Ellis E. v. Finn F.

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17-P-560 Appeals Court
17-P-1479

ELLIS E. vs. FINN F.1 (and a companion case2).

Nos. 17-P-560 & 17-P-1479.

Middlesex. December 4, 2018. - November 8, 2019.

Present: Meade, Agnes, & Englander, JJ.

Civil Harassment. Harassment Prevention. Protective Order.

Complaint for protection from harassment filed in the
Superior Court Department on June 8, 2016.

The case was heard by Elizabeth M. Fahey, J.

Michael R. Byrne & Robert J. Cordy for the defendant.
Ellis E., pro se.
Daniel J. Cloherty for President and Fellows of Harvard
College.

AGNES, J. The defendant and his employer, Harvard

University (university), appeal from civil harassment prevention

1 The parties' names are pseudonyms.

2 The companion case is between the same parties.
2

orders issued pursuant to G. L. c. 258E, § 3 (a).3 This case

presents another opportunity for us to clarify the requirements

for obtaining relief under that statute,4 as well as the scope of

relief that is available. The plaintiff was a fifth-year

graduate student in the Ph.D. program in the biological and

biomedical sciences program (BBS program) at the university.

The defendant is a professor and the director of the plaintiff's

research laboratory (lab) at the university.

The case involves the plaintiff's relationship with the

defendant and other lab members. The plaintiff sought a c. 258E

harassment prevention order against the defendant in June of

2016, alleging a series of actions described more fully in the

discussion section, infra. In August of 2016 a Superior Court

3 As a preliminary matter, the plaintiff argues that the
university is a nonparty that does not have standing to appeal.
As discussed infra, however, the judge purported to add the
university as a party and used the plaintiff's complaint for
protection from harassment to impose obligations on the
university. Under these circumstances, the defendant's employer
certainly has standing to appeal. See Corbett v. Related Cos.
Northeast, 424 Mass. 714, 718 (1997) (even nonparties have
standing to appeal if they have "a direct, immediate and
substantial interest that has been prejudiced by the judgment,
and [have] participated in the underlying proceedings to such an
extent that [they have] intervened 'in fact'").

4 As we have previously noted, "[O]ur appellate courts have
repeatedly held in appeals from issuance of orders under c. 258E
that conduct that might be considered harassing, intimidating,
or abusive in the colloquial sense" is not sufficient to support
a harassment prevention order. A.R. v. L.C., 93 Mass. App. Ct.
758, 761 (2018).
3

judge found that the defendant had met the standards for

harassment under G. L. c. 258E, and entered a harassment

prevention order against him; in addition, the judge ordered

that the plaintiff "immediately be fully restored to his

position and research . . . with all [his] assistance,

equipment, and supplies." Thereafter the judge entered six more

orders directed to the plaintiff's relationships with the

university, culminating in an order that the university, among

other things, "vacate" the plaintiff's withdrawal from the

university and "restore" the plaintiff's status as a graduate

student. Because the evidence does not support the conclusion

that the plaintiff was harassed by the defendant, as defined by

c. 258E and subsequent case law, and because the expansive

relief ordered by the Superior Court judge far exceeded that

authorized by the statute, we vacate the harassment prevention

orders.

1. Background. a. Facts. There are two overarching but

interrelated factual narratives. The first is that on March 10,

2016, the plaintiff filed a confidential complaint with the

president of the university alleging research misconduct by the

defendant and other lab members. The second is that at roughly

the same time, if not before, the plaintiff's relationships with

at least some of his fellow lab members became acrimonious,

which eventually led to serious disruptions within the lab.
4

As to the research misconduct complaint, the plaintiff

alleged the knowing publication of false data by the defendant

and two other Ph.D. candidates. In accordance with the

university's process for investigating such complaints, two

university officials met with the plaintiff on March 25

concerning his allegations. The defendant did not become aware

of the complaint until May 4, when university officials advised

him that he was the subject of an inquiry into allegations of

research misconduct. Although the defendant was not advised

that the plaintiff was the complainant, the defendant suspected

that the complainant was the plaintiff. The university's

investigation did not substantiate the plaintiff's allegations;

this fact was communicated to the defendant on or around May 16.

From March through June of 2016, the plaintiff's

relationship with the lab, and the lab members, deteriorated

significantly. The plaintiff wrote an e-mail to the defendant

on April 6, 2016, in which he described hostile interactions

between himself and three different lab members, which at that

point had been occurring for at least several weeks. The

plaintiff's complaints included that other lab members had

called him "immoral" and a "hypocrite," and that he had been

accused both of lying about a potential collaboration and of

trying to steal a lab member's research assistant. The

plaintiff also stated in this e-mail that some lab members had
5

stopped communicating with him altogether. On April 21, the

plaintiff and the defendant met with a university ombudsperson

to discuss ways to alleviate the tensions. The meetings were

initially considered positive and plans were made for a future

meeting between the plaintiff and the other lab members, but the

plaintiff later declined a joint meeting, and relations did not

improve.

In granting the c. 258E order, the judge found five acts of

harassment. The first two were based on the following. In

early May, around the time when the defendant definitively

learned of the research misconduct allegations, the defendant

met with two of the lab members whom the plaintiff had accused

of acting hostile toward him; both of these lab members also had

been accused of involvement in the defendant's research

misconduct. The judge found that on May 10, at the defendant's

suggestion, the two lab members spoke to William Lensch, the

executive director of the department of stem cell and

regenerative history, and expressed concerns about the

plaintiff's behavior -- including concerns regarding the

plaintiff's welfare, their personal safety, and the potential

sabotage of their work. The judge found that the defendant's

suggestion that the lab members speak with Lensch was the first

act of harassment. Later on May 10, the defendant spoke with

Lensch regarding the plaintiff, and expressed his own concerns
6

about the plaintiff's erratic behavior. The judge found that

this conversation was the second act of harassment. The judge

also found that these acts were done maliciously with the goal

of intimidating and discrediting the plaintiff.

These May 10 conversations with Lensch started a series of

communications among several university administrators, and

culminated in a meeting between the plaintiff; David Cardozo,

the associate dean for graduate studies; and Susan Dymecki, the

head of the BBS program.5 The meeting was reportedly productive,

but any positive effects were short lived. On May 18, the

plaintiff sent an e-mail to the defendant and ombudsperson

Melissa Brodrick, in which the plaintiff requested that future

meetings with his fellow lab members be supervised, that he

receive lab mice for his experiments, and that he receive

additional research assistants. The defendant believed that the

tone of the e-mail was confrontational. He informed Cardozo and

Lensch of the e-mail and indicated he was still concerned about

the plaintiff's behavior. The plaintiff, Cardozo, and Dymecki

had another meeting on May 20 to discuss the situation -- plans

were made to meet again on May 25.

5 Lensch relayed the reports to David Cardozo. Cardozo
reached out to several more people to inquire about the
plaintiff's mental health, including the lab administrator,
Harvard University health services, and the defendant.
7

On May 21, the plaintiff stopped coming to the lab

altogether; he canceled the May 25 meeting with Dymecki and

Cardozo, he canceled a meeting with the defendant, and he

canceled an appointment with his psychiatrist at the university

health services (HUHS). Following the cancelations, Dymecki and

Cardozo contacted the plaintiff out of concern for his welfare.

The plaintiff informed them that he was "alright," but that he

would only be "dealing with the [o]ffice of the [p]resident"6 for

now. He requested that Dymecki and Cardozo refrain from

contacting him.

The judge found that the defendant's actions on June 3,

2016, formed the basis of the third, fourth, and fifth harassing

acts against the plaintiff. Over the course of the afternoon on

June 3, the defendant reached out to Dymecki and others to

express alarm at the plaintiff's "hostile and erratic behavior."7

That evening at 8:27 P.M., after deliberating as to the best

course of action, the defendant suggested to Dymecki that they

should "get advice from a mental health professional." The

judge found that this suggestion from the defendant to Dymecki

was the third act of harassment. After Dymecki contacted HUHS

On May 25, the plaintiff sent an e-mail directly to the
6

president of the university, Drew Faust, recounting the tensions
with the defendant and others.

The defendant also contacted Lensch, Cardozo, and Brodrick
7

on June 3.
8

at the defendant's request, a clinician from HUHS called the

defendant twice on the evening of June 3. The defendant told

the HUHS clinician that the plaintiff was exhibiting increased

paranoia and ideation and that the plaintiff had abruptly

canceled several meetings, and the defendant recounted the

plaintiff's conflicts with other lab members. The judge found

these two telephone calls to be the fourth and fifth harassing

acts.

At 11:15 P.M. on June 3, Dr. Ayse Atasoylu, a physician at

HUHS, authorized the temporary involuntary hospitalization of

the plaintiff pursuant to G. L. c. 123, § 12. That

authorization was based on information provided to Atasoylu by

the HUHS clinician who spoke with the defendant earlier in the

evening. Atasoylu never examined or spoke with the plaintiff

prior to authorizing the § 12 hospitalization. In the early

morning hours of June 4, three police officers arrived at the

plaintiff's home and brought the plaintiff to Cambridge Hospital

against his wishes. The plaintiff was examined and released

several hours later after physicians concluded that he was not

at "imminent risk for self-harm." On June 6, following his

release from the hospital, the plaintiff was barred from

returning to the lab.

b. Procedural history. The plaintiff filed a c. 258E

complaint against the defendant on June 8, 2016, based largely
9

on the G. L. c. 123, § 12, application that required the

plaintiff to undergo a mental health evaluation and his

subsequent expulsion from the lab. Following two hearings on

June 27 and July 6, 2016, the judge found that the defendant

engaged in the five aforementioned acts of harassment. The

judge thus entered an order on August 26, 2016, that required

the defendant "to stay at least [one hundred] feet away from

plaintiff and have no contact, direct or indirect, with

plaintiff." The order further provided that "[p]laintiff is to

immediately be fully restored to his position and research in

the . . . [l]ab with all the assistance, equipment, and supplies

he had on March 10, 2016."

The difficulty in following the judge's order soon became

apparent, and led to a lengthy and convoluted procedural

history. In particular, the August 26 order effectively barred

the defendant from engaging in his profession, as he could not

access his lab (or his office and classroom, which were adjacent

to his lab). Twice the defendant moved to vacate or modify the

order, arguing that his actions did not amount to harassment and

that the scope of the order was unreasonable.8 The university

also filed a memorandum as amicus curiae, arguing that the

8 The defendant also sought to stay the order pending
appeal.
10

August 26 order was improper because it imposed obligations on

the university, which was not a party to the case.

On September 9, 2016, the judge issued the first of several

modifications to the original order, allowing the defendant to

work in his office and an adjacent classroom, but providing no

additional relief. The parties were unsatisfied with the

modification, and so numerous additional hearings were held

between September and November in an attempt to craft a workable

order. First, on October 4, the judge tried moving the

plaintiff to a different lab. Then, on October 17, the judge

reversed course and ordered the plaintiff to remain in the

defendant's lab, and under the defendant's direct supervision.9

Also on October 17, the judge removed the one hundred foot stay-

away order and tried to impose a schedule on the parties' lab

access -- allowing the defendant to access the lab between 7

A.M. and 10 A.M., Monday through Friday, and preventing the

plaintiff from accessing the lab during those times. On

December 13, the judge reversed course again, and removed the

provision limiting the defendant's access to the lab,

reinstituted the one hundred foot stay-away order, and imposed

additional requirements on the university, including requiring

9 The judge also ordered that a third party supervise any
necessary meetings between the plaintiff and the defendant.
11

the university to provide the plaintiff with two research

assistants and the mice necessary to complete his research.

The defendant filed a motion for a partial stay of the

December 13 revised order with a single justice of this court.

On January 30, 2017, the single justice vacated the first

paragraph of the December 13, 2016 revised order and

reintroduced the provision restricting the defendant's lab

access to from 7 A.M. to 10 A.M. on weekdays.10 The case then

returned to the Superior Court.

In the months that followed, the plaintiff failed to

satisfy a number of the university's academic requirements, such

as meeting with his dissertation advisory committee (DAC) or his

academic advisor, which resulted in the plaintiff being placed

on academic probation. On May 15, 2017, after failing to appear

at a meeting with his academic advisors, the plaintiff was

withdrawn from the university. The university then moved to

intervene in order to modify the December 13 revised order. As

the university argued, because the plaintiff was no longer a

student, the university could not comply with the requirement

10The full paragraph reads: "[The defendant] is to have no
direct contact with [the plaintiff], except that 1) [the
defendant] is allowed access to [the building in which his
research lab is located] only from 7 A.M. to 10 A.M. Monday
through Friday, and to attend [l]ab [m]eetings, i.e., those
meetings to which all those [the defendant] supervises are
invited, and 2) as otherwise provided in [p]aragraph [three]."
12

that the plaintiff "remain in his position and research in [the

defendant's research lab]."11

More orders followed. On May 31, 2017, the judge added the

university as a party to the case and denied their motion to

modify the December 13 revised order. The judge also allowed a

motion filed by the plaintiff to restrain the university from

taking any action with regard to the plaintiff's immigration

status. On June 19, 2017, the judge amended the December 13

order once again to require the university to provide the

plaintiff with "full access" to two research facilities.

Finally, on July 14, 2017, after a hearing on several

pending matters, the judge entered a revised order that was

substantially similar to several of the previous orders,12

including that the plaintiff "be returned in all respects to the

status quo he enjoyed as of March 10, 2016." Notably, in order

to effectuate that relief, the July 14 order required the

university to, among other things, vacate the plaintiff's

withdrawal from the university and inform the United States

11Around the same time, the plaintiff also filed a motion
to add the university as a party and filed additional motions to
prevent the university from disturbing his student visa.

12The July 14 order also required the defendant to stay one
hundred feet from the plaintiff and have no contact with the
plaintiff except for periodic lab meetings in the presence of a
third party, and precluded the defendant from using the
plaintiff's research in any manner.
13

Department of Homeland Security that the plaintiff's status as a

graduate student was restored, have the plaintiff's access to

all university facilities restored, remove any security guards

at facilities used by the plaintiff that were not in place

before March 10, 2016, and obtain two research assistants for

the plaintiff.

The defendant and the university filed notices of appeal,

as well as motions to stay the judge's orders with a single

justice of this court.13 We now turn to the issues currently

before us.

2. Discussion. a. Requirements for obtaining relief. We

review an order pursuant to G. L. c. 258E to determine whether

the judge could conclude "by a preponderance of the evidence,

together with all permissible inferences, that the defendant had

committed '[three] or more acts of willful and malicious conduct

aimed at a specific person committed with the intent to cause

fear, intimidation, abuse or damage to property,'" Seney v.

Morhy, 467 Mass. 58, 60 (2014), and that those acts did "in fact

cause fear, intimidation, abuse or damage to property," G. L.

c. 258E, § 1. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).

13 The single justice issued a pair of orders that stayed,
pending appeal, all aspects of the previous orders still in
effect, with the exception of the requirements that the
defendant stay one hundred feet away from the plaintiff and that
the defendant refrain from using the plaintiff's research in any
manner.
14

"[T]here are two layers of intent required to prove civil

harassment under c. 258E: the acts of harassment must be

[willful] and '[m]alicious,' the latter defined as

'characterized by cruelty, hostility or revenge,' and they must

be committed with 'the intent to cause fear, intimidation, abuse

or damage to property.'" O'Brien v. Borowski, 461 Mass. 415,

420 (2012), quoting G. L. c. 258E, § 1. To avoid constitutional

overbreadth, "fear" under the statute has been limited to mean

"fear of physical harm or fear of physical damage to property."

O'Brien, supra at 427. Someone seeking a harassment prevention

order may not avoid this narrowed construction by characterizing

the predicate act as one intended to cause intimidation instead

of fear. See A.R. v. L.C., 93 Mass. App. Ct. 758, 760-761

(2018).14

As indicated, the judge cited five acts in support of the

harassment prevention orders: (1) the defendant's May 10 report

of the plaintiff's erratic and threatening behavior, (2) the

defendant's instigating lab members to make similar reports, (3)

the defendant's June 3 suggestion that the head of the BBS

program get advice from a mental health professional, and (4 &

5) the two different telephone calls that the defendant had with

14The plaintiff's complaint for protection from harassment
was not premised on abuse or damage to property, and we thus
limit our discussion to fear of physical harm.
15

the health services clinician on the evening of June 3. Some of

these acts, however, cannot be construed as aimed at the

plaintiff and committed with the intent to cause fear of

physical harm, and none of these acts was the actual cause of

any fear of physical harm testified to by the plaintiff.

We first address the defendant's May 10 report of the

plaintiff's erratic and threatening behavior and the defendant's

instigating lab members to make similar reports. We assume that

the judge's findings regarding the defendant's malicious intent

are not clearly erroneous and that the defendant's acts were

intended to discredit the plaintiff. However, these findings go

to the first layer of intent only. The plaintiff also needed to

prove by a preponderance of the evidence that those acts were

aimed at the plaintiff and were committed with the intent to

cause fear of physical harm. The evidence does not support this

conclusion. The first two acts cited by the judge were oral

statements that were not made to the plaintiff or in his

presence, and nothing in the record supports an inference that

the defendant intended, by these statements, to cause the

plaintiff fear of physical harm. See Seney, 467 Mass. at 63 (e-

mail sent to third party "was not directed at [plaintiff]").

See also Petriello v. Indresano, 87 Mass. App. Ct. 438, 446-447

(2015) (false accusation may qualify as harassment only if said

to plaintiff).
16

The last three acts cited by the judge all involve

conversations that the defendant had on June 3, in the period

leading up to the plaintiff's involuntary psychiatric

evaluation. These three acts perhaps present a closer question

whether they could satisfy the requirement of intent to cause

physical harm. We assume without deciding, though with

misgivings, that the plaintiff's fear of being held against his

will and subjected to G. L. c. 123, § 12, procedures qualifies

as fear of physical harm.15 We also assume, without deciding,

that the judge's finding that the defendant had malicious intent

when he had the conversations was not clearly erroneous.16

However, we conclude that these three oral conversations the

defendant had with persons other than the plaintiff do not

qualify as "true threats" or "fighting words" under the standard

established in O'Brien. O'Brien, 461 Mass. at 422. "[O]nly a

threat intended to cause fear of physical harm (or physical

15To the extent that the plaintiff's complaint for
protection from harassment was instead based on his fear that
people would believe any rumors regarding his mental health,
this fear does not satisfy the constitutional requirements of
O'Brien. See O'Brien, 461 Mass. at 427. See also A.R., 93
Mass. App. Ct. at 760-761.

16While the plaintiff's sudden retreat from university
meetings and the lab could have caused genuine concern, there
was also evidence that the plaintiff was responding to inquiries
into his well-being and that he indicated to everyone who asked
that he was all right. Regardless, our decision does not depend
on whether the judge's subsidiary findings regarding the
defendant's malicious intent are clearly erroneous.
17

property damage) can qualify as one of the three predicate acts

for purposes of c. 258E. This is true even when the act is not

characterized as one intended to cause 'fear' . . . , but as one

intended to cause 'intimidation' or 'abuse' as well." A.R., 93

Mass. App. Ct. at 760. A statement or a recommendation made to

a mental health professional that another person is in need of

mental health services, including possible involuntary

confinement in a hospital or mental health facility, without

more, is not a "true threat" or "fighting words."

Alternatively, the evidence does not support the conclusion

that those three acts were the cause of the plaintiff's fear of

physical harm. The plaintiff testified that his fear arose from

his forced mental health evaluation at Cambridge Hospital.

Although the doctors concluded after an examination that the

plaintiff did not have any serious mental health issues, the

plaintiff testified that he was afraid that he would be declared

"mentally insane" and confined to a psychiatric unit. There was

a causal disconnect, however, between the plaintiff's fears and

any actions of the defendant. The defendant lacked the ability

to declare the plaintiff "mentally insane" or confine him to a

psychiatric unit. General Laws c. 123, § 12 (a), provides that

only certain individuals, such as physicians, may apply to have

someone admitted to a mental health facility. The defendant did

not have the requisite qualifications. The statute further
18

envisions that anyone who signs an application to have someone

admitted to a mental health facility will first examine that

person.17 See G. L. c. 123, § 12 (a). The physician who signed

the application to have the plaintiff admitted to a mental

health facility thus had a duty to exercise her independent,

professional judgment when signing that application. See Reida

v. Cape Cod Hosp., 36 Mass. App. Ct. 553, 56 (1994) (discussing

examination requirement of statute). It was this application

and the physician's independent, professional judgment in

signing it, and not the defendant's statements, that caused the

plaintiff's fear of physical harm. While the plaintiff also may

have been afraid that others, including physicians, would

believe the rumors regarding his mental health, that does not

amount to fear of physical harm (see note 15, supra).18

b. Scope of relief. While our analysis above requires us

to vacate the harassment prevention orders, we nonetheless

17Under the statute, an examination is not required if it
is "not possible because of the emergency nature of the case and
because of the refusal of the person to consent to such
examination" (emphasis added). G. L. c. 123, § 12 (a). The
exception does not apply here, where the plaintiff did not
refuse to consent to an examination. See Leininger v. Franklin
Med. Ctr., 404 Mass. 245, 248 (1989) (failure to examine not
excused, even due to emergency nature of case, where there was
no refusal to consent to examination).

18We further note that the contrary result could deter
people with genuine concerns about someone's mental health from
expressing those concerns to a physician, for fear of later
being the subject of a harassment prevention order.
19

address the arguments raised by the defendant and the university

regarding the scope of relief that is available through G. L.

c. 258E, § 3 (a), as those arguments have been fully briefed and

merit discussion. See Cambridge St. Realty, LLC v. Stewart, 481

Mass. 121, 130 (2018). The defendant and the university argue

that the scope of the plaintiff's relief under G. L. c. 258E,

§ 3 (a), was limited to four specified categories and that the

terms of the harassment prevention orders far exceeded the scope

of those categories.

In deciding this question, we compare the text of G. L.

c. 258E, § 3 (a), to the text of G. L. c. 209A, § 3, which

applies only in the context of family and household members.

General Laws c. 258E, § 3 (a), provides that "[a] person

[suffering from harassment] may petition the court . . . for an

order that the defendant: (i) refrain from abusing or harassing

the plaintiff . . . ; (ii) refrain from contacting the

plaintiff, unless authorized by the court . . . ; (iii) remain

away from the plaintiff's household or workplace . . . ; and

(iv) pay the plaintiff monetary compensation for the losses

suffered as a direct result of the harassment." General Laws

c. 209A, § 3, on the other hand, provides that "[a] person

suffering from abuse . . . may file a complaint . . . requesting

protection from such abuse, including, but not limited to, the

following orders" (emphasis added). The fact that G. L.
20

c. 258E, § 3 (a), does not contain similar language indicating

that the four categories of relief specified therein are

nonexclusive is a critical change from the language of c. 209A.

See J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017) (giving

weight to omission from G. L. c. 258E of language appearing in

G. L. c. 209A).

General Laws c. 258E was "intended to protect victims of

'harassment,' as that term is defined by [G. L. c. 258E, § 1],

who could not legally seek protective orders under G. L. c. 209A

due to the lack of familial or romantic relationship with the

perpetrator." J.S.H. v. J.S., 91 Mass. App. Ct. 107, 109

(2017). Thus, "much of the language in c. 258E is analogous to

the language found in c. 209A." Id. One notable exception,

however, is the omission of "the all-important phrase

'including, but not limited to' from the introductory sentence

of [G. L. c. 258E, § 3 (a)]." J.C., 92 Mass. App. Ct. at 230.

"The omission of particular language from a statute is deemed

deliberate where the Legislature included such omitted language

in related or similar statutes."19 Id. at 231, quoting Fernandes

19The plaintiff's reliance on language in G. L. c. 258E,
§ 3 (g), that "[a]n action commenced under this chapter shall
not preclude any other civil or criminal remedies" is
unavailing. This language permits the plaintiff to pursue other
claims, through whatever other remedies may be available, but
does not expand the scope of relief that is available through
G. L. c. 258E, § (3) (a). See J.C., 92 Mass. App. Ct. at 232
("The language in [§ 3 (g)] also plainly permits an applicant
21

v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014). The

omission of the words "including, but not limited to" from the

introductory sentence of G. L. c. 258E, § 3 (a), suggests that a

plaintiff seeking a harassment prevention order pursuant to that

statute is limited to the four categories of relief specified

therein.

Here, there is no doubt that the terms of the harassment

prevention orders far exceeded the scope of the four specified

categories of relief authorized by G. L. c. 258E, § 3 (a). For

example, in addition to limiting the contact between the

defendant and the plaintiff -- a remedy which is authorized by

G. L. c. 258E, § 3 (a) (ii)20 -- the judge entered orders that

required, not just authorized, the defendant to have specific

contact with the plaintiff by ordering the defendant to continue

supervising the plaintiff in the lab, to meet with the plaintiff

to discuss his research progress, and to invite the plaintiff to

for a harassment prevention order to pursue other civil
claims").

20We note that the December 13 revised order included a
provision that the defendant stay at least one hundred feet away
from the plaintiff. A single justice of this court modified
that order to allow the defendant to access his lab during
certain times. When the case returned to the Superior Court,
however, the Superior Court judge entered an order effectively
reinstating the general stay-away order. This the Superior
Court judge could not do, even if otherwise authorized by G. L.
c. 258E, § 3 (a) (ii), in the absence of any changed
circumstances.
22

lab meetings. These terms, in addition to exceeding the scope

of G. L. c. 258E, § 3 (a) (ii), are at odds with other

constraints long recognized by equity courts -- for example, the

public policy of not ordering specific performance of a personal

service contract. See G. L. c. 214, § 1A ("The fact that the

plaintiff has a remedy in damages shall not bar an action for

specific performance of a contract, other than one for purely

personal services . . ."). The lengthy and convoluted

procedural history that resulted from the judge's attempts at

crafting a working relationship between the plaintiff and the

defendant amply demonstrates why this sort of specific

performance is disfavored.21 Regardless, these terms exceeded

the scope of the four specified categories of relief authorized

by G. L. c. 258E, § 3 (a).

In addition to the terms that required the defendant to

have specific contact with the plaintiff, the judge also entered

orders that interfered in the university's oversight of the

plaintiff. These terms required the university, among other

things, to vacate the terms of the plaintiff's academic

probation and to provide him with certain resources. In view of

21Insofar as equitable principles come into play when
judges issue orders under G. L. c. 209A and c. 258E, judges must
be mindful that equity is not "an all-purpose judicial tool by
which the 'right thing to do' can be fashioned into a legal
obligation possessing the legitimacy of legislative enactment."
T.F. v. B.L., 442 Mass. 522, 533-534 (2004).
23

the result we reach, it is unnecessary to decide the precise

parameters of relief available under G. L. c. 258E,

§ 3 (a) (iv). The terms of the orders in this case certainly

have no basis in any of the four categories of relief authorized

by G. L. c. 258E, § 3 (a) (iv).

Furthermore, these orders are troubling in light of the

fact that the university was not even named as a defendant in

the plaintiff's harassment complaint. While the judge purported

to bind the university to the harassment prevention orders

through Mass. R. Civ. P. 65 (d), 365 Mass. 832 (1974), and later

added the university as a party through Mass. R. Civ. P. 71, 365

Mass. 837 (1974), neither of these rules may be used to

accomplish either of the intended goals in the context of this

case. Both rules contemplate that an order may be lawfully

enforced against a nonparty if, for example, the nonparty aids a

party in disobeying that order. See, e.g., Bird v. Capital Site

Mgt. Co., 423 Mass. 172, 178-179 (1996). That is very different

from what happened here, where several terms of the harassment

prevention orders applied directly and exclusively to a nonparty

(the university), which was not afforded the required procedural

protections.22

22The defendant and the university also have addressed
whether the terms of the harassment prevention orders could be
upheld on the basis of the Superior Court's general equity
jurisdiction. We need only to add that the relief discussed
24

3. Conclusion. Acknowledging that the orders entered on

August 26, 2016, September 9, 2016, October 4, 2016, and October

17, 2016 were already vacated by the Superior Court judge, we

further vacate the December 13, 2016 revised order, the May 31,

2017 orders, the June 19, 2017 amended revised order, and the

July 14, 2017 revised order.

So ordered.

above was not related to the purpose of G. L. c. 258E. See
J.S.H., 91 Mass. App. Ct. at 109 (statute exists to protect
victims from harassment). See also Rossi Bros. v. Commissioner
of Banks, 283 Mass. 114, 119 (1933) ("It is a maxim that equity
follows the law as declared by a statute").