15 Mass.App.Ct. 934 (1983), Jenkins v. Jenkins

Citation15 Mass.App.Ct. 934, 444 N.E.2d 1301
Party NamePaul J. JENKINS, Administrator v. Daniel G. JENKINS.
Case DateFebruary 02, 1983
CourtAppeals Court of Massachusetts

Page 934

15 Mass.App.Ct. 934 (1983)

444 N.E.2d 1301

Paul J. JENKINS, Administrator

v.

Daniel G. JENKINS.

Appeals Court of Massachusetts, Norfolk.

February 2, 1983

Argued Jan. 13, 1983.

[444 N.E.2d 1302] Paul J. Jenkins, pro se.

Before HALE, C.J., and ARMSTRONG and WARNER, JJ.

RESCRIPT.

The appellant, as administrator of his mother's estate and individually, together with his brother and sister, brought this action for damages. The first count is for wrongful death (G.L. c. 229, § 2). In a second count the appellant and his sister in their individual capacities claim that the defendant assumed and violated a fiduciary duty toward them. The defendant, a brother of the plaintiffs, moved to dismiss the complaint, raising the defenses of (1) failure to state a claim upon which relief can be granted (Mass.R.Civ.P. 12[b], 365 Mass. 755 [1974] ); (2) pendency of a prior action in a court of the Commonwealth (Mass.R.Civ.P. 12[b], id.); (3) the statute of limitations; and (4) misjoinder of the plaintiffs in their individual capacities. The motion was allowed, without a statement of reasons, as to all of the plaintiffs, and judgment was entered accordingly. The only appeal was by the appellant acting in his capacity as administrator, 1 and we therefore consider only the propriety of the dismissal as to him of the action for wrongful death on the grounds set forth in (1), (2) and (3) above.

1. " 'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Furthermore, the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true." Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977), quoting from Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). See Charbonnier v. Amico, 367 Mass. 146, 152-153, 324 N.E.2d 895 (1975); Coolidge Bank & Trust Co. v. First Ipswich Co., 9 Mass.App. 369, 370, 401 N.E.2d 165 (1980). A complaint should not be dismissed simply because it asserts a new or extreme theory of liability or improbable facts. See Shull v. Pilot Life Ins. Co., 313 F.2d 445, 447 (5th Cir.1963). 5 Wright and Miller, Federal Practice and Procedure § 1357 (1969 & Supp.1982). Coolidge Bank & Trust Co.,...

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32 practice notes
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • January 3, 1986
    ...statutes of limitation, one of which--M.G.L. c. 260, § 4--applied. 284 N.E.2d at 225. However, in Jenkins v. Jenkins, 15 Mass.App. 934, 444 N.E.2d 1301, 1302-03 (1983) (rescript), the Appeals Court of Massachusetts relied on Gaudette in applying M.G.L. c. 260, § 12 to toll the limitations p......
  • 33 Mass.App.Ct. 649 (1992), 91-P-1467, Harvard Community Health Plan, Inc. v. Zack
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • December 3, 1992
    ...433 N.E.2d 102 (1982), quoting from Nader v. [603 N.E.2d 926] Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977). Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 444 N.E.2d 1301 (1983). See also Saisi v. Board of Trustees of State Colleges, 6 Mass.App.Ct. 949, 383 N.E.2d 87 (1978) (raising the defens......
  • 413 Mass. 167 (1992), Puritan Medical Center, Inc. v. Cashman
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • July 20, 1992
    ...for the purposes of [G.L. c. 260, § ] 12." Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 130, citing Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 935, 444 N.E.2d 1301 (1983), and Burns v. Massachusetts Inst. of Technology, 394 F.2d 416, 419 (1st Cir.1968). See Jamesbury Corp. v. Wo......
  • 118 F.Supp.2d 73 (D.Mass. 2000), Civ. A. 97-12134, Heinrich ex rel. Heinrich v. Sweet
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • September 29, 2000
    ...in part on other grounds by Gaudette, 362 Massachusetts at 63, 284 N.E.2d 222; Jenkins v. Jenkins, 15 MassachusettsApp.Ct. 934, 935, 444 N.E.2d 1301 (1983) (rescript opinion); Gouras v. Barchi, 5 MassachusettsApp.Ct. 845, 846, 364 N.E.2d 213 (1977) (rescript Page 80 opinion); see also Ander......
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32 cases
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • January 3, 1986
    ...statutes of limitation, one of which--M.G.L. c. 260, § 4--applied. 284 N.E.2d at 225. However, in Jenkins v. Jenkins, 15 Mass.App. 934, 444 N.E.2d 1301, 1302-03 (1983) (rescript), the Appeals Court of Massachusetts relied on Gaudette in applying M.G.L. c. 260, § 12 to toll the limitations p......
  • 33 Mass.App.Ct. 649 (1992), 91-P-1467, Harvard Community Health Plan, Inc. v. Zack
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • December 3, 1992
    ...433 N.E.2d 102 (1982), quoting from Nader v. [603 N.E.2d 926] Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977). Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 444 N.E.2d 1301 (1983). See also Saisi v. Board of Trustees of State Colleges, 6 Mass.App.Ct. 949, 383 N.E.2d 87 (1978) (raising the defens......
  • 413 Mass. 167 (1992), Puritan Medical Center, Inc. v. Cashman
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • July 20, 1992
    ...for the purposes of [G.L. c. 260, § ] 12." Maggio v. Gerard Freezer & Ice Co., 824 F.2d 123, 130, citing Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 935, 444 N.E.2d 1301 (1983), and Burns v. Massachusetts Inst. of Technology, 394 F.2d 416, 419 (1st Cir.1968). See Jamesbury Corp. v. Wo......
  • 118 F.Supp.2d 73 (D.Mass. 2000), Civ. A. 97-12134, Heinrich ex rel. Heinrich v. Sweet
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • September 29, 2000
    ...in part on other grounds by Gaudette, 362 Massachusetts at 63, 284 N.E.2d 222; Jenkins v. Jenkins, 15 MassachusettsApp.Ct. 934, 935, 444 N.E.2d 1301 (1983) (rescript opinion); Gouras v. Barchi, 5 MassachusettsApp.Ct. 845, 846, 364 N.E.2d 213 (1977) (rescript Page 80 opinion); see also Ander......
  • Request a trial to view additional results