Sullivan v. Choquette, 7404.
| Decision Date | 30 December 1969 |
| Docket Number | No. 7404.,7404. |
| Citation | 420 F.2d 674 |
| Parties | James D. SULLIVAN, Plaintiff, Appellant, v. Edward J. CHOQUETTE, Jonathan G. Wells III, Harvey Beit and T. Francis Kelleher, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
James D. Sullivan, pro se.
Benjamin Goldman, Boston, Mass., for Edward J. Choquette and others, appellees.
David S. Mortensen, Boston, Mass., with whom John Kimball, Jr., and Hale & Dorr, Boston, Mass., were on brief, for Jonathan G. Wells, and others, appellees.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
This is an action for malicious prosecution, abuse of process and for relief from a judgment of eviction of the Newburyport District Court of Massachusetts.1 Our jurisdiction is invoked under the civil rights provisions, 28 U.S.C. § 1343 (1964) and 42 U.S.C. §§ 1983, 1985 (1964), and the diversity statute, 28 U.S.C. § 1332 (1964). Plaintiff appeals from the dismissal of his complaint by the district court, for, inter alia, failure to state a claim upon which relief can be granted. The essential facts are set out in the district court's opinion in Sullivan I,supra, note 1.
It is plain that an action for malicious prosecution will not lie unless there has been a termination of the prior proceedings in a manner favorable to the plaintiff. Dangel v. Offset Printing, Inc., 342 Mass. 170, 172 N.E.2d 610 (1961); W. Prosser, Torts §§ 113-14 (3d ed. 1964). As the judgment of eviction rendered by the state court still stands, plaintiff has no cause of action unless relief is granted against that judgment. Hence, we proceed to consider that aspect of the case.
Plaintiff claims that service of process in the eviction action was constitutionally defective, that the state court therefore did not have jurisdiction, and that we should grant a "writ of error" to the state court, reversing or vacating the judgment. While we do not have the power to "annul, vacate, correct or otherwise alter the prior judgment" of a state court, we do have equitable jurisdiction to grant relief from the effects of such a judgment in an appropriate case.2 7 J. Moore, Federal Practice ¶ 60.36 (2d ed. 1968). This is not, however, such a case.
Service of process in the state case was made by leaving the writ at the demised premises in accordance with Mass.G.L.A. ch. 223, § 31. Plaintiff received actual notice of service from his wife, who informed him of the contents of the writ over the telephone. In actions concerning rights in property within the state, due process requires only that reasonable notice and an opportunity to be heard be afforded. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); F. James, Civil Procedure §§ 12.1, 12.7, 12.11 (1965); Restatement of Judgments § 32, comments a, f, and g (1942); see Wagner v. Wagner, 110 U. S.App.D.C. 345, 293 F.2d 533 (1961); Schultz v. Walker, 130 F.2d 907 (7th Cir. 1942). While some commentators have expressed doubts as to the constitutionality of service made by simply leaving process at the last and usual place of abode, the doubts have concerned the likelihood of the defendant not receiving actual notice of the action. James, supra § 12.11, at 650-51. Since plaintiff in this case had actual notice, we find no defect in the service of process. The district court was therefore correct in dismissing this aspect of the complaint for failure to state a claim and, since there has not been a favorable termination of the state eviction proceeding, the court was also correct in dismissing the malicious prosecution count.
Affirmed.
1 This litigation has had a long history in the federal courts. Plaintiff first sued defendant Kelleher for damages for an alleged deprivation of his constitutional rights in that Kelleher, as clerk of the state court, entered a default judgment against him in the...
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Singleton v. City of New York
...is an essential element of a malicious prosecution claim has generally been adopted and applied by federal courts, Sullivan v. Choquette, 420 F.2d 674 (1st Cir. 1969), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 (1970); Morrison v. Jones, 551 F.2d 939 (4th Cir. 1977), even with......
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Brummett v. Camble
...denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); Morrison v. Jones, 551 F.2d 939, 940-41 (4th Cir.1977); Sullivan v. Choquette, 420 F.2d 674 (1st Cir.1969), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 (1970). Finding nothing in the common law rule that undermines th......
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Watkins v. Healy
...failed as a matter of law because plaintiff failed to allege that underlying proceedings terminated in his favor); Sullivan v. Choquette , 420 F.2d 674, 676 (1st Cir. 1969).10 And two additional decisions issued shortly after the key events in this case further confirmed that during the "re......
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Santiago v. Fenton, 89-1108
...charge; and 4) that the defendant acted maliciously. Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72 (1987); Sullivan v. Choquette, 420 F.2d 674, 676 (1st Cir.1969). Mackler asserts that the first element was not proved because he did not institute the complaint and did not testify in ......