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 summary 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-P-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 defendants, 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 

judgment 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 Worcester Digital Marketing, LLC, and Turtleboy 

Enterprises, LLC.
2

maintain judicial efficiency, nevertheless failed to exercise 

proper discretion, 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 visiting Massachusetts "he allegedly 

shipped himself drugs via the USPS, which he intended to sell 

here." After remand, the plaintiff filed numerous pleadings, 

including motions directed to whether Kearney was harassing 

witnesses and seeking to enjoin Kearney from "mentioning or 

harassing" the plaintiff 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. The 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, the 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

At the 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 The 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 focus the plaintiff on the issues 

relevant to trial. The plaintiff stated 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 

could 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 on the plaintiff's 

representations about discovery, it was "hash oil." The 

plaintiff 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 

witnesses 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 

defendants asked for thirty days to file a motion for summary 

judgment, which the judge granted "if necessary."7 The next day, 

the judge dismissed the remaining claim 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

establishing 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 trial.

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 claim requires a showing of "false and defamatory 

written communication of 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." At 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 offers 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 the 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 affidavits set forth the 

testimony he could provide about the harm he allegedly suffered 

from the defendants' conduct. The judge therefore committed 

error when he based the order of dismissal on the plaintiff's 

inability to articulate damages. See Van Christo Advertising, 

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. Monahan, 400 Mass. 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 either voluntarily or involuntarily, none of which applied 

here. Pursuant to rule 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 plaintiff's telling the judge "[i]f I can't have a 
7

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 rule 41 (a).

Alternatively, under rule 41 (b) (1), a judge 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 rule 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 rule 

41 (b) (2). First, the defendants did not move for dismissal 

and certainly did not move for dismissal with notice. Second, 

as already indicated, 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. We vacate the judgment entered August 31, 

2022, dismissing the plaintiff's claim and remand the matter to 
8

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-courtaccommodation-under-the-americans-with-disabilities-act.

10 The panelists are listed in order of seniority.