Opinion
No. 11–P–1812.
2013-02-7
Sean MURPHY v. MASSACHUSETTS STATE POLICE & others.
By the Court (KANTROWITZ, MEADE & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se plaintiff, Sean Murphy, doing business as Northshore Movers of Lynn (Northshore), appeals from the sua sponte dismissal of his complaint against the State police and several municipal police departments for damage allegedly caused to the property of others during the search of a storage facility operated by Northshore.
There is no appellee in this case as the complaint was dismissed prior to service. While this is an unusual procedure, in the circumstances of this case, it was not error.
The plaintiff, who has been incarcerated throughout these proceedings, filed his complaint on August 18, 2011, along with a motion to waive the filing fee, a motion to have the clerk serve the defendants, and an affidavit of indigency. The judge determined the plaintiff was indigent and waived the filing fee. However, the judge refused to authorize funds for the service of the complaint because, in his view, it failed to “sufficiently allege a cause of action under the pleading standard in this Commonwealth.” As a result, the judge, sua sponte, dismissed the plaintiff's complaint on August 22, 2011, prior to its service. The plaintiff filed a timely notice of appeal. The complaint asserts that on January 23, 2009, local, State, and Federal authorities executed a search warrant at Northshore's warehouse. As a result of the search, numerous items were damaged or destroyed, including items owned by customers of Northshore. Those customers filed claims that the plaintiff alleges were internally investigated and settled by Northshore, claims for which coverage was denied by Northshore's insurer. The plaintiff also alleges that he sent a Tort Claims Act demand letter to each of the defendants named in the complaint. The complaint sought declaratory relief (essentially declarations that the defendants were negligent and caused damage to the property in the plaintiff's care and custody) and compensatory damages.
The judge noted that he reviewed the complaint in the context of ruling on the motions to waive the filing fee and fees for service, and concluded that the insufficiency of the complaint was clear on its face. He also noted that “the named defendants are a state agency and numerous municipalities dealing with limited and shrinking financial resources.” While the plaintiff complains that the judge overstepped his bounds by using financial considerations as a reason to dismiss the complaint, it seems clear that the judge's statement concerns not a substantive reason for dismissing the complaint, but rather a consideration to justify the unusual procedure of dismissing the complaint sua sponte, without requiring a responsive pleading from the defendants.
While the caption of the complaint identifies the plaintiff as “d/b/a Northshore Movers of Lynn,” his exact affiliation with Northshore is not stated anywhere in the complaint.
The judge ruled that although the plaintiff captioned himself as doing business as Northshore, the complaint contained no factual allegations in support of his right to bring a claim for damages suffered at the facility. In addition, the complaint did not allege any damages actually suffered by Northshore, as opposed to the customers that are not named as plaintiffs, nor does the complaint indicate that the plaintiff was suing as subrogee for those customers he allegedly made whole.
The plaintiff argues generally that pro se complaints should be held to a less stringent standard and that the judge could have construed the complaint as asserting claims by the plaintiff as a subrogee of Northshore's customers. The short answer is that the complaint did not state that the plaintiff was suing as subrogee of the customers whose property was damaged, nor does it identify in any way any of the customers on whose behalf he is seeking damages. In addition, while it may be that, even in the absence of contractual agreement between the parties for subrogation or statutory authorization, see Apthorp v. OneBeacon Ins. Group, LLC, 78 Mass.App.Ct. 115, 118–119 (2010), a right of subrogation might arise “by implication of law” as “an equitable adjustment of rights,” Safety Ins. Co. v. Massachusetts Bay Transp. Authy., 58 Mass.App.Ct. 99, 103 (2003), no such claim was made in the complaint and no such argument is made on appeal.
Litigants acting pro se are held to the same standards as litigants with counsel. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983).
Finally, the plaintiff argues that the judge, apparently also sua sponte, should have permitted him to amend his complaint. Ordinarily, if a plaintiff fails to request leave to amend the complaint in response to a motion to dismiss, we could deem the argument waived. Given the unusual posture of this case, however, there was no motion to dismiss as the judge acted without hearing from the defendants. The plaintiff's failure to file a postjudgment motion for leave to file an amended complaint could be considered a waiver of this issue. However, we deem it more prudent, in these circumstances, to allow the plaintiff to file an amended complaint. See Doherty v. Admiral's Flagship Condominium Trust, 80 Mass.App.Ct. 104, 112 (2011) (“Rule 15[a] of the Massachusetts Rules of Civil Procedure, 365 Mass. 761 [1974], provides that, following the entry of an order of dismissal, a pleading may be amended with leave of court ‘and leave shall be freely given when justice so requires.’ See Smith & Zobel, Rules Practice § 15.2, at 263 [2d ed.2006]”).
The judgment of dismissal is affirmed.
The plaintiff is given leave to file an amended complaint within thirty days of the entry of the rescript.