RIAN WATERS v. AIDAN KEARNEY & Others.

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

22-P-1105

RIAN WATERS

vs.

AIDAN KEARNEY & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Rian Waters, appeals a judgment dismissing

his claim of libel against the defendants, Aidan Kearney,

Worcester Digital Marketing, LLC, and Turtleboy Enterprises,

LLC, (defendants) for failure to prosecute. In an earlier

appeal, a panel of this court reversed the grant of summary

judgment against the plaintiff on his libel claim to the extent

the claim was "based on the statements that Waters sold drugs in

California and shipped drugs to Massachusetts." Waters v.

Kearney, 100 Mass. App. Ct. 1105 (2021) (Waters I). We affirmed

the dismissal of all other claims and remanded for further

proceedings. Because this case presents one of the rare

instances where the judge, acting on proper motivation to

1Worcester Digital Marketing, LLC, and Turtleboy
Enterprises, LLC.
maintain judicial efficiency, nevertheless failed to exercise

proper discretion, we vacate the judgment and remand for further

proceedings.

Background.2 The libel claim stems from a statement in a

book published by Kearney that the plaintiff "sold drugs in

California" and while visiting Massachusetts "he allegedly

shipped himself drugs via the USPS, which he intended to sell

here." After remand, the plaintiff filed numerous pleadings,

including motions directed to whether Kearney was harassing

witnesses and seeking to enjoin Kearney from "mentioning or

harassing" the plaintiff or any potential witness. It was not

always clear whether the named persons were witnesses who the

plaintiff intended to call at the trial of the one claim

remaining in this case. The plaintiff also repeatedly stated in

pleadings, including an affidavit, that he "never bought or sold

drugs in California." The plaintiff also described the impact

Kearney's alleged libel had on him. In response to this flurry

of pleadings, the judge scheduled a final pretrial conference.3

2 The facts pertaining to this dispute are set out in Waters
I; the following is a summary of the facts relevant to this
appeal.

3 We recognize that the plaintiff's numerous filings and
lack of understanding of the litigation process were a burden on
the court.

2
At the final pretrial conference, the judge denied the

plaintiff's motion for default and sanctions, which had alleged

that Kearney was threatening people who the plaintiff intended

to call as witnesses at trial.4 The plaintiff expressed concern

about going forward with trial where, due to Kearney's alleged

threats, he had no witnesses. The plaintiff also indicated that

because he did not know what kind of drugs he was alleged to

have sold, he did not know who to call as a witness.5 The judge

admirably attempted to focus the plaintiff on the issues

relevant to trial. The plaintiff stated that if the judge was

4 The motion referred to several persons by name; we cannot
discern from this record if those persons could have provided
admissible trial testimony, or had provided depositions that
could be admissible, see Mass. R. Civ. P. 32, as amended, 392
Mass. 1105 (1984). The fact that the plaintiff's pleading
referred the judge to a two-and-one-half-hour-long video as part
of the record, without providing timestamps to the relevant
portions of the video and without explaining how the person
depicted in it might provide testimony relevant to the one
remaining claim in this case, did not assist the court.

5 It is not clear why it mattered what type of drugs the
plaintiff allegedly sold. Based on the plaintiff's
representations about discovery, it was "hash oil." The
plaintiff seemed to the believe at the pretrial conference that
it could be cannabis or "coke or crack." In any event, assuming
it is the truth, the plaintiff can testify as he already has
stated in an affidavit, that he has "never bought or sold drugs
in California" and otherwise identify statements made by Kearney
about the plaintiff's alleged sale or shipment of drugs that the
plaintiff believes are libelous and testify that they are not
true. The plaintiff can provide a witness list that includes
witnesses to address all possibilities and, after Kearney
presents evidence, the plaintiff can decide who, if anyone, to
call as rebuttal witnesses.

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going to allow Kearney to threaten witnesses, he would need only

a day for trial because he had no witnesses.6 He also told the

judge "[i]f I can't have a fair trial, there's not going to be a

trial" and asked for the case to be "closed," but subsequently

indicated, "All right, . . . fine. We'll have a trial." The

defendants asked for thirty days to file a motion for summary

judgment, which the judge granted "if necessary."7 The next day,

the judge dismissed the remaining claim without prejudice for

the plaintiff's failure to prosecute.

Discussion. The judge's stated reasons for the dismissal -

- that "Waters indicated that he had 'no witnesses'; and that he

was unable to articulate his damages" were incorrect.

"Involuntary dismissal is a drastic sanction which should be

utilized only in extreme situations." Monahan v. Washburn, 400

Mass. 126, 128 (1987). Given these errors, dismissal was an

abuse of discretion. See Anderson v. Sport Lounge, Inc., 27

6 The issue of witness intimidation, if still relevant,
could be addressed on remand through proper pleadings
establishing that a named person is a witness or potential
witness in this civil proceeding. Of course, the judge can
require the parties to provide a witness list identifying all
potential witnesses and the parties may subpoena witnesses to
testify at trial.

7 Kearney told the judge that he intended to move for
summary judgment on the ground that the statement at issue in
the remaining libel claim included the word "alleged[ly]." We
note that that issue was litigated in Waters I and the
defendants lost.

4
Mass. App. Ct. 1208, 1209 (1989) ("Courts have inherent power to

dismiss a case for lack of prosecution"; those decisions are

within "sound discretion of the judge"); Munshani v. Signal Lake

Venture Fund II, LP, 60 Mass. App. Ct. 714, 718 (2004) (review

judge's exercise of inherent powers to manage cases for abuse of

discretion).

A libel claim requires a showing of "false and defamatory

written communication of and concerning the plaintiff." McAvoy

v. Shufrin, 401 Mass. 593, 597 (1988). Here, the plaintiff had

repeatedly sworn in his filings that he had "never bought or

sold drugs in California." At the pretrial conference, when the

plaintiff stated he had no witnesses, the plaintiff was stating

that he did not have witnesses other than himself to offer

testimony. Accordingly, it was incorrect on this record to

dismiss the remaining claim on the basis that the plaintiff had

no witnesses. Once the plaintiff offers his own testimony at

trial, "it [will be] up to the defendant[s] to prove truth as an

affirmative defense." Id. See Maloof v. Post Publ. Co., 306

Mass. 279, 280 (1940).8

The judge also made an error of law on the issue whether

the plaintiff could prove damages. A statement accusing a

8 Of course, on remand, the judge can require each party to
provide a witness list prior to the pretrial conference pursuant
to Superior Court Standing Order 1-88 (2023).

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person of a crime constitutes defamation per se. McAvoy, 401

Mass. at 597-598. While a plaintiff alleging libel must show

economic damages, defamation per se does not require proof of

economic loss. See Phelan v. May Dep't Stores Co., 443 Mass.

52, 56 (2004); Ravnikar v. Bogojavlensky, 438 Mass. 627, 630

(2003). In addition, the plaintiff's affidavits set forth the

testimony he could provide about the harm he allegedly suffered

from the defendants' conduct. The judge therefore committed

error when he based the order of dismissal on the plaintiff's

inability to articulate damages. See Van Christo Advertising,

Inc. v. M/A-COM/LCS, 426 Mass. 410, 417 (1998) (abuse of

discretion review "includes considering whether proper legal

standards were applied"). Dismissal for failure to prosecute is

a harsh punishment reserved for "extreme situations" and was not

warranted here. Monahan, 400 Mass. at 128.

We can affirm for any ground supported by the record. See,

e.g., Gabbidon v. King, 414 Mass. 685, 686 (1993). However,

Mass. R. Civ. P. 41, 365 Mass. 803 (1974), outlines the

circumstances in which a judge may dismiss an action before

trial either voluntarily or involuntarily, none of which applied

here. Pursuant to rule 41 (a) (1), after the defendant has

answered the complaint, the plaintiff may voluntarily dismiss

the complaint by filing a stipulation signed by all parties.

Thus, the plaintiff's telling the judge "[i]f I can't have a

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fair trial, there's not going to be a trial" and asking for the

case to be "closed," did not amount to grounds for voluntary

dismissal that complied with rule 41 (a).

Alternatively, under rule 41 (b) (1), a judge may enter an

involuntary dismissal on the judge's own motion if an action has

remained on the docket for three years "without activity shown

other than placing upon the trial list, marking for trial, being

set down for trial, the filing or withdrawal of an appearance,

or the filing any paper pertaining to discovery." Given the

plaintiff's flurry of filings, dismissal on the court's motion

could not be in compliance with rule 41 (b) (1) and, in any

event, the judge would have had to give the plaintiff not less

than one year's notice under the rule.

Similarly, dismissal could not have been pursuant to rule

41 (b) (2). First, the defendants did not move for dismissal

and certainly did not move for dismissal with notice. Second,

as already indicated, there was no such inactivity on the

docket. Third, the portion of the rule that permits dismissal

in an action tried by the court without a jury did not apply.

Conclusion. We vacate the judgment entered August 31,

2022, dismissing the plaintiff's claim and remand the matter to

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the Superior Court for further proceedings consistent with this

memorandum and order.9

So ordered.

By the Court (Henry, Grant &
Brennan, JJ.10),

Assistant Clerk

Entered: May 28, 2024.

9 To the extent the plaintiff believes he needs an
accommodation for a disability, he needs to properly ask for an
accommodation. See Massachusetts Court System, How to ask for a
court accommodation under the Americans with Disabilities Act,
https://www.mass.gov/info-details/how-to-ask-for-a-court-
accommodation-under-the-americans-with-disabilities-act.

10 The panelists are listed in order of seniority.

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