Former Chairman of Redevelopment Board’s Motion for Relief from Judgement Denied: Loreti v. Tulimieri


Loreti v. Tulimieri, 2016 WL 5870960 (Mass. App. Ct. 2016) 

In February, 2012, the plaintiff, a resident of Arlington and former Chairman of the Arlington Redevelopment Board (ARB), filed a Complaint in Middlesex Superior Court against the Town and two former Town officials – former Town Counsel and the former Chairman of the Arlington Zoning Board of Appeals (ZBA) – for a variety of slights he allegedly endured as a member of the ARB. The plaintiff alleged the defendants:

  • interfered with his right of free speech by means of threats, intimidation and coercion in violation of the Massachusetts Civil Rights Act;
  • were liable in tort for negligent and intentional infliction of emotional distress and for defamation; and,
  • interfered with the plaintiff’s right to hold public office as protected under the Massachusetts Declaration of Rights.

The plaintiff also brought two Counts for relief under federal law for an alleged conspiracy to violate plaintiff’s civil rights and for the alleged violation of plaintiff’s equal protection rights under the Fourteenth Amendment.  Specifically, the plaintiff alleged that, as an ARB member, he raised questions regarding unnamed land development proposals subject to ARB review, filed “complaints” against Town Counsel, and raised inquiries about relationships between Town officials and the entities they regulate, and about potential conflicts of interest relating to unspecified land development proposals, or the complaints he allegedly filed against Town Counsel.  The plaintiff alleged that, because he engaged in such protected activity, the defendants retaliated against him by conspiring to persuade state officials to revoke his appointment to the ARB, and falsely accused him of violating the law and of being unfit to serve on the Arlington Redevelopment Board.

The defendants subsequently removed the case to the United States District Court for the District of Massachusetts and moved to dismiss all counts of the plaintiff’s Complaint for failure to state a claim upon which relief can be granted.  United States District Court Judge William Young allowed defendants’ motions in part by dismissing plaintiff’s federal claims and remanding his state law claims to the Superior Court. Following the exchange of discovery, the defendants filed two Motions for Summary Judgment on plaintiff’s remaining state law claims – one on behalf of the Town and individual defendants in in their official capacities, and the other on behalf of the individual defendants in their individual capacities.

The Superior Court (Wilkins, J.) issued a 22-page Memorandum of Decision and Order allowing defendants’ Motions for Summary Judgment in their entirety. The Superior Court then entered a final judgment in the defendants’ favor. The plaintiff neither moved for reconsideration of the ruling under Superior Court Rule 9D, nor filed a timely Notice of Appeal from the final judgment within thirty days.

Over six months later, however, the plaintiff moved for relief from judgment under Mass. R. Civ. P. Rule 60(b), based on a claim of “newly discovered evidence.”  The Superior Court (Wilkins, J.) denied plaintiff’s Motion for Relief from Judgment without a hearing, ruling that all of the plaintiff’s arguments were available in time to file a direct appeal from the Final Judgment. Moreover, the plaintiff failed to meet the “more demanding test” of Mass. R. Civ. P. 60: specifically, the Superior Court rejected plaintiff’s “newly discovered evidence” argument, ruling that “the facts in question were known or knowable long before the Summary Judgment motion was argued and, in any event, concerned acts taken by a non-party after defendant Rice left office.”  Plaintiff subsequently filed a Notice of Appeal.

The Appeals Court agreed with the defendants and the Superior Court that “all of the plaintiff’s issues raised in his motion were available in time to file a direct appeal,” and the plaintiff had not met the abuse of discretion standard required for a Rule 60(b) motion.  The Appeals Court further held that the plaintiff had not demonstrated the existence of evidence, discovered since the judgment, which could not have been discovered earlier by the exercise of due diligence.  In addition, the Appeals Court agreed with the Superior Court that the judgment was not “void” for purposes of Rule 60, as the plaintiff participated in all stages of the matter; the Superior Court gave the plaintiff ample notice and an opportunity to be heard; and did not err in denying the plaintiff’s Rule 60(b) motion.  The Appeals Court affirmed the Superior Court’s Order denying plaintiff’s Motion for Relief from Judgment.


John J. Davis 


John M. Wilusz