Walker v. Daley Hotel Management Corp.

4 Mass. L. Rptr. 57
CourtMassachusetts Superior Court
DecidedDecember 23, 1994
DocketNo. CA 942446E
StatusPublished
Cited by1 cases

This text of 4 Mass. L. Rptr. 57 (Walker v. Daley Hotel Management Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Daley Hotel Management Corp., 4 Mass. L. Rptr. 57 (Mass. Ct. App. 1994).

Opinion

Doerfer, J.

The plaintiff, Elsa Walker (“Walker”) brought this complaint for discovery against her employer, Daley Hotel Management Corporation (“Daley”), seeking to determine whether she has a viable cause of action arising from an assault at the Back Bay Hilton Hotel on January 24, 1994. In her complaint, Walker requests this court,

[T]o order the defendant to grant discovery to the plaintiff to determine whether there exists a cause of action against the defendant or against the Hilton International Hotel chain, and to comply with the discovery provisions of the Massachusetts Rules of Civil Procedure for such purposes.

(Complaint, ¶6.) The defendant has now moved to dismiss the complaint and to quash two subpoenas which have been served on Daley’s general manager, Gregory Hargrave, and its director of security, Christian Sulac, on the grounds that the complaint states no viable cause of action.1 The plaintiff contends that her complaint for discovery falls within the equitable jurisdiction of this court. For the reasons which follow, the defendant’s motions are denied.

BACKGROUND

For the purposes of the defendant’s motions, the court accepts the following allegations as true.

On January 24, 1994, while in the course of her employment at the Back Bay Hilton located in Boston, Massachusetts, Walker was assaulted at knife point and molested. (Complaint, ¶5.) Although Walker has no cause of action for damages directly against Daley because of the Workers’ Compensation bar, she believes she has a viable claim against an independent corporation, Hilton International Hotel, which has a franchising arrangement with Daley.2 Walker has thus filed the instant action to determine whether the relationship between the corporate entities and the nature of their agreements relating to security practices would enable her to pursue such an action. Walker seeks to conduct a limited number of depositions and to obtain certain records.

DISCUSSION

A bill of discovery comes within the “historic ancillary jurisdiction of the equity court.” Wolfe v. Massachusetts Port Authority, 366 Mass. 417, 419 (1974). Daley contends that the adoption of the new discovery rules supplanted equitable discovery and, therefore, Walker’s only avenue is to comply with the statutory rules.

Prior to the promulgation of the Massachusetts Rules of Civil Procedure, a bill of discovery could be maintained “to aid the plaintiff in a suit which he intends immediately to bring, as well as in a suit already brought, if the bill discloses a cause of action.” Post & Co. v. Toledo, Cincinatti & St Louis R.R., 144 Mass. 341, 347 (1887). The courts held that the statutory procedures for propounding interrogatories did not supplant this equitable action. Cavanaugh v. McDonnell & Co, Inc., 357 Mass. 452, 454 (1970); Owens-Illinois Glass Co. v. Bresnahan, 322 Mass. 629, 633 (1948). However, the bill was only permitted “(a) where the statutory procedure was inadequate to obtain the necessary information, and (b) where the information sought could have been obtained under a pre-1851 bill for discovery.” MacPherson v. Boston Edison Co., 336 Mass. 94, 100 (1957).

In Wolfe v. Massachusetts Port Authority, 366 Mass. 417 (1974), the Supreme Judicial Court further refined the standards under which a plaintiff could bring a bill of discovery. In Wolfe, the plaintiff was driving through a Massachusetts Port Authority toll booth when a wheel from an unidentified tractor-trailer combination struck him in the face, causing him serious injuries. The court allowed the plaintiff to bring a complaint for discovery against the Massachusetts Port Authority in order to compel the production of toll receipts and tickets collected on the bridge which would assist the plaintiff in identifying the tractor-trailer which caused his injuries. The court explained that a bill of discovery was appropriate because the plaintiff (1) had “properly described an ongoing or contemplated cause of action for which information is needed" and (2) had “alleged sufficient facts to demonstrate the inadequacy of statutory interrogatories and the essentiality of the bill of discovery as an aid to the plaintiffs position in the court proceeding in the [58]*58cause of action.” Id. at 422. The court noted that the plaintiff had no hope of remedy without the use of a bill of discovery and that the bill was not unduly burdensome on the Massachusetts Port Authority nor likely to prove unreasonably difficult in compliance. Id. at 423.

Although Wolfe was issued in 1974, the case was not decided under the new Massachusetts Rules of Civil Procedure. In fact, in Massachusetts, the continued viability of the equitable bill of discovery has not been addressed by any appellate court since the promulgation of the Rules. Thus, the court must look to federal law and the state law of other jurisdictions for guidance in this matter.

The Federal Rules replace the bill of discovery only to the extent that they provide relief that was formerly obtainable by such a bill. Wright & Miller, Federal Procedure, Vol. 8, §2005. “[T]he equitable bill of discovery was not abolished by the adoption of the Federal Rules; at most, it was rendered obsolete.” Sarah N. Welling, Discovery of Nonparties’ Tangible Things Under the Federal Rules of Civil Procedure, 59 Notre DameL.R. 110, 128, n. 100 (1983) [hereinafter “Welling”]; see 4 J. Moore & J. Lucas, Moore’s Federal Practice, ¶¶ 26.03[3], 26.53 (2d ed. 1983) [hereinafter “Moore’s Federal Practice"]-, 4A Moore’s Federal Practice, ¶33.05. “[TJoday, [state] courts deciding whether independent actions for discovery are preempted by the rules generally conclude that the answer depends on whether the rules provide an adequate remedy for the party seeking discovery.” Welling, supra at 128, n. 97, citing Arcell v. Ashland Chem. Co., 378 A.2d 53, 71 (1977) (“[T]he majority view is that modern rules and statutes relating to discovery do not abrogate equitable jurisdiction as to bills of discovery, and equity may be resorted to where effective discovery cannot be obtained under the rules or statutes”).

In the instant case, the discovery rules would not aid Walker in her task of locating a possible defendant. Walker cannot sue Daley due to the Workers’ Compensation bar, and therefore, she cannot serve it with interrogatories or depositions regarding Daley’s franchising agreement. Further, Mass.R.Civ.P. 27, is unavailing because the rule impliedly allows a potential plaintiff to perpetuate another person’s testimony only when that person may be unavailable for future litigation. See Rules Practice, Smith & Zobel, §27.1. Mass.R.Civ.P. 27 “does not sanction complaint-building discovery.” Id. Thus, Walker has no recourse to discovery under the Massachusetts Rules of Civil Procedure if her complaint for discovery is dismissed.

In Shorey v. Lincoln Pulp & Paper Co., Inc., 511 A.2d 1076 (Me. 1986), the Maine Supreme Judicial Court addressed a similar issue to the one currently before this court. In Shorey,

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4 Mass. L. Rptr. 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-daley-hotel-management-corp-masssuperct-1994.