Opinion
19-P-37
12-18-2019
Bahig BISHAY v. PUBLIC STORAGE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Due to numerous prior abuses of the judicial process resulting in a substantial waste of judicial resources, the plaintiff, Bahig Bishay, has been ordered to comply with certain minimal procedural requirements in connection with bringing any actions in the State courts of this Commonwealth (order). We upheld the order on the basis of Bishay's fourteen-year misuse of State and Federal court systems. See Lombard v. Bishay, 87 Mass. App. Ct. 1135 (2015). It is undisputed that Bishay failed to comply with the order when he commenced the present action against the defendant, Public Storage (Public), by failing to attach the order to his complaint thereby evading some of the order's additional requirements and protections. Accordingly, his complaint was dismissed.
The order, which was issued on April 28, 2014, in Bell Atl. Yellow Pages Co. v. U.S. Auto Exch. Group Ltd., Essex Superior Court, Civil Action No. ESCV2000-01838, sets forth Bishay's prior abuses, as follows:
"[Bishay 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 [c]ourts of 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. Many of the motions filed in this case contain vilifications of the personal character and professional integrity of the attorneys and the parties to this case. Despite being ordered to cease filing ‘emergency’ motions when no such emergency exists, the Bishays have refused to file their motions under Superior Court Rule 9A and continue to file ‘emergency’ motions containing the facts and claims previously rejected by this [c]ourt."
The order also provides, among other things: "Before requiring any defendant ... to file an answer or other responsive pleading, the [c]lerk will bring the complaint to the Regional Administrative Justice [RAJ] for the county in which the [c]ourt is located where [Bishay] seek[s] to file the complaint." Pursuant to the order, before a defendant is required to file a responsive pleading, the RAJ or his or her designee is to assess the complaint and conduct a brief hearing on the record to determine whether or not the claims advanced therein are frivolous within the meaning of G. L. c. 231, § 6F. Because Bishay failed to follow the order, Bishay circumvented the protections anticipated by it, and Public answered the complaint.
Thereafter, Bishay filed a motion to vacate the dismissal with the regional administrative judge (RAJ), who designated a District Court judge to determine whether Bishay complied with the order and, if so, whether the complaint was frivolous. After a brief hearing, the judge denied Bishay's motion on two grounds: first, he found that, because Bishay "had no legal authority or justification for ignoring his obligation to include a copy of the [o]rder with his filing," Bishay acted with "malfeasance" in failing to include the order with this complaint; and second, his claims against Public were frivolous. The Appellate Division of the District Court affirmed. Bishay now appeals.
On appeal, Bishay incorrectly asserts that whether he complied with the order is "moot." We may affirm on any basis in the record. See Cornell v. Michaud, 79 Mass. App. Ct. 607, 613 n.10 (2011). We agree with the Appellate Division that failure to comply with a judicial order is not to be taken lightly. See Great Woods, Inc. v. Clemmey, 89 Mass. App. Ct. 788, 795 (2016), quoting MacDonald v. Caruso, 467 Mass. 382, 388-389 (2014) ("a judge who issues a permanent order is entitled to expect that the [party] will comply with the order"). By choosing not to address the judge's finding that his failure to comply with the order was unjustifiable, Bishay has waived any challenge to that finding. Mass. R. A. P. 16 (a) (4), as appearing in 481 Mass. 1628 (2019). See Leone v. Security Ins. Co. of Hartford, 14 Mass. App. Ct. 1026, 1027 (1982). Accordingly, we affirm the decision and order of the Appellate Division.
Bishay asserts that Public "abandoned" its argument that he failed to comply with the order, and thus Public "waived" it. Before the Appellate Division, Bishay took a different position, arguing that the issue was "moot" because the RAJ had not directed the judge to address that issue. Noting that the RAJ specifically directed the judge to address that issue, the Appellate Division rejected Bishay's attempted "misdirection."
Before the judge, Bishay apparently presented two bases for his failure to comply with the order. First, he contended that the order was stayed pending his appeal of the dismissal of a Land Court action, which was found to be "frivolous" pursuant to the order. Nothing in the record supports Bishay's position; indeed, in declining to exercise its superintendence power under G. L. c. 211, § 3, in that matter, the Supreme Judicial Court noted the finality of the order. Bishay v. Land Court Dep't of the Trial Court, 477 Mass. 1032, 1032 (2017), citing Lombard, 87 Mass. App. Ct. at 1135. Second, he asserted that the order violated due process –- an argument lacking in merit. See, e.g., 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").
In any event, for the reasons delineated by the judge, Bishay's claims –- which stem from his unmeritorious assertion that he is entitled to a limited introductory offer by Public to "new" customers even though he was an existing customer -- are without any arguable legal basis and thus frivolous.
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So ordered.
affirmed