NOTICE OF APPEAL as to 18 Order Dismissing Case by A376456 Filing fee: $ 505, receipt number 0101-6421750 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf. US District Court Clerk to deliver official record to Court of Appeals by 1/9/2017. (Kazarian, Charles)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 9 Motion to Dismiss for Failure to State a Claim. Whatever sympathies may be aroused by the facts as alleged in plaintiff A376456 Complaint, she has failed to plead any viable claims against the named defendants. Even had A376456 filed this case within the applicable limitations period (which she has not, see Lareau v. Page, 39 F.3d 384, 388 (1st Cir.1994) ("'The important point is that the statute of limitations starts to run when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury'.... Once on notice, 'the potential litigant has the duty to discover from the legal, scientific, and medical communities' whether s/he has a claim." (quoting Bowen v. Eli Lilly & Co., 408 Mass. 204, 207 (1990)), there are no facts alleged giving plausible support to her claims of tortious interference, legal malpractice, or conspiracy. There are no allegations that defendants acted intentionally and unlawfully to interfere with A376456 expectancy under her aunt's will. See Labonte v. Giorgano, 426 Mass. 319, 321 (1997). Moreover, A376456 has no protected interest in her aunt's estate -- she compromised that interest in entering a settlement with the Estate in the Middlesex Probate Court prior to filing this case. See In the Matter of Saracina Wilhemina, Massachusetts Trial Court, Middlesex Probate No. MI 12P5596EA (First and Final Account, 4/22/16); In her Opposition, A376456 claims that her "probate court action, even if fully prosecuted, would result in a partial remedy from Crocker only, even though defendants had also caused her injury." Opp'n at 8. However if A376456 had proceeded to trial and succeeded in invalidating the "death-bed will," she would have received only those assets of the Estate left to her under the prior will. See Dopp v. HTP Corp., 947 F.2d 506, 516 (1st Cir. 1991) ("[T]he law abhors duplicative recoveries."); Villarini-Garcia v. Hospital del Maestro, 112 F.3d 5, 8 (1st Cir. 1997) ("Absent good reason... courts are loath to promote double recoveries.").With regard to her legal malpractice claim against Attorneys 9BDF744 and 37BF954, this is not one of the rare instances in which a lawyer might owe a fiduciary duty to a non-client. See Miller v. Mooney, 431 Mass. 57, 62 (2000) ("In preparing an estate plan and distributing property... attorneys can have only one client to whom they owe a duty of undivided loyalty." (quoting Symmons v. OKeefe, 419 Mass. 288, 300 (1995)). Defendants' client was Wilhelmina Saracina. See Spinner v. Nutt, 417 Mass. 549, 552-553 (1994) (citing decisions of the Supreme Judicial Court making clear that where there "is the potential for conflict" between the client and non-client, there can be no duty of care owed to the non-client).Lastly, A376456 alleges a count for "civil conspiracy" contending that "defendants acted in concert to commit the tort of legal malpractice against plaintiff." Compl. 102. As the tort, in the circumstances of this case, is legally impossible to commit, the conspiracy claim, even if properly pled, fails. See Commonwealth v. Bell, 67 Mass. App. Ct. 266, 270 (2006) (delineating the defense of legal impossibility), rev'd on other grounds, 455 Mass. 408 (2009). The Clerk will enter an Order of Dismissal and close this case. (Zierk, Marsha)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 14 Motion for Leave to File Reply. Counsel should now file the Reply including - Leave to file granted on 10/28/16 in the caption of the document. (Zierk, Marsha)
Assented to MOTION for Leave to File Reply Brief in Further Support of Motion to Dismiss by 37BF954, 9BDF744, Law Offices of 9BDF744, P.C.. (Attachments: # 1 Exhibit A: [Proposed] Reply Brief in Support of Defendants' Motion to Dismiss)(Aronsson, Mark)
Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 11 Motion for Extension of Time to File Response/Reply re 11 Assented to MOTION for Extension of Time to through October 25, 2016 to File Response/Reply as to 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Responses due by 10/26/2016 (Zierk, Marsha)
Assented to MOTION for Extension of Time to through October 25, 2016 to File Response/Reply as to 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by A376456.(Kazarian, Charles)
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by 37BF954, 9BDF744, Law Offices of 9BDF744, P.C.. (Attachments: # 1 Exhibit A - Petition for Formal Probate of a Will, # 2 Exhibit B - Notice of Appearance & Objection, # 3 Exhibit C - Affidavit of Objections of A376456)(Aronsson, Mark)
Summons Issued as to 37BF954, 9BDF744, Law Offices of 9BDF744, P.C.. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Paine, Matthew)
ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Marianne B. Bowler. (Abaid, Kimberly)
Third party AI contribution in government documents
Possible
Document content is reproduced directly from government sources. Some filings in our database may themselves contain AI-generated content submitted by third parties to government agencies.
Update
Alerts
