AUNG v. PRETTENHOFER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The appeal arises from the dismissal of a defamation complaint filed by the plaintiff, Naing N. Aung, against the defendant, Marc Prettenhofer. Aung untimely appealed from the judgment dismissing her complaint, and Prettenhofer successfully moved to dismiss Aung's untimely appeal. Before us is Aung's appeal from the order dismissing her appeal as untimely. We affirm.

Background. Aung filed a claim with the Massachusetts Commission Against Discrimination (MCAD) in 2013, alleging she had been the subject of unlawful retaliation by her workplace, the Center for Healthcare Information and Analysis (CHIA), for opposing conduct she believed was discriminatory. The MCAD dismissed Aung's claim for lack of probable cause. Subsequently, Aung filed a claim in Federal court against CHIA alleging discrimination and retaliation. Aung then added Prettenhofer as an individual defendant in the Federal case. Ultimately, the Federal court dismissed all claims, including those against Prettenhofer, and Aung did not appeal. Aung then filed a defamation-based case with the Superior Court based on the same factual scenario as the Federal case. On November 15, 2018, a judge of the Superior Court dismissed the complaint based on the doctrine of res judicata, the statute of limitations, and failure to comply with Mass. R. Civ. P. 8, 365 Mass. 749 (1974). On December 7, 2018, Aung filed a pleading entitled, “Notice of Appeal, Reconsideration on Judgment Dated November 14, 2018.” A judge of the Superior Court described this pleading as “styled as a notice of appeal” that was really “a lengthy, prolix, request for reconsideration” that had no bearing on the deadline to appeal because it was filed more than ten days after judgment. That request for reconsideration was denied. On April 5, 2019, more than 120 days after the dismissal, Aung filed a notice of appeal. Prettenhofer's motion to dismiss the appeal as untimely was granted. Aung filed a timely notice of appeal of that dismissal.

Discussion. The only appeal that is properly before us is Aung's appeal from the order dismissing her appeal in the underlying matter. Aung fails to address this issue and her briefing does not rise to the level of appellate argument; the issue is waived. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 85 (1995).

Even if the merits of the dismissal were before us, Aung's brief is a repetition of her allegations and does not advance a substantive argument that the judge's dismissal of her complaint was incorrect. Her general assertion that the judge erred in dismissing her complaint is insufficient to support an appeal. See Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011), quoting Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3 (1993) (“Briefs that limit themselves to ‘bald assertions of error’ that ‘lack[ ] legal argument ․ [do not] rise[ ] to the level of appellate argument’ required by [Mass. R. A. P.] 16”).

In any event, the complaint was properly dismissed for the reasons stated in the thoughtful memorandum of the judge of the Superior Court.

First, the statute of limitations for tort claims, including defamation, is three years. See G. L. c. 260, § 2A. Aung filed the Superior Court action on April 20, 2018. To avoid the time bar, Aung must have set forth factual allegations that plausibly suggest that Prettenhofer committed the tort of defamation after April 20, 2015. CHIA terminated Aung's employment on March 26, 2013. To the extent Aung's claims are based on defamation in the events leading up to that termination, her claims are time barred.

To the extent Aung claims that the allegedly defamatory statements were contained in the affidavit Prettenhofer filed in the Federal case, she may not assert a defamation claim based on that affidavit due to the litigation privilege. The litigation privilege generally precludes civil liability based on “statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding,” as well as statements “preliminary to litigation” that relate to the contemplated proceeding. Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976). If the privilege attaches, its protections are absolute. See Correllas v. Viveiros, 410 Mass. 314, 320 (1991).

Second, Aung's complaint is barred by the doctrine of res judicata, or claim preclusion. “Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action.” Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 692 (2016). Aung could have brought her defamation claim in the Federal case, as it is based on the same underlying facts. Since she did not, the claim is now barred by claim preclusion.²

Order dated June 10, 2019, affirmed.

FOOTNOTES

2.   Prettenhofer has requested an award of attorney's fees and costs for having to defend a frivolous appeal. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). The request is denied. See Avery v. Steele, 414 Mass. 450, 455 (1993).