Opposition Brief — Davis v. Hanover Insurance

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Supreme Court, US.

F I L E D

FIAN $1 1926

No. 96-1074

SieR

In The

Supreme Court of the United States

October Term, 1996

FRED DAVIS,

Petitioner,

vs.

HANOVER INSURANCE COMPANY, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

RESPONDENTS’ BRIEF IN OPPOSITION

AND SUPPLEMENTAL APPENDIX

Georce R. Sustak

Counsel of Record for Respondents

STANTON & LANG

P.O. Box 1080

200 Broadway

Lynnfield, MA 01940

(617) 595-1440

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

OR CALL COLLECT (402) 342-2831

RESPONDENT’S OBJECTIONS TO THE

ISSUES PRESENTED FOR REVIEW

The Petitioner, in his Petition for Writ of Certiorari,

has purportedly presented eleven issues for this Court’s

consideration. (Pet. at i-iv) The Respondent, as will be

detailed more fully below, objects to several of the issues

presented for the following reasons:

Issue I is objectionable on the grounds that the Peti-

tioner did not raise in the courts below an alleged

violation of the Massachusetts Declaration of Rights.

Issue II is objectionable on the grounds that the Peti-

tioner did not allege a violation of Amendment V of

the United States Constitution in his complaint or at

the United States District Court in opposition to the

Respondent’s Motion to Dismiss. Additionally, the

issue presented does not comply with Rule 14 of the

Supreme Court Rules.

Issue III does not state a question for consideration, in

violation of Rule 14 of the Supreme Court Rules.

Issue IV is objectionable on the grounds that the

Petitioner cid not raise in the courts below any

alleged violation of the Massachusetts Civil Rights

Act, M.G.L. ch. 12., s. 11 land no question for consid-

eration is presented, in violation of Rule 14 of the

Supreme Court Rules.

Issue V is objectionable on the grounds that the Peti-

tioner did not raise in the courts below any alleged

violation of Article XI of the Massachusetts Declara-

tion of Rights, and no question for consideration is

presented in violation of Rule 14 of the Supreme

Court Rules.

Issue VI fails to comply with Rule 14 (1) (a) of the

Supreme Court Rules in that it does not express con-

cisely a question presented for review nor was this

RESPONDENT’S OBJECTIONS TO THE

ISSUES PRESENTED FOR REVIEW - Continued

alleged issue presented to the United States Court of

Appeals.

Issue VIII fails to comply with Rule 14 (1) (a) of the

Supreme Court Rules in that it does not express con-

cisely a question presented for review.

Issue IX fails to comply with Rule 14 (1) (a) of the

Supreme Court Rules, rather it simply makes an alle-

gation that counsel for the Respondent acted in bad

faith without any suggestion of how this allegation

relates to an issue of proper consideration by this

Court.

iii

LIST OF INTERESTED PARTIES

The Petitioner is Fred Davis. The Respondents are

Hanover Insurance Company and John F. O’Brien.

Pursuant to Supreme Court Rule 29.6, the Respon-

dent supplies the following information concerning the

corporate structure of Hanover Insurance Company.

1. The Hanover Insurance Company is a New Hamp-

shire Corporation, with a principal place of business

at 100 North Parkway, Worcester, MA, which is

wholly owned by Allmerica Property and Casualty

Companies, Inc. which is a Delaware Holding Com-

pany, with a principal place of business at 440 Lincoln

Street, Worcester, MA.

2. Allmerica Property and Casualty Companies, Inc. is

publicly traded on the New York Stock Exchange.

3. Allmerica Financial Corporation is a Delaware Hold-

ing Company, with a principal place of business at

440 Lincoln Street, Worcester, MA.

4. Allmerica Financial Corporation is publicly traded on

the New York Stock Exchange and it is the indirect

parent company of Allmerica Property and Casualty

Companies, Inc. and Citizens Corporation, which is a

Delaware Holding Company with a principal place of

business at 440 Lincoln Street, Worcester, MA.

5. Citizens Corporation is publicly traded on the New

York Stock Exchange.

6. Allmerica Financial Corporation, through its wholly

owned subsidiary First Allmerica Financial Life

Insurance Company (“First Allmerica”), a Massa-

chusetts insurer and SMA Financial Corp., a Massa-

chusetts holding company which is a wholly owned

subsidiary of First Allmerica, owns 59.47 percent of

LIST OF INTERESTED PARTIES - Continued

the Common Stock of Allmerica Property and Casu-

alty Companies, Inc.

The Hanover Insurance Company owns 82.5 percent

of the Common Stock of Citizens Corporation.

TABLE OF CONTENTS

Page

Respondent's Objections To The Issues Presented For

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ee | er rr re err ene iii

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senbemment OF FUrisGiction, «oo... oc cc ccs cccscccccencs 1

a rere rer re ee 1

Corrections of Misstatements in the Petition ....... “

Asgument for Denigl of Writ .....2....cccsscccceen 5

I. The Petitioner Failed To Plead Properly That

The Federal Court Had Jurisdiction, There-

fore, This Court Should Not Consider His

POM aah ne CWRERS b 4b dbo bee 5

II. The Petitioner Has Failed To Establish A

Legitimate Equal Protection Argument ..... 7

Ill. The Petitioner Has Failed To Present Any

Allegations To Inculpate John F. O’Brien... 14

IV. The Petitioner Has Failed To Establish A

Legitimate Due Process Argument.......... 16

V. The Petitioner Has Failed To Establish A

Legitimate Argument That There Has Been A

Violation Of The Massachusetts Civil Rights

Act, MAs.L., CR.1Z, Section TE... 2.56.2, 17

VI. The Petitioner Has Failed To Establish A

Legitimate Argument That Article XI Of The

Massachusetts Declaration Of Rights Was

MUNN 05 55h hsa curdni idence eee 19

TABLE OF CONTENTS - Continued

Page

VII. The Petitioner Failed To State A Legitimate

Cause Of Action Against The Respondents,

Therefore, The District Court Properly Dis-

missed The Complaint ... 2.0.06. .sceseveces 20

VIII. The Petitioner’s Allegations Of Bad Faith

Against Counsel For The Respondents Are

Incorrect, Irrelevant And Do Not Form The

Basis Of A Federal Question............... 21

IX. The Petitioner’s Allegation Of A Conspiracy

Between The Superior Court And The

Respondent’s Attorney Is Frivolous And

Without Any Basis... 2 6.0s cesses cesses 22

X. The Petitioner’s Allegation That The Public

Interest Is Involved Is Overly Vague And

Does Not Comply With Rule 14 Of The Rules

Of The Supreme Court. ..........:scesceses 22

CE a. Ls Vachs dipebuedeenvsen se ee 23

vii

~ TABLE OF AUTHORITIES

Page

Cases CITED ,

Addis v. Steele, 38 Mass. App. Ct. 433 (1995) ........ 15

Andrews v. Bechtel Power Corp., 780 F. 2d 124 (1st

Ch NPE «Aa topo ecAcueie wc treknan seu caenees wee

Bell &. Figod, BiF WS. G75 CUPEG) 2.5 cs ecccescvvvevecs 11

Buck v. Inn at Coonamessett, Inc., 349 Mass. 612

GRRE IIGE arnt ty Pe ee eee In ee ee 15

Burnham v. Collateral Loan Co., 179 Mass 268 (1901) .... 13

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1986) ....... 6

City of Cleburne, Texas v. Cleburne Living Ctr., 473

Se, ME SRN os ac aGbddd SiR se Uinw igs euatagedes 10

Doe v. McFaul, 599 F. Supp. 1421 (D.C. Ohio 1984) .... 10

Doescher v. Estelle, 454 F. Supp. 943 (N.D. Texas

ps: MEG ER SLOSS ERIE A rhe ec gery ane Eee ete Pa are 19

Dozier v. Loop College, City of Chicago, 776 F. 2d 752

C7 OeE SA Is 5 ttn bs Kos bans gud Sac nee Spiess ek 4: 11

Driscoll v. International Union of Operating Engi-

neers, 484 F. 2d 682 (7th Cir. 1973)................ 16

Dudosh v. Warg, 668 F. Supp. 944 (E.D. Pa. 1987) .... 10

Duignan v. United States, 274 U.S. 195 (1927) ........ 17

Dworkin v. Hustler Magazine, Inc., 611 F. 2d 781 (D.

Lk PE BO Kuh be kp wht oda ee tea shaebredayses cess 11

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614

REE bs vn Kiet pate CELE 6 HTS FERS ADV a enbe boo 12

Ellison v. Merit Systems Protection Board, 7 F. 3d

Ree Ss CO BI a vc cks va paces COMER eS een kee e hae 5

Vili

TABLE OF AUTHORITIES —- Continued

Page

Elston v. Talledega County Board of Education, 997 F.

2d 1394 (11th Cir. 19948) 20... cccwecscccecceccsenss 10

Erie R. Co. v. Solomon, 237 U.S. 427 (1915)........... 18

Evan v. Multicon Construction Corp., 30 Mass. App.

Ce, TAB EEOBED nn 5s a pss cae eee ioe cbse iced 15

Faretts v. California, 422 U.S. 806 (1975)..........+-+ 6

FDIC v. Anchor Properties, 13 F. 3d 27 (1st Cir. 1994) ..... 6

Fountain v. New Orleans Public Service, Inc., 265 F.

Supp. 630 (E.D. La. 1967)..........-. eee eee eeeeeees 5

Green v. Comm. of Massachusetts, 108 F.R.D. 217 (D.

DMaaed. 1GBS) asc sbecctn nas cas cewtee se deaeeneus epes's 6

Haines v. Kerner, 404 U.S. 519 (1972). ......... eee eens 6

Hudgens v. NLRB, 424 U.S. 507 (1976) ........+-+.++- 12

In The Matter of Georgia Jewelers, Inc. Bankrupt, 219

F. Supp. 386 (N.D. Ga. 1962)..........-- seer eee eens 9

Ivey v. Frost, 346 F. 2d 115 (C.A. Mo. 1965) .......... 5

Jackson v. Metropolitan Edison Co., 419 U.S. 345

(SOF ys io.a 5 x0 ban Canoe agek Wek eet and) boa caus hones 16

Kelley v. Secretary, United States Dept. of Labor, 812

F. 2d: 1378 Ped. Civ. 1967) o. ocncccccsccccssssesnsns 6

Kidder v. Whitney, 336 Mass. 307 (1957)............-- 13

Lake v. Central Savings Bank, 27 F. 2d 847 (5th Cir.

EER Ne EEL Oe EINE a OED 9

Lawn v. United States, 355 U.S. 339 (1958) ....17, 19, 22

LeClair v. Silberline Manufacturing Co., Inc., 379

Bans. BE CIGFG), 6 inn is eGo cdnceccsedsbusscccsesden 15

TABLE OF AUTHORITIES - Continued

Page

Massey’s Plate Glass Co., Inc. v. Quinlan, 1992 Mass.

Par, TH. TDG oa oc ec ccec ces scssguscncvsccssesces 15

McCoy v. Mass. Institute of Technology, 950 F. 2d 13

Pe Se EE atic uhh b SkmEsd bev es Nhat esc hbewn ess 6

Medical Institute of Minnesota v. National Ass’n of

Trade & Technical Schools, 817 F. 2d 1310 (8th Cir.

4 RRO rear eee tea warrantee ony Ee yee eer eee 12

Meyer v. Mass. Eye & Ear Infirmary, 330 F. Supp.

SG | Se pre ne eee ere 12

Nader v. Citron. 372 Mass. 96 (1977)...............-. 15

Ortiz DeArroyo v. Barcelo, 765 F. 2d 275 (1st Cir.

| RRR TE et ney eegare 9 ne ee PA Ty eee Fete 11

Page v. Work, 290 F. 2d 323 (9th Cir.) cert. denied 368

8 RE” 5 FE es rie Poy rer Yet ee fee ee 9

Port Drum Co. v. Umphrey, 852 F. 2d 148 (Sth Cir.

a iabae ab chdeewk shies 6 nae nAede ap esnaieh sce 8

Redgrave v. Boston Symphony Orchestra, Inc., 602 F.

Supp. 1189 (D. Mass. 1965)... 6. cece cs esceessenee 12

Refrigeration Discount Corp. v. Catino, 330 Mass.

Be CN cis bev sa Ke awkh aw odce has enedeetaeaabinwe’ 15

Reynolds v. State of Georgia, 640 F. 2d 702 (5th Cir.

PRD ksh and ee DE le oA Rew nWelad cits bebe niet 9

Schroeder v. Danielson, 37 Mass. App. Ct. 450 (1994) .... 12

Seeling v. Harvard Cooperative Society, 1 Mass. App.

oe Et Peer erry peer ey eT eer rrr er 13

Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226

Ore? Cy eee Tare rr rere 8

Walters v. City of Allentown, 818 F. Supp. 855 (E.D.

Pe SE da adascasad ncaa huddnnvabens Kitunnanwee’ 10

Yee v. Escondido, 503 U.S. 519 (1992).............. 16, 23

TABLE OF AUTHORITIES - Continued

Page

Statutes CITED

irk OMS OS Pere tre re Pore es 18

et Te. i oR apap sa yee 17, 20

ik Ee pF | Fes eo er lene 7, 22

tet ie eS & BPP perro rrr eer ere 14, 19

Be Weak ons ctnebhs «banned ah venknts din nteene ol

GR TRA. B Ba an sack cndssccdbvacegiectnaeenseees 20

Ruies Cirep

Rule 29.6 Supreme Court Rules..................... iii

Rule 14, Supreme Court Rules................ . to ae

Rule 54 Mass. Rules of Civil Procedure ............. 22

Rule 54(a) Mass. Rules of Civil Procedure............ 7

Rule 54(b) Mass. Rules of Civil Procedure..... 7, WO

TREATISES CITED

6A Marlin M. Volz, et al., Feperat Practice MAn-

ae we ee FO | ee errr. 5, 11

13B Charles Allan Wright, et al., Feperat Practice

& PROCEDURE JURISDICTION § 3563 (2d ed. 1995)...... 8

C.J.S., Federal Courts...... seeds nus sseren ee Mende uaes 4

Unitep States CONSTITUTION CITED

ee NT ee od ca eee 16,

Ce, Gieees SOE, FEO 66 kent ecsad A ct tees 12, 16,

DEES

TABLE OF AUTHORITIES - Continued

Page

MAssACHUSETTS CONSTITUTION CITED

WGRSS.. CROCIMPRTIOR GE TRAMIIIE.. 6 oo cece cece eeessewscee 19

SUPPLEMENTAL APPENDIX

Denes OE Ga isich ov csenencs (cio nt canes ces tneee App. 1

Davis v. Hanover Insurance Co., Complaint Norfolk

IE GO ak in i hae ces naek Nie Ne iw esas App. 2

Answer and Counterclaim, 93-00574............. App. 5

Memorandum o: Law in Support of Motion For

PTT CTUTT TERE ee App. 11

Order of Norfolk Superior Court............... App. 22

Norfolk Superior Court Docket Entries......... App. 24

Appeals Court Order ............... Scwhcaeekea App. 31

Davis v. Hanover Insurance Co., et al. Complaint

Sa: SHINEE Sw 6s Ses kcdesids cavucieqees App. 32

STATEMENT OF JURISDICTION

The Petitioner claims that this Court’s jurisdiction “is

invoked under 28 United States Code.” (Pet., p.2) This

assertion of jurisdiction is overly vague and does not

comply with Rule 14(1)(e) of the Supreme Court Rules.

The Petitioner has failed to identify the particular statu-

tory provision which confers jurisdiction to this Court,

rather he has simply mentioned an entire Article of the

United States Code, leaving the Respondent to speculate

as to the alleged jurisdictional basis for the Petition.

STATEMENT OF THE CASE

The Respondent maintains that many of the allega-

tions contained in the Petitioner’s Statement of the Case

(Pet., p.2-4) are inaccurate, irrelevant or incomplete. To

correct the record, the Respondent provides this State-

ment of the Case:

On or about January 18, 1990, a civil complaint was

filed against Anthony Lauria, the Respondent’s insured,

on behalf of the Petitioner, by the law firm of Ravech,

Aronson & Shuman, P.C. This lawsuit arose out of a

motor vehicle accident in which the Petitioner was

allegedly injured. On April 26, 1991, the law firm of

Ravech, Aronson & Shuman, P.C. withdrew from the civil

action and served upon the Respondent a notice of an

attorney’s lien on behalf of said law firm covering the

proceeds arising out of the lawsuit against Mr. Lauria.

(Supp. App., p.1) In September of 1991, the Petitioner and

the Respondent, through their attorneys, reached an

agreement to dismiss the Petitioner’s complaint in con-

sideration of Twenty Thousand Dollars. From that time

forward, the Respondent has attempted to tender the

settlement funds to the Petitioner, while respecting the

attorney’s lien served upon it. The Petitioner has rejected

every such tender offer, insisting that his prior attorney

had no lien on the settlement funds.

On March 10, 1993, the Petitioner filed a civil com-

plaint against the Respondent in the Norfolk County

Superior Court, alleging, in essence, that the Respondent

improperly insisted on respecting the lien of the Peti-

tioner’s prior counsel. (Supp. App., p.2-4)

On March 24, 1993, the Respondent filed its answer

to the complaint, along with a counterclaim against the

Petitioner, in which it sought to enjoin the Petitioner from

continuing his baseless allegations against the Respon-

dent. The counterclaim also sought a declaration that the

Respondent was acting properly in respecting the lien of

the law firm of Ravech, Aronson & Shuman, P.C. (Supp.

App., p.5-8)

On September 24, 1993, the Respondent filed its

motion for summary judgment on the Norfolk County

Superior Court complaint. This motion did not seek sum-

mary judgment on its counterclaim. (Supp. App., p.9-20)

On January 14, 1994, after hearing, Judge Connolly

allowed the motion for summary judgment. (Supp. App.,

p.21) Contrary to the Petitioner’s allegation that Judge

Connolly’s order dismissed the counterclaim, no such

order was issued by Judge Connolly. The Respondent's

counterclaim, therefore, i» ssived active.

According to the Norfolk County Superior Court

docket, the Petitioner filed his notice of appeal on Janu-

ary 21, 1994, followed by several motions that the record

be assembied for appeal. (Supp. App., p.25-26) All such

motions were denied. On September 12, 1995, upon the

Respondent’s motion, the Norfolk County Superior Court

entered a voluntary dismissal of the counterclaim against

the Petitioner. Final judgment was then entered on all

counts. On October 3, 1995, the Petitioner filed his notice

of appeal of Judge Connolly’s January 14, 1994 order and

the appeal proceeded. (Supp. App., p.22-26) The Peti-

tioner’s appeal was subsequently rejected by the Massa-

chusetts Court of Appeals and the Superior Court

judgment was affirmed on June 14, 1996. (Supp. App.,

p.27)

On August 16, 1995, the Petitioner filed a lawsuit in

the United States District Court, First Circuit, against the

Respondents, Hanover Insurance Company and John F.

O’Brien, alleging that the Respondents and the Massa-

chusetts Norfolk County Superior Court judge somehow

acted in a manner so as to deny the Petitioner of his right

to appeal the Superior Court’s January 14, 1994 order.

On September 5, 1995, the Respondent filed a Motion

to Dismiss the United States District Court lawsuit on the

grounds that the Petitioner had failed to state a claim for

relief and that the Court did not have subject matter

jurisdiction. On May 17, 1996, the United States District

Court allowed the Respondent’s Motion to Dismiss.

(App., p.3-7) On May 28, 1996, the Petitioner filed his

Notice of Appeal of said dismissal. On October 11, 1996,

the United States Court of Appeals affirmed the United

States District Court’s judgment. (App., p.8-9) On Octo-

ber 24, 1996, the Petitioner filed his Notice of Petition for

Writ of Certiorari.

CORRECTIONS OF MISSTATEMENTS

IN THE PETITION

In his Statement of the Case, the Petitioner alleges

that the Respondent's prior attorney, Mark F. Mahnken,

threatened the Petitioner. (Pet., p.7) This allegation is

untrue and it was never previously made by the Peti-

tioner. It is made at this time for the sole purpose of

attempting to create allegations of fact that could some-

how legitimize the Petitioner’s recently contrived allega-

tion that the Respondent violated the Massachusetts Civil

Rights Act.

The Petitioner further alleges that Judge Connolly of

the Massachusetts Superior Court dismissed the counter-

claim of the Respondent at the time he allowed its Motion

for Summary Judgment. (Pet., p.4) This assertion is incor-

rect, as the records clearly demonstrate. (Supp. App.,

p-21)

The Respondent also objects to the numerous refer-

ences to statements made by non-parties to this litigation

as the alleged statements are newly created and/or are

not corroborated by an affidavit.

i i i i ed ee ee ee

ARGUMENT FOR DENIAL OF WRIT

I. THE PETITIONER FAILED TO PLEAD PROPERLY

THAT THE FEDERAL COURT HAD JURISDIC-

TION, THEREFORE, THIS COURT SHOULD NOT

CONSIDER HIS PETITION.

It is the Petitioner’s clear burden to sufficiently plead

the jurisdiction of the Federal Court. A complaint which

makes no adequate statement of jurisdictional facts is

fatally defective. Ivey v. Frost, 346 F. 2d 115 (C.A. Mo.

1965):

“ ... proper allegations setting out the federal question

must be included in the plaintiff’s complaint.” 6A Volz,

Federal Practice Manual, § 7527, at p.313.

It is insufficient that the Petitioner has merely recited

in his complaint that the Court’s jurisdiction rests, for

example, upon the equal protection clause of the United

States Constitution (Supp. App., p.28):

The law, however, is well settled that the mere

recitation of a basis for jurisdiction by a party is

not sufficient. Rather, substantive details estab-

lishing jurisdiction must be alleged in the com-

plaint. Ellison v. Merit Systems Protection Board, 7

F. 3d 1031, 1035 (Fed. Cir. 1993).

The general rule for pleading Federal jurisdic-

tion requires more than a simple allegation that

jurisdiction exists or citation of a Federal stat-

ute. Rather, it is required that the complaint

clearly set out the basic facts necessary to sup-

port the conclusion that there is Federal jurisdic-

tion. Fountain v. New Orleans Public Service, Inc.,

265 F. Supp. 630, 632 (E.D. La. 1967).

The presence or absence of federal-question

jurisdiction is governed by the ‘well-pleaded

complaint rule’, which provides that federal

jurisdiction exists only when a federal question

is presented on the face of plaintiff’s properly

pleaded complaint. Caterpillar, Inc. v. Williams,

482 U.S. 386, 392 (1986).

See also, McCoy v. Massachusetts Institute of Technol-

ogy, 950 F. 2d 13, 15 n. 1 (1st Cir. 1991).

The Respondent recognizes that a more liberal read-

ing of this pro se litigant’s pleadings may apply here.

Haines v. Kerner, 404 U.S. 519, (1972); Green v. Common-

wealth of Massachusetts, 108 F.R.D. 217, 218 (D. Mass.

1985). Nevertheless, “this cannot be taken to mean that

pro se complaints are held to no standard at all”. Green v.

Commonwealth, Id. The right of self-representation is not a

license to violate the procedural and substantive rules.

Faretts v. California, 422 U.S. 806, 835 n. 46, (1975); cited in

Andrews v. Bechtel Power Corp., 780 F. 2d 124, 140 (1st Cir.

1985); see also, FDIC v. Anchor Properties, 13 F. 3d 27 (1st

Cir. 1994). A court may not take a liberal view of jurisdic-

tional requirements and set a different rule for pro se

litigants only. Kelley v. Secretary, United States Department

of Labor, 812 F. 2d 1378 (Fed. Cir. 1987). Therefore, despite

the application of a more liberal rule of pleading, the

allegations of the Petitioner’s complaint are patently

insufficient to support the exercise of subject matter juris-

diction in this matter.

Il. THE PETITIONER HAS FAILED TO ESTABLISH A

LEGITIMATE EQUAL PROTECTION ARGUMENT

The substance of the Petitioner’s complaint is that the

Norfolk County Superior Court, allegedly in conjunction

with the Respondent's prior attorney, improperly refused

to allow the Petitioner to appeal an interlocutory order.

Even if this Court were to accept that the Petitioner had

properly pled an equal protection jurisdictional basis for

this action, it is abundantly clear that the Petitioner’s

efforts to have the record assembled for his appeal were

properly rejected by the Superior Court based upon Rule

54(b) of the Massachusetts Rules of Civil Procedure and

Massachusetts General Laws, chapter 231, § 113.

The law in the Commonwealth of Massachusetts is

that a party can appeal only a “final judgment of the

| Superior Court.” M.G.L. ch. 231, § 113. A “final judg-

| ment” is an act of the trial court that finally adjudicates

the rights of the parties affected by the judgment.

M.R.C.P. 54(a). A court ofder which does not resolve all

claims, including counterclaims, is not a final adjudica-

tion of all rights of the parties affected unless the court

makes an express determination that there is no just

reason for delay and upon an express direction by the

court that final judgment enter. M.R.C.P. 54(b)

Due to the fact that the Respondent’s counterclaim

had not been acted upon by the trial court when the

Petitioner attempted to initiate his appeal, his motions for

the immediate assembly of the record were premature.

The Petitioner has cited no case law to establish that the

Norfolk County Superior Court misapplied the applicable

law or the rules of civil procedure in refusing to process

his efforts at an appeal, nor has the Petitioner produced

any evidence to suggest that others, situated similarly,

had been allowed by the trial court to proceed with an

appeal.

Although it is obvious that the Petitioner’s attempts

to proceed with his appeal were properly rejected by the

Massachusetts trial court, even if the court were incorrect,

its order would not give rise to federal court jurisdiction.

A challenge to an interpretation and application of the

rules of procedure does not supply “federal question”

jurisdiction. 13B Charles Allan Wright, et al., FEDERAL

PRACTICE AND PROCEDURE JURISMICTION (2d ed. 1995), § 3563

(1995 Supp.)

The thrust of the Petitioner’s complaint is contained

in one sentence:

“the plaintiff is denied his right to appeal the

courts [sic] decision” (Supp. App., p-28)

The rules, then, only implement the exercise of

jurisdiction otherwise conferred by Congress

and do not provide an independent basis for

parties without any other jurisdictional grant to

get into federal court in the first place. Port

Drum Co. v Umphrey, 852 F.2d 148, 149 (Sth Cir.

1988).

As a matter of law, an alleged irregularity in the

process for review in a state court does not give rise to

federal jurisdiction for a violation of equal protection.

Wagner Electric Mfg. Co. v. Lyndon, 262 U.S. 226 (1922)

(holding directly that the refusal of a state court to trans-

fer an appeal to the state court en banc is not a denial of

equal protection).

The federal district courts have no authority to

review as on appeal the actions of a state court

because of a claimed violation of constitutional

rights. The mere fact that a state court judgment

or decision is erroneous, or unjust, or the result

of improper practices on the part of one of the

litigants, or inconsistent with prior decisions,

raises no constitutional question on which the

jurisdiction of the federal courts can be based.

... No federal question is presented by a claim

of submitting the matter to the court en banc

. or that a state appellate court failed to

consider an assignment of error. 36 C.J.S., Federal

Courts, § 28, at p.156-157.

Similarly, a claim that there has been a denial of

procedural due process by the granting of summary judg-

ment in a state court (for purposes of invoking federal

jurisdiction) is frequently held to be frivolous. Page v.

Work, 290 F. 2d 323, 334 (9th Cir.) cert. denied 368 U.S. 875

(1961); In the Matter of Georgia Jewelers, Inc., Bankrupt, 219

F. Supp. 386, 399 (N.D. Ga.), aff'd, 302 F. 2d 362 (Sth Cir.

1962); Reynolds v. State of Georgia, 640 F. 2d 702 (Sth Cir.

1981). See also Lake v. Central Savings Bank, 27 F. 2d 847

(5th Cir. 1928) (holding that even if the plaintiff can show

that the state court failed to pass upon certain grounds in

makirg its decision, this still does not constitute a denial

of any constitutional right upon which to base federal

jurisdiction).

Most critically for purposes of the Petitioner’s equal

protection claim is the fact that he has made no allegation

that he was treated any differently than any other person

similarly situated. He has, therefore, not been “classified”

at all and the constraints of the equal protection clause

are simply inapplicable.

“Equal protection” is essentially a directive that all

persons similarly situated be treated alike. City of

Cleburne, Texas, v. Cleburne Living Center, 473 U.S. 432, 439

(1985). The elemental prerequisite to an equal protection

analysis is that there be some legislative, administrative,

or judicial scheme or some state-promulgated rules which

are subject to judicial review. Doe v. McFaul, 599 F. Supp.

1421 (D.C. Ohio 1984). The equal protection clause could

not be violated by negligence, rather a showing of delib-

erate and unlawful discrimination is required. Dudosh v.

Warg, 668 F. Supp. 944, vacated 853 F. 2d 917, cert. denied

109 S. Ct. 367 (E.D. Pa. 1987).

To establish an equal protection violation, the Peti-

tioner must demonstrate that the challenged action was

motivated by an intent to discriminate. Elston v. Talledega

County Board of Educ., 997 F. 2d 1394, rehearing denied 7 F.

3d 242 (11th Cir. 1994). The burden is on the plaintiff to

make this showing of purposeful and unlawful discrimi-

nation. Walters v. City of Allentown, 818 F. Supp. 855, aff'd.

9 F. 3d 1541, cert. denied 114 S. Ct. 1301 (E.D. Pa. 1993).

The Petitioner has not alleged that he was treated differ-

ently than any other persons who were similarly situated

before the courts, or that there was some state promul-

gated scheme, or that any conduct here was motivated by

an intent to deliberately and unlawfully discriminate.

A claim must have a minimum plausibility to

support jurisdiction, even if it asserts a basis (a

deprivation of constitutional rights under color

of state law) that ordinarily furnishes jurisdic-

tion. Dozier v. Loop College, City of Chicago, 776 F.

2d 752, 753 (7th Cir. 1985) (emphasis added).

The Respondent here maintains that the Petitioner's

claim has no such “minimum plausibility” nor does any

reading of the complaint demonstrate that it “clearly and

substantially” involves the Constitution:

A case arises under the Constitution of the

United States if it clearly and substantially

involves a dispute or controversy respecting the

validity, construction or effect of .. . [the Consti-

tution] . . . which is determinative of the result-

ing judgment. Dworkin v. Hustler Magazine, Inc.,

611 F. 2d 781, 784 (D.C. Wyo 1985).

And further:

The court will critically examine the averments

in the complaint to determine if the federal

question pleaded is a real or substantial one or

remote or immaterial. If the plaintiff’s case con-

cerns federal law only remotely or in an imma-

terial way, the case is to be dismissed for want

of jurisdiction. 6A Volz, Federal Practice Manual,

§ 7530, at p.323; and cases cited.

Where an alleged claim under the Constitution

appears to be immaterial and made solely for the pur-

poses of obtaining federal jurisdiction, or where the claim

is wholly insubstantial and frivolous, the claim should be

dismissed for lack of jurisdiction. Ortiz De Arroyo v. Bar-

celo, 765 F. 2d 275, 279 n. 6. (1st Cir. 1985); citing Bell v.

Hood, 327 U.S. 678, 682-683, (1946). The instant matter is

just such a case.

Even if the complaint is somehow interpreted so as to

generally encompass a claim for relief under the equal

protection clause, such a claim still will not lie against the

Respondents. The protections of the Fourteenth Amend-

ment apply strictly to state action and do not apply to

purely private actions. Hudgens v. NLRB, 424 U.S. 507, 521

(1976); Meyer v. Massachusetts Eye & Ear Infirmary, 330 F.

Supp. 1328, 1331 (D. Mass. 1971). Even assuming that the

Petitioner has alleged some actionable conduct by either

John O’Brien or by Hanover Insurance Company (an

assumption which is strongly denied), there is no allega-

tion that any such conduct was governmental in nature.

This constitutional guarantee [the equal protec-

tion clauses of the federal and state constitu-

tions] limits only the actions of government; it

does not apply to purely private actions. Schro-

eder v. Danielson, 37 Mass. App. Ct. 450, 456, 640

N.E. 2d 495, 498 (1994).

See also, Redgrave v. Boston Symphony Orchestra, Inc.,

602 F. Supp. 1189, aff'd in part, vacated in part, 855 F.2d

888, cert. denied 109 S. Ct. 869 (D. Mass. 1985) (the Four-

teenth Amendment protects only against governmental

intrusions). Entirely private actions cannot violate equal

protection. Medical Institute of Minnesota v. National Ass‘n

of Trade and Technical Schools, 817 F. 2d 1310 (8th Cir. 1987).

The Petitioner has not alleged that these private defen-

dants have made the extensive use of state procedures

with the overt, significant assistance of state officials as is

required by cases such as Edmonson v. Leesville Concrete

Co., Inc., 500 U.S. 614 (1991).

There is here, perhaps, an analogy to the area of

malicious prosecution under state law. A private citizen is

not liable for malicious prosecution where he merely

relates the material facts to the public officer and leaves

the public officer to decide what to do. Seeling v. Harvard

Cooperative Society, 1 Mass. App. Ct. 341 (1973); Kidder v.

Whitney, 336 Mass. 307, 308-309 (1957). Even if the pros-

ecutor comes to the wrong conclusion and prosecutes

when he ought not to do so, the private citizen who

initially brought the charges forward cannot be held lia-

ble in an action for malicious prosecution when he merely

leaves it to the discretion of the officer to act entirely

upon his own judgment as to whether there will be a

criminal prosecution. Burnham v. Collateral Loan Co., 179

Mass. 268 (1901).

In the instant matter, by analogy, it was the Norfolk

County Superior Court which (quite properly) decided

that it could not assemble the record for an interlocutory

appeal while the Respondent's counterclaim was still

pending. The Respondents are not even alleged to have

participated in the allegedly improper denial of the Peti-

tioner’s motions for the immediate assembly of the record

for appeal. Certainly, the Respondent cannot be held

liable for the decision of the trial court, where there is no

evidence that the Respondent acted in concert with the

state to deny the Petitioner an avenue of appeal.

If the Petitioner felt aggrieved by the Superior

Court’s allowance of the Respondent’s motion for sum-

mary judgment, then the Petitioner could have moved for

the entry of a separate and final judgment under Rule

54(b) of the Massachusetts Rules of Civil Procedure or he

could have petitioned for interlocutory relief, pursuant to

M.G.L. ch. 231, § 118. He took neither action, rather he

mistakenly continued to file requests that the Superior

Court assemble the record for appeal.

For all of the above reasons, the Petitioner’s claim

that his Equal Protection rights were violated must be

rejected and this Court should not consider a further

review of the United States District Court’s dismissal of

the Petitioner’s complaint.

Ill. THE PETITIONER HAS FAILED TO PRESENT

ANY ALLEGATIONS TO INCULPATE JOHN F.

O’BRIEN

The Petitioner has made no allegation at all regarding

actions taken by the Respondent, John F. O’Brien, (here-

inafter referred to as “O’Brien”) individually. Indeed, the

only mention of O’Brien is that he is “Chairman of the

Board of the Respondent Insurance Company”. This

action was properly dismissible as to O’Brien because:

(1) it fails to state any cause of action against him

whatsoever — i.e., it fails to give O’Brien any reasonable

notice as to the claims against him so that he might

properly respond; and

(2) it fails to state any cause of action against him

individually (as opposed to any conduct as an employee

of the Hanover Insurance Company).

An officer of a corporation does not incur per-

sonal liability for a tort committed by a corpora-

tion or by one of its officers merely by virtue of

the office which he holds in the corpora-

tion . . . As to third persons a corporate officer-

. cannot be held liable unless he commits a

breach of duty which he owes such person.

Refrigeration Discount Corporation v. Catino, 330

Mass. 230, 235-236 (1953).

The well-settled rule in Massachusetts is that a corpo-

rate officer can be held liable only for torts in which he

participated individually. LeClair v. Silberline Manufactur-

ing Co., Inc., 379 Mass. 21, 29 (1979); Addis v. Steele, 38

Mass. App. Ct. 433, 439 (1995) (“Without evidence that

the individual defendants participated in acts causing

injury to the plaintiffs, there was no breach of duty to the

plaintiffs”). “It is rare that a court will permit a claimant

to look beyond an existing corporation to its officers and

shareholders for the satisfaction of an apparent corporate

liability”. Massey's Plate Glass Co., Inc. v. Quinlan, 1992

Mass. App. Div. 104; Evan v. Multicon Construction Corp.,

30 Mass. App. Ct. 728, 732 (1991). The Petitioner’s com-

plaint was silent as to any alleged role O’Brien had in any

alleged violation of the Petitioner’s Constitutional rights.

It is also clear that, in appropriate circumstances, a

court may find, as a matter of law, that there is no

individual liability of a corporate officer. Buck v. Inn at

Coonamessett, Inc., 349 Mass. 612, 614-615 (1965) (uphold-

ing a directed verdict for lack of evidence that the indi-

vidual corporate officer “had directly participated in the

accident or that he individually had been guilty of any

negligent misfeasance”). See also, Addis v. Steele, supra

(ordering that an involuntary dismissal be entered on

behalf of the individual defendants).

The instant matter is, therefore, in stark contrast to

cases where an individual corporate officer has been held

personally liable. See Nader v. Citron, 372 Mass. 96, 102

16 “

(1977), where the individual defendant was expressly

alleged to have personally commingled and spent the

plaintiff's funds. In the absence of any evidence to indi-

cate any claim against O’Brien, the United States District

Court rightfully dismissed the complaint.

IV. THE PETITIONER HAS FAILED TO ESTABLISH

A LEGITIMATE DUE PROCESS ARGUMENT

The Petitioner also refers to a denial of his right to

“due process” under the Fifth and Fourteenth Amend-

ment to the United States Constitution (Pet., p.6). Other

than quoting a portion of the amendments, the Petitioner

has made absolutely no argument as to how his rights

were allegedly violated. Rule 14(1)(a) of the Supreme

Court Rules is intended to provide the Respondent with

notice of the grounds on which the Petitioner is seeking

certiorari, so that the Respondent can direct his opposi-

tion to the appropriate issue. Yee v. Escondido, 503 U.S.

519, 535-536 (1992). The Petitioner has failed to provide

any details on his Fifth and Fourteenth Amendment

claims, thereby making it impossible for the Respondent

to respond, other than to repeat the argument used above

that the restrictions of the Fifth and Fourteenth Amend-

ment do not apply to private citizens. Jackson v. Metro-

politan Edison Co., 419 U.S. 345, and Driscoll v. Internat’!

Union of Operating Engineers, (7th Cir. 1973) 484 F. 2d 682,

cert. den. 415 U.S. 960.

Additionally, the Petitioner failed to present to the

United States District Court, in opposition to the Respon-

dent’s Motion to Dismiss, or in his complaint that his

Fifth or Fourteenth Amendment rights were somehow

violated by the actions of the Respondent. (Supp. App.,

p-27-29) In the absence of exceptional circumstances, this

Court does not consider issues not previously raised.

Lawn v. United States, 355 U.S. 339, at 362, n.16 (1958),

citing Duignan v. United States, 274 U.S. 195, 200. The

Petitioner has presented no facts, let alone exceptional

facts, to support the allegation of a violation of his Fifth

or Fourteenth Amendment rights. This Court, therefore,

should reject this argument.

V. THE PETITIONER HAS FAILED TO ESTABLISH A

LEGITIMATE ARGUMENT THAT THERE HAS

BEEN A VIOLATION OF THE MASSACHUSETTS

CIVIL RIGHTS ACT, M.G.L. ch.12, Section 111.

In his petition, the Petitioner, for the very first time,

alleges that the Respondents, through their prior attor-

ney, violated the Massachusetts Civil Rights Act, M.G.L.

ch. 12, Section 11I. The Petitioner failed to make any such

argument at any of the Courts below, therefore, this

Court should exercise its discretion and reject this recent

fabrication presented solely to create this false issue.

As noted above, only in exceptional cases will this

Court consider issues not raised below. Lawn v. United

States, supra. There are no exceptional circumstances in

this case. As noted throughout this brief, the Petitioner

has failed to demonstrate that any constitutional rights

were violated. His attempts to appeal the Superior

Court’s allowance of a motion for summary judgment

were premature and he, apparently, did not know that he

had other procedural mechanisms available to him to

prosecute his appeal.

This Court must take a serious look at the recent

development of this alleged violation of civil rights. The

first time that the Massachusetts Civil Rights Act was

mentioned in the record was in the Memorandum and

Order of the United States District Court, dated May 17,

1996. (App., p.3-7) In that Memorandum, the Judge, who

was searching for the slightest hint of an argument, noted

that even if the Petitioner were arguing a violation of the

Massachusetts Civil Rights Act, said argument would fail

because there was no evidence of any “threats intimida-

tion, or coercion” by the Respondents, as required by

M.G.L. ch. 12, section 11H. (App., p.5)

In his appeal to the United States Court of Appeals,

the Petitioner failed to make any allegation that the

Respondents, or their agents, threatened, intimidated or

coerced the Petitioner in violation of the Massachusetts

Civil Rights Act. It is not until the Petitioner filed this

petition to the Supreme Court of the United States that he

alleged that the Respondent's attorney made threatening

or intimidating comments to him. (Pet., p.7).

Clearsy, the Petitioner may not now introduce new

arguments of law based upon new and unsupported alle-

gations of fact in an attempt to establish federal jurisdic-

tion in a lawsuit that was frivolous from its inception.

Erie R. Co. v. Solomon, 237 U.S. 427, 431 (1915).

VI. THE PETITIONER HAS FAILED TO ESTABLISH

A LEGITIMATE ARGUMENT THAT ARTICLE XI

OF THE MASSACHUSETTS DECLARATION OF

RIGHTS WAS VIOLATED

The Petitioner has introduced another argument into

the Petition, which never appeared below. Now, he

argues that the passage of eighteen months, from his first,

misguided attempt to appeal the Massachusetts Superior

Court order until he filed his complaint in the United

States District Court, constitutes a violation of Part 1,

Article XI of the Massachusetts Declaration of Rights.

As this is an entirely new argument raised here for

the first time, this Court should not consider this issue

unless there are exceptional circumstances. Lawn, supra.

Clearly, no exceptional circumstances exist. As noted

above, the delay in prosecuting his appeal was solely the

result of the Petitioner’s inexperience and ignorance of

the civil procedure rules. The Petitioner could have

immediately moved to have a separate and final judg-

ment entered on his dismissed claim, pursuant to Rule

54(b) of the Massachusetts Rules of Civil Procedure, or he

could have immediately petitioned for interlocutory

relief, pursuant to M.G.L., 231, section 118.

In assessing the delay in obtaining appellate relief, a

Court would look to the responsibility or fault attributa-

ble to the respective parties. Doescher v. Estelle, 454 F.

Supp. 943, 947. In the facts at hand, the delay in the

Petitioner’s appeal was solely the result of his own con-

duct. The Petitioner had adequate remedies available to

him and he did not take advantage of them.

VII. THE PETITIONER FAILED TO STATE A LEGITI-

MATE CAUSE OF ACTION AGAINST THE

RESPONDENTS, THEREFORE, THE DISTRICT

COURT PROPERLY DISMISSED THE COM-

PLAINT

Issue IV in the Petition appears to claim that because

the Petitioner, in drafting his complaint, relied upon a

guide book, apparently published by the United States

District Court, then his complaint should not have been

dismissed. This issue does not raise any new arguments,

rather it simply concludes that the District Court improp-

erly dismissed this action because of an alleged “misstep”

by the Petitioner in the drafting of the complaint.

As noted above, the United States District Court

properly dismissed the Petitioner’s complaint because:

(1) the Petitioner failed to allege any conduct committed

by the Respondents, as opposed to the Superior Court or

Attorney Mark Mahnken, which caused the Petitioner

any harm “constitutional or otherwise” (App., p.4); (2)

the Fourteenth Amendment applies only to state actions

as does the federal civil rights statute, 42 U.S.C. § 1983,

therefore, no liability would attach to private parties,

such as the Respondents, Edmondson v. Leesville Concrete

Co., 500 U.S. 614, 619 (1991); (3) the complaint failed to

allege any factual support to the theory that the Superior

Court judge and the Respondents acted together under

the color of state action; (App., p.5); (4) if the Petitioner

intended to allege a violation of M.G.L. ch. 12, section 111,

the Massachusetts Civil Rights Act, it too, must fail in the

absence of any threats, intimidation or coercion (App.,

p.5); and (5) the Superior Court acted properly in refus-

ing to assemble the record for the Petitioner’s appeal in

light of the fact that the Petitioner had not complied with

the applicable laws and rules of civil procedure (App.,

p-6).

Even giving the Petitioner all the benefits of doubt in

reviewing his complaint, the United States District Court

properly dismissed the complaint on its merits, not

because the Petitioner may have drafted the complaint

without the expertise of a practiced attorney.

VIII. THE PETITIONER’S ALLEGATIONS OF BAD

FAITH AGAINST COUNSEL FOR THE

RESPONDENTS ARE INCORRECT, IRRELE-

VANT AND DO NOT FORM THE BASIS OF A

FEDERAL QUESTION

Issue V of the Petitioner alleges, for the first time,

that Attorney Mark Mahnken, as counsel for the Respon-

dents: threatened and intimidated the Petitioner (Pet.,

p-10); lied to the employers of the Petitioner (Pet., p.10);

and obtained privileged tax records of the Petitioner

(Pet., p.10). The Respondent denies all of the above alle-

gations and the Petitioner has failed to provide any evi-

dence of his allegations. Without any factual support to

the allegations, this Court should not consider the

unfounded accusations.

As evidenced above, the Petitioner’s denial of access

to appeal this matter was the result of his own doing and

there is no support that the Respondents took any steps

to interfere unlawfully with the Petitioner’s exercise of

his appellate rights.

Furthermore, the arguments that the Respondents,

through their attorney, intimidated the Petitioner, lied to

the Petitioner’s emplovers and obtained privileged tax

records of the Petitioner were never issues presented to

the United States District Court. In the absence of excep-

tional circumstances, this Court should not entertain new

allegations raised for the first time in a petition for a writ

of certiorari. Lawn, supra.

IX. THE PETITIONER’S ALLEGATION OF A CON-

SPIRACY BETWEEN THE SUPERIOR COURT

AND THE RESPONDENT'S ATTORNEY IS FRIV-

OLOUS AND WITHOUT ANY BASIS

The record is clear that there was no conspiracy

between Attorney Mark Mahnken and Judge Connolly, of

the Norfolk County Superior Court. The Petitioner’s

repeated efforts to initiate his appeal of the issuance of a

summary judgment order were not blocked by the

Respondents or their attorney, rather, the requests were

rightfully denied by the Superior Court as no final judg-

ment had entered, therefore, no appeal could then be

pursued in the manner in which the Petitioner sought, as

per Rule 54 of the Massachusetts Rules of Civil Procedure

and M.G.L. ch. 231, § 113.

X. THE PETITIONER’S ALLEGATION THAT THE

PUBLIC INTEREST IS INVOLVED IS OVERLY

VAGUE AND DOES NOT COMPLY WITH RULE 14

OF THE RULES OF SUPREME COURT

The Petitioner’s tenth and final issue does not raise

any question at all. This claim merely asserts that the

“public interest is involved” (Pet., p.11) The Petitioner

has failed to provide the Respondent with any details on

the issue that he seeks to be reviewed. Rule 14(1)(a) of the

Supreme Court Rules is intended to provide the Respon-

dent with notice of the grounds on which the Petitioner is

seeking certiorari, so that the Respondent can direct his

opposition to the appropriate issue. Yee v. Escondido, 503

U.S. 519, 535-536 (1992).

The Petitioner clearly has not complied with the

requirements of Rule 14, which is to express concisely the

question presented for review and how the circumstances

of this case would apply. The Petitioner merely claims

that this Court must act so that a judge/attorney cannot

prevent a case from being appealed.

aon ¢

CONCLUSION

The Petition for Writ of certiorari should be denied.

Respectfully submitted,

Dated: January 31, 1997 Georce R. Sustak, Esquire

Counsel of Record for

Respondents

STANTON & LANG

200 Broadway, P.O. Box 1080

Lynnfield, MA 01940

(617) 595-1440

App. 1

NOTICE OF LIEN

Notice is hereby given, pursuant to Massachusetts

General Laws, Chapter 221 §50 and pursuant to any and

all other applicable law, that Attorney Stuart D. Ravech

hereby claims a lien on any recoveries, whether by judg-

ment, settlement or otherwise which maybe had and aris-

ing from all personal injuries suffered by Mr. Fred Davis

on or about February 11, 1987 in Revere, Massachusetts.

Terms of said lien shall be in the amount of $7,500.00

of any recovery, settlement or judgment.

/s/ Stuart Ravech

Stuart Ravech, Esq.

RAVECH, ARONSON &

SHUMAN, P.C.

125 Summer Street

Boston, MA 02110

(617) 439-0200

DATED: April 26, 1991

App. 2

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS SUPERIOR COURT

No. 93 00574

FRED DAVIS, .

Plaintiff : COMPLAINT

V. * JURY TRIAL

HANOVER INSURANCE " REQUESTED ON ALL

COMPANY, et al : COUNTS

Defendants *

eee eee eee eee eT eS ee Pe Pe eee ee ee ee SS

1. Plaintiff, Fred Davis, of Malden, County of Mid-

diesex, Commonwealth of Massachusetts.

2. Defendant, Hanover Insurance Company, of Brain-

tree, County of Norfolk, Commonwealth of Massa-

chusetts.

3. Defendant’s usual place of business is located at 33

Braintree Hill Park, Braintree, Massachusetts.

COUNT I

September 20, 1991, plaintiff signed a contract with

Hanover Insurance Company under the following terms

and conditions; (1) amount of consideration $20,000.00,

(2) draft payable to Fred Davis and his attorney Robert T.

Abrams. (3) Draft is to be paid within 30 days. (4) this

contract was executed as a sealed instrument.

Hanover Insurance Company knowingly and wilfully

breached this contract. Hanover failed to fulfill its obliga-

tion.

App. 3

As a result of this breach of the contract the plaintiff

sustained monetary losses, pain and suffering and harass-

ment.

COUNT II

CAUSE OF ACTION

The plaintiff and the defendant entered into a con-

tract, however, the defendant knowingly and wilfully

breached the terms and conditions of the contract.

Hanover Insurance Company did not fulfill its oblig-

ation to the plaintiff, causing him monetary losses, pain

and suffering and harassment.

COUNT III

M.G.L. c. 93A

At all times relevant to this action defendant was

engaged in trade or commerce in the Commonwealth of

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

The acts and practices of Hanover Insurance. Com-

pany as described herein were unfair and deceptive

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

The acts and practices of the defendant were willful

and knowing violations of M.G.L. c. 93A.

The acts and practices of Hanover Insurance Co.

were unfair and deceptive within the meaning of M.G.L.

c. 93A and as a result plaintiff suffered substantial losses

of money.

App. 4

COUNT IV

The plaintiff is a senior citizen.

Hanover Insurance Company wants to cheat the

plaintiff out of monies that are due to him.

The defendants acts are also being used to harass,

hurt and harm the plaintiff.

V. RELIEF FROM THE COURT

Plaintiff requests the following relief from the court:

1. Amount of contract $20,000.00.

2. Interest from September 20, 1991

3. Pain and Suffering $10,000.00.

4. Pursuant to M.G.L. c. 93A double or triple

damages along with interest from September

20, 1991.

5. Costs, legal fees and other relief the court

may deem appropriate.

Jury trial requested on al! counts.

By,

/s/ Fred Davis

Fred Davis

353 Bryant Street

Malden, Ma. 02148

(617) 322 8578

App. 5

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

NO: 93-00574

FRED DAVIS,

Plaintiff

Vs.

HANOVER INSURANCE

COMPANY,

Defendant

Nee eee ee ee ee eee”

ANSWER AND AFFIRMATIVE DEFENSES

Now comes the defendant, Hanover Insurance Com-

pany, in the above entitled matter and answers each and

every allegation contained in the plaintiff's Complaint as

follows:

1. The defendant admits the allegations contained in

paragraph number ome of the plaintiff's Complaint.

2. The defendant admits to maintaining a claims office

in Braintree, Massachusetts.

3. The defendant admits to maintaining a claims office

in Braintree, Massachusetts.

COUNT I

Defendant admits that plaintiff settled a per-

sonal injury claim against its insured and states

that at the time of the settlement, claimant was

represented by Attorney Robert T. Abrams. At

the time of the settlement, prior counsel Stuart

Ravech, Esq., maintained a lien in the amount of

$7,500.00. Defendant denies breaching any

App. 6

agreement with the plaintiff and states that it

has made diligent efforts to pay the settlement

to the plaintiff, to no avail. Defendant denies

causing monetary loss to the plaintiff and denies

harassment as alleged.

COUNT II

Defendant denies the allegations of Count Il.

COUNT III

Defendant admits that it is engaged in trade or

commerce in the Commonwealth of Massa-

chusetts within the meaning of M.G.L. Ch.93A.

Defendant denies engaging in unfair and decep-

tive business practices under M.G.L. Ch.93A.

Defendant denies any willful or knowing viola-

tion of M.G.L. Ch.93A.

Defendant denies the remaining allegations of

Count III.

COUNT IV

Defendant can neither admit nor deny that

plaintiff is a “senior citizen” without a specific

reference to a description of the words “senior

citizen”.

Defendant denies any effort to cheat plaintiff of

money that is due to him.

Defendant denies engaging in any acts intended

to harass, hurt, or harm the plaintiff.

Defendant acknowledges herein, as it has on

many prior occasions, that plaintiff is entitled to

App. 7

a settlement of his personal injury claim in the

amount of $20,000.00, subject to a lien asserted

by Attorney Stuart Ravech.

Defendant denies owing interest to the plaintiff

from September 20, 1991.

Defendant denies owing any money to plaintiff

for his alleged pain and suffering.

Defendant denies owing money to plaintiff pur-

suant to M.G.L. Ch.93A.

Defendant denies owing money for costs, legal

fees or otherwise to the plaintiff as alleged.

Wherefore, defendant demands that the Com-

plaint be dismissed and that it be awarded costs

and attorney’s fees.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE:

And further answering, defendant has tendered and con-

tinues to tender $20,000.00 to the plaintiff, subject to an

attorney’s lien claimed by Stuart Ravech, Esq.

SECOND AFFIRMATIVE DEFENSE:

And further answering, defendant has sent plaintiff a

check for $20,000.00 near in time to the execution of a

Release, therefore, plaintiff is not entitled to interest as

alleged.

THIRD AFFIRMATIVE DEFENSE:

And further answering, the Complaint fails to state a

cause of action upon which relief can be granted.

App. 8

FOURTH AFFIRMATIVE DEFENSE:

And further answering, plaintiff has failed to satisfy each

and every prerequisite to the bringing of a claim under

M.G.L. Ch.93A, therefore, plaintiff cannot recover.

FIFTH AFFIRMATIVE DEFENSE:

And further answering, defendant states that plaintiff has

given improper and insufficient notice under M.G.L.

Ch.93A, therefore, plaintiff cannot recover.

SIXTH AFFIRMATIVE DEFENSE:

And further answering, the defendant denies being liable

or indebted to the plaintiff in any way or manner.

SEVENTH AFFIRMATIVE DEFENSE:

Wherefore, the defendant demands that the plaintiff's

Complaint be dismissed and that defendant be awarded

costs and expenses.

DEFENDANT HANOVER INSURANCE COMPANY’S

COUNTERCLAIM FOR DECLARATORY JUDGMENT

1. Plaintiff Fred Davis has filed a Complaint against

Hanover Insurance Company alleging to be owed

$20,000.00 from a personal injury settlement and

alleging violations of M.G.L. Ch.93A, harassment and

acts designed to “cheat the plaintiff” from monies

that are due to him.

2. Plaintiff Fred Davis has made numerous communica-

tions with the Commonwealth of Massachusetts Exec-

utive Office of Consumer Affairs, Division of

Insurance, alleging improper acts and practices of

Hanover Insurance Company.

App. 9

Plaintiff Fred Davis has communicated with Gover-

nor William Weld alleging being a victim of a “fraud

scheme” and alleging that he was “swindled” from

money by Hanover Insurance Company and its

employees.

Plaintiff Fred Davis has made numerous communica-

tions to the president of Hanover Insurance Company

alleging a “conspiracy” to defraud him of monies

which he claims are due to him.

Hanover Insurance Company seeks a declaration that

it owes no monies to Fred Davis other than $20,000.00

which it has tendered to him, and continues to tender

to him, subject to a lien asserted by Stuart Ravech,

Esq.

Hanover Insurance Company also seeks the following

remedies:

a. That Fred Davis be restrained from filing addi-

tional Complaints on the issue of his personal

injury claim for the alleged mishandling of his

claim, fraud, harassment, and the like, without

prior leave of Court;

b. That Fred Davis be enjoined from further commu-

nications about this matter, or related matters,

directed to Hanover Insurance Company, its

agents, servants or employees;

c. That Fred Davis be permanently enjoined from

further communications to Hanover Insurance

Company, its agents, servants, employees or

attorneys intended to harass and annoy said indi-

viduals without prior leave of Court;

d. Such other remedies as the Court deems just.

e. Costs and attorney’s fees in this action.

App. 10

OFFER OF JUDGMENT

Hanover Insurance Company, by its attorney, hereby

tenders an Offer of Judgment to Fred Davis in the amount

of $20,000.00, subject to an attorney’s lien filed by Stuart

Ravech, Esq.

THE DEFENDANT CLAIMS A TRIAL BY JURY.

Hanover Insurance Company,

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

BBO: #314-400

Dated: 3/24/93

App. 11

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

NO: 93-00574

FRED DAVIS,

Plaintiff

VS.

HANOVER INSURANCE

COMPANY,

Defendant

bl i oe

DEFENDANT HANOVER INSURANCE COMPANY’S

MEMORANDUM OF LAW IN SUPPORT OF

ITS MOTION FOR SUMMARY

JUDGMENT UNDER M.R.C.P. 56

Now comes the defendant Hanover Insurance Com-

pany in the above-entitled action and moves this Honor-

able Court to grant its motion for Summary Judgment. In

support thereof, Hanover has filed this memorandum of

law, stating that there are no genuine issues of material

fact and that Hanover is required to honor an attorney’s

lien in issuing its settlement draft under the applicable

standard of Massachusetts law.

STATEMENT OF FACTS

The plaintiff, Fred Davis has filed suit herein and

alleges that Hanover Insurance Company has breached a

contract with him, and also violated M.G.L. Ch.93A by

refusing to issue a settlement draft in the amount of

$20,000.00 to his attorney, Robert T. Abrams and himself,

without naming a lienholder on the draft. The plaintiff

App. 12

also alleges that Hanover has no right to include the

name of his first attorney, Stuart Ravech, who initially

represented the plaintiff and who, on plaintiff’s behalf,

filed a personal injury suit in a case entitled Fred Davis V.

Anthony Lauria, Boston Municipal Court, Docket #:T-41026.

The plaintiff states that Hanover Insurance company

(“Hanover”) breached the terms of an agreement to settle

the personal injury tort case in order to “cheat” and

“harass” him and to take advantage of a “senior citizen”.

It is the position of Hanover that under the require-

ments of Massachusetts law, it must honor an attorney’s

lien of which it has been given notice, or risk being sued

by the attorney. Further, it is Hanover’s position that at -

all times it was willing and able to honor the terms of the

personal injury settlement and in no way attempted to

cheat or harass the plaintiff.

On or about February 2, 1987 the plaintiff alleges that

he was injured as a result of a motor vehicle accident

which occurred in Revere when he was struck by a vehi-

cle driven by Mr. Lauria (Hanover’s insured). The plain-

tiff was first represented by Attorney Stuart Ravech, who

filed a personal injury suit in the Suffolk County on

January 22, 1990. With leave of Court, Attorney Ravech

withdrew as counsel on April 26, 1991. Concurrently,

Attorney Raveck filed an attorney's lien with Hanover

and with plaintiff’s subsequent counsel, Attorney Robert

T. Abrams (see notice of lien, attached hereto as Exhibit

A).

In September of 1991, counsel for the parties entered

into a settlement agreement in the amount of $20,000. By

agreement with Attorney Abrams, Hanover issued the

App. 13

settlement draft payable to the plaintiff, and attorneys

Ravech and Abrams (see correspondence from Attorney

Abrams dated September 26, 1991, attached as Exhibit B

and settlement draft attached as Exhibit C). The plaintiff

did not want Hanover to honor the attorney’s lien, how-

ever, Attorney Abrams represented to Hanover’s attorney

that the plaintiff would resolve the fee dispute with

Attorney Ravech through the Massachusetts Bar Associa-

tion (Exhibit B).

Accordingly, Hanover issued the settlement draft

payable to “Fred Davis, Attorney Robert T. Abrams, and

Attorney Stuart D. Ravech,” however, the plaintiff

refused to endorse the check, and has demanded that

Attorney Ravech’s name be removed. In order to resolve

this dispute, Hanover has offered to execute two drafts,

one payable in the amount of $12,500.00 payable to the

plaintiff and Attorney Abrams, and one payable to plain-

tiff Attorney Abrams and Attorney Ravech in the amount

of $7,500.00 (the amount of the lien). (See correspondence

from Hanover dated February 14, 1992, attached here as

Exhibit D). The plaintiff has declined this offer, and has

insisted that the check be made payable only to Attorney

Abrams and himself, without naming the lienholder. In

addition, he filed a complaint against Hanover with the

Division of Insurance, and the instant lawsuit alleging

breach of contract and violations of M.G.L. Chapter 93A.

ARGUMENT

I. SUMMARY JUDGMENT STANDARD

A case alleging unfair or deceptive acts or practices is

an appropriate matter from summary judgment only if

App. 14

there is no genuine issue of material fact. Noyes v. Quincy

Mutual Fire Insurance Co., 7 Mass. App. 723 (1979). Sum-

mary judgment should be entered when there is no genu-

ine issue of material fact and when there is substantive

law under which judgment may be entered for the mov-

ing party. Theran v. Rokoff, 413 Mass. 590, 602 N.E.2d 191

(1992). To avoid summary judgment, an opposing party

may not rest on his pleadings or general denials, he must

set forth specific facts showing that there is a genuine

triable issue. Turner v. McAne, 4 Mass. App. 864, 357

N.E.2d 942 (1976).

Il. SUMMARY JUDGMENT SHOULD BE ENTERED ON

COUNTS I AND II OF THE PLAINTIFF’S COM-

PLAINT AS THERE IS NO EVIDENCE THAT

HANOVER BREACHED ITS CONTRACT WITH

PLAINTIFF, AS HANOVER IS REQUIRED UNDER

MASSACHUSETTS LAW TO HONOR THE ATTOR-

NEY’S LIEN FROM PLAINTIFF'S FIRST ATTORNEY

In the instant case, the plaintiff alleges in Counts I

and II of his Complaint, filed Pro Se, that Hanover

entered into a contract to settle his personal injury suit

for $20,000.00, payable to Fred Davis and his attorney,

Robert T. Abrams, to be paid within thirty days. The

plaintiff further alleges that Hanover thereafter know-

ingly and willfully breached this contract, causing the

plaintiff to sustain monetary losses, pain and suffering

and harassment. In Count II, the plaintiff reavers that the

defendant breached the terms of its contract.

It is agreed upon that plaintiff and Hanover entered a

settlement agreement by which the plaintiff would

receive $20,000.00 in settlement of his personal injury law

App. 15

suit. On September 20, 1991, a Release was signed by the

plaintiff (Exhibit I). However, well prior to issuing the

check, Hanover was notified that there was an attorney’s

lien on the file by Attorney Stuart Ravech, the plaintiff's

first attorney. The plaintiff’s second attorney, Robert T.

Abrams, notified Hanover to make the check payable to

the plaintiff and Attorney’s Ravech and Abrams and that

the plaintiff would resolve the fee dispute with Attorney

Ravech through the Massachusetts Bar Association

(Exhibit B). After Hanover issued the settlement draft, the

plaintiff refused to endorse the check. Hanover offered to

issue two drafts, one payable to plaintiff and attorney

Abrams in the amount of $12,500.00 and one payable to

plaintiff and Attorney Abrams and Attorney Ravech in

the amount of $7,500.00, but plaintiff refused this offer

and filed suit.

Breach of contract connotes the violations of a con-

tractual duty which one person owes to another. 14 Simp-

son, Muss. Practice Series s.271. Non-performance of a

contract is the failure to perform the whole or a material

part of a contract, whether or not the party so failing to

perform was, under the circumstances existing at the

time, legally bound to render performance. Realty Devel-

oping Co., Inc. v. Wakefield Ready-Mixed Concrete Co. 327

Mass. 535, 100 N.E.2d 28.

There may be an agreement of the parties, subse-

quent to the making of the contract substituting new

terms, or a new contract or a new or different perfor-

mance, or the contract may have been waived by agree-

ment of the parties. In such case, non-performance of the

terms of the original contract would not constitute a

breach of it. Cueovon v. Coburnville Garage, Inc. 315 Mass.

App. 16

135, 52 N.E.2d 16. Pertinent to the instant action, how-

ever, at no time did Hanover Insurance represent to

plaintiff that it would not honor the attorney’s lien.

Applying the above law to the present case, it is argued

by Hanover that it did not breach the settlement agree-

ment entered into between the parties in September, 1991.

When Hanover became aware of the attorney’s lien

placed on the plaintiff’s case, it was obligated under

Massachusetts law to honor the attorney’s lien from

plaintiff’s first attorney or risk being sued if it ignored

the lien in issuing the settlement draft to plaintiff without

the name of the lienor. The addition to Attorney Ravech’s

name on the settlement draft was not a breach of the

settlement agreement because Attorney Abrams had

prior notice that Hanover would honor the attorney’s lien

(See Exhibit G and Exhibit H). It is well-settled under

Massachusetts statutory and case law that an attorney’s

lien comes into being once suit is commenced by an

attorney on behalf of her client. M.G.L. c. 221, s.50. See, In

re Hoy’s Claim, D.C. Mass., 93 F. Supp. 265. The right

given to an attorney under G. L. 221, s. 50, purporting to

confer an attorney’s lien upon a cause of action from the

authorized commencement of action, is a substantive

right and not a procedural right. Id. Moreover, the statu-

tory lien for attorney’s fees is a charging lien which binds

judgment or money decree for payment of expenses

incurred and for services rendered by attorney with

respect to particular action or suit. Torphy v. Reder, 257

N.E.2d 435, 357 Mass. 153, appeal after remand 277

N.E.2d 528, 360 Mass. 869 (1970).

It has been held by the United States District Court”

that if a tort claimant’s attorney filed suit before, even

App. 17

one minute before, the claimant (without the attorney’s

knowledge) released his claim against the defendant, the

attorney has a lien on his client’s cause of action. Thurston

v. Hutchinson, D.C. Mass., 93 F. Supp. 265 (applying

M.G.L.A. c. 221 S. 50). While a release may have dis-

charged the defendant’s liability to the plaintiff, it leaves

the defendant liable to the attorney to the extent of his

lien, if the attorney filed suit on behalf of his client before

the release was executed, and the defendant knew that

fact. “This lien made it impossible finally to dispose of

this suit without his (the attorney’s) consent; the defen-

dant was charged with notice of the lien, and he (the

attorney) could have forced the defendant to pay a sec-

ond time had it (the defendant) disregarded his (the

attorney’s) rights. Woodbury v. Andrew Jergens Co., 69 F.2d

49, 50. Hanover requests that the Court grant Summary

Judgment in its favor on Counts I and II of the plaintiff’s

Complaint.

Ill. SUMMARY JUDGMENT SHOULD BE ENTERED IN

FAVOR OF HANOVER ON COUNT III BECAUSE

PLAINTIFF FAILS TO STATE A CAUSE OF ACTION

FOR 93A VIOLATION - THAT HANOVER

ENGAGED IN UNFAIR OR DECEPTIVE ACTS

Under M.G.L. 93A, once the plaintiff has established

that he is a “consumer” and that the transaction giving

rise to his Complaint is one covered by c.93A, he needs to

show that the defendant’s acts were “unfair” or “decep-

tive”. There is no general rule as to what constitutes an

unfair or deceptive act or practice. 35 Mass. Pract. S. 130

(Alperin & Chase). A special procedural requirement to a

summary judgment action is that the consumer must mail

App. 18

or deliver to the prospective defendant, a “written

demand for relief, identifying the claimant and reason-

ably describing the unfair or deceptive act or practice

relied upon the injury suffered.” M.G.L.A. c.93A(3).

An important hurdle for the consumer to overcome

in prevailing in a 93A action is for the consumer to show

that he has suffered a “loss of money or property, real or

personal”, as a result of the defendant's use of an unfair

or deceptive act or practice. M.G.L.A. c.93A s.9(1).

In the present case, the plaintiff has failed to allege

and plead the presentation of a demand pursuant to

M.G.L. Ch.93A, paragraph 3 (Exhibit J). The thirty day

demand letter has been held to be a jurisdictional prereq-

uisite to filing a consumer claim under M.G.L. Ch.93A.

Spring v. Geriatric Authority 394 Mass. 274, 287, 475 N.E.

2d 727, 735 (1985). A demand letter describing the speci-

fic unfair practices claimed and listing the damages suf-

fered is a prerequisite to suit and must be alleged and

proved. Baldassari v. Public Finance Trust 337 N.E. 2d 701,

369 Mass. 33. Even if plaintiff had made a proper presen-

tation of his 93A claim, Hanover argues that it was none-

theless required to honor Attorney Ravech’s lien or risk

being sued for the claimed amount in issuing the full

settlement check to plaintiff and his second attorney.

Even the plaintiff's second attorney was in agreement

with Hanover’s agreement to issue the check payable to

plaintiff and Attorney Ravech and Abrams (Exhibit B).

In light of the above, Hanover requests the Court to

enter Summary Judgment in its favor on Count Ill of the

plaintiff’s Complaint.

veo

App. 19

IV. SUMMARY JUDGMENT SHOULD BE ENTERED IN

FAVOR OF HANOVER ON COUNT IV OF THE

PLAINTIFF’S COMPLAINT AS PLAINTIFF FAILS

TO SET FORTH FACTS SHOWING HANOVER HAS

ATTEMPTED TO CHEAT THE PLAINTIFF OUT OF

MONIES OWED

In Count IV, it appears that the plaintiff is alleging

that Hanover is attempting to cheat him out of monies

owed, due to the fact that he is a senior citizen (Com-

plaint, Exhibit J).

The plaintiff, however, has failed to allege facts suffi-

cient to raise a question as to fraudulent intent on the

part of Hanover, but only states that Hanover refused to

issue a settlement check payable only to him and his

second attorney. These allegations impermissibly ignore

Hanover’s statutory responsibility te honor the attorney's

lien.

In a recent case entitled Equitable Life Assurance Soci-

ety of the U.S. v. Porter-Englahart, C.A.1 (Mass) 1989, 867

F.2d 79, the United States District Court examined a 93A

claim filed by a widow alleging unfair and deceptive

insurance claim settlements. The Court found that the

widow was not entitled to multiple damages from insurer

based on its payments of the widow’s share of accidental

death benefits into court in an interpleader action involv-

ing dispute as to another portion of death benefits. Id.

The Court denied Widow’s claim for damages reasoning

that there was no indication of bad faith on the insurer’s

part where the insurer gained nothing for itself by hold-

ing the funds back.

App. 20

In applying the above law to thé present facts, it is

Hanover’s position that at no time did it intend to or did

it cheat the plaintiff out of settlement monies. In fact,

Hanover issued the check in the manner agreed to by

plaintiff’s attorney, Mr. Abrams, who at least tacitly

acknowledged that Hanover had a legal obligation to

honor Attorney Ravech’s lien. (Also see Affidavit of Larry

Roberson, Claim Manager of Hanover, attached hereto as

Exhibit E). Furthermore, the plaintiff has failed to state

any facts supporting his claim that Hanover’s actions

were intended to harass, hurt or harm the plaintiff. At all

times it has been Hanover’s intention to resolve the mat-

ter lawfully, amicably and efficiently.

In light of the foregoing, Hanover requests the Court

to enter Summary Judgment on Count IV of the plaintiff’s

Complaint.

V. CONCLUSION

Applying the above law to the instant case, it is

argued on behalf of Hanover that since it had notice of

Attorney Ravech’s lien since April 1991, that it could not

ignore the lien in issuing the settlement draft without

risking paying a second time. Furthermore, based on a

reading of the statutory language of G.L. 221, S. 50

(attached hereto as Exhibit F), it is undisputed that once

an attorney has instituted an action on behalf of a client,

that the attorney has a lien for his reasonable fees and

expenses. Even if Attorney Ravech had not filed an attor-

ney’s lien with the court prior to the time of settlement,

as a matter of law his lien was in existence and must be

honored by Hanover.

hein

App. 21

In light of the above, Hanover respectfully requests

this Honorable Court to grant its Motion for Summary

Judgment. The plaintiff has failed to set forth any facts

establishing breach of contract, fraud or violations of

M.G.L. 93A. The only matter properly before this court is

whether or not the attorney’s lien filed by Attorney Rav-

ech must be honored. At ali times, Hanover has con-

ducted itself in accordance with the statutory

requirements and in good faith in dealing with the plain-

tiff and his attorneys.

Furthermore, the statutory case law of Massachusetts

supports that as a matter of law, that Attorney Ravech’s

lien must be honored by Hanover in issuing its settlement

draft or risk being sued by Attorney Ravech.

Hanover Insurance Company,

by its attorney,

} /s/ Maxk F. Mahnken

Mark F. Mahnken

DRISCOLL, GILLESPIE

& STANTON

200 Broadway

P.O. Box 850

Lynnfield, Mass. 01940

(617) 596-2200

BBO: #314-400

eres

‘ iii ia

Dated: 8/25/93

App. 22

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

NO: 93-00574

FRED DAVIS,

Plaintiff

VS.

HANOVER INSURANCE

COMPANY,

Defendant

MOTION OF DEFENDANT,

HANOVER INSURANCE COMPANY

FOR SUMMARY JUDGMENT UNDER M.R.C.P. 56

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.

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

BBO: #314-400

SS, Sa pw

App. 23

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 attached hereto.

[Sse

/s/ Thomas S. Connolly

App. 24

DOCKET ENTRIES

Fred Davis vs. Hanover Insurance Company

1993 March 10

1993 March 16

1993 April 1

1993 April 5

1993 April 21

1993 April 26

1993 August 30

1993 Sept. 8

Complaint and Jury Claim

Cover Sheet

Fast Track Notice sent to Plaintiff

Return of Service Re: Hanover Insur-

ance Co. - In Hand to Deanna Chace,

Clerk

Deft’s Answer, Counterclaim and Jury

Claim

Plff’s Answer to Deft’s Counterclaim

Plff’s Motion to Strike Deft’s Answer

to Plff’s Complaint - date Received

April 15, 1993

Deft’s Opposition to PlIff’s Motion to

Strike Deft’s Answer — date Received

April 15, 1993

Deft’s Memorandum in Support of

Opposition to Plff’s Motion to Strike

Deft’s Answer

Re: Plff’s Motion to Strike Deft’s

Answer to Plff’s Complaint (p.#6a)

Denied (Brady, J.) dated April 22, 1993

c.s. April 26, 1993

Piff’s Motion Compelling Production

of All Documents

Deft’s Opposition to Plff. Fred Davis’

Motion to Compel Production of Docu-

ments

Plff’s Affidavit of Compliance with

Superior Court Rule 9A

Re: Piff’s Motion Compelling Produc-

tion of All Documents (p.#7a) Denied

without Prejudice - No Rule 9C Certif-

icate (Hely, J.) dated Sept. 1, 1993 c.s.

1993 Sept. 24

1993 Oct. 5

1993 Oct. 12

1993 Nov. 2

App. 25

Deft’s Motion for Summary Judgment

Under M.R.C.P. 56

Deft’s Memorandum of Law in Sup-

port of Its Motion for Summary Judg-

ment Under M.R.C.P. 56

PIff’s Opposition to Deft’s Motion for

Summary Judgment and Memorandum

in Support of PlIff’s Opposition to

Deft’s Motion for Summary Judgment

Piff’s Memorandum in Support of

Opposition to Deft’s Motion for Sum-

mary Judgment

Deft’s Document List

Deft’s Motion for Order to Produce

Pursuant to M.R.C.P. 37

Plff’s Opposition to Deft’s Motion for

Order to Produce Pursuant to M.R.C.P.

Re: Deft’s Motion for Order to Produce

Pursuant to M.R.C.P. 37 (p.9a) Motion

Allowed. Thirty Days to Produce

(Stearns, J.) n.a.

Pliff’s Motion for Enlargement of Time

for Production of Documents

Re: Piff’s Motion for Enlargement of

Time for Production of Documents

(p.#10) Motion Denied (Stearns, J.) n.s.

Plff’s Motion for Sanctions Against

Attorney Mark F. Mahnken

Opposition to Plff’s Motion for Sanc-

tions Against Attorney Mark F.

Mahnken

Piff’s Opposition to Opposition of

Deft. to Piff’s Motion for Sanctions

Against Attorney Mark F. Mahnken

Piff’s Affidavit of Compliance with

Superior Court Rule 9A

iia

1993 Nov.

App. 26

Piff’s Affidavit of Compliance with

Superior Court Rule 9A — Re: Rule 9C

Plff’s Opposition to Deft’s Opposition

to Plff’s Request for Leave of Court

from Compliance with Rule 9C

Pliff’s Request Leave of Court from

Complying with Rule 9C and Mem-

orandum in Support of Request Leave

of Court from Complying with Rule 9C

Deft’s Opposition to PIff’s Request for

Leave of Court from Compliance with

Rule 9C

Re: Plff’s Motion for Sanctions Against

Attorney Mark F. Mahnken (p.#11a)

Motion Denied (Stearns, J.) dated Nov.

3, 1993 c.s.

Plff’s Motion for Protective Order Bar-

ring the Taking of Attorney Robert T.

Abrams’ Deposition and Memorandum

in Support of Protective Order Barring

the Taking of Attorney Robert T.

Abrams’ Deposition

Plff’s Affidavit of Compliance with

Superior Court Rule 9A

Piff’s Opposition to Opposition of

Hanover Ins. Co. to Pliff’s Motion for

Protective Order Regarding Deposition

of Robert T. Abrams

Deft’s Opposition to Plff’s Motion for

Protective Order Regarding Deposition

of Robert T. Abrams

Plff’s Motion for Change of Venue -

date Received Nov. 22, 1993

Deft’s Opposition to Plff’s Motion for

Change in Venue - date Received Nov.

22, 1993

1993 Nov.

1993 Dec.

App. 27

Plff’s Opposition to Deft’s Opposition

to PIff’s Motion for Change in Venue -

date Received Nov. 22, 1993

Plff’s Affidavit of Compliance with

Superior Court Rule 9A - date

Received Nov. 22, 1993

Re: Plff’s Motion for Protective Order

Barring the Taking of Attorney Robert

T. Abrams’ Deposition (p.#12a) Motion

Denied (Stearns, J.) dated Nov. 16, 1993

C.S.

Deft’s Motion to Quash Deposition

Notice of John F. O’Brien and to Quash

Subpoena Duces Tecum

Plff’s Opposition to Deft’s Motion to

Quash Deposition Notice of John F.

O’Brien and to Quash Subpoena Duces

Tecum

Deft’s Certificate Pursuant to Superior

Court Rule 9C

Deft’s Certificate of Service

Re: Piff’s Motion for Change in Venue

(p.#13a) Motion Denied (Stearns, ie

dated Dec. 17, 1993 c.s.

Rule 9A Scheduling Order Re: Deft’s

Motion for Summary Judgment with

Opposition Scheduled for Friday, Janu-

ary 14, 1994 at 9:30 a.m. before Judge

DelVecchio in Court Room 3 c.s.

Re: Deft’s Motion to Quash Deposition

Notice of John F. O’Brien and to Quash

Subpoena Duces Tecum (p.#14a)

Motion ALLOWED (Chernoff, J.) dated

Dec. 29, 1993 c.s.

App. 28

1994 Jan. 18 Re: Deft’s Motion for Summary Judg-

ment Under M.R.C.P. 56 (p.#8a) — After

° hearing, and upon considering all sub-

missions, and the entire file, Motion of

Deft. Hanover Insurance Company for

Summary Judgment is ALLOWED in |

its totality. See: Defendant’s Memoran-

dum-attached exhibits. (Connolly, J.)

dated Jan. 14, 1994 n.s.

—

1994 Jan. 21 Plff’s Notice of Appeal

1994 Jan. 27 Plff’s Motion for Costs Against the

Defendant

1994 Jan. 27 Deft’s Opposition to Piff’s Motion for

Costs

1994 Jan. 27 Plff’s Affidavit of Compliance with

Superior Court Rule 9A

1994 Feb. 4 Re: Plff’s Motion for Costs Against the

Defendant (p.#17a) Motion DENIED

(Connolly, J.) dated Feb. 3, 1994 c.s.

1994 Aug. 12 Plff’s Third Motion for Immediate

Assembly of the Record and Memoran-

dum in Support of Third Motion for

Immediate Assembly of the Record -

date Received Aug. 10, 1994

1994 Sept. 16 Re: Pltt’s Third Motion for Immediate

Assembly of the Record (p.#18) -

Motion DENIED (White, J.) dated Sept.

14, 1994 c.s.

1995 July 19 Plff’s Fifth (fourth) Notice of Immedi-

ate Assembly of the Record

1995 Aug. 14 Plff’s Sixth Notice of Assembly of

Record and Courts Letter to Mr. Davis

1995 Aug.

1995 Sept.

1995 Oct. 3

1995 Oct. 5

App. 29

Notice sent to all Parties for a Status

Conference on Monday, September 11,

1995 at 2:30 p.m. before Judge Dortch-

Okara c.s. - Failure to appear with

result in Automatic Default or Dis-

missal (Dortch-Okara, J.)

Deft’s Motion for Voluntary Dismiss

Re: Motion Allowed (Dortch-Okara, J.)

dated Sept. 11, 1995 n.s.

Judgment (Summary) Ke: Count I of

Case in Chief (Connolly, J.) c.s.

Judgment (Summary) Re: Count II of

Case in Chief (Connolly, J.) c.s.

Judgment (Summary) Re: Count III of

Case in Chief (Connolly, J.) c.s.

Judgment (Summary) Re: Count IV of

Case in Chief (Connolly, J.) c.s.

Judgment Re: Counterclaim on Deft’s

Motion for Voluntary Dismissal of Its

Counterclaim (Dortch-Okara, J.) c.s.

Plff’s Notice of Appeal Re: Decision of

Judge Connolly (Judgment)

Notice of Service of Notice of Appeal

Re: The Honorable Thomas E. Con-

nolly, Associate Justice of the Superior

Court, Suffolk Superior Court, Court

Room 906, New Court House, Boston,

MA 02108-1701; George R. Suslak,

Esq., John J. Lang, Esq., Suslak, Stan-

ton & Lang, 200 Broadway, Box 1080,

Lynnfield, MA 01940

1995 Oct. 18

App. 30

Plaintiff Fred Davis informs Court by

teiephone only that he is not including a

transcript to be included in the record

for the Appeal

A True Copy:

Attest:

Assistant Clerk

ELSA RE ABA D6 0 eh reste ® ene iy

;

App. 31

COMMONWEALTH OF MASSACHUSETTS

Appeals Court for the Commonwealth

At Boston.

In the case no. 95-P-1818

FRED DAVIS

US.

HANOVER INSURANCE COMPANY.

pending in the Superior

Court for the County of Norfolk

Ordered, that the following entry be made in the

docket:

Judgment affirmed.

by the Court,

/s/Nancy Turck Foley, Clerk.

Date June 14, 1996

App. 32

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

FRED DAVIS, PLAINTIFF

vs. ,

om CIVIL

HANOVER INSURANCE ) ACTION NO.

COMPANY JOHN F. O’BRIEN, ) 95-11837MLW

CHAIRMAN OF THE BOARD OF )

HANOVER INSURANCE, et al )

DEFENDANTS )

)

COMPLAINT

Parties

The plaintiff is a resident of Malden, Middlesex county,

Massachusetts and a citizen of the United States.

The defendant Hanover Insurance Company principal

place of business is located at Worcester, Massachusetts

with offices throughout the United States of America.

The defendant John F. O’Brien is Chairman of the Board

of Hanover Insurance Company Worcester, Worcester

county, Massachusetts

Jurisdiction

State and Federal Constitutional Rights. Equal protection

under the law.

Facts

September 20, 1991 the plaintiff, Fred Davis signed a

release with Hanover Insurance for the sum of $20,000.00

for injuries he sustained in an automobile accident due to

App. 33

the negligence of Anthony Lauria (Plaintiff's Exhibit “A”

affixed to the Complaint).

Hanover Insurance Company accepted the plaintiff’s

release and kept, which is still in their possession.

Hanover Insurance Company failed to fulfill their

obligation and did not pay the plaintiff.

Since Hanover Insurance Company refused to honor

the contract, the plaintiff was compelled to file a breach

of contract along with triple damages pursuant to Massa-

chusetts Rule 93A in the Norfolk Superior Court.

In the course of proceedings the defendants filed a

Summary Judgment, Judge Thomas Connolly ruled that

the Summary Judgment was in favor of the defendants

and they were not to take anything on the counterclaim.

January 21, 1994, plaintiff filed “Notice of Appeal” to

the courts decision (Plaintiff's Exhibit “B” affixed to the

Complaint).

The record was not assembled and forward to the

Massachusetts Appeals Court.

Cause of Action

Violations of State and Federal Constitutional Rights:

Equal protection of the law. Obstruction of justice.

January 21, 1994, piaintiff filed Notice of Appeal in

the Norfolk Superior Court the court knowingly and

willfully refused to assemble the record and forward it to

the Massachusetts Court of Appeals.

The plaintiff has filed with the Norfolk Superior

Court six notices For Immediate Assemble of the Record

App. 34

(Plaintiff’s Exhibit “C” affixed to the Complaint), how-

ever, it was to no avail. Plaintiff have exhausted all

remedies in the Massachusetts Court System.

The plaintiff has been informed 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 Appeal Court.

Therefore, the plaintiff is denied his right to appeal

the court’s decision.

Relief from the Court

The record to be assembled and forwarded to the

Massachusetts Court of Appeals.

Damages for willfully preventing the plaintiff from the

appeal process the sum of $85,000.00.

All Costs and legal fees which the court deems appropri-

ate.

Punitive Damages the sum of $50,000, and any other

relief the court deems appropriate.

Jury trial is requested.

/s/

Fred Davis

P.O. Box 721

Everett, Ma 02149

(617) 322-8223

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.