ROBERT M.A. NADEAU & Another v. NANCY MADORE PRATT. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1267
ROBERT M.A. NADEAU & another1
vs.
NANCY MADORE PRATT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Engaged in a Maine civil action, the plaintiffs, Robert
M.A. Nadeau and the Committee to Re-Elect Judge Robert Nadeau
(Nadeau), filed a complaint in the Massachusetts Superior Court
against the defendant, Nancy Madore Pratt (Pratt), seeking to
compel a deposition. Pratt filed a counterclaim and amended
counterclaim (counterclaims) alleging abuse of process, and
Nadeau filed two motions to dismiss. Two different judges
denied Nadeau's motions to dismiss the counterclaims. Following
two jury trials on the abuse of process counterclaims, a second
jury awarded Pratt damages exceeding $170,000, and Nadeau
appealed. Because Nadeau's motions to dismiss pursuant to Mass.
1 Committee to Re-Elect Judge Robert Nadeau.
R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), should have been
allowed, we vacate the judgment.
Background. We distill a lengthy procedural background to
the essential points. Robert Nadeau served as an elected judge
in Maine. Following an election defeat on November 8, 2016,
Nadeau filed a civil complaint in Maine against Travis Lovejoy
(Maine litigation). In connection with the Maine litigation,
Nadeau desired to take the deposition of Pratt, who resided in
Massachusetts. After an agreement on the deposition could not
be reached, Nadeau filed a complaint against Pratt on April 10,
2017, in the Superior Court pursuant to G. L. c. 223A, § 11.
Under that statute, a Massachusetts judge "may order. . .
testimony . . . for use . . . outside [the] commonwealth." Id.
On May 4, 2017, Pratt filed a counterclaim that alleged
Nadeau has been a party in over twenty lawsuits in the last
decade, has sued Pratt on two prior occasions, and "continues to
use his law license and all the trusts that come with it, to
terrorize people." She claimed that the only purpose in prior
litigation has been harassment. Pratt asked that Nadeau be
required to submit all questions in writing and obtain judicial
approval before Pratt is required to respond. She also sought
sanctions for the time spent in responding to Nadeau's request
for a deposition.
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On August 30, 2017, Nadeau filed a motion to dismiss the
counterclaims. Citing Mass. R. Civ. P. 12 (b) (6), he argued
that the first counterclaim "essentially sounds in the nature of
an abuse of process claim and fails to state a claim upon which
relief can be granted." He further argued that Pratt "is unable
to sustain an abuse of process claim at this time, if ever."
Nadeau supplemented the record with a letter rogatory signed by
a Maine Superior Court judge who authorized the deposition of
Pratt and requested assistance of Massachusetts judges: "The
justices and judges of the Courts of the states in which those
deponents reside are hereby requested to facilitate the taking
and completion of those depositions to the extent their
assistance may be required." Nadeau also moved to dismiss
Pratt's counterclaims pursuant to the anti-SLAPP statute, G. L.
c. 231, § 59H (strategic litigation against public
participation).
On November 17, 2017, the first Massachusetts judge
dismissed Nadeau's complaint seeking to compel the deposition
and denied Nadeau's motions to dismiss the counterclaim. Nadeau
did not appeal the denial of the anti-SLAPP special motion to
dismiss.
Nadeau filed a motion for reconsideration and a request to
report a question to the Supreme Judicial Court. He argued that
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the dismissal of his complaint and the denial of his motions to
dismiss are inconsistent with Mass. R. Civ. P. 26 (b) (1), 365
Mass. 772 (1974). He asserted, "The scope of discovery is
broad, by rule, with the clear purpose of enabling parties in
litigation to obtain information in the full and fair
preparation of parties' cases." He emphasized that depositions
"are a general right of parties in litigation, and a respected
means of promoting the acquisition of relevant information in
aid of due process, namely, a full and fair trial." The first
judge denied this motion in an endorsement order.
In the meantime, Pratt filed an amended counterclaim and
alleged a long history of Nadeau initiating baseless litigation
against Pratt and others for the purpose of harassment. Pratt
further alleged that the request for the deposition was
"improper" and constituted an "illegal attempt to compel a
'witness' to incriminate herself." Pratt also referenced a book
in which she detailed Nadeau's litigation tactics that resulted
"in a punitive effect for his opponents whether he wins or
loses." Pratt asserted that Nadeau is "well known for his
excessive pleadings, misrepresentations and abuses of the
discovery process." Pratt sought the denial of the request for
a deposition, a finding that Nadeau acted in bad faith, and a
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sanction against Nadeau for sixty-four hours of work Pratt
expended in her pro se opposition.
In response to the amended counterclaim, Nadeau filed a
second motion to dismiss under Mass. Civ. P. R. 12 (b) (6), for
failure to state a claim. He disputed Pratt's allegations but
argued that even if the allegations were true and he harbored an
"ulterior motivation" to conduct a deposition, "his effort to
seek this Court's authorization to depose her relative to the
Maine litigation" cannot "support an abuse of process cause of
action." The first judge took no action on the second motion to
dismiss. One and one-half years later, on June 21, 2019, on the
eve of trial, a second judge denied Nadeau's second motion to
dismiss. Following a retrial on the issue of damages, a second
jury returned a verdict in favor of Pratt, and a judgment
entered exceeding $170,000. Nadeau filed a timely notice of
appeal.
Discussion. In reviewing whether a complaint states a
claim under Mass. R. Civ. P. 12 (b) (6), "we accept as true the
allegations in the complaint, draw every reasonable inference in
favor of the plaintiff, and determine whether the factual
allegations plausibly suggest an entitlement to relief under the
law." Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456,
457–458 (2017). A claim for abuse of process is properly
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dismissed where "there could be no liability as a matter of
law." Cuddy v. Kueker, 7 Mass. App. Ct. 896, 897 (1979). "We
review the denial of a motion to dismiss de novo." Pettiford v.
Branded Mgt. Group, LLC, 104 Mass. App. Ct. 287, 290 (2024).
"[T]raditionally, discovery activities have not provided
grounds for abuse of process actions in Massachusetts. Cases
recognizing abuse of process claims have been limited to three
types of process: writs of attachment, the process used to
institute a civil action, and the process related to bringing
criminal charges" (citations omitted). Alphas Co. v. Kilduff,
72 Mass. App. Ct. 104, 115 (2008). An "abuse of process claim,
aimed at curtailing discovery activities, would be inconsistent
with the spirit of Mass. R. Civ. P. 26 (b) (1), 365 Mass. 772(1974), which affords broad latitude in the discovery of
relevant information and is not limited to the issues raised in
the pleadings or to the merits of the case." Id. at 116. See
Sullivan v. Chief Justice for Admin. & Mgt. of Trial Court, 448
Mass. 15, 33 n.11 (2006) ("discovery, by its nature, is quite
broad"); Carr v. Howard, 426 Mass. 514, 528 (1998) (scope of
discovery "is broad"); Tannenbaum v. Grady, 413 Mass. 717, 718
(1992) ("spirit of full discovery promoted by the Massachusetts
Rules of Civil Procedure").
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Accepting the allegations in the counterclaims as true, we
conclude that Pratt lacked any "entitlement to relief under the
law" on an abuse of process cause of action in the context of a
discovery dispute. Barbuto, 477 Mass. at 458. Nadeau filed his
complaint against Pratt in Massachusetts for the purpose of
obtaining "[j]udicial assistance," Matter of a R. I. Select
Comm'n Subpoena, 415 Mass. 890, 895 (1993), in securing
deposition "testimony . . . for use . . . outside this
commonwealth," G. L. c. 223A, § 11, in the pending Maine
litigation. The animating purpose of the statute is comity that
promotes respect for foreign jurisdictions, encourages
reciprocal assistance, and facilitates the administration of
justice. By invoking the statute and seeking judicial
assistance in obtaining the deposition testimony of Pratt,
Nadeau attempted to employ one of many discovery tools made
available to all civil litigants. See Mass. R. Civ. P. 30, as
appearing in 489 Mass. 1401 (2022). While protective orders
relating to such discovery may always be sought, Mass.
R. Civ. P. 26 (c), as amended, 474 Mass. 1401 (2016), Pratt did
not have an independent cause of action for abuse of process.
See Alphas, 72 Mass. App. Ct. at 115-116. Pratt's counterclaims
for abuse of process necessarily lacked an "entitlement to
relief under the law." Barbuto, supra at 458. An abuse of
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process claim is properly dismissed where, as here, "there could
be no liability as a matter of law." Cuddy, 7 Mass. App. Ct. at
897. Therefore, Nadeau's motions to dismiss under Mass. R. Civ.
P. 12 (b) (6) should have been allowed.
Conclusion. The judgment in favor of Pratt on her
counterclaims is vacated, and the orders denying Nadeau's
motions to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6) are
reversed. The case is remanded to the Superior Court for entry
of a judgment dismissing Pratt's counterclaims with prejudice.
The appeal from the order dismissing Nadeau's complaint to
compel deposition testimony is dismissed, not on the merits but
because it is moot given the termination of the underlying Maine
litigation. Nadeau's request for an award of costs is denied.
So ordered.
By the Court (Blake, Walsh &
Hodgens, JJ.2),
Clerk
Entered: October 22, 2024.
2 The panelists are listed in order of seniority.
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