#74, Drano Series
Complaint under §1983 for Deprivation of Civil Rights, §1985(3) for Conspiracy, Common-Law Conspiracy and Emotional Distress
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MASSACHUSETTS_______________________________
CIVIL ACTION:
John Smith, Jr.
Plaintiff
v.Pocahontas "John's Wife" Smith a/k/a Pocahontas Maiden
E. Chouteau Merrill, in her individual and professional capacities,
LaidBack Attorney, Jr., in his individual and professional capacities,
Sleezy "Mumbles" Attorney, in his individual and professional capacities,
StupidButFamous Attorney, in his individual and professional capacities,
Defendants
_______________________________COMPLAINT AND JURY DEMAND ON ALL COUNTS
(Plaintiff incorporates by reference the attached exhibits
with the same force and effect as if herein set forth)
INTRODUCTIONThis action arises out of Defendants' conspiracy to commit fraud upon John Smith, Jr. ["Smith"] in order to deprive him of his property.
The causes of action brought are (1) violation of 42 U.S.C. sec. 1983 (due process and equal protection clauses), (2) violation of 42 U.S.C. sec. 1985(3) (conspiracy), (3) fraud by omission and nondisclosure, (4) common law conspiracy, (5) negligent infliction of emotional distress, and (6) intentional infliction of emotional distress.
JURISDICTION
1. Jurisdiction of this court arises under 28 U.S.C. secs. 1331, 1337, 1343(a), and 1367(a); 42 U.S.C. secs. 1983 (civil action for deprivation of rights), 1985(3) (conspiracy to interfere with civil rights), 1988 (proceedings in vindication of civil rights); 18 U.S.C. 1341; 18 U.S.C. 1511.
2. Jurisdiction of this court for the pendent claims is authorized by F.R.Civ.P. 18(a), and arises under the doctrine of pendent jurisdiction as set forth in United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
PARTIES
3. Your Plaintiff, John Smith, Jr. ["Smith"], who resides at XX XXXXXX Street, Boston, Suffolk County, Massachusetts, was the appellant in Pocahontas Smith v. John Smith, Jr., entered into the docket as Civil Action Number 01-J-000 in the single justice session of the Appeals Court (McHugh, J.) and is the defendant husband and father in Pocahontas Smith v. John Smith, Jr., entered as Docket Number 00D-0000-DV1 in the Suffolk County Division of the Probate & Family Court Department of the Trial Court of the Commonwealth of Massachusetts.
4. Defendant Pocahontas "John's Wife" Smith ["Pocahontas"], a/k/a Pocahontas Maiden, who is a natural person, a prestigious-Law-School- educated attorney, and member of the Massachusetts and XXXX Bars, was residing at either XX XXXXXX Street, Boston, Suffolk County, Massachusetts, or XX XXXXX Drive, XXXXXX, XXXXXX County, XXXX 00000, United States of America, at all times relevant to this Complaint.
5. Defendant E. Chouteau Merrill ["Merrill"]], who is a natural person, a Harvard-Law-School-educated attorney, and member of the Massachusetts Bar, was employed by the law firm known as Brown Rudnick Freed & Gesmer, and has been residing at 370 East Street, Dedham, Norfolk County, Massachusetts, United States of America, at all times relevant to this Complaint.\1/
1 Although Merrill is currently a sitting justice in the Suffolk County Probate & Family Court, which is a division of a department of the trial court of the Commonwealth of Massachusetts, the activities complained-of in this Complaint were activities of Merrill prior to being nominated for and appointed to the judgeship.6. Defendant LaidBack Attorney, Jr. ["LaidBack"]], who is a natural person, an attorney and member of the Massachusetts Bar, is employed by the law firm known as xxxxxxx LaidBack, LLP, XXXXXXXXXXXX, Boston, Suffolk County, Massachusetts 02114, and has been a resident of Massachusetts, United States of America, at all times relevant to this Complaint.7. Defendant Sleezy Mumbles ["Mumbles"], who is a natural person, an attorney and member of the Massachusetts Bar, is employed by the law firm known as XXXXXXX Street, Suite 000, Boston, Massachusetts 02114-1804, and has been a resident of Massachusetts, United States of America, at all times relevant to this Complaint.
8. Defendant StupidButFamous Attorney, who is a natural person, an attorney and member of the Massachusetts Bar, is employed by the law firm known as Law Office of StupidButFamous Attorney, and has been residing at XXXXXXXXXXX County, Massachusetts, United States of America, at all times relevant to this Complaint.
FACTS
9. On 14 March 2000, Pocahontas's prior counsel, E. Chouteau Merrill ["Merrill"], wrote Smith's prior counsel stating the "[she] would like to get the . . . property in YYYYYY appraised," and asked, "Shall we do this jointly or do you want to each hire an appraiser?" [Exh. A].
10. On 5 April 2000, Pocahontas signed a Financial Statement under the pains and penalties of perjury, and Merrill vouched by countersigning that that which Pocahontas declared in the Financial Statement was true and correct. In that Financial Statement, Pocahontas swore falsely (a) that she purchased the YYYYYY property in 1992, (b) that the then-current assessed value of the property, last assessed in 1999, was $300.000, and (c) that the fair market value was $500,000 [Exh. B].
11. Pocahontas never purchased the YYYYYY property, the YYYYYY property was never assessed at $300,000, and the fair market value was never half-a-million dollars.
12. Invoices from the law firm formerly known as Brown Rudnick Freed & Gesmer ["BRFG"] show that on 31 July 2000, Merrill phoned FSI [Exh. C].
13. Shortly thereafter John Smith, Sr., allowed FSI access to the property at yyyyyyyyyyyyyyyyyy,YYYYYYYYY, Massachusetts.
14. On 7 August 2000, ABC reported that the estimated fair market value was $188,000 [Exh. D].
15. From the redactions in BRFG's invoice, it can be inferred that ABC and Merrill were in communication on the 4 and 7 August 2000 [Exh. E].
16. On 7 August 2000, Merrill, on Pocahontas's behalf, offered a settlement which she wrote should not be disclosed to the court without the consent of both parties. Therefore, Smith attaches hereto this pleading the offer solely for the purpose of showing that therein Pocahontas and Merrill ascribed, circumstantially, to the YYYYYY property the value of $390,000 [Exh. F].
17. On 8 August 2000, but a day after the FSI appraiser found the value to be $188,000, Merrill, in Pocahontas's Pretrial Memorandum, wrote in paragraph A (on page 3) that Pocahontas believed that the YYYYYY property had a fair market value of $500,000 and that an appraisal was pending [Exh. G].
18. On 8 August 2000, Pocahontas once again respectively signed under pains and penalties of perjury and Merrill once again vouched for Pocahontas's truthfulness and accuracy in the Financial Statement of that date and in which Pocahontas again swore falsely (a) that she purchased the property in 1992, (b) that the then-current assessed value of the property, last assessed in 1999, was $300.000, and (c) that the fair market value was $500,000 [Exh. H].
19. According to the Town of YYYYYY, the Fiscal Year 2001 value of 00 YYYYYYYY Road was $193,400 [Exh. I].
20. The Probate & Family Court appointed HighPaid "StupidButFamous" Attorney as Discovery Master on 9 March 2001 [Exh. J] and forbade Smith from conducting any discovery without going through StupidButFamous.
21. StupidButFamous and Merrill were both members of the American Academy of Matrimonial Lawyers and close friends who ....... AAML annual event which took place on 00 000000 0000.
22. During or around April 2001, Merrill promised to give Smith's counsel a copy of the ABC appraisal.
23. Merrill told StupidButFamous that she applied for a judgeship.
24. Not having received from Merrill the ABC appraisal, Smith's counsel wrote Merrill and the Discovery Master on 6 June 2001 informing both of them that the document was not produced and was therefore still outstanding [Exh. K].
25. Both StupidButFamous and Merrill failed to respond to Smith's counsel letter of 6 June 2001.
26. In or around August of 2001, two more counsel -- LaidBack Attorney and Sleezy "Mumbles" Attorney -- made their appearance on behalf of Pocahontas in the Probate & Family Court at Suffolk.
27. During October 2001, Merrill withdrew – without court action -- as Pocahontas's counsel for the divorce action [Exh. L].
28. StupidButFamous did absolutely nothing on the Smith case until some time in December 2001, after Merrill was sitting on the bench of the Probate & Family Court.
29. Faced with having Merrill on the bench and possibly sitting on his cases, StupidButFamous did an 180-degree turn and thereafter made almost all decisions against Smith's interests.
30. On 15 March 2002, Pocahontas, for the third time, again signed a Financial Statement under the pains and penalties of perjury. Neither LaidBack nor Mumbles signed the copy given to Smith's counsel, but it is assumed one or both of them vouched for Pocahontas's truthfulness and accuracy and countersigned the Financial Statement filed in court [Exh. M].
31. On the Financial Statement of 15 March 2002, Pocahontas again swore falsely (a) that she purchased the property in 1992 and (b) that both the then-current assessed and fair market values were $300,000 [Exh. M].
32. According to the Town of YYYYYY Notice of Revaluation for Fiscal Year 2002, the assessed value of 00 YYYYYYYY Road was $224,000 [Exh. I].
33. On 2 May 2002, Judge Lisa Roberts denied Smith's motion to compel Pocahontas to produce the August 2000 FSI appraisal and further limited Smith's rights to discovery [Exh. P].
34. In paragraph 2.6 of Discovery Master StupidButFamous's report dated 9 May 2002 [Exh. N, page 6], he reports that Pocahontas denied having copies of the appraisals, but given that Merrill gave her file to Pocahontas's successor counsel, successor counsel's statement that the appraisal did not exist could not be true.
35. On 6 May 2002, Smith's counsel caused a Keeper of the Records deposition subpoena requesting the FSI file be produced by 8 May 2002.
36. The Fannie Mae section and the Supplemental Addendum of the appraisal are attached hereto this pleading [Exh. O].
37. The May 2d order gave a May 15th cut-off date for depositions AND gave Pocahontas 5 days to produce medical releases and 10 days to produce documents.
38. By allowing Pocahontas those 5 and 10 days, respectively, in which to obey the order, the medical releases were valueless to Smith: he would not be able to subpoena the records when he received the releases.
39. Thus the court's act had to be based on gender discrimination, for there was no other reasonable explanation for such an arbitrary and capricious order.
40. Similarly, Smith was deprived of the right to perform follow-up discovery on the other documents to be produced within 10 days.
41. Ten days have passed but Pocahontas has not complied and .
42. The 2 May 2002 order was unclear and equivocal as well as violative of the equal protection laws on the grounds of gender discrimination [Exh. P].2
2 The May 2d order also never called out within itself the date "May 2."43. On 9 May 2002, Pocahontas, Mumbles, and LaidBack have moved, with StupidButFamous's assent and recommendation to the court to allow said motion, for Smith's counsel to be held in contempt and be sanctioned for subpoenaing the ABC appraisal of 7 August 2000.44. On 8 May 2002, Judge Lisa Roberts allowed Pocahontas's motion to quash Smith's subpoena for ABC to produce the appraisal of August 2000.
45. On 9 May 2002, StupidButFamous recommended to Judge Lisa Roberts that Smith be ordered to return any copy of the August 2000 FSI appraisal which he might have received.
COUNT 1: VIOLATION OF 42 U.S.C. SEC. 1983
(DUE PROCESS AND EQUAL PROTECTION CLAUSES)46. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 45 above with the same force and effect as if herein set forth.
47. At all relevant times herein, Plaintiff had a right under the due process and equal protection clauses of the state and federal constitutions not to be deprived of his constitutionally protected interest in his property. U.S.C. Const. Amend. 14; M.G.L. Const. Pt. 1, Art. 10.
48. At all times relevant herein, the defendants were state actors and their conduct was subject to 42 U.S.C. secs. 1983, 1985, and 1988.3
3"Private persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of Section 1983 actions." Dennis v. Sparks. 449 U.S. 24, 27-28 (1980).Such joint participation as when a state allows an ex parte attachment, or as here, Smith contends, when the state allowed Pocahontas's motions precluding Smith from conducting discovery, including but not limited to, getting access to the FSI appraisal, constitutes "a sufficient nexus between state and individual to demonstrate state action and permit a §1983 suit against the individual who sought the attachment." Cf. Gonzales-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir. 2000), citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 ("a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a "state actor" for purposes of the Fourteenth Amendment").49. The Trial Court allowed almost all of Pocahontas's motions to limit Smith's discovery in the divorce case but denied almost all of Smith's motions to be allowed to conduct discovery. [Exhs. L and P]50. The only explanation is that the court was discriminating against Smith because of his gender.
51. By depriving the male Smith of his rights to equal protection and affording only the female Smith her rights to equal protection, the Commonwealth insinuated itself into the conspiracy and metamorphosed the individual actors into State actors.
52. Acting under the color of law, Defendants worked a denial of Smith's rights, privileges, or immunities secured by the United States Constitution or by Federal law 4 and guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, to wit, they sought and got court orders based on their misrepresentations.
4Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406 Mass. 43, 52 (1989).52. As a result of Defendants' concerted unlawful and malicious conduct, Smith was both deprived of his rights to equal protection of all the laws and to due process of law, of his right to his property, and the due course of justice was impeded, in violation of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. sec. 1983.53. Smith was harmed, has incurred considerable legal debt which would not otherwise have been incurred, and has suffered the loss of confidence in and feelings of betrayal by the justice system, shock, and emotional scarring, all compensable as emotional distress, and other damages.5
5WHEREFORE, Plaintiff demands judgment for the violation of his civil rights against all the defendants, jointly and severally, for actual, general, special, compensatory damages in the amount of $5,000,000 and further demands judgment against all defendants, jointly and severally, for punitive damages 6 in an amount to be determined by the jury, plus the costs of this action, including attorney's fees, and such other relief deemed to be just, fair, and appropriate.The rule is well settled, however, that if the natural consequence of the wrongful act, done willfully or with gross negligence, is mental suffering to the plaintiff, then that element may be considered in assessing damages.Stiles, 233 Mass. at 185, cites omitted. "Good faith and absence of malice in the perpetration of such a palpable wrong to the plaintiff constitute no defense to the defendants against the almost inevitable effect of their acts." Id.6 "Punitive damages are recoverable in sec. 1983 suit where defendant's conduct is motivated by an evil motive or intent, or where it involves reckless or callous indifference to plaintiff's federally protected rights). Smith v. Wade, 461 U.S. 30, 50-51 ((1983); Clark v. Taylor, 710 F.2d 4, 14 (1st Cir. 1983). Miga, supra at 355.
COUNT 2: VIOLATION OF 42 U.S.C. sec. 1985(3) (conspiracy)77 To state a claim under Section(s) 1985(3) a plaintiff must allege the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person or class of persons, directly or in-directly, of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). See note 47, infra, re a class-based animus.54. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 53 above with the same force and effect as if herein set forth.55. The conspiratorial purpose was financial.
56. On or around 5 April 2000 the first step in the conspiracy was taken by Pocahontas when she decided to sign her name to the Financial Statement of that date.
57. By swearing under the pains and penalties of perjury that the assessed and fair market values she ascribed to the real property at 00 YYYYYYYY Road, YYYYYY, Massachusetts, were true and accurate, Pocahontas was perpetrating a fraud upon the court, which if believed by the court would work a larceny upon Smith.
58. If Pocahontas's misrepresentations were persuasive and if Smith was given at least half the equitable interest in the property, the court would have required Smith pay Pocahontas $250,000, more than the actual fair market value for the entire property.
59. By vouching for Pocahontas's truthfulness and the accuracy of the values on Pocahontas's Financial Statements, Merrill conspired with Pocahontas to deceive both the court and Smith.
60. Within a day, however, of the August 2000 appraisal of the YYYYYY property being performed by FSI, which came in lower than Pocahontas and Merrill might have anticipated, they conspiratorially decided to deny that they received the appraisal.
61. Smith attempted since the winter of 2001 to get a copy of the FSI appraisal of the YYYYYY property [Exh. K].
62. On 8 August 2001, Pocahontas and Merrill continued to misrepresent under the pains and penalties of perjury to the court and to Smith the assessed and fair market values of the YYYYYY property.
63. The scheme of the conspiracy was (1) to declare there was no appraisal, (2) to misrepresent that the value was $500,000, rather than $188,000 and (3) to persuade the court that their values were accurate, which would ultimately cause Smith to buy Pocahontas's alleged interest in the property at an amount $156,000 higher than that which he would have to pay had the values been true and accurate.
64. Pocahontas stood to profit financially by misrepresentating to the court; for example, if the court divided the property 50-50 upon distribution of the marital estate and if Smith wanted to buy Pocahontas out of the property, he would have to give Pocahontas $250,000, rather than $94,000.
65. Pocahontas's intent was to permanently deprive Smith of his property.
66. During Spring 2001, Merrill made application for a judgeship.
67. During July 2001, Merrill was nominated by the Governor for a judgeship in Probate & Family Court.
68. Mumbles made his appearance on or around 17 August 2001, and orally represented to the Court that LaidBack was co-counsel but had a conflict that day.
69. Merrill's nomination was approved by the Governor's Council some time between 26 August 2001 and the Fall of 2001.
70. By the time Merrill was allowed by the court to withdraw de facto from the case because of her nomination and approval to a judgeship, she forwarded the file -- approximately in the late Summer or Fall of 2001 -- to LaidBack and/or Mumbles, Pocahontas's successor counsel [Exh. L].
71. LaidBack, Mumbles, and StupidButFamous stood to benefit by getting paid handsomely by Pocahontas and to ingratiate themselves with Merrill, who had begun sitting on the bench.
72. StupidButFamous's motive for his nonfeasance and then his misfeasance and malfeasance was not only to ingratiate himself with both Merrill and the court newly assigned to the Smith case but to benefit economically.
73. LaidBack and Mumbles then breached their professional duties by continuing to conspire to commit fraud on both the court and Smith.
74. On 6 December 2001, when LaidBack met with Smith's counsel and StupidButFamous in StupidButFamous's office, LaidBack misrepresented that the appraisal did not exist [Exh. N].
75. Over Smith's female counsel's argument, StupidButFamous, setting aside the true facts, chose to believe LaidBack, a male. There was no nondiscriminatory factual or legal explanation for StupidButFamous believing one counsel over the other.
76. On 15 March 2002, after Smith's counsel continued to seek a copy of that appraisal, the fair market value, according to Pocahontas, of the YYYYYY property fell magically to $300,000.
77. On 15 March 2002, either or both LaidBack and Mumbles conspired with Pocahontas to continue to misrepresent the assessed and fair market values of the YYYYYY property.
78. Faced with the real appraisal, LaidBack and Mumbles might have had some misgivings which caused them to decrease the alleged fair market value of the property to $300,000, which Pocahontas falsely swore under the pains and penalties of perjury was the assessed value.8
8 The YYYYYY property has never been assessed at $300,000, and until recently, was always below $200,000.79. Despite having a copy of the Notice of Revaluation of the YYYYYY property, which showed the assessed values of the property in Fiscal Year 2000 to be $107,000 less than the amount sworn-to by Pocahontas, and in Fiscal 2001, to be $76,000 less than that sworn-to by her, LaidBack and Mumbles joined the conspiracy begun by Pocahontas and Merrill.80. On 15 March 2002, LaidBack and/or Mumbles countersigned Pocahontas's Financial Statement to vouch that Pocahontas's false sworn statement was true and accurate.
81. LaidBack and Mumbles opposed Smith's motion to compel the FSI appraisal and then moved to have the court find Smith's counsel in contempt and be sanctioned.
82. StupidButFamous joined the conspiracy by recommending that the Probate & Family Court deny Smith access to the ABC appraisal and find Smith's counsel in contempt and sanction her.
83. If StupidButFamous knew the law upon which he ostensibly based his recommendation to preclude the ABC appraisal, he acted maliciously and for personal ulterior motive.
84. If StupidButFamous did not know the law upon which he based his recommendation to preclude the ABC appraisal, he was incompetent.9
9 StupidButFamous argued to Smith’s counsel that the appraisal was protected by an attorney-client privilege. Later he argued it was protected by the work-product doctrine. Given that ABC was not a law firm and that the appraisal was relevant to an issue in the divorce action – distribution of marital assets – it was unprotected by any privilege.85. The above acts were some of the steps in a conspiracy to commit fraud, if not larceny with the requisite mens rea, upon Smith.86. The misrpresentations were deliberate and were designed to produce a judgment that was favorable to Pocahontas.
87. The defendants intentionally interfered with Smith's exercise and enjoyment of his clear and established rights secured by the state and federal constitutions or laws of the United States and/or the Commonwealth of Massachusetts, and thereby deprived him of those rights and caused him injuries.
88. As a result of the concerted unlawful and malicious conspiracy of all the defendants, Smith, as one of the people involved in a case being heard in Probate & Family Court, was deprived of his rights to both due process and the equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. secs. 1983 and 1985.
INVIDIOUS DISCRIMINATORY ANIMUS:
THE DISPARATE IMPACT1010 In Aulson v. Blanchard, 83 F.3d 1, 4 (1996), Judge Selya wrote:89. In denying Smith his rights to discovery but allowing Pocahontas her rights to discovery, according to a facially neutral scheme, the violation discriminated -- by its disparate impact -- against Smith because of his gender, and he was thereby deprived, indirectly or directly, of the equal protection of the laws, injured in his person and property and deprived of having and exercising rights and privileges of a citizen of the United States.In all events, an unforced reading of Section(s) 1985(3) affords no principled basis for distinguishing between public and private conspiracies. Griffin [v. Breckenridge, 403 U.S. 88, 102 (1971)] neither supports nor suggests the exIstence of such a distinction, and, at any rate, it is not the proper province of a federal court to rewrite a statute under the guise of interpretation. Thus, we decline the plaintiff's invitation to create by judicial fiat two classes of Section(s) 1985(3) conspiracies along a public/private axis.The problem with that court's conclusion is that it was inherently inconsistent with what it had written earlier in the same opinion, to wit, that the Supreme Court in Griffin, "under the guise of interpret[ing 1985(3)]" [Aulson, at 4], had already "placed a gloss on these four elements, effectively adding a fifth requirement." Aulson, at 3. That fifth requirement: that "the conspiratorial conduct of which [the plaintiff] complains [must be] propelled by `some racial, or perhaps otherwise class-based, invidiously discriminatory animus.'" Id. at 3, quoting Griffin, at 102.Judge Selya's initial statement was correct: that "it is not the proper province of [any] court to rewrite a statute under the guise of interpretation." That is, however, what the Supreme Court in Griffin did. It is quite elementary: Had Congress intended a fifth element, it would have included it when the statute was enacted. To add the element, Smith contends, was improper, and in so adding it, the high Court was usurping the power of the legislature.
90. Smith is a member of the class of male parents, who suffer from a class-based invidiously discriminatory animus in Massachusetts Probate & Family Courts in today's society.
91. Another example of the invidiously discriminatory animus is the cessation of discovery by both Judge Gould on 9 March 2001 and Judge Roberts since December 2001.
92. Had Smith been a female, he would have been able to get discovery, but Smith was a male, so he lost his rights to discovery [Exhs. L and P].
93. This invidiously discriminatory animus against men because of their gender is rampant in the Massachusetts Probate & Family Courts.11
11 This statement might smack of speculation, but it is not. Potential witnesses abound with documentary evidence of the invidious gender discrimination. One example is an Andover fireman who, after all deductions were taken, received a weekly paycheck of literally 74 cents [Exh. Q]. He was also a sole-proprietor, but his business machinery was at home and he has been precluded from getting access to the machinery and, of course, the home.94. The Probate & Family Court department regularly provides victim-witness advocates to assist women, but does not do so for men.95. In Massachusetts, such victim-witness advocates are sponsored by the Commonwealth of Massachusetts Office of Victim Assistance, MOVA, which promotes state-sponsored discrimination against those who are gendered male.
96. In this Era of the Woman, fathers have been elevated to a special class, cognizable for purposes of sec. 1985(3).
97. Smith was harmed, was caused to incur considerable debt for legal services, and has been suffering from anxiety, feelings of hopelessness, loss of trust, loss of confidence in and feelings of betrayal by the justice system, shock, and emotional scarring, all compensable as emotional distress, and other damages.
WHEREFORE, Plaintiff demands judgment for the violation of his civil rights against the defendants, jointly and severally, for actual, general, special, compensatory damages in the amount of $5,000,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in an amount to be determined by the jury, plus the costs of this action, including attorney's fees, and such other relief deemed to be just, fair, and appropriate.
COUNT 3: FRAUD BY OMISSION OR NONDISCLOSURE
98. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 97 above with the same force and effect as if herein set forth.
99. Financial Statements are not to be lightly disregarded:12 each party must sign the Statement under the pains and penalties of perjury and each party’s attorney must countersign in order to vouch for the truthfulness of the attorney's client and the accuracy of the financial information supplied by the client.
12Edinburg v. Edinburg. 22 Mass.App.Ct. 199, 208 n. 18 (1986).100. As a result of this dual signing requirement, trust between the parties and between each of the parties and the other spouse's attorney is encouraged, fostered, and implied13 by the process.13SeeRood v. Newberg. 48 Mass.App.Ct. 185, 192 (1999).101. When Pocahontas and all three of her attorneys respectively signed and countersigned the Financial Statements which they all knew to be neither true nor accurate, and then overzealously opposed Smith getting access to an appraisal which would prove both their knowledge and intentional misrepresentations, they were attempting to defraud Smith by nondisclosure.102. In addition, the repeated misrepresentations caused Smith additional legal expenses that were reasonably foreseeable as a possible result of the defendants intentional acts.14
14 "Common law fraud can be the basis for a claim of unfair or deceptive practices under the statute [cites omitted], and an intentional fraud can constitute a basis for the multiplication of damages." McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 714 (1990), PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975); Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504 (1979). Certain misrepresentations to a plaintiff are actionable under both common law fraud and G.L. c. 93A. Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 704-705 (1992) citing Schwanbeck v. Federal-Mogul Corp., 31 Mass.App.Ct. 390, 411-412, 415-416 (1991).103. The defendants are responsible not only for their outright untrue written statements, but also for untruthfully declaring that the FSI appraisal did not exist [Exh. N].1515Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 41 (1980) (where affiant, familiar with the actual facts, made "affidavit either with intent to defraud the Land Court or with such wilful disregard of the facts as to be tantamount to fraud"). Cf. Zimmerman v. Kent, 31 Mass.App.Ct. 72, 77-78 (1991) (Where the plaintiff proves "a statement made, as of the party's own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge ... it is not necessary to make any further proof of an actual intent to deceive"), quoting Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 444 (1975), quoting Powell v. Rasmussen, 355 Mass. 117, 118 (1969), in turn quoting Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 404 (1888).104. Smith was harmed and has been caused to incur considerable legal expenses in order to get the ABC appraisal, and has been suffering from anxiety, a feeling of hopelessness, loss of trust, loss of confidence in and feelings of betrayal by the justice system, shock, and emotional scarring, all compensable as emotional distress, and other damages.WHEREFORE, Plaintiff demands judgment for the violation of his civil rights against the defendants, jointly and severally, for actual, general, special, compensatory damages in the amount of $5,000,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in an amount to be determined by the jury, plus the costs of this action, including attorney's fees, and such other relief deemed to be just, fair, and appropriate.
COUNT 4: COMMON LAW CONSPIRACY
105. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 104 above with the same force and effect as if herein set forth.
106. All the Defendants (a) had an object to be accomplished; (b) had an agreement on the object or course of action, to wit, to deprive Smith of his right to the equal protection of the laws, specifically, the right to conduct discovery in the same manner as his wife was allowed; (c) performed one or more unlawful overt acts; and (d) caused Smith damages that were a direct result of those acts.
107. In furtherance of their object, defendants did two or more overt acts against the plaintiffs. Those unlawful overt acts include, but are not limited to, the facts outlined in Count 2, supra, conspiracy under section 1985(3).
108. All five defendants are liable for their acts.
109. Smith suffered harm and damages, as stated at par. 104, supra, as a direct result of those acts.
WHEREFORE, Plaintiff demands Judgment, including interest, against all five defendants, jointly and severally, for actual, general, special, compensatory damages in the amount of $5,000,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just, fair, and appropriate.
COUNT 5: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
110. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 109 above with the same force and effect as if herein set forth.
111. StupidButFamous continually negligently inflicted emotional distress on the Plaintiff.
112. StupidButFamous had a continuing affirmative duty to perform his profes-sional services in such a manner as not to inflict emotional distress on Smith.
113. StupidButFamous breached his duties to Smith.
114. Smith never interfered with StupidButFamous's obligations under the above-described duties.
115. Smith suffered not only physical symptomatologies but also, as a consequence of the physical injury, mentally by StupidButFamous's breach of duty.
116. Smith was, is, and, with a high degree of likelihood, will continue to be inflicted with emotional distress due to the negligence of StupidButFamous.
117. As a result of StupidButFamous's negligent conduct, Smith has suffered and will continue to suffer physical symptomatologies, such as severe, continuous headaches and pains in his extremities, weight gain, pain, anguish, severe emotional trauma, embarrassment, and humiliation.
WHEREFORE, Plaintiff demands judgment, including interest, against StupidButFamous in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.
COUNT 6: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
118. Plaintiff repeats and realleges and incorporate by reference the allegations in paragraphs 1 through 117 above with the same force and effect as if herein set forth.
119. Defendants Pocahontas, Merrill, LaidBack, Mumbles, and StupidButFamous intentionally and deliberately inflicted emotional distress on Smith by interfering with his civil rights and conspiring against him, thereby destroying his trust in the judicial system,
120. Defendants' conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community.
121. The actions of the Defendants were the cause of Smith's distress.
122. Smith is a reasonable man.
123. The emotional distress sustained by Smith was severe and of a nature that no reasonable man could be expected to endure.16
16 Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).124. As a result of the Defendants' extreme and outrageous conduct, Smith has suffered and with a high degree of likelihood, will continue to suffer mental pain and anguish, embarrassment, humiliation that he was so betrayed by the judicial system, and severe emotional trauma.17WHEREFORE, Plaintiff demands Judgment, including interest, against all defendants, jointly and severally, for actual, general, special, compensatory damages in the amount of $5,000,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just, fair, and appropriate.
12 May 2002 Barbara C. Johnson, Esq.Respectfully submitted,.
PLAINTIFF JOHN SMITH, JR.
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833