Sheldon MANUEL v. Daniel B. FORD, Jr., trustee.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Sheldon Manuel, appeals from a second amended judgment dismissing her complaint with prejudice and awarding attorney's fees to the defendant. Concluding that the judge acted well within his discretion, we affirm.
Background. We summarize the facts relevant to the dismissal of the plaintiff's complaint. The plaintiff filed the instant case in November 2014 claiming that the defendant breached his fiduciary duty to make disbursements to her from the Anne M. Manuel-Daniel B. Manuel, Jr., Trust. Since the inception of the case, the plaintiff has repeatedly engaged in dilatory tactics designed to delay or avoid the proceedings and has consistently failed to comply with judicial orders, most especially related to discovery. In each instance, the plaintiff has asserted that her health condition prevents her from complying with the judicial orders and fully participating in the proceedings.3
Throughout the litigation, the judge was exceptionally patient, accommodating, and lenient with the plaintiff.4 For example, in January 2015, he granted a protective order sought by the plaintiff because she argued, in part, that her medical condition prevented her from appearing for a deposition, answering interrogatories, and producing documents. However, when it came to the judge's attention that the plaintiff was actively participating in a separate court case, he ordered the plaintiff to respond to the discovery requests within ninety days. The plaintiff violated this order and failed to respond.
The defendant moved to dismiss the complaint due to the plaintiff's failure to cooperate with the discovery process. The plaintiff argued that she was too ill to respond to the defendant's interrogatories. The judge denied the motion on October 15, 2015, despite being presented with evidence that the plaintiff was traveling across the country promoting and participating in the nonprofit organization “Sing it America.”5 Instead, he allowed the plaintiff an additional six weeks to comply with the court's order but admonished her stating,
“The Court has reviewed the video recording of the Plaintiff at a public event in Washington D.C. on September 14, 2015. The Court agrees with the Defendant that the Plaintiff clearly appears to have the physical and mental ability to respond to Interrogatories. Her argument that she is too ill to do so lacks credibility, based upon the Court's review of the video of September 14, 2015.”
Despite the judge's admonishment, the plaintiff again failed to answer discovery by the due date of December 2, 2015, and instead moved to further extend the discovery deadline. In January 2016, the judge denied the plaintiff's motion and ordered her to respond to the discovery requests “forthwith,” reiterating that “the [c]ourt seriously questions [the plaintiff]'s credibility regarding her physical and mental ability to respond to interrogatories.”
Again, the plaintiff failed to respond to the defendant's discovery requests, and she further refused to appear for a noticed deposition. In response, the defendant filed a second motion to dismiss the plaintiff's complaint for the failure to prosecute and comply with court orders. That motion was also denied. Around the same time, the plaintiff, who was represented by counsel, began to file numerous pro se motions seeking to delay all proceedings, including discovery, for sixty days due to her medical condition.6 As a result of the plaintiff's conduct, the judge entered a gatekeeper order on February 29, 2016, which prohibited the plaintiff from filing any pro se motions and required leave of the court for her attorney to file any motions.7
On April 1, 2016, the judge ordered the plaintiff to appear for an eight-hour deposition, which was to be held over two days in four two-hour sessions. The judge further appointed a discovery master to monitor the discovery process, and warned that the failure to comply with his order could result in the imposition of sanctions. Nevertheless, the plaintiff failed to comply with several orders of the discovery master, claiming her health issues prevented her from doing so, and the discovery master ultimately moved for the judge to dismiss the case as a “sham.”8 In addition, the plaintiff consistently attempted to evade being deposed, and when the deposition was finally held, it was forced to be temporarily suspended due to the plaintiff's behavior after the first day.9
Throughout the litigation, the defendant moved to dismiss the plaintiff's complaint multiple times, arguing in each instance that the severity of the plaintiff's medical condition was fabricated as an attempt to delay the proceedings and evade compliance with the discovery process. In support of one of his motions, the defendant submitted a video recording of the plaintiff interviewing people at the Republican National Convention in Cleveland, Ohio, during the same period of time that she was claiming to be too ill to sit for a deposition. Over the nearly three-year duration of the case, the judge, in total, denied six of the defendant's motions to dismiss.
On April 25, 2017, just two days before the scheduled trial date, the plaintiff again moved to continue the proceedings, on this occasion asserting that she had recently retained new counsel. Following a hearing, the judge denied the motion, and awarded the defendant attorney's fees because he found the motion to be frivolous. Two days later, on the day of trial, the plaintiff, the defendant, and several witnesses subpoenaed by the plaintiff appeared at the court house for trial. However, at approximately 10:10 a.m. that morning, a court officer entered the court room and informed the judge that the plaintiff was experiencing a “medical emergency” at the entry of the court house.
According to the court officer, when the plaintiff arrived at the court house, she immediately represented to court security that she was experiencing chest pains.10 In response, the security officers contacted the paramedics, and the local fire department arrived shortly thereafter. The plaintiff's blood pressure and heart rate were checked at the court house entryway and were reported as normal at that time. Records from the fire department indicate that the plaintiff was “very agitated and uncooperative,” and refused to go to the hospital unless she received confirmation that the judge would grant her a continuance. Ultimately, with no assurances, the plaintiff was transported to Cape Cod Hospital.
While this scene was unfolding at the entry of the court house, the defendant moved to dismiss the plaintiff's complaint with prejudice, and conversely the plaintiff's attorney 11 requested a continuance. Instead of acting on either request, the judge, recognizing that the plaintiff “clearly [had] a history of bad behavior,” decided that he would first need to determine whether the plaintiff's medical emergency was legitimate or a ploy to avoid trial. Accordingly, that same day, the judge issued an order for the plaintiff to sign a medical release authorizing her medical providers to release her medical records. The judge ordered the plaintiff's attorney to obtain those records that same day, and report to the court by 3 p.m. that afternoon for a hearing.
At the hearing, the plaintiff's attorney revealed that he was unable to reach the plaintiff and when he arrived at the hospital, just two hours after the plaintiff was taken there by ambulance, the plaintiff had already been discharged. After her discharge, the plaintiff failed to contact the court, did not return to the court house, and refused to take any of her attorney's telephone calls. Because the plaintiff's attorney was unable to communicate with the plaintiff, he was unable to obtain her medical records, and the judge granted the plaintiff until May 16, 2017, to submit the records to the court.
On May 1, 2017, the defendant presented evidence to the judge that the plaintiff had performed at a public event at the LifeHouse Church in Middleborough on April 28, 2017, the day following her “medical emergency,” and moved to dismiss the plaintiff's complaint. After reviewing a time-stamped video of the plaintiff playing a harp on stage on the evening of April 28, the judge dismissed the plaintiff's complaint.12 He, however, reserved the issue of whether the dismissal was with or without prejudice. The judge's order stated that the plaintiff's complaint would be dismissed with prejudice unless she provided satisfactory evidence, via medical records, that her medical emergency on April 27 was legitimate.
The medical records were submitted to the judge on May 5, 2017, and confirmed the judge's suspicions that the plaintiff had not suffered a verifiable medical emergency. The records reflected that, at the hospital, the plaintiff engaged in “challenging behaviors,” frequently interrupting the medical providers to discuss her legal matter rather than her medical condition. Further, despite the plaintiff's complaints, the doctor quickly determined that she had “[n]o confusion, disorientation or dizziness,” and that her cardiac rhythm was normal. The plaintiff was ultimately medically cleared and discharged to her home shortly after her arrival at the hospital, and was permitted to ambulate without assistance.
In light of the medical records, the judge concluded that the plaintiff's medical emergency was “a calculated ploy to avoid and postpone trial,” and that the plaintiff's actions were part of an ongoing pattern to defraud the court. As such, on August 3, 2017, the judge amended his prior order and dismissed the plaintiff's complaint with prejudice. Subsequently, the defendant filed a motion seeking attorney's fees, and the judge entered a second amended judgment of dismissal awarding the requested attorney's fees. This appeal followed.
Discussion. The judge concluded both that the plaintiff, by her conduct, abandoned her complaint and committed a fraud on the court, and thus, dismissed her complaint with prejudice. The plaintiff contends that the judge erred in doing so. We discern no abuse of discretion in the judge's ruling.
Under Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974), “[o]n motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with ․ any order of court.” “A dismissal under Mass. R. Civ. P. 41 (b) (2) for failure to prosecute is committed to the sound discretion of the trial judge and can be reversed only in the rare instance that it is so arbitrary, capricious, whimsical or idiosyncratic that it constitutes an abuse of discretion amounting to an error of law.” Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 470 (1991).
The present matter is not one of the rare circumstances in which reversal of the dismissal is warranted. Cf. Monahan v. Washburn, 400 Mass. 126, 129 (1987) (dismissal was “erroneously Draconian” where plaintiff had “legitimate illness” and continuance would not have prejudiced defendant). Unlike the situation in Monahan, the judge here expressly found that the plaintiff's medical emergency on the date of trial was not “legitimate,” but rather was a fabricated ploy to avoid and delay the trial. Id. Furthermore, this was not a singular instance where a continuance would not have prejudiced the defendant. See id. Throughout the litigation, the plaintiff engaged in a pattern of behavior aimed at delaying the proceedings and avoiding discovery demands, and toward that end, she successfully obtained several continuances. Under such circumstances, an involuntary dismissal with prejudice was not unreasonable, and the judge did not abuse his discretion so ordering. See Dewing, 30 Mass. App. Ct. at 471-472 (involuntary dismissal may be utilized where convincing evidence of unreasonable conduct or delay).
Separately, the judge acted within his discretion in dismissing the plaintiff's complaint for committing a fraud upon the court and reasonably could have dismissed the complaint solely on that ground. “A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.” Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). “When a fraud on the court is shown through clear and convincing evidence to have been committed in an ongoing case, the trial judge has the inherent power to take action in response to the fraudulent conduct.” Rockdale Mgt. Co., supra. A judge has “broad discretion” in fashioning the appropriate response, and we review for an abuse of discretion. See id.
Since the case's commencement, the plaintiff continuously represented to the judge that she could not respond to discovery or participate in the proceedings due to her medical issues. The judge was commendably understanding and accommodated the plaintiff on several occasions by granting continuances and protective orders, extending discovery deadlines, and denying the defendant's multiple motions to dismiss. However, at the very same time the plaintiff was purporting to be “too ill,” she was also traveling across the country to attend public events, where she performed songs, gave speeches, and conducted interviews. With this backdrop, on the date of trial and just two days after the plaintiff was denied a trial continuance, she claimed to experience a “medical emergency.” Yet, this claim was directly belied by the plaintiff's medical records and her own actions following the event. Based on the totality of the plaintiff's behavior, the judge was well warranted in concluding that she had engaged in a “scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter.” Munshani v. Signal Lake Venture Fund II, LP, 60 Mass. App. Ct. 714, 718 (2004), quoting Rockdale Mgt. Co., 418 Mass. at 598. The judge did not abuse his discretion in dismissing the plaintiff's complaint with prejudice as a result. See Munshani, supra at 719.
In sum, the judge was warranted in dismissing the plaintiff's complaint for either the failure to prosecute or for committing fraud upon the court, and did not abuse his discretion in doing so on both grounds and assessing attorney fees.13
Second amended judgment of dismissal affirmed.14
3. The defendant was diagnosed with breast cancer in 2015 and underwent surgical treatment later that year.
4. The same judge presided over the entirety of the case.
5. The plaintiff is heavily involved with “Sing it America,” which is a nonprofit organization that promotes the celebration of the national anthem. On September 11, 2015, the plaintiff appeared on the Christian Broadcasting Network to discuss an event being held by “Sing it America” on September 15, 2015, at the Lincoln Memorial in Washington, D.C. In the interview, the plaintiff described herself as “cancer-free.”
6. On February 16, 2016, the plaintiff's attorney moved to withdraw as counsel, but his motion was denied.
7. In his order, the judge described the plaintiff's behavior as “aggressive and oppressive.”
8. The discovery master's oral motion to dismiss was denied by the judge.
9. On August 25, 2016, the date scheduled for the second session of the deposition, the plaintiff sought to either be permitted to lie down during the deposition or in the alternative reschedule the deposition for the following day. The deposition was ultimately reconvened on August 26, 2016.
10. While the plaintiff now contends that she “fell on her way into the courthouse,” she explicitly informed the paramedics on April 27 that she did not fall.
11. The plaintiff did not have new counsel on this date, but rather was represented by the same attorney that she had been throughout the case.
12. The plaintiff moved to vacate the dismissal arguing that she had only performed one five-minute song at a prayer meeting on April 29, 2017, not April 28, 2017.
13. To the extent that the plaintiff claims the judge erred in awarding the defendant attorney's fees for litigating her April 25 motion to continue, the claim is without merit. The judge found that the plaintiff's motion, filed two days before trial, was frivolous. Thus, attorney's fees were warranted under G. L. c. 231, § 6F. Moreover, given the plaintiff's repeated efforts to unreasonably delay the proceedings, the judge was permitted to impose attorney's fees upon the plaintiff as a sanction pursuant to his inherent powers. See Wong v. Luu, 472 Mass. 208, 218 (2015) (imposition of attorney's fees permissible where “necessary to preserve the court's authority to accomplish justice”).
14. The defendant's request for attorney's fees and double costs for having to defend against this appeal is denied.