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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. Civil Action No: 1881CV1038
RIA RAR RAR I IIR REA HH HAA TAA RA HAAR)
Gregory P. Turner, )
Plaintiff )
)
FILED
v. : ) INTHE OFFIBE OF THE
Hubbard Systems, Inc., formerly known as) FORTHE CSU COURTS.
and also doing business as Jim Hubbard )
and Associates, Inc., ) JUN 12 2018
And, Jim Hubbard Associates, Inc., )
Defendants.
ransusauiensneneneneneasasensnenens) FEES. Ou
PLAINTIFF GREGORY P TURNER’S OPPOSITION TO
DEFENDANTS’ MARJIM SOLUTIONS, INC. F/K/A HUBBARD
SYSTEMS, INC. F/K/A AND D/B/A JIM HUBBARD AND ASSOCIATES, INC.,
LEGAL LEGACY, LLC F/K/A JIM HUBBARD AND ASSOCIATES, INC. AND
JIM HUBBARD AND ASSOCIATES LLC
MOTION TO DISMISS
I. Introduction
Defendants MarJim Inc and Legal Legacy, LLC, (HSI) and PDRK, LLC (PDRK) have
simultaneously served two separate motions to dismiss on nearly identical statute of limitations
grounds as follows.
B. HSI’s Motion
HSI argues that the instant claims are out of statute under the limitations of actions for each
count, that G.L. c. 260, § 32 does not extend the statute of limitations, but that if it does, Section
32 does not protect counts III and V and finally if Counts III and V are protected that res
judicata (issue preclusion) bars Counts III and V.
B. PDRK motion
Unlike HSI, PDRK does not challenge the applicability of G.L. c 260 § 32 as the saving statute
Page 1 of 10where a claim is dismissed in federal court on procedural grounds. Footnote 1 of the complaint
placed PDRK on notice that the complaint invokes Section 32. It states: “This claim arises out
of the same transactions and occurrences with were the subject of a Federal District Court action
dismisséd without prejudice on June 21, 2017.” PDRK omits this fact from its summary of facts
for the court to consider. (PDRK motion at 3-4). PDRK does not address Section 32 or the
content of the federal district court complaint. Instead, PDRK relies solely on the original
limitations of actions under various sections on G.L. c.260. Section 32 applies to all limitations
of actions found under chapter 260.
PDRK additionally argues that the successor entity liability allegations against it are mere labels
and conclusions, The complaint seeks to impose liability and the application of Section 32 upon
PDRK by virtue of its alleged de facto merger with HSI in January, 2017. PDRK did not yet
exist at the time of the events that are the subject of the complaint. PDRK was created for the
Sole purpose of purchasing HSI.
C. Oppositions
Each motion is opposed separately but with identical sections including this. Introduction, the
Nature of the Case, and, the Statute of Limitations. (Sections I - III (B)) The court need read
these first sections but once. Each opposition then separately addresses the arguments unique to
each motion. (Sections III, ( C) - IV)
The affidavit of counsel for MarJim Solutions, Inc and Legal Legacy LLC, served on all parties
pursuant to its motion to dismiss is hereby incorporated by reference. PDRK has waived
reproduction of this 79 page document for the purposes of its motion. Should the HSI entities
withdraw their motion, or the court wish an additional copy, plaintiff seeks leave to supply the
court with same.
Page 2 of 10Il. Nature of the Case
This case seeks compensation for, and to deter the future unconscionable use by others
of, the extreme leverage that the defendant Hubbard Systems, Inc., now MarJim Solutions, Inc.
(HSD', and PDRK, LLC standing in the shoes of HSI, gained over Turner by holding the future
viability of his law practice hostage through the tortious conversion of computer software
(Collection Partner) that completely controlled that law practice, ina case of “poor man’s
ransomware”.' This unconscionable conduct included the refusal, for an extended period of
time, to immediately and unconditionally relinquish dominion and control, after multiple
demands to do so, all in furtherance of its intention to extort money from Turner which
Hubbard/MarJim claimed Turner owed Hubbard.
This unconscionable,and therefore unequitable, conversion of property for the purpose of
obtaining Jeverage to unlawfully compel the plaintiff property owner to pay HSI money
distinguishes this case from an “ordinary” conversion involving the merely unlawful taking and
return of property belonging to another. This distinction has dramatic consequences under the
equitable maxim of unclean hands.
The full measure of damages at the time of any conversion includes all prospective
damages for any foreseeable damages which may be proven at trial. Where the conversion
consists of merely taking and returning property, damages are limited by the equitable
affirmative defense of mitigation, if available. In an “ordinary” conversion, the only condition
' Citations are omitted from this section because the issue before the court is the sufficiency of
the pleadings not whether the unclean hands doctrine bars the defendants from asserting the
equitable affirmative defense of mitigation. “Ransomware” is malware that encrypts files so that
they cannot be used by the owner. The ecrypter then demands a ransom before supplying the
code necessary to unencrypt the software.
Page 3 of 10for asserting the equitable affirmative defense is that the plaintiff must have “accepted” the
return of the property. In the “ordinary” conversion case where mitigation has occurred, the
plaintiff's damages are properly limited to the damages associated with actual loss of use and
any decrease in the value of the property which as has occurred during the conversion. But
unlike other torts, a conversion plaintiff has no affirmative duty to mitigate damages by
accepting a return of the converted property. Thus, the equitable affirmative defense is not
automatically granted. At the moment of an ordinary conversion then, the defendant places itself
at risk of liability for all reasonably foreseeable unmitigated prospective damages.
One seeking equity cannot come into court with unclean hands. A party cannot invoke
an equitable remedy, whether that remedy be a claim or defense, arising directly from its own
unequitable conduct. The equitable affirmative defense of mitigation is subject to the unclean
hands equitable maxim. Therefore, the right to assert mitigation as an affirmative defense is not
automatic. The SJC has held that the unclean hands doctrine bars the assertion of mitigation as
an affirmative defense where to do so would encourage a defendant to use extrajudicial means to
collect a debt by seizing another’s property.
HSI, and PDRK, standing in the shoes of HSI, will undoubtedly seek to assert the
equitable affirmative defense of mitigation because HSI returned property converted for the
purposes of extortion. HSI’s expected need to assert the equitable affirmative defense of
mitigation, however, arises directly out of its own unequitable extortionate conduct. HSI comes
into court with unclean hands. Therefore, this court cannot permit HSI to invoke the equitable
remedy of the affirmative defense of mitigation.
In this case, the Federal Courts failed to make any distinction between an “ordinary”
conversion and a conversion for the unequitable purposes of extortion. In doing so, the federal
Page 4 of 10courts abdicated their duty to determine the effect of the unclean hands doctrine on the measure
of damages.
Be that as it may, the federal courts did not decide the core issue of mitigation. Instead,
they specifically dismissed the state law claims without prejudice for refiling and determination
in this court. Therefore it has become incumbent upon this court to determine the effect of the
clean hands doctrine‘on the defendants’ expected equitable affirmative defense of mitigation.
The defendants have chosen in their first response to the complaint to delay this court’s
prompt attention to this core issue. Instead, the defendants have irresponsibly moved to dismiss
the complaint, claiming, inter alia, that the complaint in this action is untimely pursuant to
M.G.L. ch. 260 §32 based on the initial date of dismissal by the Federal District Court.
HSI ignores the catch-all “other determination” clause of Section 32. This catch-all
clause includes “other determinations” occurring in the Federal appellate process. As shown
below, the time period for refiling under Section 32 did not begin to run until December 4, 2017
when the U.S. Supreme Court denied certiorari, or if not, at least from June 21, 2017 when the
First Circuit denied the petition for rehearing, or if not, from April 19, 2017, when the First
Circuit affirmed the decision of the District Court. The complaint, filed on April 11, 2017, was
timely under all three scenarios.
The motion to dismiss is frivolous and interposed for the purpose of delaying these
proceedings. Plaintiff incorporates by reference herein the affidavit of counsel for HSI in
support of the HSI entities motion to dismiss.
III. Points and Authorities
A. The Effect of M.G.L. c. 260, §32
M.G.L. ch 260 §32 permits a plaintiff to refile a claim dismissed on procedural grounds
Page 5 of 10“within one year after the dismissal or other determination of the original action.” A review of
the policies behind Section 32 as stated in Liberace v. Conway; 31 Mass. App. Ct. 40, 42 (1991)
demonstrates that the broad protections of Section 32 extend not only to a dismissal in a Federal
District Court case but also to appeals and petitions for review or certiorari as an “other
determination”.
The dismissal itself qualifies for Section 32 protection because it was procedural not
substantive. As HSI has pointed out it its affidavit, the basis for the dismissal was jurisdictional
not substantive. HSI Affidavit, Magistrate Judge Findings and Recommendations, Exhibit B, p
21, adopted by District Court judge at Exhibit B, page 8. The District Court found that the
plaintiff's motion certifying the questions raised in this action to the SJC was an additional
reason for dismissing the state law claims without prejudice for resolution in state court. Id. at 7
Therefore Section 32 applies as to the nature of the dismissal. The only remaining limitations
question with respect to either motion to dismiss is the date from which Section 32 runs.
M.G.L. ch. 260 §32 has always been given a broad or liberal construction as a remedial
statute applied to procedural dismissals including suits dismissed in Federal Court.
As early as 1835, a precursor of what now appears as G. L. c. 260, Section 32, was
described as a remedial statute to be given a liberal construction which will carry out the
intent of the Legislature, an intent favorable to a plaintiff. Coffin v. Cottle, 16 Pick. 383,
385-386 (1835). Later cases gave voice to similar disposition not to clip the wings of the
statute through narrow interpretation, so long as the plaintiff had given the defendant
timely notice of recourse to a court. See Woods v. Houghton, 1 Gray 580, 583 (1854);
Allen vy, Sawtelle, 7 Gray 165, 165-166 (1856); Duffy. Zonis, 327 Mass. 347, 350-353
(1951); Loomer v. Dionne, 338 Mass. 348, 351-352 (1959). See also Gaines v. New York,
215 N.Y. 533, 539-540 (1915). Liberace, 42.
The purpose behind the application of Section 32 to other court decisions is to avoid
pressing other courts to retain jurisdiction over cases that they would be otherwise be reluctant to
dismiss without prejudice if by doing so the claim or some other substantial right would be lost.
Page 6 of 10Id. Liberace makes no distinction between Federal District Court and a Circuit Court of
Appeals or the Supreme Court of the United States. Id.
It would be a distinction without a difference. The purpose of Section 32 with respect to
the First Circuit or the United States Supreme Court is identical to that of the District Court . It
would make no sense for Section 32 to avoid a loss of claim or other substantial right in the
Federal District Court only to lose them during the pendency of an appeal or petition for
certiorari, thereby pressuring the Appeals Court or the United States Supreme Court to reverse a
District Court ruling in order to retain jurisdiction to avoid loss of a claim or other substantial
right. Id. To do so would clearly defeat the long standing remedial and liberal policy of the
statute to avoid the loss of such claims or rights. Jd. It would also undermine judicial economy
by inducing a multiplicity of suits pending appeal.
Clearly, the “other determination” clause extends Section 32 to the conclusion or
disposition of the appellate process. See: Farrell v. Employers Liab. Assurance Corp, 57 RI.
389 190 A. 466(1937) construing Section 32 to apply Section 32 from the date of “defeat” on
procedural grounds. In that case, the “defeat” came when the Rhode Island Supreme Court
reversed the trial court and dismissed the case. In this case, the moment of “defeat” on
procedural grounds did not become final until the appellate process was concluded. That did not
occur until December 4, 2017 when the U. S. Supreme Court denied certiorari. Even if the time
period were to commence on April 19, 2017, the date when the First Circuit affirmed the rulings
of the District Court, or on June 21, 2017 when the First Circuit denied the petition for rehearing,
this action filed on April 11, 2017 would still be timely.
Section 32 applies and the complaint was filed timely.
B. The Two “New” Counts are Timely
Page 7 of 10HSI’s’s first fall back position is that even if the complaint is timely pursuant to M.G.L.
ch 260, §32, that Counts III and V are out of statute because those counts were not included in
the Federal District Court complaint. HSI does not argue that Counts III and IV are based on
any new facts.
Where the claims are interrelated, Section 32 extends the time for refiling. Chao v.
Ballista, 630 F.Supp.2d 170 (1990). Counts III and V are no more than mere amplifications of
the claims made in the federal complaint. Count III in this action is for a violation of the
covenant of good faith and fair dealing based on the same facts as the claim under 93A. A
violation of the covenant of good faith and fair dealing with intent to injure or cause harm is per
se a violation of M.G.L. ch. 93A. Anthony's Pier Four, Inc. » HBC Associates, 411 Mass. 451
(1991). As to Count Ill, the federal complaint did include a claim for a violation of M.G.L. ch.
93A §§2, 11. Count Ill therefore simply specifies a legal theory subsumed in the 93A claim. It
does not involve any additional facts which would take it out of statute. Like Count III, Count V
relies on no new facts. Count V is not a new claim for relief per se. The purpose of Count V is
to ensure, by specifically requesting it, that this court addresses the issue that the federal courts
ignored: that HSI and PDRK standing in the shoes of HSI, would come into court with unclean
hands should they, as expected, seek to assert the equitable defense of mitigation. Count V seeks
appropriate orders precluding the assertion of the equitable affirmative defense of mitigation.
At most, Counts III and V are tantamount to amendments under Rule 15(a). HSI nor
PDRK argue that Turner would not be permitted to amend the complaint under Rule 15(a) under
the “once as a matter of right” or the “freely given” provisions of Rule 15. All amendments
under Rule 15( c) arising out of the same “conduct, transactions or occurrences”, relate back to
the date of the original complaint for the purposes of the statute of limitation; in this case, the
Page 8 of 10date of the federal complaint plus one year from the date of dismissal. HSI does not argue that
the amendments to the complaint are improper under Rule 15, HSI relies solely on its arguments
that Section 32 does not apply. PDRK, for its part, ignores Section 32 altogether and relies on
the underlying limitations statutes.
As aresult of the foregoing Counts II and V are also timely and the defendants’ motions
to dismiss fail as to the statutes of limitations.
C. There is no res judicata
Hubbard’s second fall back position is that the rules of issue preclusion (res judicata) bar
the plaintiff's claims. This argument also fails because, as previously noted, the Federal court
explicitly declined to make any rulings on the facts or law (merits) regarding any state law
claims so that the plaintiff would be completely free to refile in state court. (Defendant’s Exhibit
B, pp 8, 21) Without any adjudication of any of the merits of any state law issue, there can be no
res judicata. \t’s nonsense to argue otherwise. ~
IV. CONCLUSION
The motion to dismiss is frivolous. Section 32 extends the time for re-filing from the
date of final determination of the appeal. The complaint is therefore timely. Counts III and V
arise out of the same conduct, transactions, or occurrences as Counts I, II and IV and are mere
amplifications of those counts. They are therefore timely. Since the federal court adjucated no
state law claims, there is no res judicata to be had.
The motion to dismiss should be denied and costs assessed pursuant to M.G.L. c. 231
§6F for interposing this motion in a desperate attempt to delay these proceedings.
Plaintiff,
Gregory P. Turner
Appearing pro se,
Page 9 of 10BBO: 504810
Email: gregturner@gptlawma.com
Page 10 of 10
Preview
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. Civil Action No: 1881CV1038 RIA RAR RAR I IIR REA HH HAA TAA RA HAAR) Gregory P. Turner, ) Plaintiff ) ) FILED v. : ) INTHE OFFIBE OF THE Hubbard Systems, Inc., formerly known as) FORTHE CSU COURTS. and also doing business as Jim Hubbard ) and Associates, Inc., ) JUN 12 2018 And, Jim Hubbard Associates, Inc., ) Defendants. ransusauiensneneneneneasasensnenens) FEES. Ou PLAINTIFF GREGORY P TURNER’S OPPOSITION TO DEFENDANTS’ MARJIM SOLUTIONS, INC. F/K/A HUBBARD SYSTEMS, INC. F/K/A AND D/B/A JIM HUBBARD AND ASSOCIATES, INC., LEGAL LEGACY, LLC F/K/A JIM HUBBARD AND ASSOCIATES, INC. AND JIM HUBBARD AND ASSOCIATES LLC MOTION TO DISMISS I. Introduction Defendants MarJim Inc and Legal Legacy, LLC, (HSI) and PDRK, LLC (PDRK) have simultaneously served two separate motions to dismiss on nearly identical statute of limitations grounds as follows. B. HSI’s Motion HSI argues that the instant claims are out of statute under the limitations of actions for each count, that G.L. c. 260, § 32 does not extend the statute of limitations, but that if it does, Section 32 does not protect counts III and V and finally if Counts III and V are protected that res judicata (issue preclusion) bars Counts III and V. B. PDRK motion Unlike HSI, PDRK does not challenge the applicability of G.L. c 260 § 32 as the saving statute Page 1 of 10where a claim is dismissed in federal court on procedural grounds. Footnote 1 of the complaint placed PDRK on notice that the complaint invokes Section 32. It states: “This claim arises out of the same transactions and occurrences with were the subject of a Federal District Court action dismisséd without prejudice on June 21, 2017.” PDRK omits this fact from its summary of facts for the court to consider. (PDRK motion at 3-4). PDRK does not address Section 32 or the content of the federal district court complaint. Instead, PDRK relies solely on the original limitations of actions under various sections on G.L. c.260. Section 32 applies to all limitations of actions found under chapter 260. PDRK additionally argues that the successor entity liability allegations against it are mere labels and conclusions, The complaint seeks to impose liability and the application of Section 32 upon PDRK by virtue of its alleged de facto merger with HSI in January, 2017. PDRK did not yet exist at the time of the events that are the subject of the complaint. PDRK was created for the Sole purpose of purchasing HSI. C. Oppositions Each motion is opposed separately but with identical sections including this. Introduction, the Nature of the Case, and, the Statute of Limitations. (Sections I - III (B)) The court need read these first sections but once. Each opposition then separately addresses the arguments unique to each motion. (Sections III, ( C) - IV) The affidavit of counsel for MarJim Solutions, Inc and Legal Legacy LLC, served on all parties pursuant to its motion to dismiss is hereby incorporated by reference. PDRK has waived reproduction of this 79 page document for the purposes of its motion. Should the HSI entities withdraw their motion, or the court wish an additional copy, plaintiff seeks leave to supply the court with same. Page 2 of 10Il. Nature of the Case This case seeks compensation for, and to deter the future unconscionable use by others of, the extreme leverage that the defendant Hubbard Systems, Inc., now MarJim Solutions, Inc. (HSD', and PDRK, LLC standing in the shoes of HSI, gained over Turner by holding the future viability of his law practice hostage through the tortious conversion of computer software (Collection Partner) that completely controlled that law practice, ina case of “poor man’s ransomware”.' This unconscionable conduct included the refusal, for an extended period of time, to immediately and unconditionally relinquish dominion and control, after multiple demands to do so, all in furtherance of its intention to extort money from Turner which Hubbard/MarJim claimed Turner owed Hubbard. This unconscionable,and therefore unequitable, conversion of property for the purpose of obtaining Jeverage to unlawfully compel the plaintiff property owner to pay HSI money distinguishes this case from an “ordinary” conversion involving the merely unlawful taking and return of property belonging to another. This distinction has dramatic consequences under the equitable maxim of unclean hands. The full measure of damages at the time of any conversion includes all prospective damages for any foreseeable damages which may be proven at trial. Where the conversion consists of merely taking and returning property, damages are limited by the equitable affirmative defense of mitigation, if available. In an “ordinary” conversion, the only condition ' Citations are omitted from this section because the issue before the court is the sufficiency of the pleadings not whether the unclean hands doctrine bars the defendants from asserting the equitable affirmative defense of mitigation. “Ransomware” is malware that encrypts files so that they cannot be used by the owner. The ecrypter then demands a ransom before supplying the code necessary to unencrypt the software. Page 3 of 10for asserting the equitable affirmative defense is that the plaintiff must have “accepted” the return of the property. In the “ordinary” conversion case where mitigation has occurred, the plaintiff's damages are properly limited to the damages associated with actual loss of use and any decrease in the value of the property which as has occurred during the conversion. But unlike other torts, a conversion plaintiff has no affirmative duty to mitigate damages by accepting a return of the converted property. Thus, the equitable affirmative defense is not automatically granted. At the moment of an ordinary conversion then, the defendant places itself at risk of liability for all reasonably foreseeable unmitigated prospective damages. One seeking equity cannot come into court with unclean hands. A party cannot invoke an equitable remedy, whether that remedy be a claim or defense, arising directly from its own unequitable conduct. The equitable affirmative defense of mitigation is subject to the unclean hands equitable maxim. Therefore, the right to assert mitigation as an affirmative defense is not automatic. The SJC has held that the unclean hands doctrine bars the assertion of mitigation as an affirmative defense where to do so would encourage a defendant to use extrajudicial means to collect a debt by seizing another’s property. HSI, and PDRK, standing in the shoes of HSI, will undoubtedly seek to assert the equitable affirmative defense of mitigation because HSI returned property converted for the purposes of extortion. HSI’s expected need to assert the equitable affirmative defense of mitigation, however, arises directly out of its own unequitable extortionate conduct. HSI comes into court with unclean hands. Therefore, this court cannot permit HSI to invoke the equitable remedy of the affirmative defense of mitigation. In this case, the Federal Courts failed to make any distinction between an “ordinary” conversion and a conversion for the unequitable purposes of extortion. In doing so, the federal Page 4 of 10courts abdicated their duty to determine the effect of the unclean hands doctrine on the measure of damages. Be that as it may, the federal courts did not decide the core issue of mitigation. Instead, they specifically dismissed the state law claims without prejudice for refiling and determination in this court. Therefore it has become incumbent upon this court to determine the effect of the clean hands doctrine‘on the defendants’ expected equitable affirmative defense of mitigation. The defendants have chosen in their first response to the complaint to delay this court’s prompt attention to this core issue. Instead, the defendants have irresponsibly moved to dismiss the complaint, claiming, inter alia, that the complaint in this action is untimely pursuant to M.G.L. ch. 260 §32 based on the initial date of dismissal by the Federal District Court. HSI ignores the catch-all “other determination” clause of Section 32. This catch-all clause includes “other determinations” occurring in the Federal appellate process. As shown below, the time period for refiling under Section 32 did not begin to run until December 4, 2017 when the U.S. Supreme Court denied certiorari, or if not, at least from June 21, 2017 when the First Circuit denied the petition for rehearing, or if not, from April 19, 2017, when the First Circuit affirmed the decision of the District Court. The complaint, filed on April 11, 2017, was timely under all three scenarios. The motion to dismiss is frivolous and interposed for the purpose of delaying these proceedings. Plaintiff incorporates by reference herein the affidavit of counsel for HSI in support of the HSI entities motion to dismiss. III. Points and Authorities A. The Effect of M.G.L. c. 260, §32 M.G.L. ch 260 §32 permits a plaintiff to refile a claim dismissed on procedural grounds Page 5 of 10“within one year after the dismissal or other determination of the original action.” A review of the policies behind Section 32 as stated in Liberace v. Conway; 31 Mass. App. Ct. 40, 42 (1991) demonstrates that the broad protections of Section 32 extend not only to a dismissal in a Federal District Court case but also to appeals and petitions for review or certiorari as an “other determination”. The dismissal itself qualifies for Section 32 protection because it was procedural not substantive. As HSI has pointed out it its affidavit, the basis for the dismissal was jurisdictional not substantive. HSI Affidavit, Magistrate Judge Findings and Recommendations, Exhibit B, p 21, adopted by District Court judge at Exhibit B, page 8. The District Court found that the plaintiff's motion certifying the questions raised in this action to the SJC was an additional reason for dismissing the state law claims without prejudice for resolution in state court. Id. at 7 Therefore Section 32 applies as to the nature of the dismissal. The only remaining limitations question with respect to either motion to dismiss is the date from which Section 32 runs. M.G.L. ch. 260 §32 has always been given a broad or liberal construction as a remedial statute applied to procedural dismissals including suits dismissed in Federal Court. As early as 1835, a precursor of what now appears as G. L. c. 260, Section 32, was described as a remedial statute to be given a liberal construction which will carry out the intent of the Legislature, an intent favorable to a plaintiff. Coffin v. Cottle, 16 Pick. 383, 385-386 (1835). Later cases gave voice to similar disposition not to clip the wings of the statute through narrow interpretation, so long as the plaintiff had given the defendant timely notice of recourse to a court. See Woods v. Houghton, 1 Gray 580, 583 (1854); Allen vy, Sawtelle, 7 Gray 165, 165-166 (1856); Duffy. Zonis, 327 Mass. 347, 350-353 (1951); Loomer v. Dionne, 338 Mass. 348, 351-352 (1959). See also Gaines v. New York, 215 N.Y. 533, 539-540 (1915). Liberace, 42. The purpose behind the application of Section 32 to other court decisions is to avoid pressing other courts to retain jurisdiction over cases that they would be otherwise be reluctant to dismiss without prejudice if by doing so the claim or some other substantial right would be lost. Page 6 of 10Id. Liberace makes no distinction between Federal District Court and a Circuit Court of Appeals or the Supreme Court of the United States. Id. It would be a distinction without a difference. The purpose of Section 32 with respect to the First Circuit or the United States Supreme Court is identical to that of the District Court . It would make no sense for Section 32 to avoid a loss of claim or other substantial right in the Federal District Court only to lose them during the pendency of an appeal or petition for certiorari, thereby pressuring the Appeals Court or the United States Supreme Court to reverse a District Court ruling in order to retain jurisdiction to avoid loss of a claim or other substantial right. Id. To do so would clearly defeat the long standing remedial and liberal policy of the statute to avoid the loss of such claims or rights. Jd. It would also undermine judicial economy by inducing a multiplicity of suits pending appeal. Clearly, the “other determination” clause extends Section 32 to the conclusion or disposition of the appellate process. See: Farrell v. Employers Liab. Assurance Corp, 57 RI. 389 190 A. 466(1937) construing Section 32 to apply Section 32 from the date of “defeat” on procedural grounds. In that case, the “defeat” came when the Rhode Island Supreme Court reversed the trial court and dismissed the case. In this case, the moment of “defeat” on procedural grounds did not become final until the appellate process was concluded. That did not occur until December 4, 2017 when the U. S. Supreme Court denied certiorari. Even if the time period were to commence on April 19, 2017, the date when the First Circuit affirmed the rulings of the District Court, or on June 21, 2017 when the First Circuit denied the petition for rehearing, this action filed on April 11, 2017 would still be timely. Section 32 applies and the complaint was filed timely. B. The Two “New” Counts are Timely Page 7 of 10HSI’s’s first fall back position is that even if the complaint is timely pursuant to M.G.L. ch 260, §32, that Counts III and V are out of statute because those counts were not included in the Federal District Court complaint. HSI does not argue that Counts III and IV are based on any new facts. Where the claims are interrelated, Section 32 extends the time for refiling. Chao v. Ballista, 630 F.Supp.2d 170 (1990). Counts III and V are no more than mere amplifications of the claims made in the federal complaint. Count III in this action is for a violation of the covenant of good faith and fair dealing based on the same facts as the claim under 93A. A violation of the covenant of good faith and fair dealing with intent to injure or cause harm is per se a violation of M.G.L. ch. 93A. Anthony's Pier Four, Inc. » HBC Associates, 411 Mass. 451 (1991). As to Count Ill, the federal complaint did include a claim for a violation of M.G.L. ch. 93A §§2, 11. Count Ill therefore simply specifies a legal theory subsumed in the 93A claim. It does not involve any additional facts which would take it out of statute. Like Count III, Count V relies on no new facts. Count V is not a new claim for relief per se. The purpose of Count V is to ensure, by specifically requesting it, that this court addresses the issue that the federal courts ignored: that HSI and PDRK standing in the shoes of HSI, would come into court with unclean hands should they, as expected, seek to assert the equitable defense of mitigation. Count V seeks appropriate orders precluding the assertion of the equitable affirmative defense of mitigation. At most, Counts III and V are tantamount to amendments under Rule 15(a). HSI nor PDRK argue that Turner would not be permitted to amend the complaint under Rule 15(a) under the “once as a matter of right” or the “freely given” provisions of Rule 15. All amendments under Rule 15( c) arising out of the same “conduct, transactions or occurrences”, relate back to the date of the original complaint for the purposes of the statute of limitation; in this case, the Page 8 of 10date of the federal complaint plus one year from the date of dismissal. HSI does not argue that the amendments to the complaint are improper under Rule 15, HSI relies solely on its arguments that Section 32 does not apply. PDRK, for its part, ignores Section 32 altogether and relies on the underlying limitations statutes. As aresult of the foregoing Counts II and V are also timely and the defendants’ motions to dismiss fail as to the statutes of limitations. C. There is no res judicata Hubbard’s second fall back position is that the rules of issue preclusion (res judicata) bar the plaintiff's claims. This argument also fails because, as previously noted, the Federal court explicitly declined to make any rulings on the facts or law (merits) regarding any state law claims so that the plaintiff would be completely free to refile in state court. (Defendant’s Exhibit B, pp 8, 21) Without any adjudication of any of the merits of any state law issue, there can be no res judicata. \t’s nonsense to argue otherwise. ~ IV. CONCLUSION The motion to dismiss is frivolous. Section 32 extends the time for re-filing from the date of final determination of the appeal. The complaint is therefore timely. Counts III and V arise out of the same conduct, transactions, or occurrences as Counts I, II and IV and are mere amplifications of those counts. They are therefore timely. Since the federal court adjucated no state law claims, there is no res judicata to be had. The motion to dismiss should be denied and costs assessed pursuant to M.G.L. c. 231 §6F for interposing this motion in a desperate attempt to delay these proceedings. Plaintiff, Gregory P. Turner Appearing pro se, Page 9 of 10BBO: 504810 Email: gregturner@gptlawma.com Page 10 of 10