Embry v. President & Fellows of Harvard College
| Decision Date | 08 December 2014 |
| Docket Number | MICV2013-01338 |
| Parties | Stephen M. Embry v. President and Fellows of Harvard College et al. [1] No. 129274 |
| Court | Massachusetts Superior Court |
Filed December 10, 2014
The plaintiff, Stephen Embry (" Embry"), brought this action against defendant, President and Fellows of Harvard College (" Harvard"), seeking compensation for personal injuries and damages allegedly incurred after a Harvard College employee sexually assaulted him when he was twelve to fourteen years old. On November 6, 2013, this court granted Harvard's motion to dismiss on the grounds that Embry brought his action outside of the relevant statute of limitations. This case is currently before the court on Embry's motion for relief from judgment pursuant to Mass.R.Civ.P. 60, on the basis of a new statute expanding the statute of limitations in child sexual abuse cases involving negligent supervision. For the following reasons, Embry's motion is ALLOWED .
The underlying facts pertinent to this case were outlined in this court's Memorandum of Decision and Order on Defendant's Motion to Dismiss, dated November 6, 2013 (Henry, J.), and are incorporated by reference. Particularly relevant facts are discussed below.
On July 12, 2012, Embry instituted a civil action against Harvard alleging that he was sexually assaulted by Ben Merritt (" Merritt"), a Harvard swim coach, between 1969 and 1972, when Embry was between the ages of twelve and fourteen years old. Although the sexual abuse occurred approximately forty years ago, Embry did not remember and/or understand that he was harmed by Merritt's conduct until 2008. In March 2008, he called and sent a letter to Harvard's legal department notifying them that a former Harvard employee had sexually abused him. Am. Compl., Ex. A. After communicating intermittently for two years, a Harvard staff attorney wrote an official response letter to Embry on March 4, 2010, declining Embry's request for financial compensation for the harm he had incurred, and stating that Harvard was unable to find anyone to corroborate Embry's claims. Am. Compl., Ex. D.
In his amended complaint, Embry alleged that Merritt sexually assaulted him at the Harvard pool, in the pool locker room and in the showers during a swimming program at Harvard where Merritt was training Embry to become an Olympic swimmer. Embry claimed, inter alia, that Harvard negligently placed Merritt in a position where he had access to young boys and that Harvard knew or negligently failed to discover that Merritt was sexually abusing young boys on Harvard grounds. At the time he brought his suit, the governing statute of limitations period for all of Embry's claims was three years. See G.L.c. 260, § 2A (). Because Embry's claims accrued in March 2008, when he wrote his first letter to Harvard, his action--filed in June 2012--was dismissed as untimely.[2] Embry appealed the dismissal to the Appeals Court on January 24, 2014.
On June 26, 2014, while Embry's appeal was pending, the Governor signed into law Chapter 145 of the Acts of 2014 (the " Act"). Section 7 of Chapter 145 included a new statute of limitations for child abuse cases, extending the limitations period to seven years from " the time the victim discovered or reasonably should have discovered that an emotional or psychological injury or condition was caused by [sexual abuse]" in cases involving third persons other than the abuser. G.L.c. 260, § 4C 1/2 (" § 4C 1/2"). The new limitations period was applicable to " [a]ctions of tort alleging that the defendant negligently supervised a person who sexually abused a minor or that the defendant's conduct caused or contributed to the sexual abuse of a minor by another person." Id. Section 8 of Chapter 145 provided that this new statute of limitations " shall apply regardless of when any such action or claim shall have accrued or been filed and regardless of whether it may have lapsed or otherwise be barred by time under the law of the commonwealth." On August 8, 2014, the Appeals Court granted Embry leave to file the instant motion in the Superior Court, which was filed on September 17, 2014. Ex. C Ex. D.
Embry seeks relief from judgment from this court pursuant to Mass.R.Civ.P. 60(b)(5) or (6) (" Rule 60(b)(5)" and " Rule 60(b)(6)"), on the grounds that the new statute of limitations for negligent supervision/child abuse cases applies retroactively to void the court's earlier dismissal. Harvard opposes the motion, arguing that this court should exercise its discretion to reject the Rule 60 motion because extraordinary circumstances do not warrant relief, that § 4C 1/2 does not apply retroactively to this case, and that allowance of the motion would be futile because Embry's Amended Complaint fails to state a claim upon which relief could be granted.
Rule 60(b)(5) allows a court to " relieve a party or his legal representative from a final judgment, order, or proceeding . . . [where] the judgment has been satisfied released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Although not specifically articulated, this court presumes that Embry seeks application of this subsection on the grounds that " it is no longer equitable that the judgment should have prospective application." However, " prospective application" requires that the case involve " forward-looking judgments, such as injunctions and consent decrees, " and, even then, it is limited to those with " long-term supervision of changing conduct or conditions." See Comfort v. Lynn Sch. Comm., 560 F.3d 22, 28 (1st Cir. 2009). An order granting dismissal is not " forward-looking, " and thus Embry cannot seek relief under this subsection. See id.
Rule 60(b)(6) acts as a catchall provision, authorizing relief from final judgments when there is an adequate " reason justifying relief from the operation of the judgment." It only applies in instances 'when the vacating of judgment is justified by some reason other than those stated in subdivisions (1) through (5).'" Parrell v. Keenan, 389 Mass. 809, 814, 452 N.E.2d 506, quoting Chavoor v. Lewis, 383 Mass. 801, 803, 422 N.E.2d 1353 (1981). Factors to consider under Rule 60(b)(6) include whether " extraordinary circumstances warrant relief, . . . whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion, " and whether the moving party's underlying claim or defense is meritorious. See id. at 815, quotation omitted. In addition, the motion must be brought within a " reasonable time." Id. Both the underlying merits and the timeliness of a Rule 60(b)(6) motion are " addressed solely to the judge's discretion." Chavoor, 383 Mass. at 805 n.4.
Embry contends that the enactment of a new statute retroactively expanding the statute of limitations for negligent supervision in child abuse cases constitutes " extraordinary circumstances warrant[ing] relief." Harvard acknowledges that a postjudgment change in the law with retroactive application may qualify for such relief, but contends that in this situation that rule is inapplicable because the retroactivity provision in § 4C 1/2 is not broad enough to encompass this case.[3]
" [R]ule 60(b)(6) permits a court to relieve a party from final judgment where there is a postjudgment change in the law having retroactive application." Clean Harbors of Braintree, Inc. v. Bd. of Health, 415 Mass. 876, 884, 616 N.E.2d 78 (1993), quoting Brown v. Hutton Grp., 795 F.Supp. 1307, 1316 n.7 (S.D.N.Y. 1992). " Whether a statutory enactment applies prospectively or retrospectively is a question of legislative intent." Fleet Nat'l Bank v. Comm'r of Revenue, 448 Mass. 441, 448, 862 N.E.2d 22 (2007). The general rule applicable here is that, " absent clear legislative intent to the contrary, a newly enacted statute of limitations 'controls future procedure in reference to previously existing causes of action.'" [4] Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474, 984 N.E.2d 286 (2013), quoting Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 453-54, 440 N.E.2d 1164 (1982).
Here the Legislature addressed the retroactive effect of § 4C 1/2 in its enabling legislation, stating that the statute " shall apply regardless of when any such action or claim shall have accrued or been filed and regardless of whether it may have lapsed or otherwise be barred by time under the law of the commonwealth." Harvard contends that this language is not broad enough to encompass the instant case because the enabling legislation did not specifically state that the new statute of limitations would apply regardless of whether the action has been the subject of a final judgment. In support of this argument, Harvard cites Pielech v. Massasoit Greyhound, Inc., 47 Mass.App.Ct. 322, 326, 712 N.E.2d 1200 (1999), in which the Legislature retroactively expanded the statute of limitations in certain employment law cases and explicitly stated that the new time limit would apply in cases in which a petition for certiorari was pending. The Supreme Judicial Court concluded that the statute's clear language, in addition to " the resolve of the Legislature to give plaintiffs their day in court, " justified reconsideration of the case. See id. Harvard posits that this statute...
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