DENNIS M. CLOHERTY, Plaintiff v. WATERSTONE WAKEFIELD LLC, WAKEFIELD ZONING BOARD OF APPEALS, DAVID HATFIELD, AMI WALL, JAMES H. MCBAIN, JOSEPH PRIDE, CHARLES L. TARBELL, EDWARD F. DOMBROSKI, JR., Chairman of Wakefield Town Council, VICTOR P. SANTANIELLO, Wakefield Director of Assessments, STEPHEN P. MAIO, Town Administrator, Defendant

This action was commenced by pro se plaintiff Dennis M. Cloherty ("Mr. Cloherty") with the filing of a complaint ("the Complaint") on January 29, 2020 against the defendants Waterstone Wakefield LLC ("the LLC"); the Wakefield ("the Town") Zoning Board of Appeals ("ZBA"); ZBA members David Hatfield, Ami Wall, James H. McBain, Joseph Pride and Charles L. Tarbell ("the ZBA Members"); and Chairman of the Wakefield Town Council Edward F. Dombroski, Jr. ("Mr. Dombroski"), Wakefield Director of Assessments Victor P. Santaniello ("Mr. Santaniello"), and Town Administrator Stephen P. Maio ("Mr. Maio" and, collectively, "the Municipal Defendants"). In addition to appealing pursuant to G.L. c. 40A from three decisions by the ZBA approving applications by the LLC under the Town's zoning bylaw with respect to property owned by the LLC at 200-400 Quannapowitt Parkway, Wakefield, Massachusetts, Mr. Cloherty also sought declaratory relief, [Note 1] relief by way of mandamus, [Note 2] and relief under some unidentified theory. [Note 3] In a memorandum of decision and order issued on May 27, 2020, the court (Roberts, J.) granted the Municipal Defendants' motion to dismiss Mr. Cloherty's claims against them on the grounds that, as to Mr. Maio, no claims were asserted against him and, as to Messrs. Dombroski and Santaniello, because Mr. Cloherty did not have standing to pursue the claims asserted against them. In that memorandum of decision, the court permitted Mr. Cloherty to file a motion to amend his complaint to assert, in addition to the appeals pursuant to G.L. c. 40A, any remaining claims that he had standing to pursue against properly named defendants.

On June 26, 2020, Mr. Cloherty filed a Motion To Docket Amended Complaint. Mr. Cloherty's proposed amended complaint ("Amended Complaint"), entitled "First Amendment To Complaint," picks up where the Complaint left off, at paragraph 94, and continues to name the LLC, the ZBA and its members as defendants. Rather than name the Municipal Defendants again, the Amended Complaint names the Town and the Commonwealth of Massachusetts as additional defendants. After setting forth what Mr. Cloherty asserts are the jurisdictional bases for this action (G.L. c. 40A regarding the zoning appeal, Chapter 458 of the Acts of 1939 regarding the boundaries of flats, [Note 4] G.L. c. 237 regarding ownership of the fee in two roads [Note 5] and "any matters under G.L. c. 185, § (k)"), the Amended Complaint sets forth seven counts, as follows.

Count 1

In Count 1, entitled "Notice of Contract G.L. c. 254," [Note 6] the matters being deleted from the Complaint are described in its first paragraph (¶ 105). In its second and last paragraph (¶ 106),

Count 1 states:

On February 9th 1926 the Wakefield Board of Selectmen "VOTED that the Board of Selectmen of said Town of Wakefield, in conformity with Section 80 of Chapter 92 of the General Laws, hereby concurs with said Metropolitan District Commission in said Order of Taking and in every act, matter and thing connected therewith. MSRD Book 4941 Page 485 (487).

Count 2

Count 2, entitled "Fraudulent Conveyance," [Note 7] contains the same first paragraph as that set forth in Count 1 (¶ 107a). In its second paragraph (¶ 107), Count 2 quotes G.L. c. 92, § 85, [Note 8] and in its last paragraph (¶ 108), Count 2 quotes from a March 31, 1950 newspaper article regarding the "acceptance of the land from the MDC under the jurisdiction of the selectmen."

Count 3

Count 3, also entitled "Fraudulent Conveyance" and also containing the same first paragraph as set forth in Count 1 (¶ 109a), quotes Ch. 407 of the Acts of 1893, § 6, [Note 9] in its second paragraph (¶ 109) and alleges in its third paragraph (¶ 110), that "[t]here was no mutually agreed upon period of time in Chapter 679 of the Acts of 1949, which transferred the parklands to the inhabitants of the Town of Wakefield."

Count 4

Count 4, also entitled "Fraudulent Conveyance" and also containing the same first paragraph as set forth in Count 1 (¶ 111a), alleges that the "Townspeople thought that they were selling . . . their land to the American Mutual Liability Insurance Company" (¶ 112), that the townspeople inserted a clause in the lease that reads "and will occupy the same grounds for the home office building of one or more insurance companies" (¶ 112), that the selectmen were only requesting authority to sell from the inhabitants of the Town (¶ 113), that The Wakefield Item (presumably a local newspaper) reported the sale of 16 acres of land to AMLIC in July 1955 (¶ 114), and that legal counsel for AMLIC recorded the sale of the 16 acres of Town-owned land in his own name (¶ 115).

Count 5

Count 5, also entitled "Fraudulent Conveyance" and also containing the same first paragraph as set forth in Count 1 (¶ 116), alleges that, on April 26, 1926, The Wakefield Item reported on the work of the Greenough Construction Company pursuant to a contract to fill in the marsh at the north end of Lake Quannapowitt (¶ 117), that Quannapowitt Parkway was included in the land conveyed to the inhabitants of the Town in 1950 (¶ 118), and that "[t]he Commonwealth is sovereign over lands under the sea and lands under Great Ponds" (¶ 119).

Count 6

Count 6 is also entitled "Fraudulent Conveyance" and contains the same first paragraph as set forth in Count 1 (¶ 120a). Paragraph 120 then states fragmented quotes from a July 11, 1950 article in The Wakefield Item regarding the transfer of real property from the Metropolitan District Commission to the Town; ¶ 121 describes the properties shown on Land Court Plan 25969, sheets 1 and 2, that were allegedly transferred to the Town; ¶ 122 references the original transfer of those lands from the Quannapowitt Agricultural Association, which Mr. Cloherty alleges is his predecessor in title, to the Commonwealth of Massachusetts; ¶ 123 alleges that the Fourteenth Amendment to the Constitution forbids the taking of private property without compensation; ¶ 124 alleges that the Town "now claims ownership of my property rights;" ¶ 125 alleges that "[t]he MSRD [presumably the Middlesex South Registry of Deeds] is ministratal [sic] in nature;" ¶ 126 alleges that "under the provisions of Section 114 of G.L. Chapter 185 this is a matter subject to be overseen by The Land Court;" and ¶ 127 alleges that the "Land Court Plan of Land in Wakefield 25969 Sheet 1 and 2 is correct and that the Town of Wakefield's claim of ownership is incorrect."

Count 7

Count 7 is also entitled "Fraudulent Conveyance" and contains the same first paragraph as set forth in Count 1 (¶ 128a). In the following 27 numbered paragraphs, Mr. Cloherty alleges that Harvest Road, which his property abuts, previously provided unimpeded access to Lake Quannapowitt (¶¶ 128-133); that, with the construction of Route 128/Interstate 95 in the 1950s, it was no longer possible to access Lake Quannapowitt from Mr. Cloherty's property over Harvest Road (¶¶ 134-139); that Mr. Cloherty must now cross a rotary where four lanes of traffic merge into two lanes and where there are an interstate on-ramp and off-ramp, with attendant safety issues (¶¶ 140-147); and that there should be safe passage for residents to access their deeded park rights and Lake Quannapowitt (¶ 148). Count 7 ends with five paragraphs of miscellaneous allegations regarding a gift of a portion of Harvest Road in 1954 (¶ 149); the transfer of a permit by the Town's conservation commission to drain parking lot effluent across Harvest Road (¶ 150); that there is a drainage pipe under Interstate 95 near Harvest Road (¶ 151); that a neighbor attempted for 17 years to have the Commonwealth maintain the drainage pipe (¶ 152); and that "[t]he Plaintiff moves this Court to show Harvest and Track Roads according to section three of G.L. c. 185 Section 46." [Note 10]

After Count 7, the Amended Complaint lists seven substantive prayers for relief. Five are requests for declaratory relief (that the LLC's property "has been irrevocably granted to the inhabitants of the Town;" that Quannapowitt Parkway is a public way; that the owners of the fee in Harvest Road and Track Road "are the residents of the Wakefield-Reading Fairgrounds subdivision;" that the Commonwealth is "the true owner of the 1.4 acre park with 430 feet of frontage on Lake Quannapowitt;" and that "the residents of the Wakefield-Reading Fairgrounds sub-division have littoral rights in the aforementioned 1.4 acre park"). The other two request that the court "[o]rder that the defendants remove the gate and accructremonts [sic] of ownership from Quannapowitt Parkway" and "[o]rder that Harvest and Track Road be shown on all maps whether Court or Assessor."

In opposition to Mr. Cloherty's motion to amend his complaint, the Town and the LLC argue that such an amendment should be denied as futile, relying on case law starting with Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288 , 289 (1977). See Lipsitt v. Plaud, 466 Mass. 240 , 254 (2013), quoting Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547 , 549-50 (1987), which in turn quotes Castellucci, 372 Mass. at 290 (reasons for denying a motion to amend "include ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . futility of amendment, etc."). According to the Town, neither G.L. c. 254 nor G.L. c. 109A has any relevance to the facts asserted in the Amended Complaint; Mr. Cloherty's attempt to undo real estate transactions from more than 60 years ago on which reliance has been place is barred by laches; G.L. c. 40, § 3A, renders deeds and leases by a town binding if signed by the selectmen and relied upon by others; G.L. c. 185, § 46, prevents Mr. Cloherty from questioning the rights of owners of registered land, as is involved here; and the transactions challenged by Mr. Cloherty were accomplished by the Commonwealth and the Town in conformity with then applicable laws. The LLC, in a separate opposition, echoes the Town's arguments.

While crediting the Town and the LLC for their efforts to ascertain what it is that Mr. Cloherty claims and to identify defenses to those claims that would render them futile, the court has a more fundamental problem with the Amended Complaint: it fails to comply with Mass. R. Civ. P. 8(a). That rule requires that Mr. Cloherty set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." A plaintiff's failure to comply with that rule can be raised by the court sua sponte. See Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000) ("As a threshold matter, we note that the judge could have dismissed Schaer's complaint for failure to state ‘a short and plain statement of the claim.'"); Garrity v. Garrity, 399 Mass. 367 (1987) (affirming trial court's dismissal pursuant to Mass. R. Civ. P. 12(b)(6) on the grounds that the complaint failed to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief"). And, while "some leniency is appropriate in determining whether a pro se complaint meets the requirements of those rules, the rules bind a pro se litigant as they bind other litigants." Mmoe v. Commonwealth, 393 Mass. 617 , 620 (1985) (citations omitted).

In Schaer, the offending complaint, including attachments, was more than 115 pages and included 125 separately numbered paragraphs. Schaer, 432 Mass. at 477. In Mmoe, the amended complaint had 35 pages and 174 numbered paragraphs separated into 30 counts. Mmoe, 393 Mass. at 618. In Garrity, the complaint had 22 pages and 107 separately numbered paragraphs. Garrity, 399 Mass. at 368. [Note 11]

Here, with very modest modifications, [Note 12] the Amended Complaint incorporates the allegations and exhibits of the original Complaint. Before considering its prayers for relief set forth at pp. 4-6 and 26-29 or its attachments, the Complaint consists of 29 pages and 103 paragraphs (some paragraphs are labelled with letters as wells as numbers, e.g. ¶¶ 1, 1a, 1b, 1c, 1d). The attachments consist of a three-page list of the exhibits to the Complaint, a 19-page index of the same, and a four-page table of contents. The exhibits themselves, labeled A through O, contain multiple documents totaling some 392 pages. To this, one must add the 12-page Amended Complaint and its 66 numbered paragraphs, for a total of 41 pages and 169 paragraphs in addition to the 392 pages of exhibits.

The characterizations of the complaints that did not pass muster under the case law described above fully apply here. See Garrity, 399 Mass. at 369 ("rambling"); Mmoe, 393 Mass. at 621 ("verbose and confusing"); Richardson, 2008 Mass. App. Unpub. LEXIS 273 at *1 n. 1 ("prolix and filled with irrelevancies"). Accordingly, the Motion To Docket Amended Complaint is DENIED as futile because, by virtue of its failure to comply with Mass. R. Civ. P. 8(a), the Amended Complaint, if docketed, would be subject to a successful motion to dismiss it on that ground. [Note 13] This matter is set down for a Telephone Status Conference at 9:00 a.m. on Wednesday, October 14, 2020.

SO ORDERED.