Denise Leboeuf V Harrington Memorial Hospital Gb Wells Human Services
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
24-P-653
DENISE LEBOEUF
vs.
HARRINGTON MEMORIAL HOSPITAL GB WELLS HUMAN SERVICES CENTER &
others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Denise Leboeuf, appeals from a final
judgment and dismissal pursuant to Mass. R. Civ. P. 33 (a) (6),
as appearing in 454 Mass. 1404 (2009), as well as an order
clarifying that judgment. We affirm.
The plaintiff filed her first amended complaint against the
defendants on October 28, 2020. On May 7, 2021, a judge allowed
1Kristina Quercia, Richard Listerud, Kelly Madden, Emily
LaPrade, Martha Hauston, Norman Genest, Karen Receptionist,
Megan Gaine, Lauren Bishop, Molly Hughes, Karissa Dysinger,
Nicola Billett, Jane Doe, John Does #1-6, Joyce Rosenfeld, James
C. Stephens, Courtney D'Elia, Michael Desmond, Erich Kudas, Pier
Cutler, Emily Jean Vivlamore, David Dodge, Mayvel Burns, Alicia
Audette, James MacDonald, Gyorgy Varai, Rebecca Peak, Jeanine
Alton, Ann Beaudry, Tracy DiGregorio, Laurie Pytko, Lisa Bienia
Kenton, Hilda Miller, Thomas Broffman, Christine Osborn, Colleen
Smith, Anabelle Foley, and Donna Cordova.
a motion to dismiss claims against all but nine of the
defendants. After the plaintiff repeatedly failed to respond to
interrogatories, on September 29, 2023, a judgment entered in
favor of four of the remaining nine defendants as a sanction for
noncompliance with discovery. See Mass. R. Civ. P. 33 (a) (4),
as appearing in 436 Mass. 1401 (2002) (when party fails to
answer interrogatories, "the interrogating party may file a
written application for entry of final judgment for relief or
dismissal"); Mass. R. Civ. P. 33 (a) (6) (after interrogating
party satisfies requirements for application, clerk "shall enter
an appropriate judgment"); Mass. R. Civ. P. 37 (b) (2) (C), as
amended, 390 Mass. 1208 (1984) (as sanction for noncompliance
with discovery judge may enter order "dismissing the action or
proceeding or any part thereof, or rendering a judgment by
default against the disobedient party").
On May 16, 2024, an order entered clarifying that the
judgment "had the effect of a final judgment as to all named
defendants." Additionally, the order dismissed claims against
"Jane Doe and John Does 1 through 4" because the plaintiff
failed to substitute named individuals. The plaintiff appealed
from the judgment entered on September 29, 2023, as well as the
clarifying order that entered on May 16, 2024, and both appeals
have been consolidated.
2
We discern no error in the orders where the plaintiff
declined opportunities to answer the interrogatories. The
defendants served interrogatories on the plaintiff on September
8, 2022, and the plaintiff did not respond. On March 9, 2023,
the defendants served a final request for answers to
interrogatories, and the plaintiff responded by e-mail and
overnight mail on April 19, 21, and 22, stating that she would
not provide answers. On April 27, the defendants filed a first
application for judgment and dismissal pursuant to rule 33, and
the plaintiff filed an opposition. Following a hearing, on June
15, 2023, a judge denied the defendants' rule 33 application,
concluded that the interrogatories were timely served, and
provided the plaintiff with a forty-five day extension of time
to respond to the interrogatories. After that deadline passed
with no answers, a second judge granted a further extension to
September 1, 2023, and warned that failure to respond could
result in "possible dismissal."
Despite multiple opportunities to provide answers to the
interrogatories, the plaintiff failed to respond by the new
deadline, and the second judge allowed the defendants' second
application for judgment and dismissal that is the subject of
this appeal. Given the plaintiff's repeated refusals to provide
answers to interrogatories after multiple extensions of time to
do so, we discern no abuse of discretion with respect to the
3
judgment that entered. See Clamp-All Corp. v. Foresta, 53 Mass.
App. Ct. 795, 805 (2002). See also Greenleaf v. Massachusetts
Bay Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986) (management
of case "committed to the sound discretion" of lower court
judge).
We also discern no error with respect to dismissal of the
John Doe and Jane Doe defendants for the additional reason
stated in the order. After nearly four years of litigation and
discovery opportunities, the plaintiff did not identify any of
the John Doe or Jane Doe defendants through an amended complaint
or provide proof of service. See G. L. c. 223, ยง 19 (fictitious
name may be used to initiate civil action so long as identity
disclosed in amended complaint and "sufficient service has been
made").
The remainder of the plaintiff's brief is devoted to
challenging various court orders that issued throughout the
course of the litigation (particularly the orders of May 8,
2021, and October 12, 2021, where the bulk of the claims were
dismissed). To the extent that these arguments may be raised on
appeal despite the entry of a judgment for the defendants as a
sanction for discovery noncompliance under rules 33 and 37 (an
issue we do not decide), we discern no error. See Patel v.
Martin, 481 Mass. 29, 31 (2018) ("[w]hen a final judgment enters
in a civil case in the Superior Court under Mass. R. Civ. P. 54,
4
as amended, 382 Mass. 829 [1981], a party aggrieved has the
right to appeal from the judgment . . . [and] various types of
interlocutory orders"). The claims here are conclusory and do
not cite any supporting legal authority that indicates an error
in the Superior Court proceedings. See Zora v. State Ethics
Comm'n, 415 Mass. 640, 642 n.3 (1993) ("bald assertions of
error, lacking legal argument and authority" do not advance
appellate argument); Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019) (argument must contain "contentions of
the appellant with respect to the issues presented, and the
reasons therefor, with citations to the authorities and parts of
the record on which the appellant relies").
Moreover, we do not perceive the same "common theme" that
the plaintiff claims pervade all the judicial decisions in this
case -- that the arguments of the parties "were not considered
equally" by the judges. Our review of the record, including the
hearing transcripts, indicates that the various judges hearing
motions presented as polite, patient, impartial, and even
helpful as they answered the plaintiff's questions, explained
the proceedings, and tried to resolve disputes between the
plaintiff and counsel for the defendant. At these hearings, the
plaintiff repeatedly expressed her concern, as she does now,
that she had the impression she was not getting a "fair shot"
because the defendants seemed to prevail at every turn; however,
5
we generally do not assess the fairness of the proceedings based
on measuring impressions of a party or tallying the success or
failure of motions. See Passero v. Fitzsimmons, 92 Mass. App.
Ct. 76, 83 (2017), quoting Liteky v. United States, 510 U.S.
540, 555 (1994) ("judicial rulings alone almost never constitute
a valid basis for a bias or partiality motion"). Instead, we
examine the record and make an objective appraisal of whether
impartiality might reasonably be questioned. Even if the
plaintiff consistently failed to achieve success in various
arguments, we discern nothing in the record to suggest that she
was deprived of a free and independent judge in the proceedings.
See Matter of Curry, 450 Mass. 503, 525 n.30 (2008) (impressions
formed by judge during course of litigation do not constitute
source of bias).
Judgment entered September
29, 2023, affirmed.
Order entered May 16, 2024,
affirmed.
By the Court (Singh,
D'Angelo & Hodgens, JJ.2),
Clerk
Entered: July 24, 2025.
2 The panelists are listed in order of seniority.
6