Gouin v. Gouin

• Decision Date: 11 March 2003
• Docket Number: No. CIV.A.2001-10890-RBC,CIV.A.2001-10890-RBC
• Citation: 249 F.Supp.2d 62
• Parties: Francois GOUIN, Jr., Plaintiff, v. Dori C. GOUIN, Esq., in her professional and individual capacities, Todd D. Posey, William R. Toner, in his official and individual capacities, Edward McMahon, in his official and individual capacities, City of Boston, John Does, Jane Doe, Defendants.
• Court: U.S. District Court — District of Massachusetts

249 F.Supp.2d 62

Francois GOUIN, Jr., Plaintiff, v. Dori C. GOUIN, Esq., in her professional and individual capacities, Todd D. Posey, William R. Toner, in his official and individual capacities, Edward McMahon, in his official and individual capacities, City of Boston, John Does, Jane Doe, Defendants.

No. CIV.A.2001-10890-RBC¹

United States District Court, D. Massachusetts.

March 11, 2003.

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Barbara C. Johnson, Andover, MA, for Plaintiff.

Dori C. Gouin, Cumberland, ME, Todd D. Posey, Waltham, MA, Dori F. Chadbourne, Chadbourne Law Offices, Portland, MA, Eve Anne Piemonte-Stacey, Asst. Corp. Counsel, City of Boston Law Dept., Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON TWO MOTIONS TWO DISMISS #64 & #68

COLLINGS, United States Magistrate Judge.

I. Introduction

On May 24, 2001, plaintiff Francois Gouin, Jr. ("Gouin") commenced the present action with the filing of a fifteen count complaint against defendants Dori C. Gouin, Esquire ("Dori"), in her professional and individual capacities, Todd D. Posey ("Posey"), William R. Toner ("Toner"), in his official and individual capacities, Edward McMahon ("McMahon"), in his official and individual capacities, the City of Boston, Paul F. Evans ("Evans"), Police Commissioner of the City of Boston, in his official and individual capacities, John Does and Jane Doe. The plaintiffs claims arise out of events which transpired in the early morning hours of January 5, 2001, when Gouin was arrested after he attempted to gain entrance to a certain condominium in Boston that he owned with Dori as tenants by the entirety.

In response to Gouin's complaint, each of the defendants filed motions to dismiss, jointly or singly. On March 21, 2002, a Memorandum and Order (#46) entered granting in part, and denying in part, the defendants' respective motions. Specifically, the Order dismissed defendant Evans from the case, and all claims against the City of Boston were dismissed except for the claims of refusal to train or neglect to train, supervise, and discipline police officers, negligence, and negligent infliction of emotional distress. Moreover, as against defendants Toner and McMahon, the claims of negligence and negligent infliction of emotional distress were dismissed. Finally, none of the claims against defendants Dori and Posey were dismissed.

Thereafter defendants Dori, Posey, Toner, and McMahon individually submitted answers and counterclaims to Gouin's complaint. In particular, defendants McMahon and Toner filed separate answers and counterclaims on April 22, 2002 (#50, # 51) while defendants Posey and Dori each filed separate answers and counterclaims on May 6, 2002 (#58, #59). In addition to answering the counterclaims, on August 5, 2002 Gouin filed a motion to dismiss Toner and McMahon's counterclaims (# 64) and on the following day he filed a motion to dismiss or, in the alternative, for summary judgment, on both Dori's and Posey's counterclaims (# 68).² All of the defendants have submitted memoranda of law in opposition to Gouin's motions to dismiss, with Toner and McMahon filing jointly on August 19, 2002(# 75), and Dori and Posey filing jointly on October 11, 2002(# 77).

With the record complete, the two motions to dismiss are in a posture for resolution.

II. The Standard

Like the defendants before him in their respective motions to dismiss the complaint, in large measure the plaintiff appears to misapprehend the nature of a Rule 12(b)(6) motion. That Gouin's version of the facts and circumstances underlying the claims asserted in the counterclaims differs from the allegations of Dori, Posey, Toner and McMahon quite simply does not subject those claims to dismissal.

The standard to be applied when deciding the motions to dismiss the counterclaims under Rule 12(b)(6), Fed.R.Civ.P., is the same as was previously applied in ruling on the motions to dismiss the complaint. The Supreme Court's landmark decision in Conley v. Gibson more than forty years ago provided the rule that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the [non-moving party] can prove no set of facts in support of [his] claim that would entitle [him] to relief." Conley, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Gorski v. N.H. Dept. of Corrections, 290 F.3d 466, 473 (1 Cir., 2002). It is incumbent upon the court to "accept the complaint's allegations as true, indulging all reasonable inferences in favor of [the non-moving party]." Kiely v. Raytheon Co., 105 F.3d 734, 735 (1 Cir., 1997); Hogan v. Eastern Enterprises/Boston Gas, 165 F.Supp.2d 55, 57 (D.Mass.2001). That general proposition notwithstanding, "bald assertions, ... subjective characterizations, optimistic predictions, or problematic suppositions" need not be credited. United States v. AVX Corp., 962 F.2d 108, 115 (1 Cir., 1992) (internal quotations omitted).

III. The Facts

The events underlying the myriad of claims at hand in this litigation have been recounted at length in the earlier Memorandum (# 46), and so shall not be reiterated herein. However, additional facts relevant to the counterclaims and current motions to dismiss warrant mention. As is the rule, the facts are recited in a light most favorable to the non-moving parties, in this instance the defendants Dori, Posey, McMahon and Toner.

Defendant Posey lived in the condominium at 58 Temple Street owned jointly by both Dori and Gouin since December 10, 2000 with Dori's approval. (#58 ¶¶ 4-8) Upon returning home from work on the evening of January 3, 2001, Posey could not enter the condo because someone had changed the locks. (# 58 ¶¶ 9) He notified Dori that the locks had been changed and that he could not get into the premises at 58 Temple Street. (#58 ¶ 10) Dori obtained access to the condominium the following day and changed the lock again. (# 58 ¶¶ 11-12)

An inspection of the premises by Dori and Posey revealed that Posey's messages had been erased from his answering machine, a new lock had been placed on the basement storage unit, and that some of Posey's papers had been disturbed. (# 58 ¶11) Suspecting Gouin's involvement, Dori sought and was granted another chapter 209A restraining order that in part forbade Gouin from entering into the Temple Street condominium. (# 59 ¶¶20-24) The January 4, 2001 TRO was not served on Gouin, however, until after the events giving rise to his claims in his complaint. (# 59 ¶ 24)

On January 5, 2001, Gouin attempted to gain entry into the condominium by drilling through the lock. (# 58 ¶ 19) On this occasion, however, Posey was at home and so went downstairs and opened the door to find Gouin. (# 58 ¶ 21) Posey informed Gouin that another TRO had been granted against him and that he was going to call the police. (#58 ¶¶ 22-23) According to Posey, at that time Gouin took out a handheld tape recorder and began "waving the recorder in Mr. Posey's face" and claimed the he was moving back into the Temple Street unit. (# 58 ¶ 22) Posey then called the police. (# 58 ¶ 25)

While waiting for the police to respond, Posey contends that Gouin threatened him by saying "You have ten minutes to put your clothes on and to leave my residence," (# 58 ¶ 24) and that Gouin entered the unit "muttering to himself angrily and waiving the recorder around at Mr. Posey." (# 58 ¶ 25) Gouin remained in the unit until the police arrived. (# 58 ¶ 30) In the meantime, Posey had also called Dori to inform her of the situation. (# 58 ¶ 29) Dori advised Posey again to remind Gouin about the TRO. (#58 ¶ 29) Gouin was arrested by officers McMahon and Toner shortly after their arrival on the scene, and they escorted him from the premises. (# 58 ¶ 31) All the charges against Gouin were eventually dismissed, however. (# 59 ¶ 24)

On October 24, 2001, Gouin filed the first of three applications for a criminal complaint against both Dori and Posey (#59 ¶ 27), requesting that both be charged with reporting a false crime that led to his arrest on January 5, 2001 and that Posey be charged individually with aiding and abetting. (# 59 ¶ 27) Prior to disposition of that application, Gouin and his attorney visited Dori's divorce counsel at her office and offered to drop the application in exchange for Dori granting legal custody of their children to Gouin. (# 59 ¶ 30) Dori's attorney denied this request and Gouin proceeded with his criminal application. On December 21, 2001, Gouin's application was denied by a clerk magistrate of the Boston Municipal Court for lack of probable cause. (# 59 ¶ 34)

Gouin's second criminal complaint application was filed against Dori for larceny on December 28, 2001, alleging that she had illegally removed money from an escrow fund established in connection with the divorce action. (# 59 ¶ 35) Gouin was granted an evidentiary hearing, but ultimately his application was denied on January 24, 2002. (#59 ¶ 37) Gouin appealed both of these denials and was granted a full evidentiary hearing, but again the applications were denied for lack of probable cause on January 29, 2002. (# 59 ¶¶ 38, 39, 40)

Gouin subsequently filed a third application for criminal complaint against Dori for larceny and received a hearing on February 15, 2002. (# 59 ¶ 42) The basis for that complaint was that Dori had illegally filed out a change of address card when she moved to Maine in the summer of 2000. This third application was denied as well for lack of probable cause. (# 59 ¶ 43)

IV. The Claims

Defendant Dori incorporates six claims in her counterclaim against Gouin. In Count I she alleges assault, in Count II abuse of process, in Count III malicious prosecution, in Count IV intentional infliction of emotional distress, in Count V negligent infliction of emotional distress, and in Count VI intentional interference with contractual or advantageous business relations. Similarly defendant...