LEGAL DOCUMENTS

COMMONWEALTH OF MASSACHUSETTS

BEVERLY PLANTE,
Plaintiff,

v.

ROMAN CATHOLIC DIOCESE OF FALL RIVER, IN THE
PERSON OF BISHOP SEAN O'MALLEY, SOLE CORPORATION,
THE SAMARITANS OF FALL RIVER/NEW BEDFORD, INC.,
IN THE PERSON OF ELLIE LEITE, INDIVIDUALLY AND AS
DIRECTOR AND A MEMBER OF THE BOARD OF DIRECTORS,
Defendants.

SISTER MICHAELINDA PLANTE'S VERIFIED
MOTION FOR LEAVE TO AMEND COMPLAINT

Now comes the Plaintiff in the above captioned matter, Beverly (Sister Michaelinda) Plante ("Sister Michaelinda") and pursuant to Mass. R. Civ. P. 15, respectfully moves this Court for leave to amend the complaint previously filed in this action, by adding new counts against the existing defendants, and a new defendant, the Roman Catholic Diocese of Fall River.

A. BACKGROUND

1. On November 4, 1994, Sister Michaelinda, represented by counsel Patrick M. McCormack,¹ instituted this action. The complaint filed was based on events recounted in Sister Michaelinda's Affidavit submitted herewith. On December 23, 1994, the Defendants filed an answer to the complaint by counsel.
2. After the complaint was filed, Sister Michaelinda's counsel deposed one witness, a Samaritan volunteer named Barbara Makowski. This would be the only deposition ever taken by Sister Michaelinda in either the Bristol case, or the instant matter.
3. Defendants on the other hand scheduled numerous depositions including that of Sister Michaelinda's (then) co-Plaintiff in that action, Yvonne George, and a 30(b)(6) deposition of Carlton Memorial Hospital (to obtain Sister Michaelinda's medical records), that occurred on February 27, 1995. Thereafter, Sister Michaelinda's deposition, David Andrews' deposition, and Edward Florino's deposition were all taken by Defendants.
4. In early March, 1995, Sister Michaelinda dismissed Patrick McCormack as counsel, and retained Robert A. George, who filed his appearance on April 3, 1995. On the same date, the Defendants filed a motion for partial summary judgment to strike Plaintiff's demands for punitive damages, accompanied by Sister Michaelinda's opposition, which was a page and half long. On June 6, 1995, the Court, Connolly, J. allowed the Defendants' motion.
5. Counsel for Sister Michaelinda did no meaningful work on the case, and no discovery at all, until almost seven months later.
6. Apparently Sister Michaelinda's counsel was not only neglecting his client's need for discovery, he also was not complying with Defendants' discovery requests. On April 10, 1995, Defendants filed a motion to compel productions of documents from Sister Michaelinda, which was allowed by the Court on April 18, 1995. On May 26, 1995, Defendants filed a motion to dismiss for failure to comply with that order. Sister Michaelinda submitted her opposition on the same date. On June 9, 1995, the Court, Moriarty J. extended time for Sister Michaelinda's compliance with discovery to July 10, 1995.
7. It appears from the docket that a pre-trial conference in the case was scheduled and continued no less that 4 times. It is unclear whether it ever took place.
8. Still dilatory in fulfilling discovery obligations, Sister Michaelinda's counsel answered Defendants' next motion to compel (this time seeking her deposition), on September 12, 1995. Defendants motion was allowed un-opposed two days later. It is reasonable to draw the inference that Sister Michaelinda's deposition had been noticed several times before that, but never scheduled with her by counsel.
9. While Sister Michaelinda had failed to depose crucial witnesses for over a year, she was finally deposed, as stated above, over two days in November, 1995.
10. On November 21, 1995, Mr. George noticed depositions of Father Beaulieu, Bishop O'Malley, and Sister Rosemary LaLiberte, all witnesses who were absolutely crucial to Sister Michaelinda's claim. These depositions were to take place December 11, 1995. The Bishop failed to appear for his deposition, as did other the parties. Depositions were rescheduled to late December, 1995, but again never took place.
11. The docket reflects no relevant activity on the case for the seven months from September 1995 to March 26, 1996, when the Defendants filed a motion for summary judgment and a motion to strike portions of Sister Michaelinda's previous Affidavit.
12. Sister Michaelinda's counsel utterly ignored the looming motion to strike her affidavit for almost six months, in spite of how easy it would have been to correct its deficits. On September 13, 1996, the Court, Volterra, J. allowed Defendants' motion for summary judgment and struck portions of Sister Michaelinda's affidavit as hearsay. See Exhibit 9B to Sister Michaelinda's Affidavit filed herewith.
13. Five months later, in February of 1997, a complaint naming the above captioned parties including the Diocese which Sister Michaelinda seeks to add as a defendant in this action. This is the matter Sister Michaelinda seeks to join with the instant case in her Motion for Relief from Judgment filed herewith. A month later, the Defendants related to the Samaritans (the current Defendants in this action), filed a motion to dismiss, or for summary judgment, which was accompanied by Sister Michaelinda's opposition. This motion was eventually allowed on res judicata grounds, the Court holding that the granting of summary judgment in this case barred adjudication of the then pending claims against the Samaritan defendants.
14. On June 2, 1997, the Diocese filed a motion to dismiss in the Bristol case, which is now pending, and a motion for protective orders, also pending. The Samaritans also filed for protective orders.
15. On June 12, 1997, Sister Michaelinda's counsel, Mr. George, filed his Withdrawal of Appearance in the Bristol matter. The undersigned filed their appearances the same day.
16. Undersigned Counsel have now moved this Court to allow Sister Michaelinda to file an amended complaint to assert additional causes of action against both the Samaritans and the Diocese. Along with this motion Sister Michaelinda has moved the Court for relief from its judgement of September 13, 1996, and to consolidate the pending Bristol action with this case.

B. ARGUMENT

1. There is no good reason for denying Sister Michaelinda's Motion to Amend

Massachusetts Rules of Civil Procedure 15 embodies a liberal philosophy regarding amendment of pleadings. Leave to amend a complaint is freely granted when justice requires. See, Wadsworth v. Boston Gas Co., 352 Mass. 86, 88 (1967). It is axiomatic that "leave should be granted unless there appears some good reason to denying the motion." Goulet v. Whitin Machine Works, Inc., 399 Mass. 547, 549 (1987). While undue delay may be a factor in justifying a denial of a motion to amend a pleading, such delay standing alone may not form the basis for the court's action. Id at p. 552. Even before the adoption of the current Rules, Massachusetts had an extremely liberal policy regarding amending complaints, whether to add parties or counts. Pre-rules cases therefore retain their force. See, e.g., Guardianship of Hurley, 394 Mass. 554, 560 (1985) (an amendment that adds an additional cause of action arising from the same underlying facts is proper) (Cimino v. Milford Keg., 385 Mass. 323, 333 (1982). In an existing action, a motion to amend the complaint can add a new party and new causes of action, even if the statute of limitations has run. Mellinger v. W. Springfield, 401 Mass. 188, 193 (1943). The law even allows addition of parties or claims after verdict or close of evidence. See, Johnson v. Carrol, 272 Mass. 134, 138 (1930); Penderson v. Cadogan, 313 Mass. 133 (1943); Wiess v. Director of RR.s, 250 Mass. 12,13, 15-16 (1924).

Here, there is no reason to deny the motion, and every reason to allow it; in fact this case presents a compelling scenario for allowance. The summary judgment order in this case was the result of serious inadvertence by trial counsel who simply dropped the ball in his prosecution of this case. Counsel failed to proffer sufficient, non-hearsay facts to overcome the Samaritans' motion for summary judgment in the Norfolk case. See Sister Michaelinda's Affidavit Exhibit 10. Sister Michaelinda contends this could have been done with proper attention to the case. It seems counsel also failed to consider the prejudicial effect of the dismissal of that action on any further legal action taken by Sister Michaelinda. Regardless, the Samaritans are well prepared to defend this action. They have taken important depositions, and engaged in extensive discovery. They can show no prejudice or surprise by way of amendment of the instant complaint to include additional causes of action. See, Dow Corning Corp. v. Surgitek, Inc. 61 F.R.D. at 580; Joseph Bancroft & Sons Co. v. M. Lowenstein & Sons Inc., 50 F.R.D. 415, 419 (D. Del. 1970). With respect to the Diocese, they have also been the subject of this litigation for some time, and this motion does not come as a surprise to them.

The Samaritans and the Diocese are attempting to avoid this litigation. Sister Michaelinda is entitled to the assurance that these Defendants are finally forced to explain their wrongful treatment of her. As stated above, Sister Michaelinda has moved this Court to allow the Rule 60 motion to revive her defamation claim on the basis that former counsel committed "excusable neglect" by failing to take depositions to support her opposition to Defendant's motion. The purpose of this motion is to create a unified case, so that both actions can be tried together, as they should be, without any issue of res judicata interfering. Sister Michaelinda believes that with proper discovery and diligence, she can defeat any future summary judgment motion filed in this case.

This would be a clean solution to Sister Michaelinda's daunting procedural infirmities. However, even if she loses one or both of these motions, Sister Michaelinda will press on. Sister Michaelinda is currently exploring the option of a legal malpractice action against former counsel, and if she chooses to file such an action, all the procedural roadblocks that have stalled this case to date will be erased, and the Diocese and the Samaritans will face her in the "trial within a trial" that will be necessitated by her claim of legal malpractice. See, Glenn v. Aiken, 409 Mass. 699 (1991) (former criminal defendant must prove innocence at trial to establish malpractice of former defense counsel) Fishman v. Brooks, 396 Mass. 643, 647 (1986). Meanwhile, this case, in whatever form will hopefully continue. "Courts have interpreted [Rule 15] liberally in line with the Federal Rules' overall goal of resolving disputes insofar as possible, on the merits in a single judicial proceeding." Spartin Grain Co. v. Ayers, 517 F.2d. 214, 220 (5th Cir. 1975). Allowance of this motion and the accompanying 60(b) motion would effectuate that goal.

All this plaintiff seeks is what every litigant is entitled to--a case prosecuted by competent and dedicated counsel before a neutral finder of fact, against another party so represented. Admittedly, she has not had good fortune to obtain the process due her to date. This Court's allowance of this motion to amend would be a good first step in that direction, and a needed vindication of the system we all are dedicated to.

II. Each of the counts Sister Michaelinda seeks to add by this amendment is one on which she has a reasonable chance of prevailing.

Should the Court allow Sister Michaelinda's motion to amend, she will add claims for misrepresentation, intentional or negligent infliction of emotional distress, conspiracy, wrongful eviction, violation of M.G.L. c. 12 secs 1111 and 111, the Massachusetts Civil Rights Act interference with contractual relations, and violation of M.G.L. c 214 sec 1B, the Massachusetts Right to Privacy statute. Each of these crimes are well supported by the facts presented in Sister Michaelinda's Affidavit, and the proposed Amended Complaint, filed herewith.

There is no doubt that Sister Michaelinda has stated a claim for breach of express and implied contractual terms against the Diocese. See, e.g. Redgrave v. Boston Symphony Orchestra, 399 Mass. 93 (1987); Anthony's Pier Four Inc. v. HBC Assoc., 411 Mass. 451 (1991); Chapman v. University Medical Center, 417 Mass. 104 (1994). As to Sister Michaelinda's misrepresentation and fraudulent claims, she has pled facts from which a jury could find that both parties made material knowing misrepresentations of in this case. The Diocese put Sister Michaelinda on leave for reasons other than those stated, in order to induce her to change her position materially, and was therefore harmed by this act. See, Kannavos v. Annino, 356 Mass. 42 (1969). The Samaritans lied about Sister Michaelinda to the Bishop, knowing that their statements were false, and intending the Bishop to act on those statements i.d.. As to Sister Michaelinda's claim under the civil rights statute, facts have been pled stating a claim under that statute. Sister Michaelinda's case is similar to the facts in Redgrave v. Boston Symphony Orchestra, 399 Mass. 93 (1987) (allowing recovery in cases of pressure exerted by third parties against the primary actor to breach a contract).

Sister Michaelinda has stated a claim for violation of her privacy by the acts of the Diocese in monitoring her phone calls, and opening her mail. See, e.g. Bratt v. IBM, 392 Mass. 508 (1984). Sister Michaelinda has stated a defamation claim which will survive a summary judgment motion with proper discovery. In addition, Sister Michaelinda has stated an actionable civil conspiracy claim. See, Nelson v. Nason, 343 Mass. 220 (1961) (citing Restatement of Torts sec.876 with approval). These facts support a claim of interference with contractual relations, and violation of the two statutes on their face.

C. CONCLUSION

WHEREFORE, for the reason stated above, Plaintiff Sister Michaelinda Plante requests this Court grant her Motion to Amend Complaint.

NOTES:

¹Along with co-plaintiff, Yvonne George, who was represented by Thomas Stack.

VERIFICATION

I, Sister Michaelinda Plante, RSM, hereby do depose and say that I have read the Verified Motion to Amend filed herewith. I have also reviewed the pleadings in the two cases discussed therein, and the docket sheets of those actions. Based on my personal knowledge of the events at issue, and my review of the documents mentioned above, I state that the factual allegations contained therein are true and accurate to the best of my knowledge, and where appropriate information or belief.

Signed under the pains and penalties of perjury August 26, 1997.

(signed)
Sister Michaelinda Plante, RSM

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