Opposition to Motion to Dismiss by One of Five Attorneys Sued for Attempted Fraud

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  _______________________________________________________ OPPOSITION TO Laidback'S MOTION TO DISMISS Now comes John Smith, Jr. ["Smith"], and submits this opposition and supporting memorandum to the Motion to Dismiss by Laidback. SUPPLEMENTAL FACTS Since the Complaint was served on Laidback, who until June 13th, 2002, was co-counsel for Pocahontas Smith ["Pocahontas"], Plaintiff has learned (1) that it was Laidback who countersigned Pocahontas's Financial Statement dated 15 March 2002 [Exh. R, copy of certified copy of Financial Statement of 3/15/02], (2) that Laidback had the subject ABC appraisal in his office, (3) that Pocahontas saw the subject appraisal in Laidback’s office [Exh. S, Pocahontas's deposition, 5/13/02, p. 163], (4) that Defendant StupidButFamous misrepresented in State court that Pocahontas first saw the ABC appraisal attached to the Complaint of the instant action – although that was impossible because the Complaint for this action was being filed by Smith in this court perhaps merely an hour before the deposition of Pocahontas began on 13 May 2002 and was not served on Laidback until the next day.1 1 Laidback refers to Exhibit N attached to the Complaint.  In paragraph 34 of the Complaint, which reads:  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.  Plaintiff inadvertently identified the paragraph as being excerpted from Defendant StupidButfamous's report of 9 May 2002.  Then the wrong page was attached.  In actual fact, it was supposed to be StupidButFamous's report of 18 April 2002, which is attached hereto as Exh. T.  The paragraph and page numbers were correct. In his motion, Laidback evaded the truth of those facts, which he well knew [Laidback Motion at 7], to wit, that it was he who signed Pocahontas's March 15th Financial Statement [Exh. R, newly acquired copy of Financial Statement attached hereto] and that his client saw the subject appraisal in his office prior to her deposition on 13 May 2002.2SeeLaidback Motion at 3. Good faith required more . . . given that Smith averred in paragraph 30 of his Complaint that the Financial Statement given to Smith’s counsel was unsigned: 30. 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].   2 Smith's counsel requested from Laidback a copy signed by counsel and Laidback refused to provide it.  The file was also unaccessible, making access to the Financial Statement also impossible. After several hours on Wednesday 5 June 2002 and dealing with several people to retrieve the file from the judge's chamber, the Financial Statement was finally obtained.  In sum, the certified copy of the March 15th Financial Statement demonstrates that Laidback did, indeed, countersign and vouch for Pocahontas's falsities in it regarding the Pelham property and proves that he misrepresented to the court about material facts, to wit, that he committed fraud upon the court and attempted to commit fraud against Smith: Laidback knew that the fair market value ["FMV"] assigned by the appraiser was in actual fact less than the value he represented to the court as true and accurate.3 3 On the Financial Statement of 15 March 2002, Laidback lowered the FMV from $500,000 to $300,000, an amount $112,000 more than ABC's FMV of $188,000. That false value was to be used -- if Pocahontas, Merrill, Laidback, Mumbles, and StupidButFamous had their way -- by the court in distributing the property by the Probate & Family Court. For instance, were the Pelham property divided 50-50 between the couple and the FMV sworn to by Pocahontas and E. Chouteau Merrill in the 2001 Financial Statement used, Smith would have had to pay his wife $250,000 instead of $94,000, or $156,000 more than the appraised FMV of $188,000 for the entire property. And were the 15 March 2002 Financial Statement signed by Pocahontas and Laidback used, Smith would have had to pay Pocahontas $150,000 to buy her out, or $56,000 more than the $94,000 he would have had to pay had the ABC appraiser's FMV been used.  These acts were tantamount to an attempt at seizing Smith’s property, or a deprivation of his constitutional right to be free from seizure of his property and free from frivolous litigation. rather than the $94,000 he would have had to pay had the ABC appraiser's FMV been used. Jesionowski v. Beck, 937 F.Supp. 95, 105 (D.Mass. 1996). STANDARD OF REVIEW ln deciding a motion to dismiss, this court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. See, e.g., Leatherman v. Tarrant County Narcotics, I & C Unit, 507 U.S. 163 (1993); Monahan v. Dorchester Counseling Ctr., 961 F.2d 987,988 (1st Cir. 1992); Roth v. United States, 952 F.2d 611,613 (1st Cir. 1991). Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets." Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations 12 omitted). At a minimum, plaintiffs are "obliged to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Roth, 952 F.2d at 613. ARGUMENTS   1. Where there are compelling circumstances that point to the State behind Laidback's face, Laidback is a state actor for §1983 purposes. Our cases try to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not. . . . The judicial obligation is not only to "`preserv[e] an area of individual freedom by limiting the reach of federal law' and avoi[d] the imposition of responsibility on a State for conduct it could not control, . . . but also to assure that constitutional standards are invoked "when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." . . . If the Fourteenth Amendment is not to be displaced, therefore, its ambit cannot be a simple line between States and people operating outside formally governmental organizations, and the deed of an ostensibly private organization or individual is to be treated sometimes as if a State had caused it to be performed. Thus, we say that state action may be found if, though only if, there is such a "close nexus between the State and the challenged action" that seemingly private behavior "may be fairly treated as that of the State itself."[FN2]  FN2. If a defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action "under color of state law" for §1983 purposes. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).  Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295, 295 n. 2, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal cites omitted and emphasis supplied). This is such a case in which Attorney Laidback and the other natural defendants may be said to have acted under color of state law and are therefore state actors. The court in Brentwood continued: . . . We have, for example, held that a challenged activity may be state action when it results from the State's exercise of "coercive power," . . . when the State provides "significant encouragement, either overt or covert," . . . , or when a private actor operates as a "willful participant in joint activity with the State or its agents." . . . We have treated a nominally private entity as a state actor when it is controlled by an "agency of the State," . . . when it has been delegated a public function by the State, . . . , when it is "entwined with governmental policies" or when government is "entwined in [its] management or control." Brentwood, at 296 (internal cites omitted). Thus there can be no doubt that here the natural defendants, all officers of the court, were acting under color of law. For example, had Attorneys Laidback and Merrill simply prosecuted the divorce on behalf of Pocahontas Smith, they would arguably, as defendants contend, be merely private attorneys engaged in private litigation on their client's behalf. Tunheim v. Bowman, 366 F.Supp. 1395 (D.C. Nev. 1973). But in the divorce action, they chose to countersign Pocahontas's falsified Financial Statements. They did not have to do so under Supplemental Probate Court Rule 401. Signing by the attorney on the Financial Statement form is a voluntary vouching by an attorney for his or her client that the data on the form are true and accurate, but an attorney’s vouching on a Financial Statement is demanded by each and every Probate & Family Court throughout the Commonwealth.4Vouching is "impermissible conduct as any expression of belief which indicates that the [lawyer] is relying on information other than that which has been presented in court." . Patriarca v. United States, 402 F.2d 314, 321 (1st Cir. 1968). 4   “[I]mproper vouching occurs ‘if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the [trier of fact].’”  Com. v. Wilson, 427 Mass. 336, 352 (1998) (omitting citation).  In the Matter of Shaw,  427 Mass. 764 (1998) (respondent suspended for two years).   HGN Corp. v. Chamberlain, Hrdlicka, White, Johnson, 642 F.Supp. 1443 (N.D.Ill.1986) (firm held liable for misrepresentations made directly to a non-client where the primary purpose of the attorney-client relationship was to benefit or influence the non-client).  Cf. Kirkland Construction Company v. James, No. 932643C, 1994 WL 879780 * 2 (Mass.Super. 1984) (Cowin, J.) (“lawyers do not vouch for the probity of their clients when they draft documents reflecting their clients' promises, statements, or warranties"), citing Schatz v. Rosenberg, 943 F.2d 485, 495 (4th Cir.1991), cert. denied,  112 S.Ct. 1475 (1992).  Smith distinguishes the instant action from Schatz and Kirkland in that Laidback and Merrill willfully participated in joint activity with the State to make assurances on behalf of their client.  It was foreseeable that Smith was relying on Pocahontas’s Financial Statements being true. That rule, 401, explicitly requires only that each party to a divorce or separate support action sign, under the pains and penalties of perjury, that the financial data on the form are true and accurate. The line on which an attorney is to countersign appears to have been added to the form by the Probate & Family Court administrators, and to have no authority. These experienced counsel, in practice, sign it solely for the purpose of vouching improperly for their clients' truthfulness.5 5 Smith's counsel signs these forms because the clerks of the court demands -- albeit unlawfully -- that the attorney sign it, BUT she does not insert values for which she sees no paper -- with the exception of weekly expenses for items such as food, laundry, cleaning. documenting the truth and accuracy of the dollar values set out on the form by the client. Were these experienced counsel to argue that the Commonwealth has imposed their conduct upon them, that imposition would satisfy the state-action requirement. Rhode Island Assoc. of Realtors, Inc. v. Whitehouse, 199 F.3d 26 (1999), citing Lugar, 457 U.S. at 937 (stating that an alleged constitutional deprivation caused "by a rule of conduct imposed by the State" can satisfy the state action requirement).  In contrast to the cases cited by Laidback, which are explained in the margin6, the facts here are many and compel a finding that Mumbles be deemed a state actor. 6 The cases cited by Laidback are distinguishable factually from the instant case.  In Catz et al v. Chalker et al, 142 F.3d 279 (6th Cir. 1998), Catz and Chalker were attorneys and formerly married to one another.  One of Chalker's attorneys was sued by Catz under section 1983 for having a "clandestine, ex parte meeting between Karp and the chief Judge of the [ ] court," a meeting which he charged as billable time on his bill to Chalker.  Catz, at 288.  No facts of that meeting or the results of that meeting are memorialized in the opinion.  No evidence of a conspiracy is inferred.  No evidence of harm to Catz is memorialized.   In Polk County v. Dodson, 454 U.S. 312, 318 (1981), a public defender had been sued.  The public defender was deemed not a state actor.  In Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir. 1990), no facts whatsoever were given to support the conclusion of law.  In Lindley v. Amoco Production Co., 639 F.2d 671, 673 (10th Cir. 1981), the only infirmities were the excesses of the court order itself.  For instance, in the State divorce case, first Merrill and then Laidback voluntarily chose to vouch or countersign Pocahontas's Financial Statements, which they knew or should have known were false. And they did so on the line provided in the forms provided by the Probate & Family Court . . . although Rule 401 does not require the attorneys to sign. They were voluntarily misusing the power vested in them as officers of the court to vouch for what they knew was false. See Patriarca, 402 F.2d at 321 ("Rule 15 proscribes a lawyer from asserting a personal belief in his client's innocence or the justice of his cause"), citing Greenberg v. United States, 280 F.2d 472 (1st Cir. 1960) and cases gathered. They have benefitted handsomely from those acts.7 7 In this context, Pocahontas's counsel were the real parties in in-terest, See Gisbrecht v. Barnhart,  122 S.Ct. 1817, 2002 WL 1049193, 2002SCT.0000096 <http://www.versuslaw.com> par. 34 (2002).  In Gisbrecht, the plaintiffs sought Social Security disability benefits under 42 U.S.C. 405(g) and their attorneys requested fees under 42 U.S.C. 406(b), which authorizes fees pay-able from the successful party's recovery. Id. at 2002SCT.0000096 <http://www.versuslaw.com> par. 36.  The Supreme Court reversed the lower court denial of fees and determined that the real parties in interest were their attorneys, who sought to obtain higher fee awards. Id. at par. 36, 36 n. 6, 38.   And therefrom that act, they may be deemed as acting under color of law. Brown v. Chaffee, 612 F.2d 497, 501 (10th Cir. 1979).  Acting under color of state law as required by section 1983 is defined as the "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."  Id., quoting Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482 (1961) (quoting with approval from U.S. v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031 (1941)). It is reasonable to conclude that Laidback's and Merrill's signing the Financial Statements was but part of a scheme begun by Pocahontas and Merrill, continued by Laidback and Mumbles, further enabled by StupidButFamous, and still later enabled, if not joined, by Judge Lisa A. Roberts. The scheme is described in some detail under the next issue, and that description explains how Laidback and Merrill became entwined with a policy of the Probate & Family Court and became state actors. See Brentwood, at 296. Laidback's and Merrill's position as wife's counsel did not make their every action one under color of law, but where when they, by vouching for Pocahontas's dishonesty, misused the power granted them by the state did their action become state action. Brown, 612 F.2d at 501.  2. Under §1985(3), state action is not required to prove conspiracy, making it unnecessary to demonstrate that the defendant lawyers are state actors.   In Griffin v. Breckenridge, 403 U.S. 88, 104 (1971), after parsing the statute, at 96-98, and comparing it with "its companion statutory provisions" [403 U.S. at 98], the high Court concluded: An element of the cause of action established by . . . 42 U.S.C. 1983 [ ] is that the deprivation complained of must have been inflicted under color of state law. To read any such requirement into 1985(3) would thus deprive that section of all independent effect. Griffin, 403 The additional significance of the Griffin decision was that it added to the four elements in the statute a fifth one" to wit, "invidiously discriminatory motivation." Griffin, at 102. In that way, the Court in Griffin held, "[t]he conspiracy . . . must aim at a deprivation of the equal enjoyment of rights secured by the law to all." Id.  Twenty-five years later, in Aulson v. Blanchard, 83 F.3d 1, 4 (1st Cir. 1996), Judge Selya wrote: In all events, an unforced reading of Section(s) 1985(3) affords no principled basis for distinguishing between public and private conspiracies. Griffin 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. So whether the conspiracy complained-of here is private or public, no state action is required. The significance of the decision in Aulson was that invidious discrimination would be a requirement also in public conspiracies. The problem with the Court's conclusion in Aulson 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. The 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.  In sum, Smith contends not only that the defendant lawyers in the instant action need not be state actors, but that it should also be unnecessary to prove that they were motivated by invidious discrimination.  3. Where Smith pled sufficient facts to satisfy the particularity requirement by rule, Laidback's argument against Smith's §1985(3) conspiracy count must fail. Both the Federal and Massachusetts Rules of Civil Procedure 9(b) require that fraud and conspiracy to commit fraud be pled with particularity. Hayduk v. Lanna, 775 F.2d 441 (1st Cir. 1985). Even assuming arguendo, however, that Smith's count for fraud in the original Complaint was not pled with sufficient particularity, the failure to plead with particularity is not fatal, for Smith's complaint states the circumstances constituting fraud with the requisite particularity.  In Massachusetts, the court has stated, "The allegations indicate the statements made, the period in which they were made, their falsity and the defendant's knowledge of their falsity, as well as the plaintiff's detrimental reliance thereon." Schinkel v. Maxi-Holding, Inc., 30 Mass.App.Ct. 41, 48, (1991) cert. denied 409 Mass. 1104, citing Friedman v. Jablonski, 371 Mass. 482, 488-89 (1976).  And the First Circuit adds common sense: While Fed.R.Civ.P. 9(b) proscribes the pleading of "fraud by hindsight," we also cannot expect plaintiffs to plead "fraud with complete insight before discovery is complete. . . . We therefore look carefully for specific allegations of fact giving rise to a "strong inference" of fraudulent intent. Maldonado v. Dominguez, 137 F.3d 1, 9 (1st Cir. 1998), quoting Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1225 (1st Cir. 1996).  [E]ven as to conspiracies of a type not encompassed by Rule 9(b), this circuit has required that the complaint "allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy."  Hayduk, 775 F.2d at 444, quoting Kadar v. Milbury, 549 F.2d 230, 233 (1st Cir. 1977) (cite omitted).  With the standards in mind, Smith pled in his Complaint the substance of the facts summarized below: After countersigning Pocahontas's first Financial Statement, Merrill wrote Smith's prior counsel about having an appraisal of the property and sharing the cost of it. As a result of that letter and subsequent communication between the two counsel, Smith made the Pelham property available for inspection. Pocahontas's prior counsel did not share the final appraisal with either Smith's prior counsel or his successor counsel. In fact, once that appraisal came out lower than anticipated, if not desired, it was essentially deep-sixed, and Pocahontas and Merrill continued to sign and countersign, respectively, in order to assure, by the deception, the court and Smith that the data were true and accurate. SeeComplaint, ¶¶9-19.  In March 2001, Probate & Family Court Judge Nancy M. Gould precluded Smith from performing discovery and appointed Attorney StupidButFamous as Discovery Master. In July 2001, Merrill was nominated for a judgeship. In August she was approved by the Governor's Council, and Laidback and Mumbles became Pocahontas's successor counsel. Laidback and Mumbles continued the deception in March 2002. SeeComplaint, ¶¶19-32.  Pocahontas and her counsel demanded that Smith make accessible both the Pelham and Boston properties -- although both properties had already been appraised.  Countering Smith’s argument that Pocahontas and her counsel were deep-sixing the early appraisal to hide the fair market value determined by the appraiser, Pocahontas’s successor counsel, upon StupidButFamous's instruction, argued that the economy had changed post 9/11. Smith responded that even assuming arguendo that the economy had changed, the residences had not changed. To update the appraisals would require only new comparables and copies of the new tax bills to confirm the new assessments.  Notwithstanding his arguments, Judge Lisa A. Roberts, who had replaced Judge Gould on the case, denied Smith's motion to compel the earlier appraisal. And when Smith subpoenaed the ABC appraisal, Laidback and Mumbles opposed the motion, StupidButFamous recommended to the judge that she deny it, and Judge Roberts followed StupidButFamous's recommendation and denied it. See Complaint, ¶¶ 33-38. Given that there was no factual basis to deny Smith's motion to compel the ABC appraisal, the only reason for the denial was the gender discrimination running rampant throughout the Probate & Family Courts. See Complaint, ¶39. The aftermath of the debacle appears in the Complaint, ¶¶40-45. At the very least, if the fraud or conspiracy allegations are found to be deficient, Smith should have the opportunity to amend his pleading. Saltmarsh v. Saltmarsh, 395 Mass. 405, 412 (1985), citing Friedman v. Jablonski, 371 Mass. 482, 488 (1976). Also, Suarez v. Belli, 1997 WL 39918, *2 (Mass.Super. Jan. 13, 1997) (Hely, J.) (nonmovant allowed to write more definite amended complaint in accordance with Mass.R.Civ.P. 12(e). In any event, "`[a]ll pleadings shall be so construed as to do substantial justice.'" [Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 463 (1997), quoting Mass.R.Civ.P. 8(f)]. 4. Where Smith has pled sufficient facts to prove that Laidback was not truthful to the court and to opposing counsel, Smith has made a prima facie case of attempted fraud. Misrepresentation of the fair market value by Laidback is of sufficient significance to be deemed a fraud upon the court and deceit upon Smith.8 The misrepresentation was part of an "‘unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.’" Sahin v. Sahin, 435 Mass. 396, 405-406 (2001), (internal cites omitted). Pearson v. N.H. Mortgage Corporation , 200 F.3d 30, 37 (1st Cir. 1999), quoting Aoude v. Mobil Corp, 892 F.2d 1115, 1118 (1st Cir. 1989) (characterizing the First Circuit's concept of fraud upon the court). See also Simon v. Navon, 116 F.3d 1 (1st Cir. 1997) and Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) (expanding range of fraud to fraud committed by officers of the court).  8 Pocahontas and Merrill, by countersigning, misrepresented the assessed value as $300,000 while it was only $192,000, and the fair market value as $500,000 while the appraiser had estimated it to be $188,000.  The misrepresentation was, specifically, an attempt to defile the court itself so that the court would not be able to perform its impartial task of distributing the property fairly, in accordance with true evidence. Id. at 406, and cases cited. Matter of Neitlich, 413 Mass. 416, 423 (1992) (finding fraud on court where attorney made false statement "with intent to deceive a court"). Pearson, 200 F.3d at 35 (applying "colorable claim" test, rather than the "smoking gun" standard).  In fraud cases, the "colorable claim" standard is more appropriate than the "smoking gun" standard because claimants who have been denied both preliminary discovery and an opportunity to present witnesses may well be left with no meaningful access to direct evidence of fraudulent intent, notwithstanding an abundance of telltale circumstantial evidence. [FN2] In such circumstances, trial courts must be vested with adequate discretion to determine in the first instance whether the particular facts warrant discovery and post-discovery proceedings. Pearson, 200 F.3d at 35. "There is no room in the profession of the law for those who commit deliberate falsehood in court." Matter of Budnitz, 425 Mass. 1018, 1019 (1997), quoting Bar Ass'n of City of Boston v. Sleeper, 251 Mass. 6, 20, 146 N.E. 269 (1925), and citing also Matter of Sprei, 10 Mass. Att'y Discipline Rep. 246 (1994). "[A]n attorney's making false statements and presenting false evidence to a marital master in the course of representing a client" is an act which has resulted in a term suspension. Budnitz, 425 at 1019, citing Matter of Basbanes, S.J.C. No. 96-029 BD (July 18, 1996) (resulting in a term suspension). "[F]raud on the court . . . cannot complacently be tolerated." Matter of McCarthy, 416 Mass. 423, 431 (1993) quoting Hazel-Atlas Glass Co. v. Harford-Empire Co., 323 U.S. 238, 246, 64 S.Ct. 997, 1001 (1944). 5. Where 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, the fifth element, created by judicial fiat, Smith can meet all five elements of his conspiracy claim under 42 U.S.C. §1985(3). To prove conspiracy, like fraud, Smith must prove intent and other conditions of mind which may be averred generally. Hayduk, 775 F.2d at 443. Where "the record evidence demonstrates a colorable claim of [conspiracy to commit] fraud, the court may exercise its discretion to permit preliminary discovery and evidentiary proceedings." Pearson, 200 F.3d at 35, citing Hall v. Doering, 185 F.R.D. 639, 644 n. 4 (D.Kan. 1999) (fraud on the court).  "[I]n most fraud cases, ... plaintiffs rarely obtain possession of the 'smoking guns' ... until a lawsuit is filed and discovery of the defendant's internal records becomes available." Pearson at 35 n. 2, quoting Kuiper v. American Cyanamid Co., 913 F.Supp. 1236, 1245 (E.D.Wis.1996). Smith contends that he should be given the same opportunity for discovery and for presenting witnesses in the instant case. Holden v. Burlington Northern, Inc., 665 F.Supp. 1398, 1424 (D.Minn.1987) ("Discovery was permitted in order to give objecting counsel every opportunity to reveal that 'smoking gun' which would show that fraud and collusion had pervaded the settlement negotiations."). With "preliminary discovery and an opportunity to present witnesses," Smith would be able to gain "meaningful access to direct evidence of fraudulent intent." Pearson at 35.    6. Smith sufficiently pled has common law claims in Counts 3, 4, and 6.   Pleading. Mass.R.Civ.P. 8 prescribes notice pleading [G.L. c. 231, §7] for all counts in the Complaint with the exception of the fraud count. Under Rule 8(a)(1), notifying the defendants of the nature of the claim and the grounds relied upon is all that is required, making dismissal inappropriate. Mass.R.Civ.P. Reporter's Notes, citing Conley v. Gibson, 355 U.S. 41, 45 (1957). Given the nature of the fraud, viz, secrecy, nondisclosure, nonfeasance, the statement of the facts supporting fraud is not susceptible to being pled with more particularity than it was until discovery has progressed. "`Malice, intent, knowledge, and other condition of mind of a person may be averred generally'" Mass.R. Civ.P. 9b, second sentence, and Reporter's Notes--1973, citing Gabriel v. Borowy, 326 Mass. 667, 672 (1951). "All pleadings shall be so construed as to do substantial justice.'" Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 463 (1997), quoting Mass.R.Civ.P. 8(f). Count 3: Fraud by Omission or Nondisclosure. "In order to prove fraud, a plaintiff must show that the defendant made a false statement of a material fact, with knowledge of its falsity, in order to induce the plaintiff to act, together with a reliance by the plaintiff on the false statement to the plaintiff's detriment." Noonan v. FDIC, 50 Mass.App.Ct. 1102 (2000),citing Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982).  Financial Statements are not to be lightly disregarded [Edinburg v. Edinburg, 22 Mass.App.Ct. 199, 208 n. 18 (1986), cert. denied, 398 Mass. 1101 (1986)]: each party must sign the Statement under the pains and penalties of perjury and each party's attorney countersigns a certification that acts as a voucher for the truthfulness of the attorney's client and the accuracy of the financial information supplied by the client. 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 implied by the process. See Rood v. Newberg. 48 Mass.App.Ct. 185, 192 (1999). When Pocahontas and her attorneys signed and countersigned, respectively, Finan-cial Statements they knew to be neither true nor accurate, and overzealously op-posed Smith getting access to an appraisal which would prove both their know-ledge and intentional misrepresentations, they were attempting to defraud Smith. Laidback argues that he owed no duty to Smith, but duty is not an element of fraud. As noted above, reliance is. Here Smith relied on obtaining justice from the court. Where Laidback as well as the other defendants were committing a fraud upon the court and interfering with the court's ability to be make an impartial and just decision regarding the distribution of the couple's property, all the defendants were destroying the very fabric of that upon which Smith was relying to hold his trust. The court has recognized that "an attorney owes a duty to nonclients who the attorney knows will rely on the services rendered." Robertson v. Gaston Snow & Ely Bartlett, [404 Mass. 515,] 524 [cert. denied, 493 U.S. 894 (1989)].  Noonan, supra. Where Merrill had contacted Smith's prior counsel re sharing the service and cost of the first Pelham appraisal [Comp. Exh. A], she put herself into a fiduciary relationship with Smith. See McCarthy v. Landry, 42 Mass.App.Ct. 488, 490 (1997) (an attorney owes a duty of reasonable care to nonclients who the attorney knows will rely on the services rendered). Lamare v. Basbanes, 418 Mass. 274 (1994) (same); Spinner v. Nutt, 417 Mass. 549 (1994) (same). When Laidback and Mumbles took over the case from Merrill, they assumed her fiduciary obligation to Smith. Thus, Laidback and the others had to know that Smith was relying on the truthfulness of the representations regarding the fair market value supplied on the Financial Statements. See Miller v. Mooney, 431 Mass. 57 (2000) (attorney may owe duty to a nonclient who the attorney knows will rely on the services rendered). In Miller, the court said it was less likely to impose a duty [of reasonable care] on an attorney to a nonclient if there was a "potential for conflict that is determinative." Miller, at 63. Given, therefore, that Financial Statements are not to be lightly disregarded [Edinburg, supra] and that Financial Statements are not only to be signed under the pains and penalties of perjury by the parties, but are also countersigned by each respective counsel, Smith can reasonably assume that because they are supposed to be absolutely true and accurate, there is no potential for conflict.  In Matter of Finnerty, 418 Mass. 821 (1994), Attorney Finnerty was divorcing, and failed to disclose significant assets on his Financial Statement. For  that failure, he was suspended for six months from the practice of law. The court noted that "[he] deliberately did not inform his divorce attorney of his property interests in either [of his assets] to conceal those interests from him." Id. at 825.  Although there appears to be no Massachusetts case on the point of a divorce attorney knowingly signing a fraudulent Financial Statement, the court has stated,  "we cannot approve of any practice in which an attorney misleads a court." Matter of Palmer, 413 Mass. 33, 39, 594 N.E.2d 861 (1992). Were we to condone such conduct by an attorney, whether as a litigant or as counsel, "the integrity of the judicial process would be vitiated." Matter of Finnerty, 418 Mass. at 829.  Additionally, the repeated misrepresentations caused Smith additional expenses that were reasonably foreseeable as a possible result of the defendants intentional acts.  The defendants are responsible not only for their outright untrue written statements, but also for untruthfully declaring that the ABC appraisal did not exist [Exh. T]. Kozdras 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 from Powell v. Rasmussen, 355 Mass. 117, 118 (1969), in turn quoting from Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 404 (1888).  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, 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.  Count 4: Common Law Conspiracy. The elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages that are a direct result of those acts. Breach of a duty of loyalty satisfies the unlawful act element of a civil conspiracy claim. Com. v. Silanskas, 433 Mass. 678, 2001 WL 363524 at *7 (2001).  First, Pocahontas's counsel knew or or should have known that an appraisal was done in July and August 2000. Their conspiratorial purpose was to increase the appraised fair market value in order to increase the amount Smith would have to pay in order to buy her out. Given that statistically and historically, males are deprived of their rights to equal protection under the modern domestic-relations laws, generally, and under c. 209A, specifically, it was a plan easy to fulfill.  They agreed to sign and countersign the Financial Statements. And the withholding of the first Pelham appraisal, known now as the ABC appraisal, the opposition to Smith's motion to compel that appraisal, and their motion to quash the use of the ABC appraisal in any court proceeding were the overt acts done by the defendants in concert with one another.  "A conspiracy may [also] be demonstrated by circumstantial evidence." Moore v. The Marketplace Restaurant, Inc. 754 F.2d 1336 (7th Cir. 1985) (private parties provided false information to arresting officer), citing Hanrahan v. Hanrahan, 600 F.2d 600 (7th Cir. 1979).  Further, under Massachusetts law, there are two causes of action called "civil conspiracy." The second type is what, Smith suggests, is akin to the facts here. This second type of civil conspiracy is more akin to a theory of common law joint liability in tort. It is explicitly recognized in Massachusetts law. See Gurney v. Tenney, 197 Mass. 457 (1908); see also Phelan v. Atlantic Nat'l Bank, 301 Mass. 463 (1938) ("[A]verment of conspiracy does not ordinarily change nature of cause of action [sounding in tort] nor add to its legal force.") …. [T]he concept is invoked to support liability of one person for a tort committed by another. For liability to attach on this basis, there must be, first, a common design or an agreement, although not necessarily express, between two or more persons to do a wrongful act and, second, proof of some tortious act in furtherance of the agreement....  Where two or more persons act in concert, each will be jointly and severally liable for the tort. See id.; see also New England Foundation Co. v. Reed, 209 Mass. 556 (1911) ("The gist of a civil action of this sort is not the conspiracy, but the deceit or fraud causing damage to the plaintiff, the combina-tion being charged merely for the purpose of fixing joint liability on the defendants."). According to the Restatement: For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him....  . . . Payton v. Abbott Labs, 512 F.Supp. 1031, 1035 (D.Mass.1981) ("The concert of action theory in Massachusetts tracks §876(a) of the Restatement.").  Aetna Casualty Surety Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994). Moreover, no preconceived plan or prior contact is necessary to plead conspiracy. When Pocahontas encouraged her counsel to countersign her falsified Financial Statements, Pocahontas and her counsel were state actors as contemplated by §1983. Cf.Lugar, 457 U.S. at 926. Count 6: intentional Infliction of Emotional Distress. "Extreme and outrageous conduct is not required if the emotional distress resulted from the commission of another tort. American Velodur Metal, Inc. v. Schinabek. 20 Mass.App.Ct. 460, 470-471 (1985). With that said, 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. Defendants' conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community. Their actions were the cause of Smith's distress. Smith is a reasonable man. The emotional distress sustained by Smith was severe and of a nature that no reasonable man could be expected to endure. Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976). At the risk of repetition, Smith repeats one proposition which Laidback missed in his brief: "Extreme and outrageous conduct is not required if the emotional distress resulted from the commission of another tort." American Velodur Metal, Inc. v. Schinabek, 20 Mass.App.Ct. 460, 470-471 1985), cert. denied, 396 Mass. 101 (1985), cert. denied 475 U.S. 1018 (1986). Smith expands on the proposition here. This is not a case of recovery for the tort of intentional infliction of emotional distress as in Agis v. Howard Johnson Co., 371 Mass. 140 (1976), or of negligent causing of such distress. See Payton v. Abbott Labs, 386 Mass. 540 (1982). Recovery has been allowed in Massachusetts for wrongful use of process including "injury to ... the feelings of the injured person." Titcomb v. Bay State Grocery Co., 254 Mass. 599, 601 (1926). See Malone v. Belcher, 216 Mass. at 211-212. There seems to us to be a clear distinction between (a) mental and emotional distress caused by the commission of an independent and separate tort recognized at common law, and (b) distress constituting the separate tort recognized fairly recently in the Agis case, 371 Mass. at 142-146, and the tort discussed in the Payton case, 386 Mass. at 548-557. See the thorough opinion in George v. Jordan Marsh Co., 359 Mass. 244, 249-256 (1971).  American Velodur, 20 Mass.App.Ct. at 470. The George case reveals the rationale: The emotional distress does not come as a result where there was an intention to cause mental distress, the emotional distress arises out of another tort against the injured party. George. For instance, as in Titcomb v. Bay State Grocery Co., 254 Mass. 599, 601 (1926), where the emotional distress arose out of the wrongful use of process of attachment, which caused damages to property and injury to the reputation and feeling of the injured person, or as in Malone v. Belcher, 216 Mass. 209 (1913), where a creditor attached property not to secure his claim, but to prevent the conveyance of the property to someone else.  Notwithstanding that extreme and outrageous conduct is not an element Smith must satisfy, given the circumstances of this case, even were the court to assume that he did have to satisfy the second element, he could, under Agis v. Howard Johnson Co., 371 Mass. 140, 141 (1976) and Boyle, infra, both being cases in which the plaintiffs recovered emotional-distress damages for events less severe than those encountered by Smith.  And 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 personified in the officers of the court, and severe emotional trauma.      Respectfully submitted,.   PLAINTIFF JOHN SMIITH,   By his attorney,  Barbara C. Johnson 17 June 2002             Barbara C. Johnson, Esq.                                  6 Appletree Lane                                 Andover, MA 01810-4102                                 978-474-0833