After a jury trial in 2002, Misha Defonseca and Vera Lee were awarded more than $30 million in compensatory and multiple damages on claims arising from breaches of contract and violations of G. L. c. 93A by Jane Daniel and Mt. Ivy Press, L.P. (Mt. Ivy).
Background.
Much later, in 1985, Defonseca emigrated to the United States, settling in the Boston area. On occasion she spoke of her experiences
Since Defonseca's native language was French, Daniel engaged an experienced, professional writer, Lee, a long-standing acquaintance who was fluent in French, to assist (as co-author) on an American edition of Defonseca's memoir.
Defonseca and Lee brought a number of claims against Daniel and Mt. Ivy, including breach of contract and violation of G. L. c. 93A.
Reserving the c. 93A portion of the case to herself for decision, the judge found that Daniel and Mt. Ivy had wilfully and knowingly engaged in conduct designed to deprive Defonseca and Lee of royalties and other compensation. In a detailed decision, and drawing from a comprehensive set of findings linked to the evidence at trial, the judge concluded that Daniel and Mt. Ivy had engaged in unfair and deceptive business practices in violation of c. 93A. The judge trebled the jury's award and assessed attorney's fees and costs.
Daniel and Mt. Ivy appealed from the judgment to this court. After oral argument, but before our decision in that appeal issued, some of the parties settled their claims. In exchange for some sum (unspecified in the record before us), Defonseca relinquished any claim to the judgment in her favor, unless Daniel or Mt. Ivy pursued any claim against her. In a separate agreement, Lee released Daniel, but not Mt. Ivy, in exchange for an assignment of $250,000 from a settlement between Daniel and her counsel and an assignment of the proceeds from the future sale of Daniel's house, subject to certain adjustments.
Also while the first appeal was pending, Daniel came to learn of information she believed cast doubt on aspects of Defonseca's memoir. Specifically, a bank record that had been produced posttrial showed Defonseca's birth date, birth place, and mother's maiden name, all of which she claimed in her book to have no knowledge of. With this newly discovered material, Daniel tried to access vital family records in Belgium, only to be frustrated by that country's privacy laws. Search was made of ships' passenger lists in our local archives, the Yad Vashem database of
Ultimately, Defonseca's true identity was uncovered. Piece by piece, with aid from Sergeant, Daniel was able to learn that Defonseca had been born Monica Ernestine Josephine De Wael on May 12, 1937, in Etterbeek, Belgium. Her family's residence was in the Schaerbeek district of Brussels, and she was registered as a student in an elementary school located there for the fall term of 1943 — the very same time period that she claimed to be in the midst of a journey across Nazi-controlled Europe. With this new information about Defonseca, especially her original surname "De Wael," the Belgian press reported more proof of Defonseca's fraud,
b. Current proceedings. In April, 2008, Daniel and Mt. Ivy commenced an independent action, pursuant to rule 60(b), in the Superior Court against Defonseca and Lee, seeking to set aside the $33 million judgment. In relevant part, the complaint asserted two counts against Defonseca (a claim under rule 60[b] for fraud on the court and a claim under rule 60[b][6]) and two parallel counts against Lee. The complaint alleged that the judgment was the product of a deliberate and cleverly concealed fraud, purposefully carried out by Defonseca with the aid of her counsel.
The complaint contained no allegations suggesting that Lee had any knowledge of the fraud, or that she had any reason to know that Defonseca's story was not true.
The defendants moved to dismiss the complaint under rule 12(b)(6). Notably, Defonseca did not dispute Daniel's allegations of fraud, or the related media reports discrediting Defonseca's book and trial testimony. Nor did Defonseca dispute a February 28, 2008, Boston Globe article that reported Defonseca candidly "acknowledged" that "every essential element of her autobiography [was] false, that her trial testimony was perjured and that every document she filed with the [Superior] Court when acting as her own counsel, was intended to mislead the Court and the jury."
The judge allowed the motion to dismiss. As to the rule 60(b)(6) claim, the judge concluded that the allegations of the complaint fell within the parameters of rule 60(b)(3), which applies in cases of fraud, and that the complaint alleged no "extraordinary circumstances" that might warrant relief under rule 60(b)(6). See Paternity of Cheryl, 434 Mass. 23, 34-35 (2001); Owens v. Mukendi, 448 Mass. 66, 71 (2006). As a result, the judge concluded that the plaintiffs' action was barred by the one-year limitations period of rule 60(b)(3). See Winthrop Corp. v. Lowenthal, 29 Mass.App.Ct. 180, 182-183 (1990). With respect to the plaintiffs' claim of fraud on the court, the judge concluded that the allegations, as a matter of law, did not make out such a claim.
Discussion. "Rule 60 sets forth a comprehensive framework for obtaining relief from a final judgment or order, balancing the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435 Mass. 396, 399-400 (2001). Rule 60(b) has two parts. The first part sets out six numbered circumstances under which a party may move for relief from a judgment. The second part (an unnumbered provision) permits a party to seek relief by way of an independent action. Here, the plaintiffs seek relief by way of an independent action. We discuss the plaintiffs' claims as they apply to each defendant.
a. Defonseca. i. Rule 60(b)(6). In relevant part, rule 60(b) provides:
Relief under 60(b)(6) is available only when justified "by some reason other than those stated in subdivisions (1) through (5)." Chavoor v. Lewis, 383 Mass. 801, 806 (1981). When examining whether 60(b)(6) relief is warranted, we consider "whether the moving party has a meritorious claim or defense... whether extraordinary circumstances warrant relief ... and whether the substantial rights of the parties in the matter in controversy will be affected by granting the motion." Owens, 448 Mass. at 72 (citations and internal quotation marks omitted).
Unlike motions pursuant to rule 60(b)(1) through (b)(3), which
The plaintiffs have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as the defendants point out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.
The size of the award is also a circumstance to be considered. Defonseca obtained a judgment that, once trebled, exceeded $20 million. Much of that amount consisted of multiple damages under c. 93A. Multiple damages are awarded only for wilful, culpable conduct, that results in a "grievous violation of societal interests." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 856 n. 21 (1983) (citation omitted). See Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683, 686 (1998). The jury and judge, of course, were unaware that the book was a hoax, rather than a heart-rending story of Holocaust survival.
We also consider Defonseca's conduct as a pro se litigant. Although it is true that perjury, standing alone, generally does not support relief under rule 60(b)(6), Defonseca's alleged conduct goes well beyond that. Defonseca's entire case, and the manner in which she procured the judgment, was buttressed on what is now admitted to be a lie. The pleadings she filed were false and based on false information. The affidavits she submitted were premised on her phony life story. Her testimony at
We are satisfied that the allegations of the complaint, considered under the appropriate standard, are sufficient to state an independent action based on rule 60(b)(6).
ii. Fraud on the court. Rule 60(b) permits "an independent action ... to set aside a judgment for fraud upon the court." In our jurisprudence, "fraud on the Court" is a term of art with a stringent definition. Matter of the Trusts Under the Will of Crabtree, 449 Mass. 128, 148 (2007). "A `fraud on the court' occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting from Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). "Examples of `fraud on the Court' include `bribery of judges, employment of counsel to "influence" the court, [and] involvement of an attorney (an officer of the court) in the perpetration of fraud.'" Will of Crabtree, supra at 149, quoting from MacDonald v. MacDonald, 407 Mass. 196, 202 (1990). "A party's nondisclosure to an adverse party ... or to the court ... of facts pertinent to a controversy before the court, without more, does not amount to `fraud on the court' for purposes of vacating a judgment under rule 60(b)." Paternity of Cheryl, 434 Mass. at 36. "The doctrine embraces `only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.'" Id. at 35-36, quoting from Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983).
There are some falsehoods that are so emotionally inflammatory that they impede the jury's ability impartially to evaluate facts and adjudicate a case. Falsely claiming to be a victim (and survivor) of the Holocaust is such a one, particularly where — as here — the claim is the foundation of a book the publication, distribution, and marketing of which were the subjects of the
As noted above, Defonseca proceeded in part pro se, and she now argues that only an officer of the court can commit fraud on the court. Although fraud on the court typically involves officers of the court, we are unprepared to say that pro se litigants are in all circumstances insulated from committing fraud on the court. Pro se litigants are generally required to comply with the same rules as represented parties and their attorneys, see, e.g., Pandey v. Roulston, 419 Mass. 1010, 1011 (1995); Kyler v. Everson, 442 F.3d 1251, 1253-1254 (10th Cir.2006), and there is no reason to immunize them from the consequences of the most egregious forms of misconduct. Cf. Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1130-1131 (9th Cir.1995) (attorney's involvement in the discovery process, which included the holding and withholding of key information, was "sufficient to render him an officer of the court" for purposes of the fraud on the court doctrine even though he did not represent party); Herring v. United States, 424 F.3d 384, 390-391 (3d Cir. 2005) (attorneys who did not represent United States, but asserted claim of privilege on behalf of United States, were "officers of the court" for fraud on the court purposes).
We are satisfied that, accepting the allegations of the complaint as true and viewing Defonseca's misconduct as a whole, which included not just one or two instances of false testimony, but an entire case buttressed by falsehoods, the plaintiffs have sufficiently stated a claim of fraud on the court.
b. Lee. The plaintiffs' case against Lee stands in a much different posture. The complaint does not allege that Lee knew, or had reason to know that Defonseca's memoir was fraudulent. The complaint's silence in this regard is consistent with the trial judge's conclusion that the allegations indicated Lee alerted Daniels to the fact that the book had not been fact-checked and that many historical facts needed to be verified. Moreover, the allegations indicate that Lee was removed from the project before its completion. There is also no allegation that Lee made any false statements in the course of the litigation, whether during discovery or trial. Instead, the plaintiffs allege Lee "rode the coattails of Defonseca's fraudulent conduct" and that
Conclusion. Because the plaintiffs have not stated a claim for rule 60(b)(6) relief against Lee, and because they conceded at oral argument they are not pursuing a fraud on the court claim against Lee, that portion of the judgment which dismisses the plaintiffs' claims against Lee is affirmed. However, for the reasons set out above, we reverse that portion of the judgment which dismisses the plaintiffs' claims against Defonseca.
So ordered.
Mt. Ivy signed separate (but nearly identical) publishing agreements with Lee and Defonseca in August of 1995. The parties also made provisions for a French edition for distribution in Europe, where advance publicity had stirred interest among book dealers.