Fagan v. Mass. Mutual Life Investors' Services, Inc. et al

Filing 7

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated. the court hereby ADOPTS Judge Robertsons Report and Recommendation (Dkt. No. 5 ). Based upon this, the complaint is ordered DISMISSED. This case may now be closed. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
RICHARD B. FAGAN,
Plaintiff,
v.
MASS MUTUAL LIFE INVESTORS’
SERVICES, INC., ET AL.,
Defendants.

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C.A. No. 15-cv-30049-MAP

MEMORANDUM AND ORDER REGARDING
REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL
(Dkt. Nos. 2 & 5)
June 10, 2015
PONSOR, U.S.D.J.
This complaint contains an application to proceed in
forma pauperis and was therefore preliminarily screened by
Magistrate Judge Katherine A. Robertson.

On April 24, 2015,

Judge Robertson recommended that the application to proceed
in forma pauperis be approved, based on Plaintiff’s limited
resources, but that the complaint be dismissed for failure
to comply with the one-year limitation contained in Fed. R.
Civ. P. 60 and, in addition, based upon the doctrines of
claim preclusion and absence of jurisdiction.
On May 8, 2015, Plaintiff filed his objection.

(Dkt. No. 5.)
(Dkt. No.

6.)
Having reviewed the Report and Recommendation de novo,
this court will adopt it and will dismiss the complaint.
is unnecessary, in light of the very scrupulous factual

It

recitation and legal analysis contained in the Report and
Recommendation, to outline in lengthy detail this court’s
reasoning.

The anchor of the court’s decision is on three

points.
First, Judge Robertson is quite correct that the oneyear limit set forth in Fed. R. Civ. P. 60(c)(1) is an
absolute bar to reopening in this case.

As Judge Robertson

notes, the court’s final judgment entered on June 11, 2013,
and the complaint in the current case was not filed until
more than eighteen months later.

Moreover, a review of the

pleading in this case makes it clear that, with minor
exceptions, it simply repeats the allegations contained in
the earlier-filed lawsuit.

As Judge Robertson notes, this

court granted summary judgment in that case, and this
court’s ruling was affirmed by the First Circuit.

Finally,

with regard to the only two claims that are not fatally
flawed based upon the Rule 60 one-year limitation or for
claim preclusion, the court simply lacks subject matter
jurisdiction.
For the foregoing reasons, the court hereby ADOPTS
Judge Robertson’s Report and Recommendation (Dkt. No. 5).
Based upon this, the complaint is ordered DISMISSED.
case may now be closed.

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This

It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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