NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel ' s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summar y decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran , 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT 22

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- 1105
RIAN WATERS

vs . AIDAN KEARNEY & others
. 1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The plaintiff, Rian Waters, appeals a judgment dismissing his claim of libel against the defendant s , Aidan Kearney , Worcester Digital Marketing, LLC, and Turtleboy Enterprises , LLC, (defendants) for failure to prosecute
. In an earlier appeal, a panel of this court reversed the grant of summary judgme nt against the plaintiff on his libel claim to the extent the claim was "based on the statements that Waters sold drugs in California and shipped drugs to Massachusetts
. " Waters v. Kearney , 100 Mass. App. Ct. 1105 (2021 ) ( Waters I )
. We affirmed the dismissal of all other claims and remanded for further proceedings
. Because this case presents one of the rare instances where the judge, acting on proper motivation to

1 W orcester Digital Marketing, LLC, and Turtleboy Enterprises , LLC .2

maintain judicial efficiency , nevertheless failed to exercise proper disc retion, we vacate the judgment and remand for further proceedings. Background
. 2 The libel claim stems from a statement in a book published by Kearney that the plaintiff "sold drugs in California " and while visit ing Massachusetts "he allegedly shipped hi mself drugs via the USPS, which he intended to sell
here." After remand, the p laintiff filed numerous pleadings , including motions directed to whether Kearney was harassing witnesses and seeking to enjoin Kearney from "mentioning or harassing" the plainti ff or any potential witness
. It was not always clear whether the named persons were witnesses who the plaintiff intended to call at the trial of the one claim remaining in this case. T he plaintiff also repeatedly stated in pleadings , including an affidavit, that he "never bought or sold drugs in California." The plaintiff also described the impact Kearney's alleged libel had on him
. In response to this flurry of pleadings, t he judge scheduled a final pretrial conference. 3

2 The facts pertaining to this dispute are set out in Waters I ; the following is a summary of the facts relevant to this appeal.

3 We recognize that the plaintiff's numerous filings and lack of understanding of the litigation process were a burden on the court.3

A t th e final pretrial conference , the judge denied the plaintiff's motion for default and sanctions , which had alleged that Kearney was threatening people who the plaintiff intended
to call as witnesses at trial. 4 T he plaintiff expressed concern about going forward with trial where, due to Kearney's alleged threats , he had no witnesses. The plaintiff also indicated that because he did not know what kind of drugs he was alleged to have sold, he did not know who to call as a witness. 5 The judge admirably attempted to foc us the plaintiff on the issues relevant to trial
. T he plaintiff stat ed that if the judge was

4 The motion referred to several persons by name; we cannot discern from this record if those persons could have provided admissible trial testimony, or had provided depositions that c ould be admissible, see Mass. R. Civ. P. 32, as amended, 392 Mass. 1105 (1984). The fact that the plaintiff's pleading referred the judge to a two

- and

- one - half

- hour

- long video as part of the record, without providing timestamps to the relevant portions of the video and without explaining how the person depicted in it might provide testimony relevant to the one remaining claim in this case, did not assist the court.

5 It is not clear why it mattered what type of drugs the plaintiff allegedly sold. Based o n the plaintiff's representations about discovery, it was " hash oil. " T he p laintiff seemed to the believe at the pretrial conference that it could be cannabis or "coke or crack." In any event, assuming it is the truth, the plaintiff can testify as he already has stated in an affidavit, that he has "never bought or sold drugs in California" and otherwise identify statements made by Kearney about the plaintiff's alleged sale or shipment of drugs that the plaintiff believes are libelous and testify that they are not true. The plaintiff can provide a witness list that includes witne sses to address all possibilities and, after Kearney presents evidence, the plaintiff can decide who, if anyone, to call as rebuttal witnesses.4

going to allow Kearney to threaten witnesses , he would need only a day for trial because he had no witnesses. 6 He also told the judge " [ i ] f I can't have a fair trial , there's not going to be a trial" and asked for the case to be "closed , " but subsequently indicated , "All right,
. . . fine. We'll have a trial." The defendant s asked for thirty days to file a motion for summary judgment , which t he judge granted "if necessary
. " 7 The next day, the judge dismissed the remaining c laim without prejudice for the plaintiff's failure to prosecute. Discussion
. The judge's stated reasons for the dismissal

-

- that "Waters indicated that he had 'no witnesses'; and that he was unable to articulate his damages" were incorrect.

" Involuntary dismissal is a drastic sanction which should be utilized only in extreme situations
. " Monahan v. Washburn , 400 Mass. 126, 128 (1987)
. Given these errors, dismissal was an abuse of discretion
. See Anderson v. Sport Lounge, Inc ., 27

6 The issue of witness intimidation, if still relevant, could be addressed on remand through proper pleadings es tablishing that a named person is a witness or potential witness in this civil proceeding
. Of course, the judge can require the parties to provide a witness list identifying all potential witnesses and the parties may subpoena witnesses to testify at tria l.

7 Kearney told the judge that he intended to move for summary judgment on the ground that the statement at issue in the remaining libel claim included the word "alleged[ly]." We note that that issue was litigated in Waters I and the defendants lost.5

Mass. App. Ct. 1208, 1209 (1989) ("Courts have inherent power to dismiss a case for lack of prosecution " ; those decisions are within "sound discretion of the judge") ; Munshani v. Signal Lake Venture Fund II, LP , 60 Mass. App. Ct. 714, 718 (2004) (review judge's exercise of inherent powers to manage cases for abuse of discretion). A libel c laim requires a showing of " false and defamatory written communication o f and concerning the plaintiff. " McAvoy

v. Shufrin , 401 Mass. 593, 597 (1988). Here , the plaintiff had repeatedly sworn in his filings that he had "never bought or sold drugs in California. " A t the pretrial conference, when the plaintiff stated he had no witnesses, the plaintiff was stating that he did not have witnesses other than himself to offer testimony. Accordingly, it was incorrect on this record to dismiss the remaining claim on the basis that the plaintiff had no witnesses. Once the plaintiff offer s his own testimony at trial, "it [will be] up to the defendant [s] to prove truth as an affirmative defense." Id . See Maloof v. Post Publ
. Co ., 306 Mass. 279, 280 (1940). 8 The judge also made an error of law on th e issue whether the plaintiff could prove damages. A statement accusing a

8 Of course, on remand, the judge can require each party to provide a witness list prior to the pretrial conference pursuant to Superior Court Standing Order 1

- 88 (2023)
.6

person of a crime constitutes defamation per se. McAvoy , 401
Mass. at 597

- 598. While a plaintiff alleging libel must show economic damages , defamation per se does not require proof of economic loss
. See Phelan v. May Dep ' t Stores Co . , 443 Mass. 52, 56 (2004) ; Ravnikar v. Bogojavlensky , 438 Mass. 627, 630 (2003)
. In addition, the plaintiff's affidavit s set forth the testimony he could provi de about the harm he allegedly suffered from the defendants ' conduct. The judge therefore committed

err or whe n he based the order of dismissal on the plaintiff's inability to articulate damages
. See Van Christo Adver tising,
Inc . v. M/A

- COM/LCS , 426 Mass. 410, 417 (1998) (abuse of discretion review "includes considering whether proper legal standards were applied")
. Dismissal for failure to prosecute is a harsh punishment reserved for "extreme situations" and was not
warranted here. Mo na han , 400 Mas s. at 128
. We can affirm for any ground supported by the record. See,
e.g., Gabbidon v. King , 414 Mass. 685, 686 (1993). However, Mass. R. Civ. P. 41, 365 Mass. 803 (1974), outlines the circumstances in which a judge may dismiss an action before trial e ither voluntarily or involuntarily, none of which applied here. Pursuant to r ule 41 (a) (1), after the defendant has answered the complaint, the plaintiff may voluntarily dismiss the complaint by filing a stipulation signed by all parties. Thus, the plai ntiff's telling the judge " [ i ] f I can't have a7

fair trial , there's not going to be a trial" and asking for the case to be "closed," did not amount to grounds for voluntary dismissal that complied with r ule 41 (a). Alternatively, under r ule 41 (b) (1), a j udge may enter an involuntary dismissal on the judge's own motion if an action has remained on the docket for three years " without activity shown other than placing upon the trial list, marking for trial, being set down for trial, the filing or withdrawal of an appearance, or the filing any paper pertaining to discovery. " Given the plaintiff's flurry of filings, dismissal on the court's motion could not be in compliance with r ule 41 (b) (1) and, in any event, the judge would have had to give the plaintiff not less than one year ' s notice under the rule
. Similarly, dismissal could not have been pursuant to r ule
41 (b) (2). First, the defendants did not move for dismissal and certainly did not move for dismissal with notice. Second, as already ind icated, there was no such inactivity on the docket. Third, the portion of the rule that permits dismissal in an action tried by the court without a jury did not apply. Conclusion
. W e vacate the judgment entered August 31, 2022, dismissing the plaintiff ' s claim and remand the matter to8

the Superior Court for further proceedings consistent with this
memorandum and order. 9
So ordered
. By the Court (Henry, Grant & Brennan, JJ. 10 ),

Assistant Clerk Entered: May 28, 2024.

9 To the extent the plaintiff believes he needs an accommodation for a disability, he needs to properly ask for an accommodation. See Massachusetts Court System, How to ask for a court accommodation under the Americans with Disabilities Act, https://www.mass.gov/info

- details/how

- to
- ask

- for

- a - court
accommodation

- under

- the

- americans

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- act .

10 The panelists are listed in order of seniority.