MISC 94-202844

May 21, 2015



Plaintiffs Robert A. Nichols, in his capacities as Trustee of 100 Ocean Avenue Realty Trust and as Trustee of 3 Gilbert Heights Realty Trust (together, “Plaintiffs”) commenced this action by filing an unverified complaint on February 1, 1994, by which Plaintiffs appealed, pursuant to G. L. c. 40A, § 17:

(a) a decision (the “ZBA Decision”) of Defendant Town of Marblehead Board of Appeals (the “ZBA”), which overturned a decision of the Marblehead Building Commissioner (the “Commissioner”) relative to the development of property located at 100 Ocean Avenue (“100 Ocean”) and 3 Gilbert Heights Road (“3 Gilbert Heights”), in Marblehead, Massachusetts (together, “Locus”) [Note 1]; and,

(b) the issuance by the ZBA of a Notice of Constructive Grant and Approval of Application for Enforcement, which application had been filed by Defendants Steven Kingsbury (“Kingsbury”), Jean Greeley (“Greeley”), and Frederick Schmid (“Schmid”) (together, the “Abutters”, and together with the ZBA, “Defendants”). [Note 2]

On February 15, 1994, Plaintiffs filed a certificate of service on all Defendants. The docket of this case then indicates that, from February of 1994 to April of 2002, nothing happened in this case.

On April 29, 2002, after more than eight years of inactivity in this case, the ZBA filed a motion to dismiss the complaint for failure of prosecution (the “2002 Motion”). A hearing was held on the 2002 Motion on May 22, 2002. The docket entry dated May 22, 2002 states as follows with respect to the 2002 Motion: “No action taken. Counsel to report to Court to set up pre-trial conference.”

After May 22, 2002, the case was dormant for another twelve years until June 19, 2014, on which date the Abutters filed the instant motion (the “2014 Motion”), by which the Abutters requested that the complaint be dismissed for failure to prosecute and that the ZBA’s 2002 motion to dismiss also be granted. The 2014 Motion was supported by affidavits of Frank L. McElroy (“McElroy”) (attorney for Abutters) (“McElroy Affidavit 1”), Schmid, and Kingsbury. [Note 3] At a status conference held on October 2, 2014, this court established a briefing schedule for the 2014 Motion. On December 8, 2014, Plaintiffs filed their opposition to the 2014 Motion, together with a new affidavit of Robert C. McCann (“McCann Affidavit 2”). On December 24, 2014, the Abutters filed their reply brief and a motion to strike McCann Affidavit 2, which were supported by a second affidavit of McElroy (“McElroy Affidavit 2”). A hearing was held on both motions on February 11, 2015; at that time, the parties requested additional time to negotiate a settlement. By letter filed with the court on February 26, 2015, however, the parties reported that they were unable to settle the case. At that time the motions were taken under advisement.

Based upon the documents and affidavits annexed to the parties’ motion papers, as well as the documents in the Land Court’s file for this case, I find that the following material facts are not in dispute:

1. Plaintiffs filed the complaint in this case on February 1, 1994 and a certificate of service on all Defendants on February 15, 1994.

2. The docket of this case reflects that there was no activity from February 16, 1994 through April 28, 2002.

3. The ZBA filed the 2002 Motion on April 29, 2002. This was the first filing by the ZBA in this case.

4. Abutters Schmid and Kingsbury filed their appearances on May 17, 2002, but did not file anything with respect to the 2002 Motion. [Note 4]

5. A hearing was held on the 2002 Motion on May 22, 2002. Only Plaintiffs and the ZBA attended. The docket entry for May 22, 2002 (the “2002 Order”) reflects as follows: “No action taken. Counsel to report to Court to set up Pre-Trial Conference. (Kilborn, C.J.)” [Note 5]

6. The docket of this case reflects that from May 23, 2002 to June 18, 2014, there was no activity in this case -- aside from a single administrative entry (“CONV CASE OF FoxPro”) on January 28, 2005.

7. The Abutters filed the 2014 Motion on June 19, 2014. In support of said motion, Kinsburn and Schmid filed affidavits stating that “[s]ince the beginning of the Land Court case I have received no notices or requests from Mr. Nichols [Plaintiffs] or the Land Court.” McElroy Affidavit 1 states that “[f]ollowing the directive of the Court (Kilborn, CJ) dated May 22, 2002 I have received no communication from Plaintiff requesting a case management conference, a pre-trial conference or a trial date. Further, I have not received from Plaintiff any interrogatories, requests for production or notices for taking of depositions.” McElroy Affidavit 1 also states that a number of people involved in the case have either died (Greeley), retired (Carl K. King, the ZBA’s former counsel; every named member of the ZBA; J. Alan Hezekiah, the former Building Commissioner; and Janet Vacon, of the Marblehead Assessor’s Office), or moved from Massachusetts (George Aisberg, member of a zoning sub-committee).

8. McCann Affidavit 2 concedes that severalof the witnesses have retired, but states that most are still available to testify as witnesses.


Prior to ruling on the 2014 Motion, the court must resolve the motion filed by the Abutters to strike McCann Affidavit 2. Here, the Abutters argue that McCann Affidavit 2 was not based upon personal knowledge, is unreliable, contains inadmissible hearsay, describes settlement discussions, and makes inaccurate claims. In support of this motion, the Abutters filed McElroy Affidavit 2. It appears, upon the court’s comparison of McCann Affidavits 1 and 2, that there are inconsistencies between these affidavits. However, upon comparing McElroy Affidavits 1 and 2, it appears that, here too, there are inconsistencies. As a result, with respect to the Abutters’ motion to strike, it is hereby ORDERED that both McCann Affidavit 2 and McElroy Affidavit 2 are stricken.

Turning to the 2014 Motion, the Abutters argue that the complaint should be dismissed pursuant to Mass. R. Civ. P. 41 based on lack of prosecution, and note that it has been over twenty years since the filing of the complaint. Plaintiffs argue that both parties contributed to the delay, and that, therefore, it would not be appropriate to hold Plaintiffs solely responsible for such delay by procedurally dismissing the complaint. The court, in hearing this motion, has broad discretion in resolving the issue of dismissal. See Mass. R. Civ. P. 41(b)(2) (“On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court.”).

Plaintiffs cite Mass. Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738 (1998) to support their position that dismissal is not warranted. In Broken Stone, the lower court, in denying the Town’s Motion to Dismiss based on lack of prosecution after a six year hiatus, found that both parties had contributed equally to the delays, and that, while both parties had an equal opportunity to move the case forward, neither had done so. See id. Further, the Appeals Court pointed out that:

[t]rial on the merits of a plaintiff’s claim is strongly favored, and the involuntary dismissal of such a claim should be reserved for those situations where a severe sanction is necessary. As a minimal requirement, there must be convincing evidence of unreasonable conduct or delay. A judge should also give sufficient consideration to the prejudice that the movant would incur if the motion were denied . . . .

Id. at 740.

In the case at bar, it is unclear what happened in the case between 1994 and 2002. The docket reflects that all Defendants were served with notice of this case, but no appearances were filed by Defendants, and Plaintiffs did not move for entry of a default. In 2002, the ZBA filed the 2002 Motion, and the Abutters thereafter filed an appearance for the first time. At or around the time of the hearing on the 2002 Motion, Plaintiffs’ counsel prepared McCann Affidavit 1, in which counsel stated as follows: “I would request that this Honorable Court agree with the position of the moving party [the ZBA], and the request of the Plaintiffs, that this matter be scheduled for a pre-trial conference and a trial at the convenience of this Court.” The court, after a hearing on the 2002 Motion, entered on the docket that “[c]ounsel to report to Court to set up Pre-Trial Conference.” [Note 6] Notwithstanding this directive, however, nothing happened in this case (on either side) for the next twelve years.

In 2014, the Abutters -- who took no action in 2002 other than filing an appearance -- filed the instant motion to dismiss for lack of prosecution. The ZBA did not file another motion or renew its prior motion. McCann and McElroy have filed two affidavits each, which purport to recount what has transpired since 1994 and explain why this case has not moved forward. However, as noted, supra, many of the allegations in these affidavits relative to activities (by both parties) over the years relative to this case are inconsistent. [Note 7] As a result of these inconsistencies, I have stricken McCann Affidavit 2 and McElroy Affidavit 2, and I shall not use any statements made by either attorney in any of their affidavits relative to communications with each other as evidence in this matter. Given this case history, it seems that many of the considerations discussed by the Appeals Court in Broken Stone are relevant to this case. As in Broken Stone, the lack of activity in this case is not attributable solely to one party; rather, Plaintiffs, the ZBA, and the Abutters have all done nothing to advance the action over the years. The 2002 Order provided that “[c]ounsel [was/were] to report to [the] court to set up [a] Pre-Trial Conference.” This directive did not specify that only one side was responsible for reporting back to the court, nor did it indicate specifically that Plaintiffs’ counsel, in particular, was the attorney obligated to report back. In the absence of such specificity, it appears that the court intended the parties to reach a mutual agreement as to the date of a pre-trial conference and to jointly report back to the court. Having done nothing to induce such agreement, the Abutters will not now be heard to claim that they are prejudiced by the fact that this case remains open.

Even if the Abutters were blameless with respect to the dormancy of this case, neither the ZBA nor the Abutters plausibly established any real prejudice that such delay has caused to their positions. [Note 8] Instead, the Abutters largely rest on conclusory observations that, based upon the long delayin this case, prejudice to them“maybe presumed”. [Note 9] Bycontrast, Plaintiffs would arguably suffer real prejudice if this case were to be dismissed for procedural reasons, since, in that event, the ZBA Decision would stand, the period of limitations in which to challenge the ZBA Decision would have run, and Plaintiffs would be required to tear down a structure that has been in existence for more than twenty years without a decision on the merits from this court as to the propriety of the ZBA Decision. [Note 10]

Based on the foregoing discussion, it appears to this court that both parties are at fault in not moving the case forward. While the issue of unavailability of witnesses may present a challenge at trial, the Abutters have failed to demonstrate that this will prejudice them. [Note 11] Under such circumstances, therefore, it does not appear to this court that this case presents a situation where the “severe sanction” of procedural dismissal would be appropriate. Broken Stone, 45 Mass. App. Ct. at 740.

As a result of the foregoing, the 2014 Motion is hereby DENIED. The parties are directed to appear for a status conference on Tuesday, June 2, 2015 at 10:45 A.M. to discuss the path forward for the expeditious resolution of this matter. [Note 12] The court strongly encourages the parties to engage in settlement discussions relative to this case. In the event that the parties are able to settle this dispute, they should notify the court as soon as possible.

Judgment to issue upon the resolution of all outstanding matters in this case.


[Note 1] Specifically, the ZBA Decision overturned the Commissioner’s (a) refusal to make certain determinations regarding the application of the Marblehead Zoning Bylaw (the “Bylaw”) and (b) declination to revoke the building permit and occupancy permit for 100 Ocean, to direct that the structure at 100 Ocean be razed, to revoke the occupancy permit for 3 Gilbert Heights, and to issue a vacate order for 3 Gilbert Heights. These actions had been requested by the Abutters (defined, infra) pursuant to a request for enforcement under G. L. c. 40A, §7. Pursuant to the ZBA Decision, inter alia, the building permit for 100 Ocean was revoked, and the 100 Ocean structure was ordered to be razed.

[Note 2] The ZBA Decision also appears to have revoked the building permit for 100 Ocean.

[Note 3] The Abutters did not submit an affidavit from Greeley, who died in 2006. The 2014 Motion also includes a copy of an affidavit (“McCann Affidavit 1”) of Robert McCann (“McCann”) (attorney for Plaintiffs), which was prepared by McCann in 2002 -- -- as acknowledged by both Plaintiff and the Abutters in their briefs on the 2014 Motion. However, the docket of this case does not reflect that McCann Affidavit 1 was actually filed at that time.

[Note 4] Greeley, who passed away in 2006, does not appear to have ever filed an appearance in this case. Counsel for the Abutters indicated in the 2014 Motion that he does not claim to represent Greeley or her estate.

[Note 5] McCann Affidavit 1 (which is undated and may or may not have been filed with the court in connection with the 2002 Motion) states that “I have indicated to Attorney King [former attorney for the ZBA] that the Plaintiffs would be requesting a pre-trial and trial in this matter . . . . Based upon the aforesaid, I would request that this Honorable Court agree with the position of the moving party, and the request of the Plaintiffs, that this matter be scheduled for a pre-trial conference and a trial at the convenience of this Court.”

[Note 6] Even though the docket states that “[n]o action [was] taken”, it would appear that the court’s action, in effect, was to deny the ZBA’s motion to dismiss.

[Note 7] For instance, at the 2015 oral argument on the 2014 Motion, the Abutters’ counsel (contrary to statements made in McElroy Affidavit 2) admitted that McElroy had two communications with Plaintiffs’ counsel between 2002 and 2014.

[Note 8] Even though the ZBA had initially taken the position in this case that the building on Locus was an illegal structure and previously moved to dismiss for the same reason as the Abutters now move, the ZBA did not file anything relative to the 2014 Motion, and has filed nothing whatsoever in this case since 2002.

[Note 9] The only concrete harm alleged by the Abutters was their claim that a number of key witnesses have retired, died, or moved out of state. In response, however, Plaintiffs filed an affidavit stating that most necessary witnesses are still living locally and would be available to testify, if needed. In any case, it is not entirely clear that the alleged unavailability of some witnesses would even prejudice the Abutters. This appeal of the ZBA Decision is de novo and appears to be largely a dispute as to issues of law, not fact. Thus, the testimony of former members of the ZBA and other municipal officials would appear to be of limited usefulness. Moreover, the burden of proof at trial will be upon Plaintiffs; as such, if Plaintiffs are unable to marshal the evidence needed to support their claims due to the unavailability of some witnesses, they may find themselves reaping the results of their own contribution to the delays in this action.

[Note 10] On this point, the Abutters argue that the very existence of this structure, in contravention of the ZBA Decision, effects a real, ongoing prejudice upon them; however, their failure or refusal to push forward this case to a final disposition for over twelve years suggests otherwise.

[Note 11] Rather than alleging actual prejudice, the Abutters’ argument was largely limited to pointing out that, in certain prior cases, other courts have allowed dismissal for lack of prosecution where the delay was shorter than the delayhere. However, absent a showing of actual prejudice here, this court is not bound to dismiss simply because other courts have seen fit to do so, even if the delay in those cases was of a shorter duration.

[Note 12] If Plaintiffs intend to pursue this case, it would appear that they would need to amend their pleadings to reflect the current composition of the ZBA, as well as the fact that Defendant Jean Greeley has passed away. If Plaintiffs mean to go forward, such motion shall be filed with sufficient notice so that it may be heard at the June 2, 2015 status conference.