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Appeals Court of Massachusetts.

Sean MURPHY v. BRISTOL COUNTY SHERIFF'S OFFICE & others 1 (and a companion case 2).

19-P-1800, 19-P-1801

Decided: April 16, 2021

By the Court (Rubin, Blake & Lemire, JJ.3)


A judge of the Superior Court dismissed two complaints filed by the plaintiff, Sean Murphy, against the defendants on the basis that the complaints were a restatement of an action previously filed. See Mass. R. Civ. P. 12 (b) (9), as amended, 450 Mass. 1403 (2008).4 The gravamen of all of the plaintiff's complaints is that he was overcharged for postage on various dates because the jail only sells one denomination of stamps. Concluding that the complaints should not have been dismissed because they allege overcharging on dates other than those set forth in the previously filed complaint, we reverse.

Background. The plaintiff was a prisoner at the Bristol County House of Corrections when he filed the complaints at issue in this appeal. In the prior action (docket 1873CV00470), filed on June 15, 2018 (prior action), the defendant alleged that he was overcharged for postage on December 28, 2017, and March 23, 2018. This complaint is still pending. As to this appeal, the first complaint (docket 1973CV00123), filed on February 8, 2019 (first complaint), sought judicial review of the denial of an inmate grievance, a declaratory judgment, and a claim for violation of 42 U.S.C. § 1983. The second complaint (docket 1973CV00643), filed July 12, 2019 (second complaint), sought the same relief as the first complaint and it set forth an additional claim for “Failure to Train and/or Supervise.”5

The defendants filed a motion to dismiss both complaints pursuant to Mass. R. Civ. P. 12 (b) (9) claiming that the prior action between the same parties, seeking the same relief, was pending in the same court. The judge allowed the defendants’ motions ruling that the first complaint was “sufficiently similar to the [prior action] to comprise a ‘prior pending action’ for purposes of dismissal of this action under Rule (12) (b) (9).” The judge also found that the complaint failed pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), because “the mail at issue ․ was sent to and accepted for filing by the [c]ourt” and therefore the plaintiff was not harmed.

In dismissing the second complaint, the same judge ruled that “the complaints raise identical issues.” She further noted that “[t]o the extent [the] plaintiff alleges additional facts based on the same issues ․ he could have moved to amend or supplement his complaint ․ but did not.”

A timeline of the plaintiff's allegations established that the prior action alleged that the defendant was overcharged for postage on December 28, 2017, and March 23, 2018. Then, the defendant claimed in the first complaint that he was overcharged for postage on November 24, 2018, and claimed in the second complaint that he was again overcharged on May 10, 2019, and May 30, 2019.

Discussion.6 We review de novo a judge's ruling on a motion to dismiss under Mass. R. Civ. P. 12 (b) (9). See Okoli v. Okoli, 81 Mass. App. Ct. 381, 384 (2012). “Rule 12 (b) (9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth. The rule prohibits the long-barred practice of claim-splitting.” Lyons v. Duncan, 81 Mass. App. Ct. 766, 770-771 (2012), quoting M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337, 339 (2004). “Dismissal under [Rule 12 (b) (9)] is proper when the same parties are involved in two actions, one begun before the other, and [i]t is apparent from the face of the present complaint ․ that all the operative facts relied on to support the present action had transpired prior to the commencement of the first action” (emphasis added; quotation and citation omitted). Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct. 374, 377 (2016).

Here, the plaintiff filed two complaints alleging three separate and discreet claims of overcharging; all of which occurred after he filed the prior action. Given that the complaints asserted several violations that occurred after the filing of the prior action, the judge should not have dismissed the complaints. See Koshy v. Sachdev, 477 Mass. 759, 774 (2017). See also Gold Star Homes, LLC, 89 Mass. App. Ct. at 377.

Additionally, in dismissing the complaints, the judge noted that the plaintiff could have sought to amend or supplement the prior complaint, but he did not. In fact, the plaintiff sought to consolidate the cases, but the defendants objected and ultimately his motion was denied. Notably, the defendants opposed the motion to consolidate claiming, among other things, that the motion was vague or intentionally misleading and “an impermissible attempt to amend the complaint” in the prior action. Although consolidation would have been in the interest of judicial economy and prevented inconsistent rulings, having successfully objected to the plaintiff's motion, the defendants then moved to dismiss the complaints, citing the pending prior action. See Striar v. Cooper, 6 Mass. App. Ct. 841, 841-842 (1978) (dismissal of second action under rule 12 [b] [9] together with refusal to allow amendment in first action would leave plaintiffs without opportunity to litigate their “separate and distinct” claim). And while “[p]ro se litigants are held to the same standards as attorneys,” Jackson v. Commonwealth, 430 Mass. 260, 264 (1999), here the plaintiff used his best efforts to consolidate the complaints and was ultimately unsuccessful in doing so.

However, the sole issue before us is propriety of the judgment of dismissal, and as discussed supra dismissal under Mass. R. Civ. P. 12 (b) (9) was not warranted. We note that on remand, the judge may further consider the issue of consolidation of the three complaints as a matter of judicial economy. See M.J. Flaherty Co., 61 Mass. App. Ct. at 340 n.3 (“Consolidation of the two cases ․ would further the goal of judicial economy and possibly lead to a speedier end to litigation”).

We address one further issue which may arise on remand. The judge, sua sponte, dismissed the first complaint on the additional ground that it failed to state a claim upon which relief could be granted.7 We review the allowance of a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6) de novo. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In so doing, we must treat the complaint's factual allegations as true and must draw all reasonable inferences in the plaintiff's favor. See id. at 676.

Here, the judge found that the defendant was not harmed, an essential element of his complaint, because the mail at issue was sent and received by the court in a timely manner. However, this is not the only possible harm suffered by the plaintiff. As alleged, the plaintiff was forced to pay more postage than is required by the postal system because the jail only had one denomination of stamps. While we offer no opinion on the likelihood of success on the merits of this claim, the complaint should not have been dismissed for a lack of harm.

Judgments reversed.


4.   Mass. R. Civ. P. 12 (b) (9) states:“Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ․ [p]endency of a prior action in a court of the Commonwealth.”

5.   We note that the plaintiff filed a motion to consolidate the complaints at issue in this appeal with the prior action. The defendants objected to that motion and a different judge denied the motion.

6.   We pass on the issue of whether the plaintiff failed to comply with the requirements of the Massachusetts Rules of Appellate Procedure, as set forth in some detail in the defendants’ brief.

7.   We note that the defendants’ motions to dismiss were based solely on Mass. R. Civ. P. 12 (b) (9).

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