Boudreau v. Petit et al

Filing 169

REPORT AND RECOMMENDATIONS re 140 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM re: Plaintiff's Amended Complaint filed by Donald Lussier, John Lussier, Steve Lussier Objections to R&R due by 10/8/2024.. I recommend that the Court GRANT the Lussiers' motion to dismiss them and all claims against them in the First Amended Complaint with prejudice. So Ordered by Magistrate Judge Patricia A. Sullivan on 9/24/2024. (Saucier, Martha)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JASON BOUDREAU,
Plaintiff,
v.
KEVIN PETIT, et al.,
Defendants.

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C.A. No. 17-301WES

REPORT AND RECOMMENDATION REGARDING
NON-PARTY LUSSIER MOTION TO DISMISS
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Pending before me for report and recommendation is the motion (ECF No. 140) of nonparties John, Donald and Steve Lussier (“the Lussiers”) to dismiss Plaintiff’s First Amended
Complaint (ECF No. 79), filed on April 4, 2024, to the extent that it asserts claims against them.
The pertinent background is set out in this Court’s Order to Show Cause (ECF No. 116) and is
restated here in pertinent part:
As originally pled, this case was based on a forty-nine-page complaint consisting
of 519 paragraphs and “a tangled web of factual allegations and conclusory
statements” claiming that Plaintiff is the victim of a conspiracy to bring a
fabricated criminal charge of embezzlement among Steve, John and Donald
Lussier (the “Lussier Defendants,” who are the owner/managers of Plaintiff’s
prior employer – Automatic Temperature Controls, Inc. (“ATC”) – whose
computers Plaintiff was convicted of using to view child pornography); two State
Police officers and the Rhode Island State Police (the “State Defendants”); and
Warwick Police Officer Kevin Petit, the City of Warwick and the Warwick Police
Department (the “Warwick Defendants”).
On April 26, 2023, Plaintiff signed a voluntary dismissal with prejudice of this
case as to the Lussier Defendants. On February 16, 2024, this Court issued a
lengthy decision that dismissed all of Plaintiff’s claims against the State
Defendants . . . . As part of this ruling, the Court ordered Plaintiff to file “an
amended complaint for his remaining claims that comports with [Federal] Rule
[of Civil Procedure] 8’s ‘short and plain statement’” requirement. In
contravention of this order mandating that the amended pleading must be limited

to the “remaining claims,” Plaintiff filed the First Amended Complaint (“FAC,”
ECF No. 79), in which he wrongly named the Lussier Defendants and asserted
claims against them that he had terminated with prejudice; he also improperly
named and asserted claims against the State Defendants that this Court had
dismissed. . . . Because of Plaintiff’s violation of the Court’s order, the State
Defendants were put to the expense of filing yet another motion to dismiss. In
response, the Court again issued an order, this time clarifying that the State
Defendants and all claims against them are “DISMISSED with prejudice.”
ECF No. 116 at 1-3 (citations and footnote omitted) (emphasis in original).
The Lussiers’ motion to dismiss relies on the Voluntary Stipulation of dismissal of them
from this case with prejudice pursuant to Fed. R. Civ. P. 41(a) (ECF No. 55), which was executed
by Plaintiff and filed on April 26, 2023, well over a year prior to Plaintiff’s wrongful (in
violation of the Court’s Order of February 16, 2024)1 reassertion of these claims in the First
Amended Complaint. Importantly, the Court accepted and relied on Plaintiff’s Voluntary
Stipulation to terminate the Lussiers as parties on May 3, 2023. Further, as of this writing, the
First Amended Complaint has been pending for more than five months and, other than filing it,
Plaintiff has done nothing to prosecute the Lussier claims. Thus, for example, well more than
ninety days have passed and the Lussiers have not been served. The Lussiers now ask the Court
for the same relief that was afforded the State Defendants – dismissal with prejudice of
Plaintiff’s reassertion of the dismissed claims against them. Alternatively, the Lussiers have
attached to their motion a Settlement Agreement that Plaintiff signed. ECF No. 140-2.2 This
Settlement Agreement lays out the agreement that resulted in the filing of the Voluntary

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Plaintiff’s defiance of the Court’s Order has undermined the Court’s goal of moving into the discovery phase of the
case with an amended pleading that provides the Court with a short and plain statement of what is left in the case.
Instead, Plaintiff’s misconduct has spawned follow-on motions, including this one, yet the Court still does not have
the short, plain pleading that it ordered Plaintiff to file. And I do not recommend that Plaintiff be ordered to try
again in that his next effort will likely exacerbate the confusion.
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The Settlement Agreement recites that its terms are confidential, except to the extent that the Agreement is “used to
enforce its provisions.” ECF No. 140-2 ¶ 27. Based on its claim of Plaintiff’s breach, ATC has appropriately filed it
on the public record. Plaintiff’s motion to strike it from the public record has been denied. ECF No. 159.

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Stipulation; it reveals (and Plaintiff does not deny) that, in consideration for a financial payment,
Plaintiff agreed to dismiss with prejudice all claims against the Lussiers and others (in this and
other cases) and covenanted not ever to sue any of them again, as well as never to use or disclose
documents containing their confidential information. Id. The Lussiers assert the Settlement
Agreement as the contractual foundation for their motion.
While effectively conceding that the First Amended Complaint is in violation of the
Court’s Order of February 16, 2024, Plaintiff counters that his conduct is excusable because,
since he filed the First Amended Complaint on April 4, 2024, he has not (as of yet) tried to serve
the Lussiers, has not propounded party-discovery requests to them and has not sought to
prosecute this case against them. ECF No. 153 at 1-2. Despite having filed a pleading that
names the Lussiers and reasserts dismissed claims against them, Plaintiff asks the Court to deny
the motion because he is not pursing these claims and there is nothing to dismiss. Id. at 4.
I.

Standard of Review and Applicable Law
The Lussiers rely on Fed. R. Civ. P. 12(b)(6), which requires that a complaint must

contain facts sufficient to support a claim of relief that is “plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Ordinarily, on such a motion to dismiss, a court may not
consider documents outside of the pleadings. Schmitt v. Bowers, Civil Action No. 23-cv-13203ADB, 2024 WL 1540814, at *1 (D. Mass. April 9, 2024). However, the court may take judicial
notice of filings and orders on its own docket. In re Mailman Steam Carpet Cleaning Corp., 196
F.3d 1, 8 n.2 (1st Cir. 1999); see Cognex Corp. v. Air Hydro Power, LLC, 651 F. Supp. 3d 322,
325 (D. Mass. 2023) (stipulation reporting dismissal with prejudice of related case may be
considered in connection with pending motion to dismiss). In that regard, it is well-established
law in this Circuit that a voluntary dismissal with prejudice under Fed. R. Civ. P. 41(a) amounts

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to a complete adjudication on the merits of the dismissed claim. Arneson v. Grebien, C.A. No.
11-190-ML, 2013 WL 2250763, at *6 (D.R.I. May 22, 2013); Gosselin v. Field, Hurley, Webb &
Sullivan, 188 F. Supp. 2d 107, 109 (D. Mass. 2002). Further, if a party’s opposition to a motion
to dismiss reveals that the non-movant does not intend to prosecute or effectively has abandoned
the claim, the Court should grant the motion to dismiss. See, e.g., Anzalone v. United Bank,
Civil Action No. 1:21-cv-14-TFM-M, 2021 WL 4759633, at *3 (S.D. Ala. Oct. 8, 2021) (based
on non-movant’s response to the motion to dismiss, which states claim is abandoned, motion to
dismiss is granted); Zoulas v. New York City Dep’t of Educ., 400 F. Supp. 3d 25, 46-47
(S.D.N.Y. 2019) (in light of non-movant’s response disclaiming any cause of action, court finds
claim is expressly abandoned and grants motion to dismiss).
The Court also may dismiss a claim or a party pursuant to Fed. R. Civ. P. 41(b) if the
plaintiff has failed to prosecute it. Pladsen v. Wall, No. C.A. 07-323S, 2008 WL 4366015, at *2
(D.R.I. Sept. 16, 2008); see Fed. R. Civ. P. 41(b). Dismissals pursuant to Fed. R. Civ. P. 41(b)
are on the merits unless the dismissal order specifically states otherwise. Id. Thus, the failure to
serve an amended complaint for months without good cause after the ninety-day period provided
by Fed. R. Civ. P. 4(m) is an appropriate basis for Fed. R. Civ. P. 41(b) dismissal. Caribbean
Transp. Sys., Inc. v. Autoridad De Las Navieras De P.R., 901 F.2d 196, 197 (1st Cir. 1990)
(seven-month delay in service sufficient for dismissal pursuant to Fed. R. Civ. 41(b)). Further,
the court may order Fed. R. Civ. P. 41(b) dismissal sua sponte, based on its inherent authority to
regulate the docket. Diaz-Colon v. Diaz, 291 F.R.D. 27, 29-30 (D.P.R. 2013).
II.

Analysis and Recommendation
The Court can and should resolve this motion by taking judicial notice of Plaintiff’s

Voluntary Stipulation based on which the Court terminated this case as to the Lussiers with

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prejudice. On that basis, I recommend that the motion to dismiss these claims with prejudice be
granted. In addition, Plaintiff makes “crystal clear” that the amended complaint “does not . . .
add the Lussiers as parties” and that it does not include any “active claims against” them. ECF
No. 153 at 5. For more than five months, Plaintiff has not served the Lussiers, has not
propounded any discovery to them, and has not taken any “affirmative steps to prosecute” the
First Amended Complaint against them. Id. at 1-2. Thus, I also recommend that the Lussiers’
motion to dismiss be granted because Plaintiff “expressly abandoned” any claims against them in
his response to the motion to dismiss. Zoulas, 400 F. Supp. 3d at 47. Relatedly, pursuant to Fed.
R. Civ. P. 41(b), I recommend that the Court sua sponte dismiss the Lussiers and all of the claims
against them in the First Amended Complaint with prejudice based not only on Plaintiff’s
admitted failure to prosecute as of this writing but also based on his stated intent not to prosecute
these claims in the future.3
III.

Conclusion
Based on the foregoing, I recommend that the Court GRANT the Lussiers’ motion to

dismiss them and all claims against them in the First Amended Complaint with prejudice. ECF
No. 140.
Any objections to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen days of service of this report and
recommendation. See Fed. R. Civ. P. 72(b); DRI LR Cv 72. Failure to file specific objections in
a timely manner constitutes waiver of the right to review by the District Court and the right to

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In light of these recommendations, the Court need not grapple with the complex issues that would be posed were
the Court to consider the Settlement Agreement in connection with a motion to dismiss, including whether the Court
has subject matter jurisdiction in this case to consider a claim for breach of contract.

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appeal the District Court’s decision. See Brenner v. Williams-Sonoma, Inc., 867 F.3d 294, 297
n.7 (1st Cir. 2017); Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
September 24, 2024

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