Court had confirmed that the settlement was

valid, which rendered Petitioner’s argument in

this case “futile” under state principles of res

judicata [see App. 24]. Thus, there is no federal

or constitutional question appropriate for

review by this Court.

4. In Issue IV, Petitioner makes essentially

the same argument as in Issue III — ie., that

“petitioner was not notified by the court that his

action was reported settled”. This issue is not

appropriate for review by this Court for the

same reasons noted above.

5. In Issues V and VI, Petitioner makes

vague allegations against Hanover Insurance

concerning alleged violations of M.G.L. c. 93A

(the Massachusetts Consumer Protection Act)

and M.G.L. c. 19A, § 14 (defining what is “finan-

cial exploitation” of the elderly). Even if there

were a scintilla of a basis for these allegations

(which there clearly is not), they are merely

interpretations and applications of state law

which raise no “important federal question of

law” appropriate for review by this Court.

6. In Issue VII, Petitioner makes scurrilous

and unfounded allegations concerning George

R. Suslak (hereinafter “Suslak”). Suslak is not,

iv

RESPONDENT’S OBJECTIONS

TO THE QUESTIONS

PRESENTED FOR REVIEW - Continued

and never has been, a party to this action. Nev-

ertheless, any issue of alleged attorney miscon-

duct in a state court proceeding is not an

appropriate matter for review by this Court.

LIST OF PARTIES TO THE PROCEEDINGS

Fred Davis is the plaintiff in this matter. The only

defendant is Anthony Lauria.

All orders and decisions of the Massachusetts Courts

have (properly) listed the defendant in this matter as

“Anthony Lauria” [App. 1; App. 11; App. 22; App. 24;

and App. 36], despite Petitioner’s unceasing attempts to

list Hanover Insurance as a Respondent in this matter

[see cover sheet to Petitioner’s Brief; pgs. 3, 6, 9-10 of

Petitioner’s Brief; and App. 26 attached hereto]. Also, as

noted above, Suslak never has been a defendant in this

matter, despite Petitioner’s constant references to him

[see Petition, pgs. 1, 3, 4, 6, 8, 11-12].

vi

TABLE OF CONTENTS

Page

Respondent's Objections to the Questions Presented

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List of Rnlenasted POSUGie<csvcveccssvcatveueeneevas Vv

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Table of Authorities .................. re Vili

Citations to Opinions and Orders.................. 1

Concise Statement of Jurisdiction .................. 1

Constitutional and Statutory Provisions Involved... 2

Concise Statement of the Case..............seeeee- 2

Summary Of the Argument ....:ssccscssccseseseces 6

Argument for Denial of Petition ................... 7

I. Issue I — Petitioner Did Not Raise This Issue At

The State Court Level; Petitioner Has Not Com-

plied With Supreme Court Rule............... 10

II. Issues Il, V and VI - These Issues Raise No

Federal Question; The State Court Has Already

Applied Res Judicata Against Petitioner On

TRGOS TOMNGs vc ccccvesestenrucsusveunweunnaes 11

Ill. Issue III — This Issue Has Been Waived Because

Petitioner Did Not Raise It At The State Court

Level; Petitioner Had Actual Notice........... 12

Vii

TABLE OF CONTENTS - Continued

Page

IV. Issue IV - Mere Errors In State Court Decisions

Are Not Reviewable By This Court; Nor Is

Alleged Misconduct By An Attorney For A Party

V. Issue VII - The Attorney Is Not A Party To These

Proceedings; This Court Has No Jurisdiction

Relating To The Conduct Of Attorneys In State

Court Proceedings; Sanctions Should Be Entered

Against Petitioner. .......-.cccccecccceccccsces 16

Nh i a ae cea e aw ie 17

Appendix Table of Contents ...............-.00005. i

viii

TABLE OF AUTHORITIES

Page

CASES

Adams v. Robertson, 520 U.S. 83 (1997)................ 9

Caldwell v. Mississippi, 472 U.S. 320 (1985)............. i

Davis v. Hanover Ins. Co., 40 Mass.App.Ct. 1127

RRR Sie ST ae een aS pee na 11

Davis v. Hanover Ins. Co., 423 Mass. 1104 (1996)..... 11

Davis v. Lauria, 46 Mass.App.Ct. 1112 (1999).......... 1

Edmondson v. Leesville Concrete Co., 500 U.S. 614

SER HGR chesheesee Paha aneedns CasetananureeKes 13

Griffin v. Powers, 1 Mass.App.Ct. 846 (1973) ......... 15

Holmes v. Fitchburg & Leominster, Street Railway,

et Se, Se Eo Gnd ota unndes bob deuensaeseces 14

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ..... 13

Michigan v. Long, 463 U.S. 1032 (1983)............+4.. 6

Reich v. City of Freeport, 388 F.Supp. 953 (N.D.IIl.

PUES 0 6 ob.ke reek eked a6 ceCKk dab ée ed Neavevctidecéwas 15

Siegel, Petitioner, 309 Mass. 553 (1941)............--. 14

Street v. New York, 394 U.S. 576 (1969) ...........-4-. 9

Whitaker v. Superior Court of California, 514 U.S. 208

Es 06000 04.0005 5 00 0kGGs soe NNNeKe dan ceedwecontees 17

ix

TABLE OF AUTHORITIES — Continued

Page

STATUTES

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RULES

United States Supreme Court Rules, Rule 10(b)...11, 15

United States Supreme Court Rules, Rule 10(c)...11, 15

United States Supreme Court Rules, Rule 14......... 1

Massachusetts Rules of Civil Procedure, Rule 5(b).... 14

A rt bit

RN ea 6 Cn RS ae Se

CITATIONS TO OPINIONS AND ORDERS

ENTERED IN THIS CASE

Superior Court Order on Defendant’s Motion to

Vacate Retransfer to Superior Court; entered in

Suffolk Superior Court No. SUCV90-00408-C;

unreported; see App. 22.

Davis v. Lauria, 46 Mass.App.Ct. 1112 (1999);

unreported Memorandum of Decision at App.

24.

Davis v. Lauria, Massachusetts Supreme Judicial

Court denial of Further Appellate Review

Application; unreported; see App. 36.

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CONCISE STATEMENT OF JURISDICTION

Petitioner states that “[t]his Court’s jurisdiction is

invoked under 28 United States Code” [Petitioner’s Br., p.

2]. This assertion of jurisdiction is overly vague and does

not comply with Rule 14(1)(e) of the United States

Supreme Court Rules. It is assumed that the Petitioner is

claiming that this Court has jurisdiction over this matter

pursuant to 28 U.S.C. § 1257(a), however, § 1257(a)

applies, at best, only to Issue III.

Regarding Petitioner’s Issue I, although he has made

some vague allegation about due process and equal pro-

tection, he has not even identified which constitutional

provisions he is referring to, nor has he indicated

whether he is referring to the United States or to the

Massachusetts constitution.

Petitioner’s Issues II, IV, V, VI and VII do not even

remotely resemble the types of questions identified in

§ 1257(a) that call for review by this Court.

Although Petitioner’s Issue III invokes United States

Constitution Amendments V and IV, he provides no indi-

cation as to how those provisions are implicated. Also,

there are other compelling reasons, set forth below, why

this Court should refuse to accept jurisdiction over this

issue.

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

There are no federal statutory provisions involved in

this matter. The only United States Constitution provi-

sions noted by Petitioner are:

Amendment Article V. “No person shall . . . be

deprived of . . . property without due process of

law”.

Amendment Article XIV. “[NJor shall any state

deprive any person of... property, without due

process of law, nor deny to any person... the

equal protection of the laws.”

®

CONCISE STATEMENT OF THE CASE

This is now the third time that this Petitioner has

sought relief from this Court in this and directly related

matters. See United States Supreme Court Docket Nos.

96-640 and 96-1074.

In its most simplified form, the instant matter merely

presents a state law related procedural question: under

Massachusetts law, is a party entitled to a retransfer of a

matter from the Boston Municipal Court to the Suffolk

Superior Court more than six (6) years after the matter

has been reported settled, and after an Appeals Court

opinion which has confirmed the settlement of the mat-

ter?

The case stems from a 1987 motor vehicle accident

between the Petitioner, Fred Davis (“Petitioner”), and

Anthony Lauria, who was insured under an automobile

insurance policy by Hanover Insurance Company

(“Hanover”). Petitioner brought his action against Lauria

in the Suffolk County Superior Court. Under Massa-

chusetts law, the case was remanded to the Boston Munic-

ipal Court (“BMC”) for trial. The case was reported

settled by the parties on October 9, 1991 [See App. 5], and

a “NISI order” entered the same day, indicating, in effect,

that the case would be dismissed as to all claims on

November 12, 1991.}

A settlement for $20,000 was arrived at between Peti-

tioner’s lawyer (Robert Adams) and Hanover. Prior to

consummation of the settlement, it was discovered that

Petitioner’s prior lawyer (Stuart Ravech) had served the

parties with a notice of attorney’s lien [see App. 5]. At

that point, appropriately so and in accordance with Mas-

sachusetts law, Hanover insisted that any settlement draft

include the name of Petitioner’s prior lawyer (Ravech).

1 The 30-day Nisi period expired on November 19, 1991

(which was a Saturday), and the following Monday (November

11) was a holiday.

Petitioner then refused to accept the settlement funds and

has since filed a series of frivolous lawsuits and appeals

in an attempt to obtain the settlement proceeds while

escaping the attorney’s lien. Hanover’s position in this

matter (essentially that, under Massachusetts law, it had

an obligation to protect the attorney’s lien) has been

vindicated at every turn.

Petitioner then brought an action in Norfolk County

Superior Court directly against Hanover alleging breach

of the settlement agreement, unspecified violations of

M.G.L. c. 93A, and unintelligible and unspecified viola-

tions of Petitioner’s rights as a senior citizen. Hanover

moved for summary judgment on the issue of its obliga-

tion to honor the attorney’s lien. The motion for summary

judgment was allowed “in its totality” by the trial court

[App. 37]. That ruling was upheld at the Appeals Court

{[App. 39], and at the Supreme Judicial Court [App. 40].

Certiorari was denied by this Court in 96-640 [App. 41],

as was Petitioner’s Motion for Rehearing [App. 42].

The Norfolk County Superior Court decision is cen-

tral here because that summary judgment held that there

was no breach of the settlement agreement by Hanover -

and it is that holding which formed the basis for the

Appeals Court’s application of res judicata principles to

the instant case [see App. 24]. Thus, the Appeals Court, in

the instant matter, was merely holding that Petitioner

cannot resurrect an already decided issue. Further, and as

noted above, the decision by the Appeals Court in the

instant case, based on principles of res judicata, provides

the “separate, adequate, and independent grounds” for

the state court disposition which effectively precludes

review by this Court.

While that matter was pending, Petitioner filed a com-

plaint in the United States District Court for the District of

Massachusetts (Civil Action No. 95-11837MLW) against

Hanover and its Chairman of the Board, alleging various

state and federal constitutional violations as a result of

Hanover’s insistence that it honor the attorney’s lien. Peti-

tioner also alleged that the Superior Court judge and Hano-

ver’s attorney would not allow the record to be assembled in

the original case, thereby depriving him of his right to

appeal. This complaint was dismissed by the District Court,

on Hanover’s Motion to Dismiss [App. 43]. This dismissal

was upheld by the First Circuit Court of Appeals [App. 47];

and this Court denied Petitioner’s Petition for a Writ of

Certiorari [App. 49] and then denied a motion for rehearing

[App. 50].

It was at this point that Petitioner sought to revive

the original lawsuit filed against Lauria (that had been

reported settled in 1991). He first sought to remove the

original dismissal of that action in the BMC [App. 9]. This

Motion was denied [App. 11]. After the matter had been

inadvertently retransferred to the Superior Court, defen-

dant filed a Motion to Vacate that Retransfer [App. 13],

and Petitioner filed an Opposition to that Motion [App.

18]. The Suffolk Superior Court allowed defendant's

motion to vacate retransfer [App. 22]. The Petitioner

appealed the Superior Court Order. The Massachusetts

Appeals Court entered a Memorandum and Order affirm-

ing the Superior Court [App. 24]. The Petitioner sought

leave to obtain further appellate review from the Massa-

chusetts Supreme Judicial Court [App. 26], and this

Application was denied [App. 36].

It is from this proceeding that Petitioner now seeks

review in this Court on a Writ of Certiorari.

¢

SUMMARY OF THE ARGUMENT

Within the meaning of Michigan v. Long, 463 U.S.

1032, 1041 (1983), there were “separate, adequate, and

independent grounds” to support the state court decision

in this matter, which precludes this Court from review of

same.

Petitioner’s Issues II, IV, V, VI, and VII do not involve

federal or constitutional questions at all. The other Issues

(I and III) raise no important federal question.

The case merely involves a narrow procedural ques-

tion of state law concerning whether a party may revive a

retransfer of a case back to the Superior Court six years

after the case was reported settled. Further, the vague

constitutional questions that Petitioner seeks to invoke

were never raised or decided at the state court level.

Regarding Issue I, Petitioner has not identified any

question appropriate for review by-this Court.

Regarding Issues II, V and VI, Petitioner raised issues

that: (1) lie, if at all, against Suslak and Hanover Insur-

ance, neither of whom are parties to this case; and (2)

have been resolved against Petitioner in at least two

other, separate actions.

Regarding Issue III, Petitioner never raised this issue

before the state courts; it does not involve any important

question of federal law; and Petitioner had full and

7

proper notice of all proceedings before the Massachusetts

courts.

Regarding Issue IV, Certiorari is not appropriate

merely for alleged errors by state courts in their deci-

sions; nor is it appropriate for resolving alleged miscon-

duct by attorneys.

Regarding Issue VII, Petitioner’s incessant personal

attacks on Suslak are blatantly untrue; they are not

appropriate for resolution by this Court; and petitioner

should be admonished not to bring any further action

against Lauria, Hanover or Suslak in the federal courts

which springs from the same series of events that under-

lie the instant matter.

ARGUMENT FOR DENIAL OF PETITION

This particular case is, in its essence, a procedural

matter. It involved the singular question whether Peti-

tioner had the right to obtain a retransfer of this matter to

the Superior Court some six (6) years after the matter was

reported settled by the parties. As noted above, the val-

idity of that settlement has been upheld by every court to

which this issue was presented, including this Court

[App. 38-42]. Whether the Superior Court properly

vacated the retransfer of this claim is the only true issue

in the instant case, yet this issue has been entirely

ignored by the Petitioner throughout this appellate pro-

cess.

ee ea © 2

Under Massachusetts law (M.G.L. c. 231, § 102C), a

request for a retransfer “shall be filed with the clerk of

the district court within ten days after notice of the

finding or decision”. The Suffolk County Superior Court

quite properly vacated the retransfer, holding that “[t]he

[Petitioner’s] right to obtain that retransfer ended on

November 22, 1991, i.e., ten days after the case was

dismissed in the Boston Municipal Court on November

12, 1991” [App. 22]. That Court Order further noted that

“plaintiff cannot revive this old case by seeking retransfer

many years after it’s [sic] life ended, and the right to

claim retransfer ran out in the Boston Municipal Court”

[ibid.]. The case, therefore, presents no federal question

appropriate for this Court’s review.

Additionally, the Petitioner’s purported constitu-

tional questions, which he now attempts to raise in his

[ssues I and III, were never even tangentially raised at the

trial court, at the Appeals Court or at the Supreme Judi-

cial Court of Massachusetts, despite the fact that the

Petitioner now acknowledges that he was aware of the

issue (i.e., the entry of the report of settlement) while the

matter was still at the Boston Municipal Court [see Peti-

tioner’s Brief, p. 8].

The following is a verbatim STATEMENT OF THE

ISSUES PRESENTED FOR REVIEW taken from Peti-

tioner’s Brief to the Massachusetts Appeals Court:

1. The court erred in vacating retransfer to

the Superior Court.

2. The acts and practices of the defendant,

Hanover Insurance Company were unfair and

deceptive within the meaning of M.G.L. c. 93A.

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3. The court erred in not placing punish-

ment against the defendants for violation [sic]

Massachusetts General Laws Chapter 19A § 14,

‘Financial Exploitation’ against an elderly per-

son.

4. The court erred in not placing Sanctions

Against George R. Suslak For Telling Falsehoods

to the Court.

Thus, the only issues which could even remotely

invoke this Court’s jurisdiction (Petitioner’s Issues I and

Ill) were not raised or decided in the state court. “If the

question was not so presented, then we have no power to

consider it.” Street v. New York, 394 U.S. 576, 582 (1969).

When a petitioner does not raise his constitutional issues

below, and when the state courts do not address those

issues, they will not be considered by the Supreme Court

on Certiorari. Yee v. Escondido, 503 U.S. 519, 533 (1992);

Adams v. Robertson, 520 U.S. 83 (1997). It is abundantly

obvious that Petitioner has only lately contrived his fed-

eral constitutional issues in an attempt to bestow some

federal jurisdiction upon what has always been strictly

and singularly a state court matter.

Lastly, none of Petitioner’s purported substantive

issues (concerning Chapter 93A and Chapter 19A, § 14, of

the Massachusetts General Laws) were even addressed by

the state courts in this matter at any level since they were

all immaterial to the underlying nature of the case — i.e.,

whether Petitioner had a right to revive this matter under

the procedural rules of the Commonwealth of Massa-

chusetts. The purported substantive issues were not

appropriate for determination in this matter; and they

were all raised, and decided against Petitioner, in other

10

cases in which he did raise them. Petitioner has had his

day in court on each of the collateral issues which he

inappropriately tries to inject into this case.

ISSUE I

Petitioner Did Not Raise This Issue At The

State Court Level; Petitioner Has Not Com-

plied With Supreme Court Rule 14

As noted above, neither Issue I nor Issue III was ever

raised by Petitioner at any level of the state court pro-

ceedings.

Substantively, in Issue I, Petitioner makes some

overly vague allegations concerning the constitutional

rights of “the disabled, partial disabled, pro se litigants,

and minorities” [Petitioner’s Br., p. 5]. Petitioner clearly

has not complied with the requirement of Supreme Court

Rule 14 by stating concisely the question presented for

review, nor has he identified what the Respondent has

done to violate his rights. In those circumstances, it is not

possible for Respondent to present coherent rebuttal.

Petitioner complains of how certain “individu-

als ... are being treated by the Massachusetts Courts and

judges” [Petitioner’s Brief, p. 6]. Yet the defendant in this

case is a private party. This is, therefore, not the proper

forum for raising those issues.

_e

11

ISSUES II, V and VI

These Issues Raise No Federal Question; The

State Court Has Already Applied Res Judicata

Against Petitioner On These Issues

As with Issues IV and VII, these Issues raise no

“important federal question” appropriate for resolution

by this Court, within the meaning of Rule 10(b) and (c) of

this Court. They relate to strictly state court matters.

Additionally, this is another abuse of the judicial

system by Petitioner utilizing a back-door attempt to

have this Court review, again, matters that have already

been resolved against Petitioner all the way through this

Court. This is no less than Petitioner’s third attempted

bite at this same apple.

Neither Suslak nor Hanover Insurance Company are

parties to this instant matter. Petitioner did, in fact, bring

a separate and direct action against Hanover Insurance

Company, alleging this very conduct by Hanover (and

commencing his unwarranted and scurrilous personal

attacks upon Suslak) (Norfolk Superior Court No.

93-00574). That matter was resolved in favor of Hanover

on its Motion for Summary Judgment [App. 37-38]. That

Judgment was affirmed by the Massachusetts Court of

Appeals [App. 39; and see, Davis v. Hanover Insurance

Company, 40 Mass.App.Ct. 1127 (1996)]. The Supreme

Judicial Court of Massachusetts denied a request for Fur-

ther Appellate Review [App. 40; and see, Davis v. Hanover

Insurance Company, 423 Mass. 1104 (1996)]; and this Court

denied a similar request for Certiorari [App. 41], and

Reconsideration [App. 42].

12

In September of 1997, Petitioner brought another

complaint in the Norfolk County Superior Court (No.

97-01716) alleging precisely the same issues [App. 51].

That matter was resolved in Hanover’s favor on a Motion

to Dismiss [App. 54], on the basis of res judicata [App.

56-63]. That matter is currently before the Massachusetts

Appeals Court, and there is every reason to believe that

the lower court judgment will be affirmed.

Thus, the facts which Petitioner alleges against Hano-

ver were resolved against Petitioner first in Norfolk

Superior No. 93-00574; and again in Norfolk Superior No.

97-01716. These are the same arguments that Petitioner

tries to raise again in Issues II, V, and VI of this Petition.

Petitioner has already had his day in court on these

issues, and they have been resolved against him on each

and every such occasion.

It is also to be noted that Petitioner was admonished

in that case not to bring any further complaints against

Hanover on these issues [A. 62]. Hanover asks that this

Honorable Court enter a similar admonishment to Peti-

tioner that he not be permitted to enter any complaint or

request for Certiorari in the Federal Courts against Hano-

ver, Lauria or Suslak based on the same series of facts as

alleged in the instant Petition.

ISSUE Ill

This Issue Has Been Waived Because Petitioner

Did Not Raise It At The State Court Level;

Petitioner Had Actual Notice

As noted above, neither this Issue, nor Issue I, was

ever raised at any level of the state court proceedings.

13

Petitioner’s argument on Issue III fails to identify any

“important federal question” or “important question of

federal law”, within the meaning of Rule 10(b) or (c) of

the United States Supreme Court Rules. This Court

should not review the judgment of a state court “except

where a substantial federal question is involved”. Reich v.

City of Freeport, 388 F.Supp. 953, 955 (N.D.IIl. 1974), aff'd

527 F.2d 666 (1976). In the instant matter, Petitioner has

failed to identify any such important or substantial fed-

eral question.

Petitioner’s due process argument here apparently is

that he never received notice of the thirty-day nisi order

entered in the trial court in October of 1991 [see Peti-

tioner’s Brief, p. 7).

Petitioner does not define how federal concepts of

due process and equal protection are implicated here.

Further, if the Petitioner is complaining of action or

inaction by the court or its officers, they are not defen-

dants in this matter.

If the Petitioner is complaining of action or inaction

by the Respondent, it is clear that the Respondent is a

private party. Only actions taken under the color of state

law are implicated in Fourteenth Amendment cases. Flagg

Brothers, Inc. v. Brooks, 436 U.S. 149, 156 (1978); Lugar v.

Edmondson Oil Co., 457 U.S. 922 (1982). “[CJonstitutional

guarantees of individual liberty and equal protection do

not apply to the actions of private entities.” Edmondson v.

Leesville Concrete Co., 500 U.S. 614, 619 (1991).

As to the substance of Petitioner’s argument here, he

has acknowledged that he “learned of this entry when he

14

filed his Motion For Scheduling Trial Date and Plaintiff's

Motion to Amend Complaint” [Petitioner’s Brief, p. 8].

This occurred at the BMC, and before retransfer to the

Superior Court. Yet in neither PLAINTIFF’S MOTION TO

REMOVE DISMISSAL JUDGMENT filed at the BMC

[App. 9], nor in PLAINTIFF’S MOTION IN OPPOSITION

TO VACATE RETRANSFER TO SUPERIOR COURT filed

at the Superior Court [App. 18], did Petitioner even raise

an issue of notice to him. Nor did he raise that issue

before the Appeals Court or the Supreme Judicial Court

of Massachusetts.

Petitioner also fails to note for this Court that, at the

time when settlement was reported to the court, he was

represented by counsel who participated in the report of

settlement on behalf of Petitioner and was given notice of

all proceedings. Indeed, if Petitioner had raised this issue

properly before the trial court, Respondent would have

been able to obtain the testimony of the lawyer who

represented Petitioner at the time, in order to confirm

proper notice at all stages. It is well-settled in Massa-

chusetts law that notice to a party’s counsel of record is

sufficient. Siegel, Petitioner, 309 Mass. 553 (1941); Holmes v.

Fitchburg & Leominster Street Railway, 347 Mass. 313,

318-319 (1964); Rule 5(b) of the Massachusetts Rules of

Civil Procedure.

Also on this precise issue, when the Boston Munici-

pal Court denied Petitioner’s Motion to Vacate the Dis-

missal which had occurred in 1991, the court noted that

“[nJotice of this order was sent to the parties on October

9, 1991” [App. 11]. That Order further noted that the case

was to be automatically dismissed in thirty days (as of

November 12, 1991).

15

Lastly, it is to be noted that the one case relied upon

by Petitioner in support of his position — Griffin v. Powers,

1 Mass.App.Ct. 846 (1973) — is precisely the same case

that the Superior Court relied upon to allow Respon-

dent’s Motion to Vacate the Retransfer [see App. 22].

Thus, there is no support in the law for the Petitioner's

position.

ISSUE IV

Mere Errors In State Court Decisions Are Not

Reviewable By This Court; Nor Is Alleged

Misconduct By An Attorney For A Party

Petitioner is plainly wrong when he states in his

heading to Issue IV that “Certiorari should be granted

when the inferior courts erred in its decisions” [Peti-

tioner’s Brief, p. 7]. The inferior courts in this instance

were the state courts of Massachusetts. Rule 10(b) and (c)

of this Court make it clear that Certiorari is only available

for review of state court cases that have decided “an

important federal question” or “an important question of

federal law”. See, Reich v. City of Freeport, supra. Petitioner

has identified no such issue in Issue IV of his Petition.

Petitioner’s first argument - that he was not notified

by the court that his action was reported settled — has

been dealt with above. His counsel did have notice, and

he never raised this issue at the trial court (where it could

easily have been litigated and resolved, unquestionably

to Petitioner’s dissatisfaction) or in the state appellate

courts.

16

His second argument relates to alleged falsehoods by

Suslak. Beyond the fact that these untrue, unwarranted

and scurrilous attacks on Suslak are irrelevant to the

underlying proceedings, Suslak is wearying of the Peti-

tioner’s incessant resort to these personal attacks.

Although this is not the appropriate forum to resolve

these issues, suffice it to say that none of the assertions

made by Suslak in this matter have been untrue or in the

slightest bit misleading.

In no event is it an issue that is appropriate for this

Court’s review on Certiorari.

ISSUE VII

The Attorney Is Not A Party To These Proceed-

ings; This Court Has No Jurisdiction Relating

To The Conduct Of Attorneys In State Court

Proceedings; Sanctions Should Be Entered

Against Petitioner

Suslak is not and never has been a party to these

proceedings. Even if he had been, Petitioner has pre-

sented no authority for the concept that this Court has

jurisdiction to concern itself with matters related entirely

to disciplinary rules for attorneys. Respondent is loathe

to even respond to these ludicrous assertions by Peti-

tioner lest any such response should lend credence to his

fanciful allegations.

It should, at least, be noted, however, that Suslak is

wearying of the incessant, unwarranted and scurrilous

personal attacks leveled at him by this Petitioner.

Petitioner has already been admonished in the state

court to the effect that “[s]hould the plaintiff, Fred Davis,

RCA, eRe Se mE

17

bring another duplicative complaint against this defen-

dant, Hanover Insurance Company, sanctions should be

considered at that time” [App. 62]. Hanover is currently

seeking an express affirmance of that admonition from

the Massachusetts Appeals Court but that appeal has not

as yet been decided.

Recognizing that this Court has established a practice

of admonishing petitioners in appropriate circumstances

~ Whitaker v. Superior Court of California, 514 U.S. 208

(1995) — it is respectfully requested that this Court enter

an order prohibiting this Petitioner from bringing any

further actions or petitions in the federal courts which

name Lauria, Hanover Insurance or Suslak as defendants

and which spring from the same series of events which

underlie this matter.

CONCLUSION

For all of the foregoing reasons, the Petition for Writ

of Certiorari should be denied in its totality.

Respectfully submitted,

Georce R. Sustak, Esa.

Counsel of Record for Respondent

STANTON & LANG

P.O. Box 1080

200 Broadway

Lynnfield, MA 01940

(978) 595-1440

APPENDIX TABLE OF CONTENTS

FOR BRIEF IN OPPOSITION TO CERTIORARI

(U.S. Supreme Court No. 98-1867)

Page

Suffolk Superior Court / BMC Docket Sheet ...App. 1

Plaintiff’s Motion for Scheduling Trial Date ....App. 6

Plaintiff’s Motion List Marking ................ App. 8

Plaintiff's Motion to Remove Dismissal

DE ead aN ddd de ork ancsavaedbadtncsees App. 9

BMC Order (by Bernstein, J.) .................. App. 11

Request for Retransfer Back to the Superior

WUE AAnibebnes ceekdskdneNecncneudedeceskess App. 12

Defendant’s Motion to Vacate Retransfer to Supe-

Pe ere vehcadetsitetedvessdenccesecaens App. 13

Plaintiff’s Motion in Opposition to Vacate

Retransfer to Superior Court................. App. 18

Court Order on Defendant’s Motion to Vacate

Retransfer to Superior Court................. App. 22

Appeals Court Memorandum and Order Pursuant

PEE WTA 8400 Sw enadeedounccacecessehoades App. 24

Davis’ Request for Leave to Obtain Further

PE MUNG 6 ib ecesnedeinddtxdcdedessca App. 26

Supreme Judicial Court Notice of Denial of F.A.R.

is bo necuhosasedcesencceneasaunhss App. 36

Order on Motion for Summary Judgment in Nor-

folk Superior No. 93-00574 .................. App. 37

Massachusetts Appeals Court Memorandum and

SP TP ckercccdtacednsncbisees eens App. 39

APPENDIX TABLE OF CONTENTS - Cont.

Page

Supreme Judicial Court denial of F.A.R. in 95-

PMG, .. vv ccrscudpunneenee ee aenneas ee eeenee App. 40

U.S. Supreme Court denial of Petition for Cer-

tiorari in 96-640 (relating to Norfolk Superior

INO. FD-OUG74E) ..nccccsivessvsesenevssaeesoees App. 41

U.S. Supreme Court denial of Petition for Rehear-

ing of denial of Certiorari ...........cccceees App. 42

U.S. District Court Memorandum and Order in

Civil No. 95-cv-11837-MLW......... eee e eee. App. 43

U.S. First Circuit Judgment affirming above Mem-

OTARGUM BAG COOGEE oo coc sncnecseseresucene App. 47

U.S. Supreme Court denial of Petition for Cer-

tiorari in 95-cv-11837-MLW ...........eeeeees App. 49

U.S. Supreme Court denial of Petition for Rehear-

ing of denial of Certiorari................... App. 50

Davis’ Complaint in Norfolk County Superior

Court No. GFGfi7 ERs 6éscisvecceeseasaeeserees App. 51

Defendant’s Motion to Dismiss in Dedham Supe-

rier Court No. D7GE7 Oe as vi etantcanaeeceenere App. 54

Norfolk Superior Court Memorandum of Decision

and Order in No. 97-01716 ........... 0.005. App. §

App. 1

DOCKET No. 90-0408

OCT 9 1991

FRED DAVIS vs. ANTHONY LAURIA

Plaintiffs Defendants

Tort BO3

Action

(F)

Ad damnum Jury

SUFFOLK, ss.

SUPERIOR COURT

DEPARTMENT OF THE

TRIAL COURT FOR

CIVIL BUSINESS

Plaintiffs Counsel

Ronald E. Gluck BBO#195960

Stuart Ravech

125 Summer St., Boston 02110 439-0200

195960

Fred Davis (pro se)

353 Bryant St.

Malden, Ma. 02148

7-8-91

Robert Abrams

50 Union St. #1

Newton, Mass 02159

Defendant's Counsel

Driscoll, Gillespie & Stanton

Mark F. Mahnken BBO#314400

200 Broadway

P.O. Box 850

Lynnfield, Ma. 01940 596-2200

App. 2

Trustees

1

2

3

4

Trustee’s Counsel

1

2

3

4

1990 Date No. Entered

Jan. 22

Jan. 22

Jan. 22

Apr. 10

Complaint Jury demand on complaint.

Civil Action Cover Sheet re: Complaint.

Ints. of plff. to deft. (1st set).

Jury demand of deft. (All Issues)

Apr. 27 ANSWER.

May 2 Ans. of deft. to ints. of plff.

May 17

July 18

Oct. 15 10 Motion of deft. for an order compelling

plff. to produce Federal Income tax

returns.

|

2

3

4

Apr. 20 5 Summons returned.

6

7

8 Ints. of deft. to plff.

9

Ans. of plff. to ints. of deft.

Oct. 15 11 Motion of plff. to be heard by oral argu-

ment.

Oct. 15 12 Opposition of plff. to deft’s motion to

compel production of Federal Income

tax returns.

Nov. 8 13. Motion of deft. for an order compelling

piff. to produce Federal Income Tax

Nov. 13

Nov. 16

Nov. 26

Nov. 26

*Dec. 17

*Dec. 11

Dec. 18

Dec. 21

Dec. 27

14

14A

15

16

14B

17

18

19

App. 3

returns, and allowed, Plaintiff must

produce the documents requested by

11/15/90 to deft’s atty. (Cratsley, J.)

notice sent 11/9/90.

Motion of deft. to extend discovery

deadline 90 days and assented to.

(Cratsley, J.).

Mo. of Atty. Stuart Ravech to withdraw.

Denied. (See Motion) /

App. of deft. for an order to inspect

Malden Hospital records of plff.

Order on app. of deft. to inspect Mal-

den Hospital records of plff. (Rouse, J.).

No. sent 2/12/91.

ORDER: Action ordered remanded to

B.M.C., (Cratsley, J.)/

Motion (P#14) Allowed. (Cratsley, J.).

Notice Sent 12-18-90.

Motion of plff. for reconsideration for

piff. to produce tax returns to deft.

Filed in open court & argued by Mr.

davis & defts. attorney. (Cratsley, J.).

Mo. (P#17) Denied. plff. must produce

his fed. tax returns as requested within

30 days. (Cratsley, J.). notice sent.

12-19-90.

Motion of deft. for order granting

access to criminal Offenders record

information concerning the plff.

Plff’s Notice of Appeal.

App. 4

Dec. 28 20 Motion of plff. to stay the Order

entered December 18, 1990. Denied.

(Cratsley, J.). Notice sent 1/3/91.

Jan. 7 - Mo. (P#18) Denied. (Cratsley, J.), No.

sent 1/9/91.

Jan. 7 21 ~—s*~PIff’s. Notice of Appeal.

Jan. 10 22 ~=sW@PAff’s notice of appeal.

Jan. 16 ~ Notice to Justice John C. Cratsley of the

filing of a Notice of Appeal.

Jan. 16 - Notice of Service of Notice of Appeal

to: Mark F. Mahnken, Esquire of

Messrs. Driscoll, Gillespie & Stanton.

Feb. 4 23. Opp. of deft. to plff’s notice of appeal.

Feb. 6 24 ~—sWwPIff.’s_ notice of appeal.

Feb. 12 - ACTION TRANSFERRED ACCORD-

INGLY (SEE P#14B

| HEREBY ATTEST AND CERTIFY ON FEBRUARY 12,

1991 THAT THE FOREGOING DOCUMENT IS A

FULL TRUE AND CORRECT COPY OF THE

ORIGINAL ON FILE IN MY OFFICE, AND IN MY

LEGAL CUSTODY.

MICHAEL JOSEPH DONOVAN

CLERK/MAGISTRATE

SUFFOLK SUPERIOR CIVIL COURT

DEPARTMENT OF THE TRIAL COURT

BY: James J. O'Reilly

ASST. CLERK

FEB 13 1991

3-25-91 Defts motion to compel further answer to Expert

Mts. follow

3-25-91 Defts motion to compel supplementation of plffs

response to production of documents follow

4-8-91

4-26-91

5-7-91

10-9-91

3-2-92

6/16/97

6-23-97

App. 5

Piffs atty’s motion to withdraw filed

Both parties appearing PIff appearing Atty for PIff.

motion for leave to withdraw is heard and allowed!

The Court sets down Defts motion to compel PIff. to

further answer Mts #12 and Defts motion to compel

PIff to supplement production of documents to be

heard on May 24, 1991 Gino J.

Deft Anthony Lauria’s motion under Rule 37, B, 2,

B filed.

Reported Settled, “30 day NiSi order” for the

entry of Dismissal Judgment Entered. Whitman

Atty. Stuart Ravch notice of Lien filed.

5/16/97

A TRUE COPY ATTEST

/s/ Stuart F. Durant

ASSISTANT CLERK

plf (pro-se) and atty Flanagan for def appearing plf

motion to vacate dismissal is heard & reserved

(Bernstein J)

after reservation, plff's motion to vacate dismissal is

denied. Bernstein ].*

PLAINTIFF

6-27-97 BEING AGGRIEVED BY THE FINDING OR

DECISION OF THE COURT REQUESTS THAT THE

ACTION BE TRANSFERRED FOR DETERMINATION

BY THE SUPERIOR COURT. DOCKET AND PAPERS

TRANSMITTED TO SUPERIOR COURT THIS DAY,

6-30-97

*Italic is handwritten.

App. 6

COMMONWEALTH OF MASSACHUSETTS

BOSTON MUNICIPAL COURT

. SUFFOLK, ss CIVIL BUSINESS

No. T-41026

FRED DAVIS, PLAINTIFF

vs.

ANTHONY LAURIA,

DEFENDANT

eee eee ee ee”

PLAINTIFF’S MOTION FOR SCHEDULING

TRIAL DATE

Now comes the plaintiff, Fred Davis, in the above-

cited action and requests the Court to schedule a trial by

jury as soon as possible.

By,

/s/ Fred Davis

Fred Davis, Plaintiff

353 Bryant Street

Malden, Ma 02148

HEARING NOTICE

The hearing on the foregoing motion will be heard May

16, 1997, 9:00 A.M. at the Old Courthouse Room 394

Boston, Massachusetts.

CERTIFICATE OF SERVICE

I, certify that I mailed a true copy of Plaintiff's Motion

For Scheduling Trial Date and Hearing Notice to: Frank

App. 7

Pietrasik, Hanover Insurance Company 35 Braintree Hill

Office Park Suite 301 P.O. Box 9159, Braintree, MA 02184

Certified Mail: P 576 480 152.

Date 4-24-97 /s/ Fred Davis

App. 8

COMMONWEALTH OF MASSACHUSETTS

BOSTON MUNICIPAL COURT

SUFFOLK, ss CIVIL BUSINESS

No. T-41026

MOTION LIST MARKING

Place above action on the Motion-Assignment Motion list

for 6th day of June at 9:00A.M. at the Old Courthouse

Room 394 Boston, Massachusetts for hearing on the fol-

lowing motion:

PLAINTIFF’S MOTION TO REMOVE

DISMISSAL JUDGMENT

Such motion has been filed and notice given as required

by rule of Court.

/s/ Fred Davis Plaintiff

App. 9

COMMONWEALTH OF MASSACHUSETTS

BOSTON MUNICIPAL COURT

SUFFOLK, ss CIVIL BUSINESS

No. T-41026

FRED DAVIS, PLAINTIFF

VS.

ANTHONY LAURIA,

DEFENDANT

eee eee eee se”

PLAINTIFF’S MOTION TO REMOVE

DISMISSAL JUDGMENT

Now comes the plaintiff, Fred Davis, in the above-

cited action and requests the Court to remove dismissal

judgment as this action was not settled.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S

MOTION TO REMOVE DISMISSAL JUDGMENT

May 7, 1997, the plaintiff filed with the Court Plain-

tiff’s Motion For Scheduling Trial Date and Plaintiff’s

Motion To Amend Complaint.

These motions were to be placed on the Motion List

to be heard on May 16, 1997.

However, when the plaintiff appeared in Court on

May 16, 1997, his motions were not on the Motion List.

The plaintiff inquired in the Clerk’s Office as to why

his motions were not on the Motion List.

App. 10

Plaintiff was informed that the case was settled.

This case has not been settled.

Therefore, the plaintiff requests the Court to remove

the dismissal Judgment, in order that the plaintiff can

move this action for trial.

Based on the foregoing the plaintiff requests the

Court to allow his motion.

By,

/s/ Fred Davis

Fred Davis, Plaintiff

353 Bryant Street

Malden, Ma 02148

HEARING NOTICE

The hearing on the foregoing motion will be heard June 6,

1997, at 9:00 A. M. at the Old Courthouse Room 394

Boston, Massachusetts.

CERTIFICATE OF SERVICE

I, certify that I mailed a true copy of Plaintiff’s Motion To

Remove Dismissal Judgment to: Frank Pietrasik, Hanover

Insurance Company 35 Braintree Hill Office Park Suite

301 P.O. Box 9159. Braintree, Ma 02184 Certified Mail No.

P 576 480 058.

DATE 5-7-97 /s/ Fred Davis

App. 11

Commonwealth of Massachusetts

Suffolk, ss. Boston Municipal

Court

No. T-41026

2 ee ot oe a

Fred Davis .

” : Order

Anthony Lauria .

5 ee oe

Plaintiff seeks to vacate a dismissal which entered in

the Boston Municipal Court on November 12, 1991. A

hearing on the motion was held on June 6, 1996.

The matter was previously scheduled for trial on

October 9, 1991 and was reported settled on that date.

Having been reported settled, an order entered on Octo-

ber 9, 1991 that the case was to be dismissed as to all

claims on November 12, 1991, unless the parties filed an

agreement for judgment before that date. Notice of this

order was sent to the parties on October 9, 1991. No

agreement for judgment was filed and the case was sub-

sequently dismissed.

Nearly six years has passed since the dismissal

entered. The plaintiff provides no excusable reason by

way of affidavit for the delay in bringing this matter

forward.

Accordingly, the motion is denied.

/s/ Patricia Bernstein

App. 12

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. BOSTON MUNICIPAL

COURT

NO. T-41026

FRED DAVIS, .

PLAINTIFF .

VS. ;

ANTHONY LAURIA, *

DEFENDANT ‘

SOS EEE EEE EEE EEE EEE EEE EE ED

REQUEST FOR RETRANSFER BACK TO

THE SUPERIOR COURT

Now comes the plaintiff Fred Davis in the above-

cited action and aggrieved by the attached Court’s Order

request that this action be retransferred back to the Supe-

rior Court.

By,

/s/ Fred Davis

Fred Davis, Plaintiff

353 Bryant Street

Malden, Ma 02148

CERTIFICATE OF SERVICE

I certify that I mailed a true copy of the foregoing to:

Christopher P. Flanagan Stanton & Lang 200 Broadway

Suite 102 Lynnfield, Ma 0-1940 postage prepaid.

DATE 6-27-97 /s/ Fred Davis

App. 13

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT

NO: SUCV90-00408C

FRED DAVIS,

Plaintiff

VS.

ANTHONY LAURIA,

Defendants

eee ee

DEFENDANT’S MOTION TO VACATE RETRANSFER

TO SUPERIOR COURT

Now comes the defendant, Anthony Lauria, and

hereby requests this court to vacate the July 7, 1997

retransfer of the above-captioned matter as the plaintiff’s

request for retransfer was untimely and the Boston

Municipal Court lacked the power to retransfer this mat-

ter beyond the statutory time period.

FACTS

This is an action arising out of a motor vehicle acci-

dent which allegedly occurred on February 11, 1987. The

plaintiff, Fred Davis (“Davis”) filed a complaint against

the defendant, Anthony Lauria (“Lauria”) in Suffolk

County Superior Court on or about January 18, 1990

(Exhibit A). This action was subsequently remanded to

the Boston Municipal Court on February 12, 1991.

(Exhibit B). The Boston Municipal court scheduled the

_ case for trial on October 9, 1991. The case was reported

settled to the Boston Municipal Court on October 9, 1991.

(Exhibit C). An order entered on October 9, 1991 that the

App. 14

case would be dismissed as to all claims on November 12,

1991, unless the parties filed an agreement for judgment.

(Exhibit C) Notice of this order was sent to the parties on

October 9, 1991. (Exhibit C). No agreement for judgment

was filed, therefore, the case was dismissed as of Novem-

ber 12, 1991.

On or about May 19, 1997, nearly six years after the

dismissal, Davis filed a Motion To Remove Dismissal

Judgment (Exhibit D). On June 23, 1997, the Boston

Municipal Court denied Davis’ motion, noting that the

case had been dismissed in November of 1991 and the

plaintiff had provided “no excusable reason” for the

delay in filing his motion.

On or about June 27, 1997, Davis filed his Request

For Retransfer Back To The Superior Court. (Exhibit E).

On or about July 7, 1997, this Court docketed the reac-

tivation of this matter. (Exhibit F).

LAW

MGL ch. 231 s 102C governs the retransfer of cases to

the Superior Court after a finding or a decision of the

District Court. A request for a retransfer “shall be filed

with the clerk of the district court within ten days after

notice of the finding or decision.” MGL ch. 231 s. 102C. If

Davis desired to seek a retransfer of the case to the

Superior Court, then he had ten days from notice of the

decision or finding of the Court which dismissed this

action. The papers of the Boston Municipal Court clearly

indicate that the Court’s decision to dismiss the plaintiff's

claim was made on October 9, 1991. The papers also show

that the plaintiff had notice of this order. According to

App. 15

MGL ch. 233 s. 102C, Davis had until October 19, 1991

within which to file his request. No such request for

retransfer was filed.

Arguably, the plaintiff could contend that the ten day

time period did not commence until November 12, 1991,

by which date the parties could have filed an agreement

for judgment. Assuming arguendo, that the Court adopts

this position, then the plaintiff would have had until

November 22, 1991 to file his request. Again, no such

request was filed.

On June 27, 1997, almost six years after the Court's

order of dismissal, Davis finally filed his request for

retransfer. Obviously, Davis is attempting to revive the

time within which to file a request for retransfer by filing

a groundless motion to remove the earlier dismissal sim-

ply to obtain a Court order, from which he could then

attempt to retransfer this claim.

The decision which terminated the case of Davis v.

Lauria was issued on October 9, 1991. The plaintiff can

not be allowed to create a new window of opportunity to

retransfer the case merely by filing a motion to remove

the dismissal, years beyond the statutory deadline for

such requests.

Given the fact that the plaintiff's 1997 request for

retransfer was untimely, the Boston Municipal Court had

no authority to order a retransfer and the judgment of

dismissal should not be disturbed. Griffin v. Powers, 1

Mass. App. 846, 301 N.E.2d 691 (1973).

In Powers, after a trial, the Court entered a finding for

the plaintiff on June 11, 1970. Judgment for the plaintiff

App. 16

entered on June 26, 1970. The defendant apparently never

received notice of the entry of judgment, therefore, he did

not timely file a request for retransfer to the Superior

Court within the ten day time period. Upon the defen-

dant’s motion, the Court allowed the defendant's request

to vacate the June 26, 1970 judgment as long as the

defendant posted a bond by December 4, 1970. The defen-

dant timely filed the required bond, therefore, effective

December 4, 1970, a new judgment for the plaintiff

entered. The defendant had ten days from December 4,

1970 to file bis request for retransfer, which he did not

file.

On January 27, 1972, the defendant filed his request

for a retransfer, which request was allowed. The plaintiff

thereafter moved to vacate the retransfer on the grounds

that it was not timely filed. The Appeals Court agreed,

holding that the District Court “had no authority, after

the ten days had elapsed, to order retransfer.” Id.

More recently, it has been confirmed that a District

Court has no authority to permit retransfer after the

expiration of the ten day time period. Barrett v. Lynn

Ladder & Scaffolding Co., Ind., 1994 Mass. App. Div. 217.

As is the case with the claim before the Court today,

Davis failed to file his request for transfer in a timely

fashion. Therefore, the District Court had no authority to

order the retransfer. To allow a party to escape the ten

day requirement by simply filing a motion five, ten or,

perhaps, twenty years later would defeat the purpose of

MGL ch. 233 s. 102C and litigation could never be consid-

ered final and completed.

App. 17

SUMMARY

Based upon the above, the defendant respectfully

requests that this Court vacate the Boston Municipal

Court’s retransfer order to this Court.

By defendant’s attorney,

George R. Suslak, Esquire

STANTON & LANG

200 Broadway, P.O. Box 1080

Lynnfield, MA 01940-2314

(617) 595-1440

BBO#: 541921

Dated:

App. 18

COMMONWEALTH OF MASSACHUSETTS

COUNTY OF SUFFOLK

THE SUPERIOR COURT

DOCKET # SUCV90-00408C

FRED DAVIS, Plaintiff

VS.

ANTHONY LAURIA,

Defendant

eee eee eee

PLAINTIFF’S MOTION IN OPPOSITION TO VACATE

RETRANSFER TO SUPERIOR COURT

Now comes the plaintiff, Fred Davis, in the above-

cited action and opposes the defendant’s Motion to

Vacate Retransfer to Superior Court as the defendant's

motion was done in bad faith, Defendant’s Motion does

not comply with Massachusetts Rules of Civil Procedure

and Mr. Suslak violated his Attorney’s Oath Massa-

chusetts General Law 221 section 38 by committing false-

hood to the Court. There are violations of deceptive

practices, Crimes against the disabled and Massachusetts

General Laws Chapter 19A § 14 “Financial Exploitation”.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S

MOTION IN OPPOSITION TO VACATE RETRANSFER

TO SUPERIOR COURT

Pursuant to Massachusetts Rules of Civil Procedure

prior to filing a Motion the moving party must confer

with the party before filing a motion, however, this was

App. 19

not the case Mr. Suslak merely sent the motion to the

plaintiff without conferring with him, which is a violation

of the Massachusetts Rules of Civil Procedure and must

be stricken.

The defendant is acting in bad faith and his attorney

is violating his Attorney’s Oath which states in pertinent

part:

ATTORNEY’S OATH

“YOU SOLEMNLY SWEAR

THAT YOU WILL DO NO FALSEHOOD,

NOR CONSENT TO THE DOING OF ANY

IN COURT.”

June 6, 1997, the plaintiff appeared in the

Boston Municpal [sic] Court on Plaintiff's

Motion To Remove Dismissal Judgment, the

| Court denied the plaintiff’s motion and the

plaintiff filed a timely Motion to Retransfer to

the Superior Court and Plaintiff was notified of

that transfer on July 7, 1997.

Therefore, when Mr. Suslak informs the

Court that plaintiff's transfer is not timely he is

committing a falsehood to the Court.

Se

There is no evidence in the Court’s record

| that the case was settled by plaintiff’s attorney

Robert Abrams nor by the plaintiff Fred Davis.

The mere fact that there is an entry on the

docket sheet has no bearing on the case, since

there is no evidence to substantiate the action

was settled.

The defendant and his attorney are using

deceptive business practices and crimes against

the disabled to cheat the plaintiff out of monies.

App. 20

In addition plaintiff is an elderly person and

the defendant and his attorney is using “Finan-

cial Exploitation” to cheat the plaintiff from

monies which is a violation of Massachusetts

General Laws Chapter 19A § 14.

The bottom line is that the defendant and

his attorney are continuing to harass and hurt

the plaintiff as the plaintiff is disabled because

of the defendant.

Mr. Suslak in his motion page 1 as (Exhibit A). how-

ever, there is no Exhibit A affixed to his motion Page 1

(Exhibit B) page 1 (Exhibit C) page 2 (Exhibit D) page 2

(Exhibit E) page 2 (F) as previous stated none of these

Exhibits were furnished to the plaintiff. There is no Cer-

tificate of Service.

Therefore, the facts clearly reveal that Mr. Suslak is

not being honest and is hiding the true facts of the case.

Wherefore, the plaintiff moves the Court to deny the

defendant's motion and schedule this action before a jury

as soon as possible.

By,

Fred Davis, Plaintiff

353 Bryant Street

Malden, Ma 02148

CERTIFICATE OF SERVICE

I certify that I mailed a true copy of Plaintiff’s Motion In

Opposition to Vacate Retransfer To Superior Court and

Memorandum in Support to Plaintiff’s Motion In Opposi-

tion to Vacate Retransfer to Superior Court to: George

Suslak Stanton & Lang P.O. Box 1080 Lynnfield Woods

App. 21

Office Park 200 Broadway US Route 1 South Lynnfield,

Ma 01940-2314 certified Mail No. P 576 480 131 postage

prepaid.

7-23-97

App. 22

NOTIFY

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT

CIVIL ACTION

Notice sent 8-26-97 No. SUCV90-00408-C

FD-PRO-SE

MFM

CPF

STE

LA

FRED DAVIS,

Plaintiff

v.

ANTHONY LAURIA,

Defendant

COURT ORDER ON DEFENDANT’S MOTION

TO VACATE RETRANSFER TO SUPERIOR COURT

After consideration of defendant’s motion and plain-

tiff’s opposition, the defendant’s Motion to Vacate

Retransfer to Superior Court is ALLOWED. In this

court’s view, the Boston Municipal court had no authority

after they denied plaintiff’s motion to remove the 1991

dismissal of this case to then order it retransferred to the

Superior Court. The plaintiff’s right to obtain that

retransfer ended on November 22, 1991, i.e. ten days after

the case was dismissed in the Boston Municipal Court on

November 12, 1991.

The decisions of the Appellate Courts make it clear

that plaintiff cannot revive this old case by seeking

retransfer many years after it’s life ended, and the right

App. 23

to claim retransfer ran out, in the Boston Municipal

Court. See Griffin v. Powers, 1 Mass. App. 846, 301 N.E. 2d

691 (1973) and Barrett v. Lynn Ladder and Scaffolding Co.,

1994 Mass. App. Div. 217.

/s/ John C. Cratsley

John C. Cratsley

Justice of the Superior Court

DATED: August 22, 1997

App. 24

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

97-P-2327

FRED DAVIS

VS.

ANTHONY LAURIA.

MEMORANDUM AND ORDER PURSUANT

TO RULE 1:28

The pro se plaintiff appeals from a Superior Court

order allowing the defendant’s motion to vacate an order

retransferring this matter from the Boston Municipal

Court. In essence, the plaintiff seeks to revive the under-

lying motor vehicle tort action which was reported set-

tled in 1991. For the reason, if no other, that principles of

res judicata preclude the plaintiff from asserting that

there was no settlement of this action by our decision in

Davis v. Hanover Ins. Co., 40 Mass. App. Ct. 1127 (1996),

cert. denied, 117 S. Ct. 685 (1997),) and thus that

retransfer to the Superior Court would be futile, we

affirm.

Order allowing motion to

vacate retransfer affirmed.

! In the earlier case, we affirmed a summary judgment for

the insurer on Davis’s complaint alleging breach of the

settlement agreement. The agreement is evidenced by a written

release dated September 20, 1991, which Davis executed,

purporting to release the present defendant and the insurer of

all claims by Davis arising out of the motor vehicle accident

giving rise to the instant action.

se Baise Bhi: steteaastalsa io Dadi Wilke wiaoaas

App. 25

By the Court (Greenberg,

Gillerman & Rapoza, JJ.)

/s/ Cris G. Micchia

Asst. Clerk

Entered: February 10, 1999

,

App. 26

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SUFFOLK, SS

SIC NO.

AC NO. 97-P-2327

FRED DAVIS, APPELLANT'S

Appellant ) APPLICATION FOR

FURTHER APPELLATE

bi REVIEW

ANTHONY LAURIA

HANOVER INSURANCE

COMPANY,

Appellees

le

I. REQUEST FOR LEAVE TO OBTAIN FURTHER

APPELLATE REVIEW

For reasons set forth in this application, Fred Davis,

Appellant requests that the full Supreme Judicial Court

review the February 10, 1999, decision of the Appeals

Court in this matter.

II. STATEMENT OF PRIOR PROCEEDINGS

The plaintiff-appellant, Fred Davis is a senior citizen

residing at 353 Bryant Street Malden, Massachusetts.

Anthony Lauria, Hanover Insurance Company’s

insured, negligently operated a motor vehicle causing a

motor vehicle accident, in which Hanover Insurance

Company admits liability.

Wesresesimnieenenenieieiinssieniaiuiiiadaeanaiiiiidiiniacaaiiiiil

PAM ae de ck os arm

App. 27

The appellant received severe bodily injuries result-

ing in partial permanent disability because of this acci-

dent.

The appellant has been unable to work, due to the

accident, and has lost approximately $46,000.00, in wages,

which resulted in the loss of his employment.

In addition, there was excessive damage to the appel-

lant’s motor vehicle and large medical bills.

Appellant is unable to work and needs constant care.

The appellees committed crimes against the disabled

and violated Massachusetts General Laws Chapter 19A

§ 14, using “Financial Exploiation [sic]” to cheat the

appellant from monies due him.

Appellees have used means of fraud and lied to the

Appeals Court as their defense.

May 7, 1997, appellant filed his Motion For Schedul-

ing Trial Date (app. p. 5) and Plaintiff's Motion To Amend

Complaint (app. p. 6). these motions were to be placed on

the motion list to be heard on May 16, 1997, the appellees

did not oppose these motions (app. p. 4).

The appellant appeared in court on May 16, 1997,

however, his motions were not on the motion list.

The appellees did not appear in court for the sched-

uled hearing of these two motions.

The appellant inquired in the Clerk’s Office as to why

his motions were not on the motion list.

Appellant was informed that the case was settled,

however, that was not the truth.

ene ot ier Cee en ee eae eee

App. 28

The case was never settled and the docket sheet

clearly shows that fact, no notices were sent, nor is there

a name of an individual who reported it settled (app. p.

2), moreover, there is no document in the case file to

substantiate, the fact that the case was settled.

Appellant filed Motion To Remove Dismissal Judg-

ment (app. p. 10). There was no opposition from the

appellees (app. p. 9). The district court denied this

motion.

Appellant filed Request For Retransfer Back to the

Superior Court (app. p. 14).

Appellees filed Motion To Vacate Retransfer to the

Superior Court. Appellant filed his Motion in Opposition

To Vacate Retransfer to the Superior Court (app. p. 15).

Appellant filed Plaintiff’s Motion For Sanctions

Against George R. Suslak For Telling Falsehoods to the

Court (app. p. 19). Appellees opposition was not timely,

therefore was returned to the appellees.

The Superior Court allowed the defendants’ Motion

To Vacate Retransfer To the Superior Court (app. p. 22).

Appellant filed his Notice of Appeal.

The Appeals Court erred in its decision since it was

based solely on falsehoods it obtained from the appellees

along with statements of fraud.

Now the case is before this Honorable Court for

Application For Further Appellate Review.

Nieeeemeneeeeneeenieieeessititinesiiaeesiieaiaieaaiiaaasaal

eal a

ENS RAPE Te a dS es wee’

ab NPs ete Pa nS. Se Deal el tat

App. 29

III. FACTS

The appellees admit liability in this action.

The action was not settled and appellant, Davis has

not received one penny in this action.

Appellant was not notified that the action was settled

by the court SEE ATTACHED DOCKET ENTRY SHEET.

Appellant was a victim of violation of M.G.L 19A

Abuse of Elderly persons: “Financial Exploitation”.

The Appeals court erred in its decision, since their

decision was based solely on fraud, falsehoods and

obstruction of justice, which the appellees, their attorney

George R. Suslak furnished them.

Attorney George R. Suslak violated the Massa-

chusetts Canon Rules, and Attorney’s Oath.

IV. ISSUES PRESENTED TO SUPREME JUDICIAL

COURT

Appellant is requesting review of the Appeals

Court’s decision of February 10, 1999, based on Appel-

lant’s assertion the Appeal Court should have reversed

the decision of the Suffolk Superior Court.

The decision of the Appeals Court was based on

errors of law, unsupported evidence, fraud, falsehoods,

obstruction of justice and failure to address all issues that

were presented for review.

App. 30

V. ARGUMENT

A. APPEALS COURT ERRED IN LAW WHEN IT

STATED THAT CASE WAS SETTLED

The case was not settled. The fact is clearly substanti-

ated by evidence that there is no document in the court

file that states the case was settled. There were no notices

that were sent to the appellant, nor to any other party in

this action SEE ATTACHED DOCKET SHEET.

In addition, there is no name of the individual who

reported that the case was settled.

SEE GRIFFIN v. POWERS 301 N.E. 2d 691 the court

allowed petition to vacate judgment because of the failure

to receive notice of the original finding. Therefore, the

appellant’s Motion to Vacate Judgment should have been

allowed, because if there was a finding he should have

been notified.

Therefore, since the District Court denied appellant’s

motion it was appropriate for the District Court to trans-

fer back the action to the Superior Court.

B. THE ACTS AND PRACTICES OF THE APPEL-

LEE, HANOVER INSURANCE COMPANY

WERE UNFAIR DECEPTIVE WITHIN THE

MEANING OF M.G.L. CHAPTER 93A

Massachusetts General Law c. 176D § 3 § (9) f inser-

ted by St. 1972, c 543 § 1, provides that it is an unfair

claim settlement practice for an insurer to fail “to effectu-

ate prompt, fair and equitable settlements of claims in

which liability has become reasonably clear”. Massa-

chusetts General Law c. 93A, § 2 (a) (inserted by St. 1967

ee

App. 31

C. 813 § (1), covers such insurance practices in its prohibi-

tion of “unfair or deceptive acts or Practices in the con-

duct of any trade or commerce”. SEE DODD jy.

COMMERCIAL UNION INSURANCE COMPANY 353

Mass at 78 “provides for recovery of up to three but not

less than two times actual damages... . ”

Hanover Insurance Company admits to liability,

however, they are using means of fraud to inform the

court that the case has been settled.

Hanover Insurance Company shows no evidence of a

cancelled check that the case was settled, no cancelled

check that medical bills were paid, no cancelled check

that damage to the appellant’s motor vehicle was paid.

The bottom line is the case was not settled.

C. THE APPEALS COURT ERRED IN STATING

THERE WAS AN AGREEMENT EXECUTED

“BLACK’S LAW’S DICTIONARY “execute: “to

do, to follow out according to the terms to fulfil]

the purpose”.

The Appeals Court erred as an agreement was not

executed, here again, the Appeals Court took the word of

the appellees and their attorney George R. Suslak.

The appellees and their attorney George R. Suslak

have lied to the Court the case was never settled because

appellant was not paid.

Hanover Insurance Company have no evidence to

Show that agreement was executed, they have no evi-

dence of a cancelled check, no evidence that medical bills

App. 32

were paid, no evidence that damage to the appellant’s

motor vehicle was paid.

There is no evidence whatsoever, that appellant

received one penny from the appellees.

D. THE COURT ERRED IN NOT PLACING PUN-

ISHMENT AGAINST THE APPELLEES FOR

VIOLATION OF MASSACHUSETTS GEN-

ERAL LAWS CHAPTER 19A § 14 “FINANCIAL

EXPLOITATION” AGAINST AN ELDERLY

PERSON

Massachusetts General Laws Chapter 19A “Financial

Explitation”: “an act or omission by another person,

which causes a substantial monetary or property loss to

an elderly person, which gain would otherwise benefit

the elderly person”.

Appellant is an elderly person and is a victim of

Financial Exploitation by the appellees they have caused

the appellant a gross monetary and property loss which

gain would have benefit the appellant.

Their acts have caused the appellant a gross amount

of medical bills leaving him with a permanent partial

disability and is now unable to care for himself needing

constant care.

The Appellees have caused the appellant lost wages

in the amount of approximately $46,000.00, leaving him

unable to work.

The appellees have used a cover-up to hide these acts

by telling falsehoods to the court that the case has been

settled.

App. 33

E. THE APPEALS COURT ERRED IN NOT PLAC-

ING SANCTIONS AGAINST GEORGE R. SUS-

LAK FOR TELLING FALSEHOODS TO THE

COURT

Canon Rules 1 - Disciplinary Rules

DRI - 102 MISCONDUCT

(A) A lawyer shall not:

(4) Engage in conduct involving

dishonesty, fraud, deceit, or

misrepresentation.

(5) Engage in conduct that is

prejudicial to the administra-

tion of justice.

GENERAL LAWS 221 section 38 ATTORNEY’S

OATH

“You (name) solemnly swear that you will do no

falsehood, nor consent to the doing of any in court” So

help you GOD.

August 14, 1997, George R. Suslak engaged in con-

duct involving dishonesty, fraud, deceit, and misrepre-

sentation of the facts.

George R. Suslak made the following statement to the

Court: “In support thereof, the defendants state that this

action was settled years ago....” This statement is false

and Mr. Suslak was fully aware that this action has not

been settled.

George R. Suslak has not shown any creditable evi-

_ dence that the case was settled. He has not shown any

App. 34

cancelled check that appellant was paid for his injuries,

he has not shown any cancelled check that appellant’s

medical bills were paid, he has not shown any cancelled

check that appellant’s motor vehicle damages were paid.

The facts clearly reveal that Mr. Suslak has engaged

in conduct involving dishonesty, fraud, deceit, and mis-

representation. He has engaged in conduct that is preju- |

dical [sic] to the administration of justice, which is in

violation of the Canon Rules.

George R. Suslak has engaged in telling falsehoods to

the court, which is in violation also of the Attorney’s

Oath.

Based on the facts and evidence the Appeals Court

erred in not placing sanctions against George R. Suslak.

F. PUBLIC INTEREST IS INVOLVED

The public interest is in complete jeopardy, if the

courts are going to accept the word of individuals, who

are not telling the truth, without showing evidence that

individuals were paid. .

CONCLUSION

Appellant, Fred Davis, requests this Honorable Court

to remand the action to the Suffolk Superior Court for

trial before a jury, legal fees, costs and any other relief the

Honorable Court deems appropriate.

App. 35

RESPECTFULLY SUBMITTED

/s/ Fred Davis

Fred Davis, Appellant

P.O. Box 721

Everett, Ma 02149

NN ee ee

/

aaa iia

App. 36

Supreme Judicial Court for the

Commonwealth of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Christopher P. Flanagan, Esquire

Stanton & Lang

200 Broadway, P.O. Box 1080

Lynnfield, MA 01940

RE: Docket No. FAR-10421

FRED DAVIS

vs.

ANTHONY LAURIA

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that the above-captioned Applica-

tion for Further Appellate Review has been considered by

the Court and is denied.

Jean M. Kennett, Clerk

Dated: March 26, 1999

To: Fred Davis

Christopher P. Flanagan, Esquire

App. 37

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

NO: 93-00574

FRED DAVIS,

Plaintiff

VS.

HANOVER INSURANCE COMPANY,

Defendant

ee Ne eee ee me

MOTION OF DEFENDANT, HANOVER INSURANCE

COMPANY FOR SUMMARY JUDGMENT

UNDER M.R.C.P. 56

(Filed Sep. 24, 1993)

Now comes the defendant, Hanover Insurance Com-

pany and [] moves this Honorable Court pursuant to

Mass. R. Civ. P. Rule 56 (b) to enter summary judgment in

favor of the Counts I-IV of plaintiff’s Complaint as a

matter of law.

An Affidavit, Memorandum of Law and exhibits are

attached hereto.

App. 38

Defendant

By its attorney,

/s/ Mark F. Mahnken

Mark F. Mahnken

DRISCOLL, GILLESPIE

& STANTON

200 Broadway

P.O. Box 850

Lynnfield, Mass. 01940

(617) 596-2200

Dated: 8/25/93 BBO: #314-400

1/14/94 — After hearing and upon considering all submissions,

and the entire file, motion of Defendant, Hanover Insurance

Company for Summary Judgment is ALLOWED in its totality.

See: Defendant's memorandum affixed hereto

/s/ Thomas E. Connolly,

Isc"

*Italic was handwritten.

Renee

App. 39

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

95-P-1818

FRED DAVIS

vs.

HANOVER INSURANCE COMPANY.

MEMORANDUM AND ORDER PURSUANT

TO RULE 1:28

The judgment is affirmed substantially for the

reasons set forth in the brief of the defendant.

So ordered.

By the Court (Dreben, Gillerman

& Laurence, JJ.),

/s/ Nancy Turck Foley

Clerk

Entered: June 14, 1996.

App. 40

Supreme Judicial Court for the

Commonwealth of Massachusetts

1412 Courthouse,

Boston, Massachusetts 02108

(617)-557-1020

George R. Suslak, Esquire

Driscoll, Gillespie & Stanton

200 Broadway

PO Box 850

Lynnfield, MA 01940

RE: Docket No. FAR-08597

FRED DAVIS

VS.

HANOVER INSURANCE COMPANY

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on July 24, 1996, the above-

captioned Application for Further Appellate Review was

denied.

Jean M. Kennett, Clerk

Dated: July 24, 1996

To: Fred Davis

George R. Suslak, Esquire

App. 41

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

January 6, 1997

Mr. George R. Suslak

Stanton & Lang

P.O. Box 1080

Lynnfield, MA 01940

Re: Fred Davis

v. Hanover Insurance Company

No. 96-640

Dear Mr. Suslak:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

/s/ William K. Suter

William K. Suter, Clerk

App. 42

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

February 18, 1997

Mr. George R. Suslak

Stanton & Lang

P.O. Box 1080

Lynnfield, MA 01940

Re: Fred Davis

v. Hanover Insurance Company

No. 96-640

Dear Mr. Suslak:

The Court today entered the following order in the

above entitled case:

The petition for rehearing is denied.

Sincerely,

/s/ William K. Suter

William K. Suter, Clerk

App. 43

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

FRED DAVIS,

Plaintiff,

vV. C.A. No. 95-cv-11837-

HANOVER INSURANCE

COMPANY, JOHN F.

O’BRIEN, Chairman of

the Board of Hanover

Insurance,

et Nee ee ee ee ee Nee Nee Nee ee Ne

Defendants.

MEMORANDUM AND ORDER

WOLF, DJ. May 17, 1996

On August 16, 1995, plaintiff Fred Davis filed this

action seeking injunctive and monetary relief stemming

from alleged violations of his state and federal constitu-

tional rights. On September 5, 1996, the defendants filed a

motion to dismiss the complaint. For the reasons stated

herein, this motion must be ALLOWED.

I. The Complaint

According to his complaint, Mr. Davis brought claims

of breach of contract and unfair trade Practices against

the defendants in Massachusetts Superior Court in 1993.

The defendants moved for summary judgment on all

counts of the plaintiff’s state court complaint. This

motion was subsequently allowed.

On January 21, 1994, plaintiff filed a notice of appeal

with the Superior Court. Since that time, plaintiff has

|

App. 44

filed five additional notices of appeal. According to the

complaint, the Superior Court “has knowingly and will-

fully refused to assemble the record and forward it to the

Massachusetts Court of Appeals.” Plaintiff asserts further

that “both Judge Thomas Connolly and the defendant’s

attorney will not allow the record to be assembled and go

to the Appeals Court because they don’t want this case to

go to the Massachusetts Appeals Court.” As a result of

these purported activities, plaintiff claims “[v]iolations of

State and Federal Constitutional Rights: Equal protection

of the law. Obstruction of justice.”

II. Analysis

Plaintiff has not stated a viable claim against the

defendants in this case. First, the complaint does not

identify any actions taken by the defendants which could

have caused the plaintiff harm, constitutional or other-

wise. The complaint speaks only of actions taken by the

Superior Court and the defendants’ lawyer.

Second, even if the complaint can be read to impli-

cate the defendants, the constitutional claims cannot sur-

vive. It is well-established that the Fourteenth Amend-

ment and the federal civil rights statute, 42 U.S.C. § 1983,

are implicated only by action taken under color of state

law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156 (1978);

Lugar v. Edmondson Oil Co., 457 U.S 922 (1982). Defen-

dants in this case are private actors. See Edmondson v.

Leesville Concrete Co., 500 U.S. 614, 619 (1991) (“[w]ith a

few exceptions, such as the provisions of the Thirteenth

Amendment, constitutional guarantees of individual lib-

erty and equal protection do not apply to the actions of

Decne cesses tensa ahi aa arananseaneonnceed

App. 45

private entities.”) It is conceivable that plaintiff could

argue that the alleged actions of the defendants’ attorney

in “not allow[ing] the record to be assembled” are suffi-

ciently intertwined with state processes so as to consti-

tute the requisite state action. See, e.g., Edmondson, 500

U.S. at 618-28. Even so, this one-sentence allegation

against the defendants’ attorney is too vague and con-

clusory to allow this action to proceed under such a

theory.

To the extent that plaintiff brings this action under

the Massachusetts Civil Rights Act, M.G.L. ch. 12 § 111,

this claim must also be dismissed with prejudice.

Although the Massachusetts Civil Rights Act covers

purely private action, it requires some form of “threats,

intimidation, or coercion.” See M.G.L. ch. 12 § 11H. No

“threats, intimidation, or coercion” by any of the defen-

dants have been alleged in this case.

Finally, as an alternative ground for dismissing this

action, it is clear that the plaintiff has suffered no consti-

tutional injury by any failure of the Superior Court to

assemble his record for appeal. Mr. Davis currently has

no right to appeal the judgment against him in state

court. Under M.G.L. c. 231 § 113, a party can appeal only

a “final judgment of the Superior court... .” In the

Superior Court action, the defendants filed a counter-

claim against Davis, seeking various forms of injunctive

and declaratory relief. This counterclaim was not acted

upon by the superior court judge at the time he granted

summary judgment for the defendants on the plaintiff's

complaint. As a result, the judge’s decision on the sum-

mary judgment motion was not a “final judgment” under

- § 113. See Litton Business Telephone systems, Inc. v. Scwartz,

a

App. 46

9 Mass.App.Ct. 847 (1980) (dismissing appeal “because

the judgment entered . . . does not dispose of the counter-

claim of the individual defendants”); E.W. Foster Co. v.

McLaughlin, 7 Mass.App.Ct. 865 (1979) (“when there is an

adjudication of the claims of fewer than all the parties, no

judgment has yet been entered from which an appeal can

be taken.”) Accordingly, in the absence of a motion for

entry of a final judgment under Mass.R.Civ.P. 54(b) or a

petition for interlocutory relief under M.G.L. ch. 231

§ 118, plaintiff must await resolution of the defendants’ |

counterclaim before appealing the judgment against him.

Accordingly, for the foregoing reasons, the defen-

dants’ motion to dismiss is hereby ALLOWED.

/s/ Mark F. Wolf

UNITED STATES DISTRICT

JUDGE

App. 47

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1650

FRED DAVIS,

Plaintiff, Appellant,

V.

HANOVER INSURANCE COMPANY, JOHN F. O’BRIEN,

CHAIRMAN OF THE BOARD OF HANOVER

INSURANCE COMPANY,

Defendants, Appellees.

JUDGMENT

Entered: October 11, 1996

This cause came on to be submitted on the briefs and

Original record on appeal from the United States District

Court for the District of Massachusetts.

Upon consideration whereof, it is now here ordered,

adjudged and decreed as follows: The judgment of the

district court is affirmed.

By The Court:

Clerk

[cc: Messrs. Davis & Suslak]

Per Curiam. As the record indicates, at the time the

instant case was filed in federal district court no judg-

ment had yet entered in state court on the counterclaim of

defendants/appellees. Since all claims had not been adju-

dicated, plaintiff/appellant had no right at that time to

appeal the judgment dismissing his action. See Litton

App. 48

Business Telephone Systems, Inc. v. Schwartz, 9 Mass. App.

Ct. 865, 865, 400 N.E.2d 281, 281 (1979) (dismissing appeal

“because the judgment entered . . . does not dispose of

the counterclaim”). Consequently, he suffered no injury

from the alleged failure of the state court to assemble his

record for appeal.

Affirmed.

App. 49

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

March 3, 1997

Mr. George R. Suslak

Stanton & Lang

P.O. Box 1080

Lynnfield, MA 01940

Re: Fred Davis

v. Hanover Insurance Company, et al.

No. 96-1074

Dear Mr. Suslak:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

/s/ William K. Suter

William K. Suter, Clerk

App. 50

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

April 14, 1997

Mr. George R. Suslak

Stanton & Lang

P.O. Box 1080

Lynnfield, MA 01940

Re: Fred Davis

v. Hanover Insurance Company, et al.

No. 96-1074

Dear Mr. Suslak:

The Court today entered the following order in the

above entitled case:

The petition for rehearing is denied.

Sincerely,

/s/ William K. Suter

William K. Suter, Clerk

App. 51

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS DEDHAM SUPERIOR

COURT

CIVIL BUSINESS

CIVIL ACTION NO.

97 01716

)

Fred Davis, Plaintiff )

VS.

Hanover Insurance )

Company, )

Defendant )

)

COMPLAINT

Parties

Plaintiff, Fred Davis P.O. Box 721 Everett, Ma 02149,

County of Middlesex.

Defendant, Hanover Insurance Company conducting

business at 35 Braintree Hill Park Braintree, Ma 02184,

County of Norfolk.

Facts

The defendant, Hanover Insurance Company engaged in

acts of unfair and deceptive business practices.

The defendant, Hanover Insurance Company engaged in

acts of Financial Exploitation of a senior citizen.

The defendant, Hanover Insurance Company engaged in

acts against the disabled.

App. 52

Cause of Action

The plaintiff, Fred Davis, is a senior citizen and par-

tially disabled.

The defendant, Hanover Insurance Company by

means of fraud, unfair, and deceptive business practices

swindled monies from the plaintiff.

The plaintiff issued a 30 day letter to the defendant

pursuant to Massachusetts General Laws c. 93A. There

was no response from the defendant.

As a direct and proximate result of the fraud, unfair

and deceptive acts by the defendant Hanover Insurance

Company, plaintiff suffered substantial losses of money

and pain and suffering, physical and emotional distress.

Defendant engaged in acts of Financial Exploitation

which caused a substantial monetary loss to the elderly

plaintiff which gain would have benefited the elderly

plaintiff thereby violating Massachusetts General Laws

19A section 14.

The defendants acts also violated the Crimes Against

the Disabled, by knowingly and wilfully swindling

monies from the disabled.

Plaintiff was discriminated against and taken advan-

tage of because of his disability.

Relief From The Court

WHEREFORE, the plaintiff requests the sum of

$500,000.00, plus triple damages. legal fees and costs

App. 53

pursuant to the Massachusetts General Laws chapter 93A

and any other relief the court deems appropriate.

/s/ Fred Davis

Fred Davis, Plaintiff

P.O. Box 721

Everett, Ma 02149

(617) 322 8223

App. 54

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS DEDHAM SUPERIOR COURT

Civil No. 97-01716

AAA EH

FRED DAVIS,

)

)

Plaintiff )

:

HANOVER INSURANCE COMPANY, ?

Defendant

5 a a ES

DEFENDANT’S MOTION TO DISMISS

PURSUANT TO RULE 12(B)(6)

AND

MOTION FOR SANCTIONS

Now comes the defendant, Hanover Insurance Com-

pany (hereinafter, “Hanover”), and moves this Honorable

Court to dismiss the entirety of the complaint of Fred

Davis (hereinafter, “Davis”), pursuant to Rule 12(b)(6) of

the Massachusetts Rules of Civil Procedure.

Hanover further moves that this Court impose sanc-

tions against Davis in the nature of an award of all of

Hanover’s expenses in defending this series of frivolous

suits; and in the nature of a temporary and then perma-

nent injunction restraining Davis from filing any further

suits against Hanover, its agents or employees or attor-

neys relating to the same or similar subject matter.

AND IN SUPPORT HEREOF, Hanover states as fol-

lows:

—_——e =

App. 55

1. This complaint should be dismissed on Principles

of res judicata (including both claim preclusion and issue

preclusion), all as argued in the accompanying Memoran-

dum of Law, the contents of which are incorporated

herein by reference;

2. Any Counts in Davis’ complaint purporting to

allege violations of M.G.L. c. 93A must be dismissed for

failure of Davis to prove the presentation of a 30-day

demand letter, which is required under the statute;

3. The sanctions being sought in this Motion are

entirely appropriate, all as argued in the accompanying

Memorandum, given the frivolous and vexatious nature

of Davis’ continuing complaints, all of which spring from

the same series of events and/or transactions.

Dated: 9/29/97 /s/ George R. Suslak

Attorney for Defendant

George R. Suslak, Esquire

BBO #541921

STANTON & LANG

200 Broadway, P.O. Box 1080

Lynnfield, MA 01940

(617) 595-1440

eT

App. 56

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, ss. SUPERIOR COURT

CIVIL ACTION

_ NO. 97-01716

FRED DAVIS

VS.

HANOVER INSURANCE COMPANY

MEMORANDUM OF DECISION AND ORDER

ON DEFENDANT’S MOTION TO DISMISS AND

MOTION FOR SANCTIONS

INTRODUCTION

On January 20, 1998, this case was before the court

for hearing on the motion of the defendant, Hanover

Insurance Company (“Hanover”), to dismiss pursuant to

Mass. R. Civ. P. 12(b)(6) and for sanctions pursuant to

G.L. c. 231, § 6(f). In support of its motion, Hanover

argues that the complaint must be dismissed because the

plaintiff, Fred Davis (“Davis”), can prove no set of facts

in support of his claim which would entitle him to relief;

and thus, the complaint should be dismissed for failure to

state a claim.

In his opposition, Davis argues that Hanover’s

motion should be stricken because (1) it does not comply

with rule 9A and 9C; (2) it is brought in bad faith and

with actual intent to deceive and defraud the court; (3) it

is a continuing attempt to financially exploit him; (4) it is

brought with the intention to deprive him of his rights

under the United States and Massachusetts Constitutions;

and, (5) it is brought to hurt and harm him.

i i A

App. 57

For the reasons set forth below, the defendant's

motion to dismiss will be ALLOWED.

BACKGROUND

This matter stems from an automobile accident which

allegedly occurred on February 11, 1987.1 Taking the facts

in the light most favorable to Davis, they are as follows:

Davis is a partially disabled senior citizen residing in

Malden, Massachusetts. Hanover is an Insurance Com-

pany with an office in Braintree, Massachusetts.

On or about January 18, 1990, Davis filed a complaint

in the Suffolk Superior court against Anthony Lauria

(“Lauria”), the driver of a vehicle involved in the acci-

dent referred to above. At that time, Hanover was the

insurer for Lauria. On February 12, 1991, the matter was

remanded to the Boston Municipal Court (“BMC”) and a

trial was scheduled for October 9, 1991. On October 9,

1991, however, the case was reported settled and an order

entered that the case would be dismissed as to all claims

on November 12, 1991, unless the parties filed an agree-

ment for judgment. Because no agreement for judgment

was filed, the case was dismissed, as ordered, on Novem-

ber 12, 1991.

Sometime in 1991, however, a settlement was reached

between Davis and Hanover in the amount of $20,000.00.

Before the settlement was final, Davis’ previous lawyer in

this case, Stuart Ravech, served the parties with a notice

' For a complete understanding of this decision, the court

recites the lengthy procedural history gleaned from the record

in this case.

App. 58

of an attorney’s lien. As a result, Hanover insisted that

any settlement include the name of Stuart Ravech.

In 1993, Davis filed a lawsuit in Norfolk Superior

Court against Hanover to collect the entire $20,000.00

settlement amount. In that complaint Davis alleged that

Hanover breached its contract with him, engaged in

unfair and deceptive business practices within the mean-

ing of G.L. c. 93A, tried to cheat him out of money due to

him, and acted in a manner designed to harass, hurt and

harm him. At that time, Hanover again offered to pay

Davis the settlement amount of $20,000.00 subject to an

attorney’s lien filed by Stuart Ravech; and, filed a counter

claim against Davis seeking declaratory and injunctive

relief. Subsequently, Hanover filed a motion for summary

judgment. The motion was allowed in its totality.

Davis then attempted to appeal the matter to the

Massachusetts Appeals Court. However, the Superior

Court record could not be assembled because Hanover’s

counterclaim had not been resolved. Subsequently, Hano-

ver voluntarily dismissed its counterclaim. On June 14,

1996, the Appeals Court affirmed the judgment of the

Superior Court.

At that point, Davis sought further appellate review

by the Supreme Judicial Court, which was denied on July

24, 1996.

Next Davis filed a petition for writ of certiorari with

the United States Supreme Court, which was denied on

January 6, 1997. A motion for rehearing, was denied by

the United States Supreme Court on February 18, 1997.

App. 59

On August 16, 1996, and while his original action

was pending in the Norfolk Superior Court, Davis filed a

complaint against Hanover and its Chairman of the

Board, John F. O’Brien, in the United States District Court

for the District of Massachusetts. This complaint sought

injunctive and monetary relief stemming from alleged

violations of state and federal constitutional rights as a

result of Hanover’s insistence that Davis’ settlement was

subject to the attorney’s lien. On Hanover’s motion, the

U.S. District Court for the District of Massachusetts dis-

missed the complaint on May 17, 1996.

Davis then appealed the matter to the First Circuit

Court of Appeals. On October, 11, 1996, that court

affirmed the District Court judgment.

Davis next sought certiorari of the decision to the

United States Supreme Court, which was denied on

March 3, 1997. A motion for rehearing was subsequently

denied by that court.

On May 7, 1997, Davis filed a motion for scheduling a

trial date in the BMC with regard to the matter that was

dismissed by that court on November 12, 1996. The

motion was denied.

Subsequently Davis retransferred the matter to the

Suffolk Superior Court. On Hanover’s motion, that court

vacated the retransfer.

On September 8, 1997, Davis filed the instant com-

plaint in which he alleges that Hanover engaged in acts

of unfair and deceptive business practices within the

meaning of G.L. c. 93A, engaged in acts designed to

App. 60

financially exploit him, and engaged in acts against the

disabled in violation of G.L. c. 19A, § 14.

DISCUSSION

When evaluating the sufficiency of a complaint pur-

suant to Mass. R. Civ. P. 12 (b)(6), the court must accept as

true the well pleaded factual allegations of the complaint,

as well as any inferences which can be drawn therefrom

in the plaintiff’s favor. Fairney v. Savogran Co., 422 Mass.

469, 470 (1996); Eyal v. Helen Broadcasting Corp., 411 Mass.

426, 429 (1991) and cases cited. A complaint is not subject

to dismissal if it would support relief on any theory of

law. Whitinsville Plaza Inc. v. Kotseas, 378 Mass. 85, 89

(1979). All inferences should be drawn in the plaintiff’s

favor “so as to do substantial justice.” Ourfalian v. Aro

Mfg. Co., 31 Mass. App. Ct. 294, 296 (1991). Thus, “the

complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his or her claim

which would entitle him or her to relief.” Nader v. Citron,

372 Mass. 96, 98 (1977).

After careful examination of the present complaint,

this court finds that the instant action is substantially

identical to the complaint brought by Davis, docket

#93-00575, on March 10, 1993. Thus, based on the doc-

trine of Res Judicata, the complaint must fail as to all

counts.

The doctrine of res judicata encompasses the doc-

trines of claim and issue preclusion. See Heacock v. Hea-

cock, 402 Mass. 21, 23 n.2 (1988). The applicable doctrine

in this case, the doctrine of claim preclusion, makes a

App. 61

valid, final judgment conclusive on the parties and their

privies, and bars further litigation of all matters that were

or should have been adjudicated in the action. See Heac-

ock, 402 Mass. at 23, citing, Franklin v. North Weymouth Co-

op Bank, 283 Mass. 275, 279-80 (1933), and cases cited.

This is so even though the claimant is prepared in a

second action to present different evidence or legal theo-

ries to support his claim, or seeks different remedies. See

Mackintosh v. Chambers 285 Mass. 594, 596-97 (1934) and

cases cited. Restatement (Second) of Judgments § 25

(1980). The claim is the same for res judicata purposes if it

is derived from the same transaction or series of con-

nected transactions. Saint Louis v, Baystate Med. Center,

Inc., 30 Mass. App. Ct. 393, 399 (1991), citing, Boyd v.

Jamaica Plain Co-op Bank, 7 Mass. App. Ct. 153, 163-64

(1979). The doctrine is a ramification of the policy consid-

erations that underlie the rule against splitting a cause of

action, and is based on the idea that the party to be

precluded has had the incentive and opportunity to liti-

gate the matter fully in the first lawsuit. Foster v. Evans

384 Mass. 687, 696 (1981). It is settled that a summary

judgment entered, as was the one in the first action, will

have preclusive effect. Fluhr v. Allstate Ins. Co., 15 Mass.

App. Ct. 983, 984 (1983).

Clearly, the doctrine of res judicata, or claim preclu-

sion, applies here where both actions are based on the

same claim, the matter was decided on summary judg-

ment against Davis and he had the incentive and the

Opportunity to fully litigate the matter at that time.

The instant complaint describes the same claims

which were at the core of the first action, namely, that

App. 62

Hanover engaged in unfair and deceptive business prac-

tices within the meaning of G.L. c. 93A, and engaged in

acts designed to financially exploit him.

The claims that Hanover “violated crimes against the

disabled by knowingly and willfully swindling monies

from the disabled,” and that Davis was “discriminated

against and taken advantage of because of his disability,”

are both derived of the same transaction, namely, the

failure of Hanover to pay to Davis the entire $20,000.00

settlement amount without accounting for the attorney’s

lien. There is nothing in the instant complaint that Davis

did not bring, or could not have brought, in the previous

action. Thus, this court finds that Davis cannot now

resuscitate, before this court, a claim that he brought, or

could have brought, in the earlier proceedings in the

Norfolk Superior Court docket #93-00574. Indeed, “pub-

lic policy dictates that there be an end of litigation; that

those who have contested an issue shall be bound by the

result of the contest; and, that matters one [sic] tried shall

be considered forever settled as between the parties.” See

Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass.

683, 688 (1974), quoting, Baldwin v. Iowa State Traveling

Men’s Ass'n, 283 U.S. 522, 525 (1931).

With regard to the motions of the plaintiff and the

defendant for sanctions, no sanctions will be imposed at

this time. However, the plaintiff has had full consider-

ation of his complaint. Should the plaintiff, Fred Davis,

- bring another duplicative complaint against this defen-

dant, Hanover Insurance Company, sanctions should be

considered at that time.

App. 63

ORDER

For the reasons stated above, it is hereby ORDERED

that the motion of the defendant, Hanover Insurance

Company, to dismiss be ALLOWED. The defendants

motion pursuant to GL. c. 231, § 6(f) for sanctions is

DENIED. The motion of the plaintiff, Fred Davis, for

sanctions is DENIED.

/s/ Gordon L. Doerfer

Gordon L. Doerfer

Justice of the Superior Court

A TRUE COPY

Attest: /s/ May A. Packer 3/13/98

Deputy Assistant Clerk

Dated: March 10, 1998.

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