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08 P 2132 Appeals
Court
&
another.3
No.
08 P 2132.
Middlesex.
November 9, 2009. November 24, 2010.
Present:
Kafker, Wolohojian, & Milkey, JJ.
Judgment, Relief from judgment. Practice, Civil,
Relief from judgment, Motion to dismiss, Fraud, Party pro se. Fraud.
Civil action commenced in the Superior Court Department on
April 8, 2008.
A motion to dismiss was heard by Timothy Q. Feeley, J.
Brian S. McCormick for the plaintiffs.
Frank J. Frisoli, Jr., for Vera Lee.
Misha Defonseca, pro se.
WOLOHOJIAN, J. After a jury trial in 2002, Misha Defonseca and Vera
Lee were awarded more than $30 million in compensatory and multiple
damages on claims arising from breaches of contract and violations
of G. L. c. 93A by Jane Daniel and Mt. Ivy Press, L.P.
(Mt. Ivy).4
At issue was the publication, distribution, and marketing of
Defonseca's life story, Misha: A Memoir of the Holocaust Years.5
The judgment was affirmed by this court in all respects. Lee
v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538, 562 (2005).
Nearly six years after the judgment, Daniel and Mt. Ivy brought an
independent action for relief from the judgment under Mass.R.Civ.P.
60(b), 365 Mass. 828 (1974) (rule 60[b]), alleging, in essence, that
when confronted with evidence unearthed by Daniel and others,
Defonseca admitted that her Holocaust memoir was a hoax. Defonseca
and Lee successfully moved to dismiss the complaint under
Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974) (rule 12[b][6]), and
this appeal followed. We reverse in part and affirm in part.
Background.6
a. Prior proceedings. At all material times during the
prior trial and appeal, Defonseca held out her story as a true and
authentic account of her childhood in Europe during World War II.
Broadly sketched, she claimed that as a seven year old child in 1941
she witnessed the Nazis seize her parents. By her account, she fled
and managed to avoid capture by the Nazis for more than four years,
wandering alone through forests and villages across Europe. She
encountered various hardships, including being trapped for a time
within the besieged Warsaw Ghetto. Defonseca attributed her
survival to her strong will and guile, as well as to the food and
protection she received from a wolf pack. Lee, 63 Mass. App.
Ct. at 539.
Much later, in 1985, Defonseca emigrated to the United States,
settling in the Boston area. On occasion she spoke of her
experiences during the war to different groups in Boston and
elsewhere. During a speaking engagement in New York in 1994,
Defonseca first met Daniel, who offered to publish Defonseca's
autobiography.7
This offer took hold, and the parties thereafter reduced their
agreement to writing.
Since Defonseca's native language was French, Daniel engaged an
experienced, professional writer, Lee, a long-standing acquaintance
who was fluent in French, to assist (as co-author) on an American
edition of Defonseca's memoir.8
Lee timely provided drafts, including one she believed was
approximately eighty percent complete. However, Lee made explicitly
clear to Daniel that many facts, including historical facts, would
have to be checked. Daniel thereupon removed Lee from the project,
falsely telling her that her work was inadequate and the book
required rewriting. Daniel also threatened and intimidated Lee so
that she would not communicate with Defonseca, and pressured Lee to
sign agreements that reduced her share of the proceeds from the
book. Litigation ensued, with Lee suing Daniel, Mt. Ivy, and
Defonseca.9
Cross claims and counterclaims followed. Defonseca and Lee
brought a number of claims against Daniel and Mt. Ivy, including
breach of contract and violation of G. L. c. 93A.10
In essence, they alleged Daniel (personally and through Mt. Ivy)
had wrongfully denied them certain royalties and other payments in
breach of their respective agreements. Daniel and Mt. Ivy
counterclaimed, alleging breach of contract, defamation, and trade
disparagement. After a three-week trial, a jury awarded $7.5
million to Defonseca and $3.3 million to Lee.
Reserving the c. 93A portion of the case to herself for decision,
the judge found that Daniel and Mt. Ivy had wilfully and knowingly
engaged in conduct designed to deprive Defonseca and Lee of
royalties and other compensation. In a detailed decision, and
drawing from a comprehensive set of findings linked to the evidence
at trial, the judge concluded that Daniel and Mt. Ivy had engaged in
unfair and deceptive business practices in violation of c. 93A. The
judge trebled the jury's award and assessed attorney's fees and
costs.
Daniel and Mt. Ivy appealed from the judgment to this court. After
oral argument, but before our decision in that appeal issued, some
of the parties settled their claims. In exchange for some sum
(unspecified in the record before us), Defonseca relinquished any
claim to the judgment in her favor, unless Daniel or Mt. Ivy pursued
any claim against her. In a separate agreement, Lee released
Daniel, but not Mt. Ivy, in exchange for an assignment of $250,000
from a settlement between Daniel and her counsel and an assignment
of the proceeds from the future sale of Daniel's house, subject to
certain adjustments.11,12
Also while the first appeal was pending, Daniel came to learn of
information she believed cast doubt on aspects of Defonseca's
memoir. Specifically, a bank record that had been produced
posttrial showed Defonseca's birth date, birth place, and mother's
maiden name, all of which she claimed in her book to have no
knowledge of. With this newly discovered material, Daniel tried to
access vital family records in Belgium, only to be frustrated by
that country's privacy laws. Search was made of ships' passenger
lists in our local archives, the Yad Vashem database of the names of
more than three million Holocaust victims, and various genealogical
Internet Web sites. Not until a forensic genealogist, Sharon
Sergeant, became involved did the search for Defonseca's background
yield critical information. Sergeant, having noticed the many
Catholic references in the French and United Kingdom editions of
Defonseca's memoir, undertook a search of Catholic baptismal records
in Belgium, and discovered there was a maternity ward in a hospital
in Etterbeek, the district of Brussels that had been identified on
Defonseca's bank record.
Ultimately, Defonseca's true identity was uncovered. Piece by
piece, with aid from Sergeant, Daniel was able to learn that
Defonseca had been born Monica Ernestine Josephine De Wael on May
12, 1937, in Etterbeek, Belgium. Her family's residence was in the
Schaerbeek district of Brussels, and she was registered as a student
in an elementary school located there for the fall term of 1943 --
the very same time period that she claimed to be in the midst of a
journey across Nazi-controlled Europe. With this new information
about Defonseca, especially her original surname "De Wael,"
the Belgian press reported more proof of Defonseca's fraud,13
which completely unraveled in or about late 2007 or the early part
of 2008.14
b. Current proceedings. In April, 2008, Daniel and Mt. Ivy
commenced an independent action, pursuant to rule 60(b), in the
Superior Court against Defonseca and Lee, seeking to set aside the
$33 million judgment. In relevant part, the complaint asserted two
counts against Defonseca (a claim under rule 60[b] for fraud on the
court and a claim under rule 60[b][6]) and two parallel counts
against Lee. The complaint alleged that the judgment was the
product of a deliberate and cleverly concealed fraud, purposefully
carried out by Defonseca with the aid of her counsel.15
Daniel and Mt. Ivy alleged that perjured testimony, false court
pleadings and discovery responses, as well as fraudulent exhibits,
all had a hand in misleading the jury and the court. Among other
things, they pointed to the fact that Defonseca's trial counsel
stressed in closing argument that the authenticity of Defonseca's
book was not disputed:
"And what was [Defonseca] trying to defend herself about? Her
life story. The tragedy has already been visited on Misha, that's
not in dispute. She lost her parents at 7 years old, and wandered
through Europe unprotected for four years. That's not in dispute.
That happened to her."
The complaint contained no allegations suggesting that Lee had any
knowledge of the fraud, or that she had any reason to know that
Defonseca's story was not true.
The defendants moved to dismiss the complaint under rule 12(b)(6).
Notably, Defonseca did not dispute Daniel's allegations of fraud, or
the related media reports discrediting Defonseca's book and trial
testimony. Nor did Defonseca dispute a February 28, 2008, Boston
Globe article that reported Defonseca candidly "acknowledged"
that "every essential element of her autobiography [was] false,
that her trial testimony was perjured and that every document she
filed with the [Superior] Court when acting as her own counsel, was
intended to mislead the Court and the jury."16
The judge allowed the motion to dismiss. As to the rule 60(b)(6)
claim, the judge concluded that the allegations of the complaint
fell within the parameters of rule 60(b)(3), which applies in cases
of fraud, and that the complaint alleged no "extraordinary
circumstances" that might warrant relief under rule 60(b)(6).
See Paternity of Cheryl, 434 Mass. 23, 34-35 (2001); Owens
v. Mukendi, 448 Mass. 66, 71 (2006). As a result, the judge
concluded that the plaintiffs' action was barred by the one-year
limitations period of rule 60(b)(3). See Winthrop Corp. v.
Lowenthal, 29 Mass. App. Ct. 180, 182-183 (1990). With
respect to the plaintiffs' claim of fraud on the court, the judge
concluded that the allegations, as a matter of law, did not make out
such a claim.
Daniel and Mt. Ivy have timely appealed from the judgment of
dismissal.
Discussion. "Rule 60 sets forth a comprehensive
framework for obtaining relief from a final judgment or order,
balancing the competing needs for finality and flexibility to be
certain that justice is done in light of all the facts." Sahin
v. Sahin, 435 Mass. 396, 399-400 (2001). Rule 60(b) has two
parts. The first part sets out six numbered circumstances under
which a party may move for relief from a judgment. The second part
(an unnumbered provision) permits a party to seek relief by way of
an independent action. Here, the plaintiffs seek relief by way of
an independent action. We discuss the plaintiffs' claims as they
apply to each defendant.
a. Defonseca. i. Rule 60(b)(6). In relevant part,
rule 60(b) provides:
"On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment
. . . for the following reasons: . . . (3) fraud
. . ., misrepresentation, or other misconduct of an
adverse party; . . . or (6) any other reason justifying relief from
the operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more than one
year after the judgment . . . was entered . . . .
This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment . . .
or to set aside a judgment for fraud upon the court . . .
and the procedure for obtaining any relief from a judgment shall be
by motion . . . or by an independent action."
Relief under 60(b)(6) is available only when justified "by some
reason other than those stated in subdivisions (1) through (5)."
Chavoor v. Lewis, 383 Mass. 801, 806 (1981). When
examining whether 60(b)(6) relief is warranted, we consider "whether
the moving party has a meritorious claim or defense . . .
whether extraordinary circumstances warrant relief . . .
and whether the substantial rights of the parties in the matter in
controversy will be affected by granting the motion." Owens,
448 Mass. at 72 (citations and internal quotation marks omitted).
Unlike motions pursuant to rule 60(b)(1) through (b)(3), which must
be brought within a reasonable time, but no later than one year
after judgment, id. at 73 n.9, and motions pursuant to rule
60(b)(6), which must be brought within a reasonable time after
judgment, Kennedy v. Beth Israel Deaconess Med. Center,
Inc., 73 Mass. App. Ct. 459, 467 (2009),17
there is no specified time limit for bringing an independent action
for relief from judgment.18
Sahin, 435 Mass. at 400-401. "That said, however, 'a
party should not be able to avoid the one-year or "reasonable
time" limits of Rule 60(b) simply by commencing an independent
action seeking the same relief.'" Id. at 401, quoting
from Smith & Zobel, Rules Practice § 60.16, at 488 (1977 &
supp. 2001). "Many of the principles covering fraud, fraud
upon the court, void judgments, mistake, or even newly-discovered
evidence, control an independent action seeking the same kind of
relief." Smith & Zobel, Rules Practice § 60.16, at
395 (2007) (footnotes omitted). "To the extent that the claims
raised by a party's independent action appear to fall within those
provisions of rule 60(b) that mandate a specific time limitation,
but materialized too late to file in a motion to the court which
rendered the judgment, the party must raise some additional ground
or reason justifying relief after the expiration of the time
limitation." Sahin, supra at 401. The party
seeking relief must show that allowing the judgment to stand would
be "manifestly unconscionable," id. at 402, quoting
from Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322
U.S. 238, 244-245 (1944) (independent action proper "to prevent
unconscionable retention or enforcement of a judgment"), or a
"grave miscarriage of justice." Sahin, supra
at 402, citing United States v. Beggerly, 524 U.S. 38,
46-47 (1998). We consider this standard to have been met here, at
least for purposes of surviving a motion to dismiss.
The plaintiffs have alleged an extraordinary fraud that touched
every part of Defonseca's case against them and resulted in a huge
verdict. It is true, as the defendants point out, that the book's
authenticity was not the central issue at trial. Despite this, it
is difficult to imagine that this information, had it been known to
Daniel and Mt. Ivy, would not have provided a meritorious defense to
at least some of the claims, especially those claims based on the
contract.19
See, e.g., Quintin Vespa Co. v. Construction Serv. Co.,
343 Mass. 547, 554 (1962) (material breach excuses other party from
further performance). It is equally implausible to suggest that the
information, if it had been presented to the jury, would not have
affected the "substantial rights of the parties." Owens,
448 Mass. at 72, quoting from Parrell v. Keenan, 389
Mass. 809, 815 (1983).
The size of the award is also a circumstance to be considered.
Defonseca obtained a judgment that, once trebled, exceeded $20
million. Much of that amount consisted of multiple damages under c.
93A. Multiple damages are awarded only for wilful, culpable
conduct, that results in a "grievous violation of societal
interests." International Fid. Ins. Co. v. Wilson,
387 Mass. 841, 856 n.21 (1983) (citation omitted). See Kapp
v. Arbella Mut. Ins. Co., 426 Mass. 683, 686 (1998). The
jury and judge, of course, were unaware that the book was a hoax,
rather than a heart-rending story of Holocaust survival.
We also consider Defonseca's conduct as a pro se litigant. Although
it is true that perjury, standing alone, generally does not support
relief under rule 60(b)(6), Defonseca's alleged conduct goes well
beyond that. Defonseca's entire case, and the manner in which she
procured the judgment, was buttressed on what is now admitted to be
a lie. The pleadings she filed were false and based on false
information. The affidavits she submitted were premised on her
phony life story. Her testimony at trial reiterated, and
reinforced, her sympathetic but ultimately false tale.
We are satisfied that the allegations of the complaint, considered
under the appropriate standard, are sufficient to state an
independent action based on rule 60(b)(6).
ii. Fraud on the court. Rule 60(b) permits "an
independent action . . . to set aside a judgment for fraud upon the
court." In our jurisprudence, "fraud on the Court"
is a term of art with a stringent definition. Matter of the
Trusts Under the Will of Crabtree, 449 Mass. 128, 148 (2007).
"A 'fraud on the court' occurs where it can be demonstrated,
clearly and convincingly, that a party has sentiently set in motion
some unconscionable scheme calculated to interfere with the judicial
system's ability impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the presentation of the
opposing party's claim or defense." Rockdale Mgmt. Co.
v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting
from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118
(1st Cir. 1989). "Examples of 'fraud on the Court' include
'bribery of judges, employment of counsel to "influence"
the court, [and] involvement of an attorney (an officer of the
court) in the perpetration of fraud.'" Will of Crabtree,
supra at 149, quoting from MacDonald v. MacDonald,
407 Mass. 196, 202 (1990). "A party's nondisclosure to an
adverse party . . . or to the court . . . of facts pertinent to a
controversy before the court, without more, does not amount to
'fraud on the court' for purposes of vacating a judgment under rule
60(b)." Paternity of Cheryl, 434 Mass. at 36. "The
doctrine embraces 'only that species of fraud which does, or
attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery can not perform
in the usual manner its impartial task of adjudging cases that are
presented for adjudication.'" Id. at 35-36, quoting
from Pina v. McGill Dev. Corp., 388 Mass. 159, 165
(1983).
There are some falsehoods that are so emotionally inflammatory that
they impede the jury's ability impartially to evaluate facts and
adjudicate a case. Falsely claiming to be a victim (and survivor)
of the Holocaust is such a one, particularly where -- as here -- the
claim is the foundation of a book that the publication,
distribution, and marketing of were the subjects of the suit.
Defonseca perpetrated this falsehood, and it lay at the center of
the case.
As noted above, Defonseca proceeded in part pro se, and she now
argues that only an officer of the court can commit fraud on the
court. Although fraud on the court typically involves officers of
the court, we are unprepared to say that pro se litigants are in all
circumstances insulated from committing fraud on the court. Pro se
litigants are generally required to comply with the same rules as
represented parties and their attorneys, see, e.g., Pandey v.
Roulston, 419 Mass. 1010, 1011 (1995); Kyler v.
Everson, 442 F.3d 1251, 1253-1254 (10th Cir. 2006), and there
is no reason to immunize them from the consequences of the most
egregious forms of misconduct. Cf. Pumphrey v. K.W.
Thompson Tool Co., 62 F.3d 1128, 1130-1131 (9th Cir. 1995)
(attorney's involvement in the discovery process, which included the
holding and withholding of key information, was "sufficient to
render him an officer of the court" for purposes of the fraud
on the court doctrine even though he did not represent party);
Herring v. United States, 424 F.3d 384, 390-391 (3d
Cir. 2005) (attorneys who did not represent United States, but
asserted claim of privilege on behalf of United States, were
"officers of the court" for fraud on the court purposes).
We are satisfied that, accepting the allegations of the complaint as
true and viewing Defonseca's misconduct as a whole, which included
not just one or two instances of false testimony, but an entire case
buttressed by falsehoods, the plaintiffs have sufficiently stated a
claim of fraud on the court.
b. Lee. The plaintiffs' case against Lee stands in a much
different posture. The complaint does not allege that Lee knew, or
had reason to know that Defonseca's memoir was fraudulent. The
complaint's silence in this regard is consistent with the trial
judge's conclusion that the allegations indicated Lee alerted Daniels
to the fact that the book had not been fact-checked and that many
historical facts needed to be verified. Moreover, the allegations
indicate that Lee was removed from the project before its completion.
There is also no allegation that Lee made any false statements in
the course of the litigation, whether during discovery or trial.
Instead, the plaintiffs allege Lee "rode the coattails of
Defonseca's fraudulent conduct" and that Defonseca's misconduct
tainted the entire proceeding. Conceding at oral argument that they
have not stated a claim of fraud on the court against Lee, the
plaintiffs nonetheless continue to argue that they have stated a
claim under rule 60(b)(6) against her. We disagree. The plaintiffs
have not cited any authority, nor have we found any, for the
proposition that a party may be stripped of a judgment where she
herself is not alleged to have done anything wrong. Rule 60(b)(6)
strikes a balance between "the competing needs for finality and
flexibility to be certain that justice is done in light of all the
facts." Sahin, 435 Mass. at 399 400. Although Lee
may have benefited from the sympathy of Defonseca's supposed life
story, this alone does not tip the scale in favor of abandoning our
institutional interest in finality. The plaintiffs have not alleged
that Lee has committed any fraud or misconduct, let alone the
kind of extraordinary fraud that could justify setting aside an eight
year old judgment under rule 60(b)(6).
Conclusion. Because the plaintiffs have not stated a claim
for rule 60(b)(6) relief against Lee, and because they conceded at
oral argument they are not pursuing a fraud on the court claim
against Lee, that portion of the judgment which dismisses the
plaintiffs' claims against Lee is affirmed. However, for the reasons
set out above, we reverse that portion of the judgment which
dismisses the plaintiffs' claims against Defonseca.
So ordered.
1
Jane Daniel.
2
The underlying complaint indicates that Misha
Defonseca is also known as Monique De Wael.
3
Vera Lee.
4
A total of $22.5 million was awarded to Defonseca
and $9.9 million to Lee.
5
This published work was introduced into evidence at
trial and made available to the jurors for their inspection and
review.
6
The facts are drawn from the plaintiffs' complaint
and the proceedings from the prior litigation. See Jarosz v.
Palmer, 436 Mass. 526, 530 (2002). In reviewing the
allowance of a rule 12(b)(6) motion to dismiss, we accept as true
the fact-based allegations contained in the complaint as well as any
favorable inferences reasonably drawn therefrom. Sullivan v.
Chief Justice for Admin. & Mgmt. of the Trial Court, 448
Mass. 15, 20-21 (2006).
7
Daniel had formed Mt. Ivy in 1993 as a limited
partnership. She was the only employee and the business operated
out of the basement of her Newton home.
Mt. Ivy signed separate (but nearly identical) publishing agreements
with Lee and Defonseca in August of 1995. The parties also made
provisions for a French edition for distribution in Europe, where
advance publicity had stirred interest among book dealers.
8
An American edition was published in 1997. Book
endorsements were received from several quarters, including the New
England chapter of the Anti-Defamation League. Soon thereafter, a
French edition, Survivre avec les Loups (Survival with Wolves), was
published by a Parisian publishing house, with Defonseca's
oversight; other foreign editions followed. Unlike the American
edition, the French edition had no photographs of
Defonseca and
identified her as "Monique Valle" (not De Wael).
9
Lee named as "reach and apply defendants"
Mt. Ivy's literary agent, Palmer & Dodge, LLP, and Publishers
Group West, Inc., a West Coast firm that allegedly did business in
the Commonwealth; the reach and apply defendants are not implicated
in this appeal.
10
The other claims were: interference with
contractual relations, fraud, quantum meruit, unjust enrichment,
conversion, and intentional infliction of emotional distress.
11
There is nothing to suggest that the instant appeal
or the underlying case is moot as a result of the settlements, and
no party so contends.
12
The terms of the settlement agreements are not part
of our (or the motion judge's) consideration for purposes of the
motion to dismiss. However, the terms of those agreements may
factor into the analysis as the case proceeds after remand. What
effect, if any, they might have going forward will benefit from
further factual development below.
13
Notably, in March of 2008, Le Soir, a prominent
newspaper in Belgium, published a report disclosing that Defonseca's
father had collaborated with the Gestapo, providing information
about members of the Belgium resistance movement.
14
Daniel's search was successful largely because of
technological advances, including the Internet, which allowed her to
correspond with others on a world-wide scale not previously possible
or practicable.
15
Daniel and Mt. Ivy no longer rely on action by
Defonseca's attorneys to support their claims.
16
Nor has Defonseca offered anything to counter her
statement to the foreign press (republished in the local newspapers)
confessing to the fraud.
17
A reasonable time may be more or less than one
year. Kennedy, supra.
18
Although rule 60(b) states that relief may be
sought by way of a motion, it also states that relief may be invoked
in an independent action. Had the plaintiffs sought rule 60(b)(6)
relief by way of a motion filed in the original underlying action,
we would review for abuse of discretion. Gath v. M/A-Com,
Inc., 440 Mass. 482, 497 (2003). However, we review de novo a
rule 12(b)(6) dismissal of a rule 60 claim that is raised in an
independent action. See Sahin, supra at 399-407 (sub
silentio applying de novo review in procedural posture identical to
the present case). Accord Herring v. United States,
424 F.3d 384, 389-390 (3rd Cir. 2005) (review of district court
grant of Fed. R. Civ. P. 12[b][6] motion to dismiss independent rule
60 action is subject to de novo review). In other words, we employ
the standard of review for appeals from the allowance of a rule
12(b)(6) motion. See Iannacchino v. Ford Motor Co.,
451 Mass. 623, 635-636 (2008). "We review the allowance of a
motion to dismiss to determine whether facts alleged in the
complaint raise a right to relief above the speculative level, on
the assumption that all the allegations of the complaint are true."
Largo Realty, Inc. v. Purcell, 77 Mass. App. Ct. 162,
163 (2010).
19
The contract with Defonseca contained a warranty in
which she represented that "all statements of fact are true or
based on reasonable belief."
