MISC 17-000692

OCTOBER 30, 2020




Plaintiff Lydia Griffin claims that she's the owner of a residential property at 841 Santuit Newtown Road in Marstons Mills, Massachusetts (the "Property"), where she lives. The Property is registered land.

The current certificate of title for the Property lists defendant Christian Carvill as the Property's owner. In September 2020, he moved for summary judgment as to all of Ms. Griffin's claims in this case. He later attempted to supplement the materials he filed in support of his motion for summary judgment. The Court set deadlines for Griffin, who currently is representing herself in this action, to oppose both Carvill's motion for summary judgment and his effort to supplement that motion. Griffin opposed Carvill's attempted supplementation, but she didn't file an opposition to Carvill's motion for summary judgment. Instead, she (a) moved for reconsideration of an order in which this Court denied her further leave to amend her complaint; (b) moved to dismiss her amended complaint, but without prejudice; and (c) filed what the Court is treating as a motion under Rule 56(f), Mass. R. Civ. P., to be excused from opposing Carvill's motion for summary judgment until after Griffin has the opportunity to take further discovery. The Court has considered the parties' submissions for and against these motions, and for the reasons set forth below, the Court DENIES each of Griffin's motions, STRIKES Carvill's Supplement to Christian Carvill's Motion & Memorandum for Summary Judgment (the "Supplement"), and ORDERS Griffin to file by November 13, 2020, in accordance with Rule 56 and Land Court Rule 4, any opposition to Carvill's motion for summary judgment.

Ms. Griffin's Motion for Reconsideration

On October 5, 2020, Ms. Griffin filed a Motion for Clarification of Court Order(s). In that motion, Griffin asked the Court to state why the Court would not allow her to amend her amended complaint in this action. By order dated October 7, 2020 (the "October 7 Order"), the Court informed the parties that there was no order prohibiting Griffin from moving to amend her complaint. The October 7 Order nevertheless advised Griffin that "any such motion must comply with Rule 15 of the Massachusetts Rules of Civil Procedure."

On October 13, 2020, Ms. Griffin filed e-mail that the Court has docketed as her Motion for Reconsideration. In that Motion, Griffin offered to amend her complaint, presumably without first filing a motion to do that under Rule 15. Mr. Carvill objects.

Rule 15(a) provides in part (emphases added): "A party may amend [her] pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal . . . . Otherwise a party may amend [her] pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given if justice so requires." The original complaint in this case was amended once, as of right, and the Court has allowed other amendments since. Mr. Carvill hasn't given his "written consent" to the amendment of the complaint in this particular instance. Hence, according to Rule 15(a), Griffin may not amend her complaint again unless she gets "leave of court." And despite what October 7 Order directs, Griffin has not filed a motion requesting such leave, nor has she offered any reasons why "justice . . . requires" the granting of such leave, particularly in the third year of this case, after the completion of discovery, and at a time when a motion for summary judgment is pending. The Court thus DENIES the Motion for Reconsideration.

Ms. Griffin's Motion to Dismiss Her Case Without Prejudice

On October 8, 2020, Ms. Griffin filed by e-mail a motion docketed that same day as "Plaintiff's Email regarding Faxing Documents." By order dated October 9, 2020, the Court announced that it was treating the motion as one to dismiss Griffin's amended complaint without prejudice. Griffin then submitted two filings, both docketed on October 13, 2020 (her "Plaintiff's 'Alternative' Motion" and her "Clarification of Dismissal Issue"), in further support of her motion to dismiss her amended complaint without prejudice. Mr. Carvill opposes the motion.

Rule 41(a) governs a plaintiff's motion to dismiss her case. The Rule has two subsections. Rule 41(a)(1) first addresses dismissals "[b]y Plaintiff [and b]y Stipulation." It states in part (emphases added): "Subject to the provisions of these rules and of any statute of this Commonwealth, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action."

Rule 41(a)(1) doesn't allow Ms. Griffin to dismiss her amended complaint without prejudice. That's because, on June 3, 2019, Mr. Carvill answered Griffin's amended complaint. That makes Griffin's dismissal motion ineligible for Rule 41(a)(1)(i). Carvill also hasn't assented to dismissal of Griffin's case without prejudice. That makes the dismissal ineligible for Rule 41(a)(1)(ii).

That leaves Ms. Griffin with Rule 41(a)(2), dismissals "[b]y Order of Court." That rule provides in part: "Except as provided in paragraph (1) of this subdivision (a), an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper." A trial judge "is accorded wide discretion in setting 'terms and conditions' when dismissing a case under Mass. R. Civ. P. 41(a)(2)." Flynn v. Church of Scientology of California, Inc., 19 Mass. App. Ct. 59 , 65 (1984). The test for determining whether a Rule 41(a)(2) dismissal should be "with prejudice" is "whether to have done otherwise would have caused substantial prejudice to the defendant[]." Flynn, 19 Mass. App. Ct. at 65. The circumstances the trial court may consider in crafting appropriate terms and conditions for a Rule 41(a)(2) dismissal are (a) whether the plaintiff has agreed to pay the defendant's costs of the to-be-dismissed action; (b) whether the plaintiff has entered into a covenant not to sue the defendant again; (c) whether the parties (or related parties) are litigating in other courts; and (d) the case load of the court that has been asked to dismiss the action, in relation to that of other courts that might have to decide any issues between the parties that haven't been dismissed with prejudice. Id. at 66.

Weighing these factors, this Court agrees with Mr. Carvill that any dismissal at this time of Ms. Griffin's amended complaint should be with prejudice. First, absent the Court granting Griffin's Rule 56(f) motion (which as explained below the Court will not do), discovery in this case is over, and Carvill has a pending motion for summary judgment as to all of Griffin's claims. A without-prejudice dismissal of Griffin's amended complaint deprives Carvill of the opportunity to have a court decide the parties' issues now, at a time when the parties' claims are ripe for adjudication. Second, Griffin hasn't offered to pay Carvill's costs in this action, nor has she promised never to sue Carvill again over the claims she raises in this action. That means Carvill could lose the time and money he has invested in defending against Griffin's claims in this case, and still face the very same claims in the future.

Third, this Court takes judicial notice of the following cases, all in the Southeast Housing Court, that involve the Property and the parties to this case (or related parties): Griffin v. Carvill, Southeast Housing Ct. No. 18H83CV00467CI; Carvill v. LaMagna, Southeast Housing Ct. No. 18H83SP01203CI; and Carvill v. Griffin, Southeast Housing Ct. No. 18HCVSP04808CI. While Rule 41(a)(2) allows a trial court to dismiss claims without prejudice, and let another court decide those claims, this Court can't do that with respect to the central issue raised in Mr. Carvill's motion for summary judgment: who has title to the Property. The Property is registered land, and the Land Court is the only trial court that may adjudicate who has title to such land. See M.G.L. c. 185, §§ 1(a) and 1(a½); Johnson v. Christ Apostle Church, 96 Mass. App. Ct. 699 , 701 (2019). It also has been widely reported that the dockets of the Commonwealth's Housing Courts are swamped with eviction and other cases, now that a coronavirus-related moratorium on such cases has ended. [Note 1] The Land Court is facing no similar backlog with respect to "miscellaneous" actions like this case.

For these reasons, the Court DENIES Ms. Griffin's motion to dismiss her amended complaint, unless she reports to the Court by November 13, 2020 that she agrees to a dismissal of her amended complaint with prejudice.

Ms. Griffin's Motion for Continuance Under Rule 56(c)

On August 10, 2020, the Court directed Mr. Carvill to move by September 11, 2020 for summary judgment on several issues. Carvill complied with that order. In his now-pending motion for summary judgment, Carvill claims that (a) he is the proper registered owner of the Property; (b) Ms. Griffin lacks any legitimate claim of title to the Property via the last will of John Tesiny; and (c) she received lawful notice of a foreclosure that resulted, ultimately, in Carvill obtaining registered title to the Property.

In the same August 10, 2020 order, the Court directed Ms. Griffin to file by October 9, 2020, any opposition to Mr. Carvill's motion for summary judgment. Griffin subsequently moved (as a reasonable accommodation for a disability) to file her opposition by fax. The Court granted that motion. Griffin thereafter filed the motions discussed in this Order, including (on October 13, 2020) a "Report to the Court re: Limitations Due to being in Coronavirus Quarantine." By order dated October 15, 2020, the Court informed the parties that it would treat the Report as a motion under Rule 56(f) to excuse Griffin from opposing Carvill's motion for summary judgment. On October 16, 2020, Griffin filed a document now docketed as "Plaintiff's Objections"; the Objections present further arguments as to Griffin's right to a continuance under Rule 56(f), in order to take discovery she claims is needed to oppose Carvill's summary judgment motion. As of the date of this Order, Griffin hasn't filed any opposition to the motion for summary judgment or the statement, required under Land Court Rule 4, that responds fact by fact to Carvill's Rule 4 statement of material facts.

Rule 56(f) provides (emphasis and brackets added): "Should it appear from the affidavits of a party opposing [a] motion [for summary judgment] that [s]he cannot for reasons stated present by affidavit facts essential to justify [her] opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make any other order as is just." Ms. Griffin hasn't supplied any affidavits in support of her Rule 56(f) motion, but even if she had sworn support for every fact she asserts in support of her motion, the Court would still refuse the requested continuance.

The court in Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104 , 110 (2008), described as "[p]articularly helpful" in analyzing motions such as Ms. Griffin's for a continuance under Rule 56(f) the analysis set out in Resolution Trust Corp. v. North Bridge Assocs., 22 F.3d 1198, 1203- 1208 (1st Cir. 1994). The latter case

encapsulated the rule 56(f) considerations into five criteria: "authoritativeness, timeliness, good cause, utility, and materiality." As explained by the Court of Appeals, the request for relief under rule 56(f), after meeting the preliminary requirements that the request be timely and that it be accompanied by an authoritative affidavit based on firsthand knowledge, "should show good cause for the failure to have discovered the facts sooner; it should set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist; and it should indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion." And though a trial judge enjoys considerable discretion regarding those factors, and though all need not be present, "when all five requirements are satisfied, . . . a strong presumption arises in favor of relief." "For purposes of achieving this benchmark, a Rule 56(f) proffer need not be presented in a form suitable for admission as evidence at trial, so long as it rises sufficiently above mere speculation."

Alphas Co., 72 Mass. App. Ct. at 110-111 (citations omitted), quoting Resolution Trust, 22 F.3d at 1203, 1206.

The five Alphas Co. factors weigh against granting Ms. Griffin a continuance to conduct further discovery. The only factor that weighs in favor of her motion is its timing: she moved for a continuance before the deadline for opposing Mr. Carvill's motion for summary judgment. The other factors weigh against granting the motion.

There are no affidavits in support of the motion. Hence, it isn't "authoritative."

The motion doesn't explain why Ms. Griffin couldn't have obtained facts sooner. The motion attributes Griffin's lack of discovery to the coronavirus pandemic, but that claim overlooks the record in this case. The Court opened discovery on August 15, 2019. At that time, the Court ordered "the parties to complete all discovery in this case . . . by November 15, 2019." Between August 15, 2019 and the close of discovery, the Court issued no orders that prevented Griffin from seeking discovery from Carvill. [Note 2] On November 14, 2019 (filing docketed November 18, 2019), Griffin moved for an order extending the November 15, 2019 discovery deadline to February 18, 2020. The Court granted that motion. On February 14, 2020, Griffin filed a second motion pertaining to discovery deadlines. That motion didn't ask the Court to extend the deadline for Griffin to take discovery, nor did the motion mention the coronavirus pandemic. Instead, the motion sought an extension of time only to allow Griffin to respond to outstanding discovery requests. The Court granted that motion. Griffin didn't cite the pandemic or its effects until she filed on March 16, 2020, an emergency motion to stay this case. In other words, by the time the pandemic began restricting what Massachusetts residents could and could not do, the time for Griffin to complete her own discovery in this case had passed.

The motion doesn't set forth any "'basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist,'" nor does the motion explain how such facts (had the motion identified them) would influence the outcome of Mr. Carvill's motion for summary judgment. Alphas Co., 72 Mass. App. Ct. at 110, quoting Resolution Trust, 22 F.3d at 1203. Ms. Griffin's motion provides no description of the facts she's seeking, who allegedly has those facts, how she intends to obtain them, or how they bear on the issues of her alleged title in the Property, Carvill's lack of title, or the Property's foreclosure.

Because the Alphas Co. factors weigh heavily against granting Ms. Griffin additional time to take discovery, the Court (a) DENIES her Rule 56(f) motion, and (b) ORDERS her to oppose by November 13, 2020 Mr. Carvill's motion for summary judgment, in the manner that Rule 56 and Land Court Rule 4 require. The Court ADVISES Griffin that if she does not oppose Carvill's motion for summary judgment by November 13, 2020, the Court may grant that motion as unopposed.

Mr. Carvill's Supplement to His Motion & Memorandum for Summary Judgment

On September 11, 2020, Mr. Carvill filed in support of his motion for summary judgment an Appendix for the Motion for Summary Judgment Land Court Rule 4 (the "Appendix"). Carvill included in the Appendix several exhibits. Among them are a copy of deed registered as Document No. 1029972, and noted on Certificate of Title No. 179659, by the Barnstable Land Court Registry District ("Exhibit A"); a later deed registered as Document No. 1060986, and noted on Certificate of Title No. 182798 by the Registry District ("Exhibit C"); and the death certificate of John W. Tesiny, registered as Document No. 1207407 and likewise noted by the Registry District on Certificate of Title No. 182798 ("Exhibit G").

On October 9, 2020, Mr. Carvill filed the Supplement. It attached verified copies of Exhibits A, C and G. Ms. Griffin opposes the filing of the Supplement. The Court REJECTS the Supplement, for three reasons. First, the Court required Carvill to file his motion for summary judgment and any supporting materials by September 11, 2020. Carvill filed the Supplement well after September 11. Second, Carvill did not seek leave prior to September 11, 2020 (or thereafter) to file any sort of Supplement after the deadline for filing his motion for summary judgment.

Third, and perhaps most importantly, the Supplement is unnecessarily cumulative of the evidence Carvill has offered in support of his motion for summary judgment. By order docketed April 2, 2019, the Court advised the parties that, in proceedings involving registered land, a court is allowed

to take judicial notice of a parcel's registration certificates, with appropriate advance notice to the parties. See Jarosz v. Palmer, 436 Mass. 526 , 536 (2002) (court may take judicial notice of court's records in a related action); Mass. Guide to Evidence sec. 201(b)(2) and related note. The Court thus intends to take judicial notice in this case of the following certificates of title recorded at the Barnstable Registry of Deeds, as well as the matters set forth in those certificates through the date of the filing of Ms. Griffin's amended complaint: Certificate Nos. 179659, 182798, 207130, and 215471. The Court ORDERS the parties to review the four certificates in advance of the April 19[, 2019] hearing in this matter.

(Emphasis added.)

As of April 2, 2019, Ms. Griffin wasn't represented by counsel. One week later, however, Griffin moved to continue the April 19, 2019 hearing described in the order above (a hearing on Mr. Carvill's motion to dismiss Griffin's amended complaint) so that she could retain counsel. The Court granted Griffin's motion and moved the hearing to May 17, 2019. By May 17, Griffin had obtained counsel, and neither Griffin nor her counsel objected to the Court taking judicial notice of the four certificates of title and "the matters set forth on those certificates." Those matters include Exhibits A, C and G in the Appendix. Because the Court has taken judicial notice of the documents filed as Exhibits A, C and G to Carvill's Appendix, the Supplement's verified copies of Exhibits A, C and G are cumulative of the evidence on summary judgment. The Court thus will not consider the Supplement or its verified copies in deciding Carvill's motion for summary judgment.

Further Accommodations to Ms. Griffin

Typically, this Court decides substantive, non-procedural motions (such as Mr. Carvill's motion for summary judgment) by, first, setting a deadline for any party who opposes the motion to file a brief in opposition. Second, the Court schedules a hearing on the motion. During a motions hearing, the parties (whether they're represented by counsel, or are representing themselves) are able to tell the Court why it should grant or deny a pending motion. The Court also may use the hearing to ask the parties about the facts, or to solicit their views on the law. Last, the Court will announce its decision. Sometimes this Court does so orally, at the end of the motions hearing. Other times the Court will present its decision in writing, days or weeks after the motions hearing.

The Court will not be following all of its usual practices in deciding Mr. Carvill's motion for summary judgment, should Ms. Griffin oppose it. That's because in late 2018, this Court determined that Griffin has disabilities that merit accommodations under Massachusetts law. See Adjartey v. Central Div. of the Housing Court Dept., 481 Mass. 830 , 849-850 (2019) (discussing trial court's obligations to provide reasonable accommodations to litigants who have disabilities requiring accommodation). The Court's understanding of (a) Griffin's disabilities, (b) how they affect her ability to prosecute her claims, and (c) the accommodations she merits has changed since late 2018, but at this point those accommodations include not being required to attend (either in person, by telephone, or by other means of communication) "live" events – that is, occasions where she would have to listen contemporaneously to what the Court and other parties are saying, consider what's happening, and respond immediately. A typical motions hearing in this Court would force Griffin to do all of those things, and thus this Court won't hold such a hearing on Carvill's motion for summary judgment.

This Court nevertheless values what a hearing brings to the process of deciding motions, especially what the parties have to say about pending motions. Weighing the benefits to each of the Court, Ms. Griffin and Mr. Carvill from a usual motions hearing, versus Griffin's need to be excused from live events, in connection with the Court's consideration of Carvill's motion for summary judgment, the Court will modify its usual motion procedures as follows. First, once the Court reviews the parties' submissions, the docket of this case, and the law, the Court will prepare and send to the parties a tentative decision on Carvill's motion. That decision will be exactly that: a "tentative" decision. It will set forth only how the Court is inclined to rule on Carvill's motion. The tentative decision will not be binding on the Court or the parties, and the tentative decision won't be final.

After the Court sends the tentative decision to the parties, the Court will give them ten days to file written objections to the decision. (The Court will not treat a party's failure to file an objection as waiving any argument that party presented to the Court prior to the issuance of the tentative decision.) The Court will thereafter review any timely filed objections and issue a final decision on Mr. Carvill's motion for summary judgment. The final decision may be the same as, or different from, the Court's tentative decision. This process will accommodate Ms. Griffin's need to avoid live court events, while giving her and Carvill a final opportunity to persuade the Court before it issues a final ruling on Carvill's motion.



[Note 1] See, for example, "Massachusetts eviction, foreclosure moratorium has expired," available at https://www.wcvb.com/article/ massachusetts-eviction-and-foreclosure-moratorium-expires-october-17- 2020/34403369# (last checked Oct. 29, 2020) ("thousands of cases already backed up" in Housing Courts on account of the coronavirus pandemic and a related moratorium on eviction proceedings); "Baker-Polito Administration Announces Comprehensive Eviction Diversion Initiative to Keep People Safely Housed During Pandemic," available at https://www.mass.gov/news/baker-polito-administration-announces-comprehensive-eviction-diversion-initiative-to-keep (last checked Oct. 29, 2020) (announcing hiring of fifteen retired Housing Court judges to address that Court's eviction caseload).

[Note 2] The Court made that clear to the parties on September 23, 2019, in a docket entry that responded to two requests by Ms. Griffin for clarification of the Court's orders. The entry stated that discovery had started August 15, 2019, and that the Court had not issued any order that barred Griffin from seeking discovery from Carvill on, for example, "title-insurance issues. . . ." The entry also advised Griffin that it would not order Carvill to agree to informal discovery.