NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1105
RIAN WATERS
vs.
AIDAN KEARNEY & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Rian Waters, appeals a judgment dismissing
his claim of libel against the defendants, Aidan Kearney,
Worcester Digital Marketing, LLC, and Turtleboy Enterprises,
LLC, (defendants) for failure to prosecute. In an earlier
appeal, a panel of this court reversed the grant of summary
judgment against the plaintiff on his libel claim to the extent
the claim was "based on the statements that Waters sold drugs in
California and shipped drugs to Massachusetts." Waters v.
Kearney, 100 Mass. App. Ct. 1105 (2021) (Waters I). We affirmed
the dismissal of all other claims and remanded for further
proceedings. Because this case presents one of the rare
instances where the judge, acting on proper motivation to
1Worcester Digital Marketing, LLC, and Turtleboy Enterprises, LLC. maintain judicial efficiency, nevertheless failed to exercise
proper discretion, we vacate the judgment and remand for further
proceedings.
Background.2 The libel claim stems from a statement in a
book published by Kearney that the plaintiff "sold drugs in
California" and while visiting Massachusetts "he allegedly
shipped himself drugs via the USPS, which he intended to sell
here." After remand, the plaintiff filed numerous pleadings,
including motions directed to whether Kearney was harassing
witnesses and seeking to enjoin Kearney from "mentioning or
harassing" the plaintiff or any potential witness. It was not
always clear whether the named persons were witnesses who the
plaintiff intended to call at the trial of the one claim
remaining in this case. The plaintiff also repeatedly stated in
pleadings, including an affidavit, that he "never bought or sold
drugs in California." The plaintiff also described the impact
Kearney's alleged libel had on him. In response to this flurry
of pleadings, the judge scheduled a final pretrial conference.3
2 The facts pertaining to this dispute are set out in Waters I; the following is a summary of the facts relevant to this appeal.
3 We recognize that the plaintiff's numerous filings and lack of understanding of the litigation process were a burden on the court.
2 At the final pretrial conference, the judge denied the
plaintiff's motion for default and sanctions, which had alleged
that Kearney was threatening people who the plaintiff intended
to call as witnesses at trial.4 The plaintiff expressed concern
about going forward with trial where, due to Kearney's alleged
threats, he had no witnesses. The plaintiff also indicated that
because he did not know what kind of drugs he was alleged to
have sold, he did not know who to call as a witness.5 The judge
admirably attempted to focus the plaintiff on the issues
relevant to trial. The plaintiff stated that if the judge was
4 The motion referred to several persons by name; we cannot discern from this record if those persons could have provided admissible trial testimony, or had provided depositions that could be admissible, see Mass. R. Civ. P. 32, as amended, 392 Mass. 1105 (1984). The fact that the plaintiff's pleading referred the judge to a two-and-one-half-hour-long video as part of the record, without providing timestamps to the relevant portions of the video and without explaining how the person depicted in it might provide testimony relevant to the one remaining claim in this case, did not assist the court.
5 It is not clear why it mattered what type of drugs the plaintiff allegedly sold. Based on the plaintiff's representations about discovery, it was "hash oil." The plaintiff seemed to the believe at the pretrial conference that it could be cannabis or "coke or crack." In any event, assuming it is the truth, the plaintiff can testify as he already has stated in an affidavit, that he has "never bought or sold drugs in California" and otherwise identify statements made by Kearney about the plaintiff's alleged sale or shipment of drugs that the plaintiff believes are libelous and testify that they are not true. The plaintiff can provide a witness list that includes witnesses to address all possibilities and, after Kearney presents evidence, the plaintiff can decide who, if anyone, to call as rebuttal witnesses.
3 going to allow Kearney to threaten witnesses, he would need only
a day for trial because he had no witnesses.6 He also told the
judge "[i]f I can't have a fair trial, there's not going to be a
trial" and asked for the case to be "closed," but subsequently
indicated, "All right, . . . fine. We'll have a trial." The
defendants asked for thirty days to file a motion for summary
judgment, which the judge granted "if necessary."7 The next day,
the judge dismissed the remaining claim without prejudice for
the plaintiff's failure to prosecute.
Discussion. The judge's stated reasons for the dismissal -
- that "Waters indicated that he had 'no witnesses'; and that he
was unable to articulate his damages" were incorrect.
"Involuntary dismissal is a drastic sanction which should be
utilized only in extreme situations." Monahan v. Washburn, 400
Mass. 126, 128 (1987). Given these errors, dismissal was an
abuse of discretion. See Anderson v. Sport Lounge, Inc., 27
6 The issue of witness intimidation, if still relevant, could be addressed on remand through proper pleadings establishing that a named person is a witness or potential witness in this civil proceeding. Of course, the judge can require the parties to provide a witness list identifying all potential witnesses and the parties may subpoena witnesses to testify at trial.
7 Kearney told the judge that he intended to move for summary judgment on the ground that the statement at issue in the remaining libel claim included the word "alleged[ly]." We note that that issue was litigated in Waters I and the defendants lost.
4 Mass. App. Ct. 1208, 1209 (1989) ("Courts have inherent power to
dismiss a case for lack of prosecution"; those decisions are
within "sound discretion of the judge"); Munshani v. Signal Lake
Venture Fund II, LP, 60 Mass. App. Ct. 714, 718 (2004) (review
judge's exercise of inherent powers to manage cases for abuse of
discretion).
A libel claim requires a showing of "false and defamatory
written communication of and concerning the plaintiff." McAvoy
v. Shufrin, 401 Mass. 593, 597 (1988). Here, the plaintiff had
repeatedly sworn in his filings that he had "never bought or
sold drugs in California." At the pretrial conference, when the
plaintiff stated he had no witnesses, the plaintiff was stating
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1105
RIAN WATERS
vs.
AIDAN KEARNEY & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Rian Waters, appeals a judgment dismissing
his claim of libel against the defendants, Aidan Kearney,
Worcester Digital Marketing, LLC, and Turtleboy Enterprises,
LLC, (defendants) for failure to prosecute. In an earlier
appeal, a panel of this court reversed the grant of summary
judgment against the plaintiff on his libel claim to the extent
the claim was "based on the statements that Waters sold drugs in
California and shipped drugs to Massachusetts." Waters v.
Kearney, 100 Mass. App. Ct. 1105 (2021) (Waters I). We affirmed
the dismissal of all other claims and remanded for further
proceedings. Because this case presents one of the rare
instances where the judge, acting on proper motivation to
1Worcester Digital Marketing, LLC, and Turtleboy Enterprises, LLC. maintain judicial efficiency, nevertheless failed to exercise
proper discretion, we vacate the judgment and remand for further
proceedings.
Background.2 The libel claim stems from a statement in a
book published by Kearney that the plaintiff "sold drugs in
California" and while visiting Massachusetts "he allegedly
shipped himself drugs via the USPS, which he intended to sell
here." After remand, the plaintiff filed numerous pleadings,
including motions directed to whether Kearney was harassing
witnesses and seeking to enjoin Kearney from "mentioning or
harassing" the plaintiff or any potential witness. It was not
always clear whether the named persons were witnesses who the
plaintiff intended to call at the trial of the one claim
remaining in this case. The plaintiff also repeatedly stated in
pleadings, including an affidavit, that he "never bought or sold
drugs in California." The plaintiff also described the impact
Kearney's alleged libel had on him. In response to this flurry
of pleadings, the judge scheduled a final pretrial conference.3
2 The facts pertaining to this dispute are set out in Waters I; the following is a summary of the facts relevant to this appeal.
3 We recognize that the plaintiff's numerous filings and lack of understanding of the litigation process were a burden on the court.
2 At the final pretrial conference, the judge denied the
plaintiff's motion for default and sanctions, which had alleged
that Kearney was threatening people who the plaintiff intended
to call as witnesses at trial.4 The plaintiff expressed concern
about going forward with trial where, due to Kearney's alleged
threats, he had no witnesses. The plaintiff also indicated that
because he did not know what kind of drugs he was alleged to
have sold, he did not know who to call as a witness.5 The judge
admirably attempted to focus the plaintiff on the issues
relevant to trial. The plaintiff stated that if the judge was
4 The motion referred to several persons by name; we cannot discern from this record if those persons could have provided admissible trial testimony, or had provided depositions that could be admissible, see Mass. R. Civ. P. 32, as amended, 392 Mass. 1105 (1984). The fact that the plaintiff's pleading referred the judge to a two-and-one-half-hour-long video as part of the record, without providing timestamps to the relevant portions of the video and without explaining how the person depicted in it might provide testimony relevant to the one remaining claim in this case, did not assist the court.
5 It is not clear why it mattered what type of drugs the plaintiff allegedly sold. Based on the plaintiff's representations about discovery, it was "hash oil." The plaintiff seemed to the believe at the pretrial conference that it could be cannabis or "coke or crack." In any event, assuming it is the truth, the plaintiff can testify as he already has stated in an affidavit, that he has "never bought or sold drugs in California" and otherwise identify statements made by Kearney about the plaintiff's alleged sale or shipment of drugs that the plaintiff believes are libelous and testify that they are not true. The plaintiff can provide a witness list that includes witnesses to address all possibilities and, after Kearney presents evidence, the plaintiff can decide who, if anyone, to call as rebuttal witnesses.
3 going to allow Kearney to threaten witnesses, he would need only
a day for trial because he had no witnesses.6 He also told the
judge "[i]f I can't have a fair trial, there's not going to be a
trial" and asked for the case to be "closed," but subsequently
indicated, "All right, . . . fine. We'll have a trial." The
defendants asked for thirty days to file a motion for summary
judgment, which the judge granted "if necessary."7 The next day,
the judge dismissed the remaining claim without prejudice for
the plaintiff's failure to prosecute.
Discussion. The judge's stated reasons for the dismissal -
- that "Waters indicated that he had 'no witnesses'; and that he
was unable to articulate his damages" were incorrect.
"Involuntary dismissal is a drastic sanction which should be
utilized only in extreme situations." Monahan v. Washburn, 400
Mass. 126, 128 (1987). Given these errors, dismissal was an
abuse of discretion. See Anderson v. Sport Lounge, Inc., 27
6 The issue of witness intimidation, if still relevant, could be addressed on remand through proper pleadings establishing that a named person is a witness or potential witness in this civil proceeding. Of course, the judge can require the parties to provide a witness list identifying all potential witnesses and the parties may subpoena witnesses to testify at trial.
7 Kearney told the judge that he intended to move for summary judgment on the ground that the statement at issue in the remaining libel claim included the word "alleged[ly]." We note that that issue was litigated in Waters I and the defendants lost.
4 Mass. App. Ct. 1208, 1209 (1989) ("Courts have inherent power to
dismiss a case for lack of prosecution"; those decisions are
within "sound discretion of the judge"); Munshani v. Signal Lake
Venture Fund II, LP, 60 Mass. App. Ct. 714, 718 (2004) (review
judge's exercise of inherent powers to manage cases for abuse of
discretion).
A libel claim requires a showing of "false and defamatory
written communication of and concerning the plaintiff." McAvoy
v. Shufrin, 401 Mass. 593, 597 (1988). Here, the plaintiff had
repeatedly sworn in his filings that he had "never bought or
sold drugs in California." At the pretrial conference, when the
plaintiff stated he had no witnesses, the plaintiff was stating
that he did not have witnesses other than himself to offer
testimony. Accordingly, it was incorrect on this record to
dismiss the remaining claim on the basis that the plaintiff had
no witnesses. Once the plaintiff offers his own testimony at
trial, "it [will be] up to the defendant[s] to prove truth as an
affirmative defense." Id. See Maloof v. Post Publ. Co., 306
Mass. 279, 280 (1940).8
The judge also made an error of law on the issue whether
the plaintiff could prove damages. A statement accusing a
8 Of course, on remand, the judge can require each party to provide a witness list prior to the pretrial conference pursuant to Superior Court Standing Order 1-88 (2023).
5 person of a crime constitutes defamation per se. McAvoy, 401
Mass. at 597-598. While a plaintiff alleging libel must show
economic damages, defamation per se does not require proof of
economic loss. See Phelan v. May Dep't Stores Co., 443 Mass.
52, 56 (2004); Ravnikar v. Bogojavlensky, 438 Mass. 627, 630
(2003). In addition, the plaintiff's affidavits set forth the
testimony he could provide about the harm he allegedly suffered
from the defendants' conduct. The judge therefore committed
error when he based the order of dismissal on the plaintiff's
inability to articulate damages. See Van Christo Advertising,
Inc. v. M/A-COM/LCS, 426 Mass. 410, 417 (1998) (abuse of
discretion review "includes considering whether proper legal
standards were applied"). Dismissal for failure to prosecute is
a harsh punishment reserved for "extreme situations" and was not
warranted here. Monahan, 400 Mass. at 128.
We can affirm for any ground supported by the record. See,
e.g., Gabbidon v. King, 414 Mass. 685, 686 (1993). However,
Mass. R. Civ. P. 41, 365 Mass. 803 (1974), outlines the
circumstances in which a judge may dismiss an action before
trial either voluntarily or involuntarily, none of which applied
here. Pursuant to rule 41 (a) (1), after the defendant has
answered the complaint, the plaintiff may voluntarily dismiss
the complaint by filing a stipulation signed by all parties.
Thus, the plaintiff's telling the judge "[i]f I can't have a
6 fair trial, there's not going to be a trial" and asking for the
case to be "closed," did not amount to grounds for voluntary
dismissal that complied with rule 41 (a).
Alternatively, under rule 41 (b) (1), a judge may enter an
involuntary dismissal on the judge's own motion if an action has
remained on the docket for three years "without activity shown
other than placing upon the trial list, marking for trial, being
set down for trial, the filing or withdrawal of an appearance,
or the filing any paper pertaining to discovery." Given the
plaintiff's flurry of filings, dismissal on the court's motion
could not be in compliance with rule 41 (b) (1) and, in any
event, the judge would have had to give the plaintiff not less
than one year's notice under the rule.
Similarly, dismissal could not have been pursuant to rule
41 (b) (2). First, the defendants did not move for dismissal
and certainly did not move for dismissal with notice. Second,
as already indicated, there was no such inactivity on the
docket. Third, the portion of the rule that permits dismissal
in an action tried by the court without a jury did not apply.
Conclusion. We vacate the judgment entered August 31,
2022, dismissing the plaintiff's claim and remand the matter to
7 the Superior Court for further proceedings consistent with this
memorandum and order.9
So ordered.
By the Court (Henry, Grant & Brennan, JJ.10),
Assistant Clerk
Entered: May 28, 2024.
9 To the extent the plaintiff believes he needs an accommodation for a disability, he needs to properly ask for an accommodation. See Massachusetts Court System, How to ask for a court accommodation under the Americans with Disabilities Act, https://www.mass.gov/info-details/how-to-ask-for-a-court- accommodation-under-the-americans-with-disabilities-act.
10 The panelists are listed in order of seniority.