NUGENT v. MOYNIHAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Donna Nugent, appeals from a final judgment entered in favor of the defendant, Brian Moynihan, as chief executive officer of Bank of America, N.A., following a motion to dismiss. The primary issue on appeal, and the only one we need resolve, is whether Nugent's claim for violation of G. L. c. 93A is barred by the statute of limitations. Because we conclude that it is, we affirm.

Background. The following facts are taken from Nugent's amended complaint. In 2003, Nugent purchased credit protection from her credit card company, Bank of America. Under the credit protection program, Nugent paid fifty-five dollars per month “to secure that [she] would be covered in case of an ‘event’ including unemployment.” Nugent was unemployed at various intermittent times from 2006 to 2013. Despite informing Bank of America of her unemployment and submitting at least three different claims for three different periods of unemployment, Nugent did not receive benefits to which she was entitled under the credit protection program.³

In 2013, when Nugent's benefits were not forthcoming, she submitted complaints with the Federal consumer financial protection bureau and the Massachusetts Attorney General's office regarding, as alleged by Nugent, Bank of America's “deceptive practices.” In addition, from 2013 to 2014, Nugent exchanged extensive correspondence with Bank of America employees regarding the credit protection program.⁴ In that correspondence, Bank of America employees initially requested additional documents to process Nugent's claims.⁵ Then, on March 19, 2014, Nugent received a letter stating that her third claim had been denied. After further correspondence, on June 27, 2014, Nugent received a letter from a Bank of America employee requesting additional documents to process Nugent's first and second claims. As specifically alleged by Nugent, “I cannot emphasize enough that it was with this letter that I realized that this needed to be fought in court.” On November 10, 2014, Nugent sent a c. 93A demand letter to Moynihan.

Nugent filed her claim for violation of G. L. c. 93A just over four years later, on November 13, 2018. She alleged unfair or deceptive acts or practices in the marketing of the credit protection program and in the handling of her claims.

Discussion. As noted above, the primary issue on appeal is whether Nugent's claim for violation of G. L. c. 93A is barred by the statute of limitations. Moynihan ⁶ contends that (1) Nugent knew or should have known of her claim no later than 2013, (2) the statute of limitations for violations of G. L. c. 93A is four years, and (3) Nugent's claim, filed on November 13, 2018, is thus time barred. Nugent responds that she could not have known of her claim under the discovery rule until after she sent her c. 93A demand letter because, until that time, she thought that Bank of America would remedy the problem.

Under the discovery rule, “a cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that (1) [she] has suffered harm; (2) [her] harm was caused by the conduct of another; and (3) the defendant is the person who caused that harm.” Harrington v. Costello, 467 Mass. 720, 727 (2014). Nugent knew or should have known that she had suffered harmed, as well as who caused that harm, no later than when she complained to two different government agencies, in 2013, regarding what she described as Bank of America's deceptive practices. By then, she had submitted at least three different claims for three different periods of unemployment; had not received the benefits to which she claimed to be entitled; and was trying to seek relief through some other means than litigation.⁷ While Nugent may have thought that Bank of America would remedy the problem, a statute of limitations begins to run when the plaintiff discovers the harm, not when the plaintiff discovers that the defendant will not remedy the problem. See, e.g., Mansfield v. GAF Corp., 5 Mass. App. Ct. 551, 555 (1977).

We also address whether the statute of limitations was equitably tolled. While Nugent, who appears pro se, does not raise this argument as such, her assertions that Bank of America employees kept requesting additional documents to process her claims amounts to an argument for equitable tolling. “Equitable tolling is to be used sparingly” (quotation and citation omitted). Halstrom v. Dube, 481 Mass. 480, 485 (2019). Nonetheless, a claim may be equitably tolled if the potential defendant “encourages or cajoles the potential plaintiff into inaction.”⁸ Flint v. Boston, 94 Mass. App. Ct. 298, 305 (2018), quoting Cherella v. Phoenix Techs., Ltd., 32 Mass. App. Ct. 919, 920 (1992). Assuming, arguendo, that Nugent was cajoled into inaction for some portion of 2013 and 2014, by June 27, 2014, that was no longer true. On that date, Nugent “realized that this needed to be fought in court.”⁹ She even began to take steps to do so by sending a c. 93A demand letter on November 10, 2014. Thus, even assuming that the statute of limitations on Nugent's claim was equitably tolled for some portion of 2013 and 2014, her claim was still late filed on November 13, 2018. Accordingly, the judge did not err in allowing Moynihan's motion to dismiss.

Judgment affirmed.

FOOTNOTES

3.   Nugent's amended complaint acknowledged that she did receive some “short-term benefits” in 2010 and 2011, but she did not receive those benefits as a result of her unemployment and they are not at issue here.

4.   Some of Nugent's correspondence with Bank of America appears to have been in response to the complaints that Nugent submitted with the Federal consumer financial protection bureau and the Massachusetts Attorney General's office.

5.   On January 14, 2014, Nugent received a letter telling her that she could “still qualify if [she] sen[t] further documentation.” On January 29, 2014, Nugent received benefit forms to fill out.

6.   Moynihan argues that he is not the proper defendant. Because we conclude that Nugent's claim for violation of G. L. c. 93A is barred by the statute of limitations, we do not address this issue or Nugent's argument that she should have been allowed to amend her complaint to name the proper defendant.

7.   Nugent also averred in her amended complaint that on December 6, 2012, she opted out of a “class action lawsuit against Bank of America and its Protection Product.” This suggests that Nugent had additional notice of potential claims for her injuries.

8.   While there is no indication that Moynihan did anything to cajole Nugent into inaction, this goes to whether he is the proper defendant, an issue that we do not address. See note 5, supra.

9.   Nugent's brief also states that “[i]t was between the months of August and November of 2014, that [she] realized she was injured and that [Bank of America was] not working to rectify the problem or redeem her money.”