MISC 09-405621

January 11, 2010


Piper, J.


This case concerns two parcels of land on Town Farm Lane, in Billerica, Massachusetts, shown on Assessor’s Map 5 as Lots 13 and 14 (“Property”). Plaintiff Vernon Rivet (“Plaintiff”), in his complaint filed July 10, 2009, asserted numerous claims against the Town of Billerica (“Town”) and two private defendants, Patricia A. Travaglia, and Deborah Rivet (together “Private Defendants”).

On November 4, 2009, the court (Piper, J.) issued an Order dismissing the complaint as against the municipal defendant, granting its motion to dismiss following hearing held October 19, 2009.

This case came on to be heard by the court (Piper, J.) on December 14, 2009, on the Motion to Dismiss filed by the Private Defendants, who are Plaintiff’s sisters. Plaintiff, pro se, and counsel for the Private Defendants appeared and argued at the hearing. After considering the arguments of counsel for the Private Defendants, and of the Plaintiff, the court ALLOWS the Private Defendants’ motion to dismiss.

To survive a motion to dismiss, a complaint must contain “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).

Even applying this relatively indulgent standard to the complaint filed by Plaintiff, including the extensive appendices and supplementary material which were filed with and following the complaint, Plaintiff has failed, even on the face of those filings, to set forth any plausible basis for the court to grant relief to him as against his sisters. Other than allegations having to do with the title to the Property (discussed below) Plaintiff has alleged no facts, and put forward no bases for any actionable claim, against or directly involving the Private Defendants. His claims appear to be directed either to the municipality (these were the subject of the November 4, 2009 Order) or against other persons and entities, not named as parties, concerning the use of the Property and surrounding land. Most of these allegations involving non-parties, in any event, appear to lie well outside the limited subject matter jurisdiction of this court.

To the extent that the Plaintiff asks the court to resolve any question concerning the title to the Property, as against the Private Defendants, such a request cannot at this juncture be entertained in the Land Court. This is because the entire question of the real estate property interests of the Private Defendants and Plaintiff in and to the Property (once owned by these parties’ long-deceased father) has been the subject of litigation and adjudication in the Probate and Family Court Department of the Trial Court, Middlesex County. There has been, evidently, adjudication of the estate of the late father in that court.

In addition, there has been pending for a number of years in the Probate and Family Court a complaint for partition, brought by the Private Defendants, seeking partition as to the Plaintiff’s interest in the Property. (Middlesex Probate and Family Court No. 04-E-0089PP). That action has resulted in the appointment of a commissioner, issuance of warrants for partition by sale, and, from what the parties have advised this court, the conduct of an auction sale to a third party by an auctioneer engaged by the Probate Court partition commissioner. (Plaintiff, in fact, on December 4, 2009 unsuccessfully sought an ex parte restraining order in this court, seeking to halt the commissioner’s sale. That motion was denied by the court (Long, J.) without prejudice to Plaintiff seeking an order from the Probate and Family Court Department.)

Partition under G.L. c. 241 necessarily puts in issue the title to the land involved. Asker v. Asker, 8 Mass. App. Ct. 64 (1979). The Property has no title registered and confirmed by this court pursuant to G.L. c. 185. The conclusion thus is inescapable that the question of the title of the Property, and of the respective rights and interests in it held by Plaintiff and the Private Defendants, is a matter which has been fully considered and decided by the Probate and Family Court Department. It would be improper for this court to venture into the question of the Property’s title given the proceedings before the Probate Court, and the request of the Plaintiff to that effect in the case at bar must be refused.

The Private Defendants’ Motion to Dismiss is GRANTED. This motion is allowed taking into account the filings made by Plaintiff subsequent to hearing, none of which would cause the court to come to any different result on the pending motion to dismiss.

In addition, Plaintiff has filed papers purporting to ask the court to reconsider the actions it earlier took in this case, including the November 4, 2009 allowance of the Town’s motion to dismiss. The Town, though not required to do so (see Land Court Rule 9) has filed, on December 24, 2009, written opposition to any such request by Plaintiff for reconsideration. No hearing on reconsideration is permitted absent court order (see Land Court Rule 9) and no further hearing is indicated in this case. The court, having reviewed the request for reconsideration, and the opposition filed by the municipality, DENIES reconsideration.

Judgment is to enter dismissing the complaint with prejudice.

So Ordered.

By the Court. (Piper, J.).