DEAN v. DEPARTMENT OF MENTAL HEALTH (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from an order dismissing his complaint and an order denying his “motion for finding.” We affirm.

Background. On November 9, 2020, the plaintiff filed a complaint that did not have a caption denominating who he was suing. The complaint states that “accountability” and “culpab[ity]” “lies with” the Department of Mental Health (DMH) and the Worcester Recovery Center and Hospital (hospital) (collectively, the defendants). The plaintiff sought to have his criminal offender record information (CORI) removed from the defendants’ files as well as compensatory damages and punitive damages. The docket does not reflect a return of service for DMH or the hospital. The docket reflects that the plaintiff served a hospital employee, Jacqueline Ducharme, which the plaintiff alleges occurred on November 17, 2020.

On December 9, 2020, the defendants served the plaintiff with a motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), asserting that the complaint did not “state any identifiable claim.” On January 8, 2021, after the time to file an opposition to the motion to dismiss had passed, the defendants wrote the plaintiff informing him to contact the defendants’ counsel if he needed additional time to respond. The letter noted that if the defendants did not hear from the plaintiff or receive an opposition by January 31, 2021, they would file the motion to dismiss with the court. Hearing nothing and receiving no opposition, the defendants filed the motion to dismiss on February 12, 2021.

On February 16, 2021, the plaintiff unsuccessfully attempted to file a motion for finding. After learning that the trial court did not have a record of this filing, the plaintiff filed his motion again on March 5, 2021. The motion stated that “proper notice has been given [Ducharme] and her representative. They have failed to give response to this court with[i]n 20 days,” and requested a “favorable finding” from the court. The defendants filed a response to the plaintiff's motion for finding.

On April 8, 2021, the judge allowed the defendants’ motion to dismiss on the grounds that it was unopposed and denied the plaintiff's motion for finding “for reasons stated in defendants’ response.”

Discussion. 1. Motion to dismiss. 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 facts asserted in the complaint as true, drawing all reasonable inferences in the plaintiff's favor, “look[ing] beyond the conclusory allegations in the complaint and focus[ing] on whether the factual allegations plausibly suggest an entitlement to relief.” Id., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008).³

Here, the plaintiff failed to serve a timely opposition to the motion to dismiss even with the extension offered by the defendants. See Rule 9A of the Rules of Superior Court. A plaintiff's failure to file an opposition to a motion to dismiss in the trial court can be deemed a waiver of all substantive arguments on appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) (“An issue not raised or argued below may not be argued for the first time on appeal”).

To the extent that we understand the plaintiff to argue that the complaint should not have been dismissed as to other people mentioned in the complaint but not served, we disagree. The plaintiff had ninety days to effect service. Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988). As to all people named in the complaint other than Ducharme, the docket indicates that he failed to do so.

To the extent that plaintiff appeals the dismissal as to Ducharme, no allegation of the complaint stated a cause of action or requested relief as to Ducharme. Accordingly, it was not error to dismiss the complaint as to her. Mass. R. Civ. P. 12 (b) (6).

2. Motion for finding. The plaintiff argues that the judge erred in denying the plaintiff's motion for finding because the defendants did not respond to the complaint within twenty days of service. We disagree.

There is no evidence in the record to establish that the plaintiff served DMH or the hospital at all, let alone by November 17, 2020. Even if the plaintiff had successfully served both these defendants by November 17, 2020, and even if the defendants should therefore have served their motion to dismiss on the plaintiff on December 7, 2020, rather than December 9, 2020, it was not an abuse of discretion for the judge to deny the plaintiff's motion for finding. Whether to enter a default judgment “is essentially a matter of the trial judge's discretion.” Riley v. Davison Constr. Co., 381 Mass. 432, 441 (1980). Default is an extreme sanction. See Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 236 (2003). The plaintiff's brief contains no argument for why it would be an abuse of discretion to decline to default the defendants for responding to the complaint two days late, especially given the absence of proof of service and the fact that the defendants responded to the complaint months before the plaintiff ever moved for a finding.

Judgment affirmed.

FOOTNOTES

3.   The plaintiff does not cite any authority for the proposition that his CORI must be removed from DMH's or the hospital's records.