Posts tagged "1102015"

Mooney v. Warren (Lawyers Weekly No. 11-020-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   14-P-523                                        Appeals Court   JEANNE SWEENEY MOONEY  vs.  SETTI D. WARREN. No. 14-P-523. Middlesex.     December 4, 2014. – March 5, 2015.   Present:  Cohen, Fecteau, & Massing, JJ. Practice, Civil, Interlocutory appeal.       Civil action commenced in the Superior Court Department on September 6, 2013.   A motion to dismiss was heard by Dennis J. Curran, J.     Angela Buchanan Smagula, Assistant City Solicitor, for the defendant. Cary Gianoulis for the plaintiff.      FECTEAU, J.  The defendant, Setti D. Warren, appeals from an order of a judge of the Superior Court that denied his motion, filed pursuant to Mass.R.Civ.P. 12(b)(6) and (9), 365 Mass. 754 (1974), to dismiss the plaintiff’s complaint.  His motion claimed that a prior order in the Federal court that denied the plaintiff’s motion to amend her complaint to add claims there against the defendant in his individual capacity barred the plaintiff’s claims here as res judicata.  Because we consider his appeal premature, we dismiss it. Background.  In brief, on or about March 15, 2013, the plaintiff, Jeanne Sweeney Mooney, brought a multiple count complaint in the United States District Court for the District of Massachusetts against Warren, in his official capacity as the mayor of the city of Newton, and others, in which she alleged conspiracy and deprivation of civil rights pursuant to 42 U.S.C. §§ 1983 and 1985, as well as numerous pendent State law claims, all in connection with certain events alleged while Mooney worked with the Newton police department. Mooney moved to amend her complaint to include counts against Warren in his personal capacity on August 19, 2013; this motion, opposed by the defendants in that action, was denied on September 4, 2013.[1]  On September 6, 2013, Mooney filed her complaint in Superior Court alleging the same claims she had sought to add to the Federal complaint.  On October 4, 2013, Warren filed a motion to dismiss on res judicata grounds, which was heard on January 9, 2014.  On January 30, 2014, a judge of the Superior Court issued a memorandum of decision and order, denying the motion in its entirety.  This appeal followed. Discussion.  We need not reach the merits of the appeal because Warren has improperly filed an appeal from an interlocutory order.  See Brum v. Dartmouth, 428 Mass. 684, 687 (1999) (denial of motion to dismiss is an […]


Posted by Massachusetts Legal Resources - March 5, 2015 at 5:00 pm

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