2018 Mass. App. Div. 200

October 19, 2018 - December 19, 2018

Appellate Division Southern District

Court Below: District Court, Wrentham Division

Present: Hand, P.J., Finnerty & Kirkman, JJ.

Bahig Bishay, pro se.

Douglas M. Poulin for the defendant.

KIRKMAN, J. On April 28, 2014, a judge of the Superior Court sitting in Essex County, issued a Memorandum of Decision and Order permanently enjoining the appellant, Bahig Bishay (and his wife, who is not a party to this action), "from filing any action at law or in equity against any party in any Massachusetts state court of original jurisdiction without following" a specific procedure prescribed in the decision. Bell Atl. Yellow Pages v. U.S. Auto Exch. Group Ltd. & Bahig Bishay et al., Essex Superior Court, No. ESCV2000-01838 (April 28, 2014) (a copy of the Memorandum of Decision and Order is appended to this opinion). The Memorandum of Decision and Order was based on findings that the appellant and his wife have filed an inordinate series of prolix, duplicative, and groundless motions in this matter. The Bishays have also commenced numerous civil actions throughout the Commonwealth including actions in the Superior Courts for Norfolk, Bristol, Essex, Nantucket, and Suffolk counties. The overwhelming majority of the Bishays' civil actions were dismissed. The Bishays appealed the decisions adverse to them to the Massachusetts Appeals Court, the Supreme Judicial Court, the First Circuit Court of Appeals, and the United States Supreme Court. The Bishays' continued activities impose an inordinate burden on judicial personnel and the personnel of the clerk's offices and constitute a waste of scarce judicial resources. In addition, the Bishays' continued activities have caused the parties hereto to expend considerable attorney's fees on frivolous and groundless claims.

The injunction required the Bishays to attach a copy of the Memorandum of Decision and Order to all future complaints filed in the state courts described above. [Note 1]

In this action, Bishay is appealing the dismissal of his complaint against Public Storage by a judge of the District Court. He claims that the judge was wrong as a matter of law in finding that the complaint was frivolous. Bishay ignores a separate

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reason for dismissal of his complaint that entered for his failure to attach a copy of the Superior Court order to his District Court complaint. The procedural history is somewhat complicated due to the groundless filings by this plaintiff/appellant.

The complaint against Public Storage was filed on April 28, 2017, in the Wrentham District Court. Bishay did not attach a copy of the Superior Court order to his complaint. After Bishay unsuccessfully sought injunctive relief against Public Storage, the case was transferred to the Dedham District Court civil session. The Dedham District Court only found out about the Superior Court injunction when Public Storage discovered its existence and brought it to the court's attention a few months after Bishay had filed his complaint.

So, on July 19, 2017, Public Storage moved to dismiss the complaint in the Dedham District Court because Bishay had failed to attach a copy of the Superior Court order to the complaint or otherwise notify the court of its existence. After a hearing, the court allowed the motion and dismissed the complaint on August 10, 2017, finding that Bishay had failed to obtain approval from the Regional Administrative Justice ("RAJ") prior to filing the complaint.

That same day, Bishay sent a letter to the RAJ with an accompanying motion to "re-file and re-serve" his complaint. Public Storage's counsel also sent correspondence to the RAJ objecting to a vacating of the dismissal because Bishay did not comply with the Superior Court injunction requiring him to file the Memorandum of Decision and Order with his District Court complaint.

The RAJ subsequently transferred the case back to the Wrentham District Court designating a specially assigned judge to grant Bishay a brief hearing on the record consistent with the Superior Court order to determine whether Bishay complied with the order when he filed the instant case and, if so, whether the complaint is frivolous. The judge who was assigned to the case found that Bishay did not comply with the Superior Court judge's order by not filing it with his initial complaint. He found Bishay's argument as to why he did not file to have no merit and did not vacate the prior order of dismissal of the instant case by the Dedham District Court.

Bishay argued before the District Court judge that he was not obligated to attach the Superior Court order to his complaint in this case because it was stayed by an appeal and violated his due process rights. Bishay had appealed the Superior Court's order, but the Appeals Court upheld the injunction in finding that "[t]he judge made detailed factual findings regarding Bishay's misuse of both the State and Federal court systems throughout this litigation spanning almost fourteen years. There was no abuse of discretion." Lombard v. Bishay, No. 14-P-952 (Mass. App. Ct. July 3, 2015) (unpublished Rule 1:28 decision). There was no application for further appellate review. Bishay v. Land Court Dep't of the Trial Court, 477 Mass. 1032 (2017).

Bishay also claimed that his due process rights had been violated by the Superior Court's order. But that is a claim that could have been (and may have been presented) in the Lombard v. Bishay and Bishay v. Land Court Dep't of the Trial Court cases. The finality of those two appellate rulings affirming the Superior Court's power to order the injunction at issue here disposes of relitigation here.

On this appeal, Bishay ignores the ruling of the District Court dismissing his complaint for failure to attach the Superior Court order. He does not raise it in his brief and when asked at oral argument about that finding, he claimed it was

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"moot" because the RAJ assigned the case only on the issue of the finding by the judge regarding the frivolous nature of the complaint. [Note 2] This reply is a fey attempt at misdirection and simply not true. And that should be the end of this matter because it has not been properly preserved and, therefore, could be deemed waived. Dist./Mun. Cts. R. A. D. A. 16(a); Falmouth Ob-Gyn Assocs., Inc. v. Abisla, 417 Mass. 176, 176 n.1 (1994). In the interests of finality, however, we choose to consider the issue. Foley v. Lowell Sun Publ. Co., 404 Mass. 9, 11 (1989).

The order assigning the case to a Wrentham District Court judge specifically states that the RAJ assigned the case to decide whether there was compliance with the injunction and that the case remains dismissed pending the reconsideration of the Dedham District Court judge's order. Moreover, the District Court's order denying the request to vacate the dismissal is clear in stating that the Dedham judge's order "dismissing the instant case was appropriate and shall stand." Nevertheless, the court went on to consider the merits of the complaint despite not being required to, in case the judgment of dismissal were vacated on appeal.

The District Court judge's further findings amply justify ending this litigation because Bishay failed to attach the injunction to his complaint. Essentially, the frivolous nature of the current complaint justifies the prior injunction barring further filings without notice of that injunction. As the District Court noted, the purpose of the injunction is to avoid vexatious litigation.

It is clear that G.L. c. 231, ยง 6F offers no deterrent to Bishay's repeated filing of frivolous and vexatious litigation warranting the Superior Court injunction. See Town of Brookline v. Goldstein, 388 Mass. 443, 448 n.6 (1983). Nor does the measured approach by the Superior Court judge in crafting the injunction.

The injunction does not bar all future filings, see, e.g., Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985); rather, it bars future filings without leave of court after a hearing at which the appellant may be present. See Matter of Tobin, 417 Mass. 92, 96 (1994) ("On seventeen different occasions, various courts admonished the respondent to cease his barrage of frivolous and inappropriate actions and pleadings. Moreover, he was barred from filing further pleadings without leave of court.").

While the order would appear to allow an amendment to a complaint after a finding by a RAJ that the original complaint is frivolous, that option does not exist here. By intentionally choosing not to file the Superior Court order with his complaint, Bishay has contemptuously forfeited his right to proceed on the present claim, even if Bishay's complaint had been found meritorious. But the complaint has no merit for the reasons found by the District Court judge.

The complaint remains dismissed, and the judgment of the District Court is affirmed.


[Note 1] The injunction specifically set out the procedure for the court receiving the appellant's filings:

"Before requiring any defendant ... to file an answer or other responsive pleading, the Clerk will bring the complaint to the Regional Administrative Justice for the county in which the Court is located where [the Bishays] seek to file the complaint. The Regional Administrative Judge, or his/her designee, will assess the complaint and conduct a brief hearing on the record to determine whether or not the claims contained therein are frivolous."

[Note 2] The appellee agrees in its brief that the only issue before this Division is whether the complaint filed by the appellant was frivolous. While the appellee seems to have abandoned its argument below that this case should be dismissed because of Bishay's failure to append a copy of the Superior Court order to his complaint, this Division does not take the failure so lightly. But see Dist./Mun. Cts. R. A. D. A. 16(b) (appellee's brief need not state issues presented unless dissatisfied with statement of the appellant).