ORDER
Aftеr a review of the objections, I adopt the report and recommendation and order the action to be dismissed.
REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTIONS TO DISMISS
I. INTRODUCTION
The plaintiff Diane Andrews-Clarke brings this action individually, as Adminis-tratrix of the Estate of her deceased husband Richard J. Clarke, and as next friend of their minor children, seeking to recover damages for her husband’s death which allegedly was the result of the defendants’ refusal to authorize appropriate medical and psychiatric treatment during Mr. Clarke’s repeated hospitalizations for alcoholism in 1994. The defendants are Lu-cent Technologies (formerly known as AT & T) (“AT & T”); Travelers Insurance Company (formerly known as MetraHealth Insurance and United Healthcare Insurance Company) (“Travelers”) and TAO, Inc. (now known as Green Spring Health Services, Inc.) (“TAO”). 1
Each defendant has moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.
(See
Docket
II. STATEMENT OF FACTS
When ruling on a motion to dismiss, the court must accept as true all well-pleaded facts, and the plaintiff is to be given the benefit of all reasonable inferences.
See Cooperman v. Individual, Inc.,
Diane Andrews-Clarke (“Andrews-Clarke”) an employee of AT & T, maintained a health insurance policy with Travelers through her AT & T employee benefit plan. (See Complaint (“Compl.”) at ¶¶ 12, 13 and Ex. C). 2 TAO, a utilization review company, contracted with AT & T to provide utilization review services for AT & T’s employee health benefit plan. 3 (Id. at ¶¶ 11, 69). Andrews-Clarke’s husband Richard Clarke (“Clarke”), and her children were named beneficiaries of the insurance policy. (Id. at ¶¶ 14, 15).
The allegations in the current complaint arise from the alleged failure of the defendants to authorize adequate medical and psychiatric treatment fоr Clarke prior to his suicide on November 12, 1994. (See Compl. Intro.) The plaintiff contends that Clarke was entitled to, and wrongfully denied, in-patient hospital care for detoxification and rehabilitation under the terms of AT & T’s employee benefit plan, and that this failure to obtain the necessary treatment resulted in Clarke’s tragic death. (Id. at ¶¶ 18, 29, 46, 58, 60-66; Ex. C).
Procedural Background
The plaintiff filed her first suit in 1996 in state court against,
inter alia,
Travelers and TAO.
4
The defendants promptly removed the case to federal court, where they filed motions to dismiss on the grounds that the claims were preempted by ERISA.
See Andrews-Clarke v. Trav
After reviewing the factual allegations of the complaint in detail, the District Court (by Young, J.) allowed the motions to dismiss, but clearly was outraged by the ruling. In an eloquent and passionate decision, Judge Young wrote:
This case, thus, becomes yet another illustration of the glaring need for Congress to amend ERISA to account for the changing realities of the modern health care system. Enacted to safeguard the interests of employees and their beneficiaries, ERISA has evolved into a shield of immunity that protects health insurers, utilization review providers, and other managed care entities from potential liability for the consequences of their wrongful denial of health benefits.
Id. at 53. Although clearly loathe to do so, by his decision dated October 30, 1997, Judge Young dismissed all the claims raised against Travelers and TAO in plaintiffs proposed second amended complaint after finding that the state law claims were either preempted by ERISA or did not confer a private right of action. Id. at 53-56. The court also determined that none of the plaintiffs claims stated a cause of action under ERISA. Id. at 55-56. The counts against Travelers and TAO in the proposed second amended complaint included medical malpractice claims for negligent failure to diagnose and failure to administer appropriate treatment; wrongful death; breach of contract for failure to approve medically necessary treatment; loss of spousal and parental consortium; intentional infliction of emotional distress; negligent infliction of emotional distress; violations of Mass. Gen. Laws ch. 175, § 47B; violations of Mass. Gen. Laws ch. 176D, § 3; and violations of Mass. Gen. Laws ch. 93A. Id. at 53-56, n. 22, 23.
The plaintiff had attempted to add AT & T as a defendant in the proposed second amended complaint which formed the basis of Judge Young’s ruling. 5 She subsequently sought leave to add AT & T in a third amended complaint pursuant to a motion filed in August, 1998, almost a year after Judge Young’s decision dismissing the action. The motiоn to amend was denied, and the plaintiff then moved for reconsideration of that denial. In an Order dated February 9, 1999 the Court (by Saris, J.) found that either the motion to add AT & T had already been denied, or if it had been allowed (as plaintiff claimed it had been), the plaintiff had failed to serve the complaint on AT & T in a timely manner. Thus, the motion for reconsideration was denied. (See Civil Action No. 97-10191-WGY/PBS Docket # 77).
The Present Complaint
The plaintiff never appealed from any of the decisions rendered in the District Court. Rather, on November 8, 2000, she filed the instant case in state court against Travelers, TAO and AT
&
T. The defendants removed the case from state court to this court on January 11, 2001. The factu
The Motions to Dismiss
The defendants’ motions present four basic arguments. First, the defendants contend that the plaintiffs claims are barred by the doctrine of res judicata. Second, the defendants contend that the plaintiffs claims are preempted by ERISA. Third, the defendants argue that the plaintiff has failed to allege any viable causes of action under ERISA. Finally, according to the defendants, the plaintiffs claims are time-barred. For the reasons detailed below, for the first three of these reasons I recommend that the motions to dismiss be allowed. Factual disputes, however, preclude the dismissal of this case on statute of limitations grounds.
III. DISCUSSION
A. Standard of Review
Each defendant has moved to dismiss all counts of the complaint under Fed.R.Civ.P. 12(b)(6) for “failure to state a claim upon which relief can be granted.” A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleadings. Thus, when confronted with a motion to dismiss the court accepts as true all well-pleaded factual averments and draws all reasonable inferences in the plaintiffs favor.
See Dartmouth Review,
“The policy behind res judicata is to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.”
Bay State HMO Mgmt., Inc. v. Tingley Sys., Inc.,
The res judicata analysis is governed by federal law since the original action was litigated in this court.
See In re Iannochino,
Final Judgment On The Merits
The plaintiff contends that there was no “final judgment on the merits” because the “merits” were never reached, the complaint was dismissed on “procedural grounds” due to ERISA preemption, and, since the judgment did not specify one way or the other, the dismissal was without prejudice. The law, however, is clear that the dismissal for failure to state a claim does constitute a final judgment for res judicata purposes. Thus,
A dismissal for failure to state a claim is a judgment on the merits, unlike dismissals for lack of subject matter or personal jurisdiction, improper venue, or failure to join the proper parties under Rule 19. This type of dismissal, presumed to be with prejudice unless the order explicitly states otherwise, has a claim preclusive effect.
2 James Wm. Moore,
Moore’s Federal Practice,
§ 12.34[6][a] (3rd Ed.1997).
See also Isaac v. Schwartz,
Moreover, regardless whether the dismissal was with or without prejudice, the issue is whether the “court in the first action has expressly reserved the plaintiffs right to maintain the second action.”
Kale,
Identity of the Parties
There is no dispute that Travelers and TAO were parties in the earlier action and meet the identity of the parties criteria.
See Andrews-Clarke,
It has long been recognized that the federal doctrine of “non-mutual claim preclusion” permits a non-party defendant in a prior action to raise a defense of res judicata in a subsequent suit.
See In re El San Juan Hotel Corp.,
In the present case, AT
&
T was named, albeit as a “non-party” in the initial complaint, and the proposed second amended complaint raised basically the same claims against AT & T that the plaintiff is seeking to assert now. AT
&
T’s liability (if any), is dependent upon a finding of wrongdoing by TAO and/or Travelers.
(See, e.g.,
Compl. at ¶¶74, 88 (AT & T liable for failure to supervise other defendants); ¶ 104 (under doctrine of respondeat superior, AT
&
T vicariously liable for wrongful conduct of TAO and Travelers)). It has been known from the outset that the employee benefit plan in question was issued to еmployees of AT & T, that the plaintiff was an employee of that company, and that the alleged failure to provide the benefits authorized by the plan formed a key part of the plaintiffs claim. Clearly AT & T could have been named as a defendant in the first suit (assuming, arguendo, that it was not). Under such circumstances, AT & T has a sufficiently “close and significant relationship with the original defendants” to warrant the application of the doctrine of res judicata.
See, e.g., In re El San Juan,
Moreover, the claims against AT
&
T do not raise issues under ERISA and the preemption doctrine distinct from those raised against TAO and Travelers.
9
Thus, the legal analysis undertaken by Judge Young applies equally to AT & T, and the plaintiff had a full and fair opportunity to present her arguments on these issues. Since the plaintiff had a full and fair opportunity to have brought her action against AT & T in the prior proceedings, there is no basis for letting her proceed against AT & T in this new case.
In re El San Juan Hotel Corp.,
The plaintiff contends that the claims contained in the current complaint differ from the prior action. For example, the plaintiff contends that she has abandoned claims under Mass. Gen. Laws ch. 176D and now relies on Mass. Gen. Laws ch. 176G. Plaintiff allеgedly has also added “new” claims under the common law of contracts and fiduciaries, the doctrine of respondeat superior, substandard quality of care, and failure to notify insurance beneficiaries of denial of claims. (See Compl. at “Procedural History”).
Federal courts apply a transactional approach when “determining whether ‘causes of action are sufficiently related to support a res judicata defense.’ ”
Iannochino,
“[a] single cause of action can manifest itself in an outpouring of different claims, based variously on federal statutes, state statutes, and the common law .... [A]s long as the new complaint grows out of the same transaction or series of connected transactions as the old complaint, the causes of action are considered to be identical for res judica-ta purposes.”
Havercombe,
Many of the claims asserted in the complaint are identical to the claims from the рrevious action leaving little doubt that “identity of the causes of action” exists.
See
note 6,
supra.
The remainder of the claims have either changed slightly or contain legal theories not previously asserted. For example, the claims for breach of contract and substandard care differ slightly from the allegations of the previous case, but are, on the whole, retreaded material. Although some of the claims in the current action are “cloaked” with different theories of liability and some new selections of remedy, the fundamental cause of action remains the same; the defendant’s failure to approve medical and psychological treatment for Clarke’s repeated hospitalizations during 1994. No new facts or series of events have been added to the mixture. As a result, there is an identity of cause of action as defined by federal res judicata
C. ERISA Preemption
Even if the plaintiffs claims are not barred by the doctrine of res judicata, these claims would nevertheless be preempted by ERISA. For this additional reason, the motions to dismiss should be allowed.
Section 514(a) of ERISA contains a broad preemption provision which provides that it supercedes “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan .29 U.S.C. § 1144(a). “ERISA preemption analysis thus involves two central questions: (1) whether the plan at issue is an ‘employee benefit plan’ and (2) whether the cause of action ‘relates to’ this employee benefit plan.”
McMahon v. Digital Equip. Corp.,
Employee Benefit Plan
ERISA defines an “employee welfare benefit plan” as:
any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death, or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds or prepaid legal services ....
29 U.S.C. § 1002(1). In the present case, it is undisputed that AT & T provided health insurance to its employees, including the plaintiff, through an insurance policy issued by Travelers. Plaintiff cannot and does not dispute that the plan which forms the basis of the complaint is an “employee welfare benefit plan” under ERISA. (See PI. Mem. in Opp’n to Mot. to Dismiss at ¶¶ 12-17, 53-62; see also Compl. Ex. C аnd Mem. in Supp. of Lu-cent Technology’s Mot. to Dismiss, Ex. B, Tab A).
“Related To”
The more difficult question under the ERISA preemption analysis is whether the plaintiffs state law claims “relate to” the employee benefit plan. “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.”
Ingersoll-Rand Co. v. McClendon,
Regardless of how the claims are characterized, plaintiffs fundamental argument is that Clarke did not receive the medical treatment to which he was entitled under the plan. It is well-established that state law claims based on the improper processing of a claim for benefits are preempted by ERISA since the existence and terms of the plan are critical to the plaintiffs claims.
See, e.g., Pilot Life,
The case law, again, is consistent and mandates the dismissal of the present case. Cases raising claims similar to those presently before the court repeatedly are found to be preempted by ERISA.
See, e.g., Williams,
Regulation of Insurance
Plaintiff has sought to avoid dismissal by arguing that she has asserted claims relating to the regulation of insurance which are excluded from the preemption by virtue of the “savings clause” of ERISA. See 29 U.S.C. § 1114(b)(2)(A) (ERISA’s savings clause which states, “nothing in [ERISA] shall be construed to exempt or relieve any person from any law of any state which regulates insurance ... ”). In the present case, either plaintiff does not rely on statutes which regulate insurance, or bases her claims on statutes which do not provide a private cause of action. Therefore, this argument does not save the complaint from dismissal on grounds of preemption.
In order to determine whether a law “regulates insurance” and avoids ERISA preemption, this court is guided by a two tier analysis. First, this court must take a “common sense view” of the language of the savings clause to see if the state law in question regulates insurance. Second, the court should consider the three criteria used to define the “business of insurance” under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq.; (1) whether the state law has the effect of transferring or spreading a policyholder’s risk; (2) whether the state law is an integral part of the policy relationship between the insurer and insured; (3) whether the state law is limited to entities within the insurance industry.
See Ryan v. Fallon Comm. Health Plan,
To the extent that the plaintiff relies on statutes which are directed toward the regulation of insurance, those statutes do not create a private cause of action.
12
For example, plaintiff claims the defendants violated Mass. Gen. Laws ch. 175, § 47B which specifies mandatory maximum mental health care coverage under certain insurance policies, including employee health benefit plans. This statute does regulate “the terms of certain contracts” and is saved from preemption to the extent that the Attorney General seeks to enforce its provisions.
See Metro. Life,
Similarly, plaintiffs citation in Count V of her complaint to Mass. Gen. Laws ch. 176G, entitled “Bad Faith,” and to ch. 176G, § 8 in Count VI
13
does not save this case from ERISA preemption. As an initial matter, ch. 176G applies only to HMOs and the plaintiff does not and cannot allege that the defendants are HMOs and therefore subject to ch. 176G.
See
Pl.’s Mem. in Oрp’n to Mot. to Dismiss at ¶ 53 (plaintiff admits that “defendants TAO/Green Spring and Travelers Insurance are not individually or collectively an HMO”);
Ryan,
D. Plaintiff Has Not Asserted A Claim Under ERISA
The fact that ERISA completely preempts a plaintiffs claims does not always entitle the defendant to dismissal because there is the possibility that the plaintiffs complaint may state a valid ERISA claim.
See Fitzgerald v. Codex Corp.,
Under ERISA’s civil enforcement scheme, a civil action may be brought by a
In the present case, plaintiffs complaint is not seeking to secure rights under the plan, rather she is seeking damages for breach of the plan. Under such circumstances, she has failed to state a claim under ERISA.
See Turner,
The plaintiff amended the Demand for Relief in her complaint to include “statutory damages in the amount of $100 per day per failure to give written notice of claims denied as accrued since April 22, 1994.” The complaint also alleges that the plaintiff “has never received written denial of the decedent’s claim or rationale for said denial.” {See Compl. at ¶ 117; see also ¶ 100). This request for damages was likely made pursuant to ERISA § 502(c)(1)(B) which provides:
Any Administrator ... (B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary ... by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal ....
29 U.S.C. § 1132(c)(1). However, the plaintiff has not stated a claim under this ERISA provision. The relevant Code of Federal Regulations provides that “a claim for benefits is a request for plan benefits or benefits made by a claimant in accordance a plan’s reasonable procedure for filing benefit claims.” See 29 C.F.R. § 2560.503-l(e). According to the AT & T plan, when making a claim for benefits, a plan participant or beneficiary must file a written claim. See Lucent Mem. in Supp. of Mot. to Dismiss, Ex. B, Tab A at 85 (emphasis in the original). The claims administrator is only obligated to provide written notice of the claim administrator’s decision and the specific reason for the decision after the written claim is made. Id. The complaint is devoid of allegations that the plaintiff made a written claim for benefits or information from the plan administrator. As such, the plaintiff would not be entitled to relief under 29 U.S.C. § 1132(c)(1).
E. Statute of Limitations
Finally, the defendants assert that all of the plaintiffs claims are barred by a three year statute of limitations applicable to the plaintiffs tort and related contract claims and a four year limitations period for the Massachusetts statutory claims. The defendants contend that at the very latest, the claims accrued on November 12, 1994, the date Clarke died, allegedly as a result of the defendants’ actions. The present suit was filed on November 8, 2000, just
The plaintiff contends that her contract and breach of fiduciary claims fall under a six year statute of limitations period and also seeks equitable tolling of all limitations periods due to the mental incapacity of Andrews-Clarke.
Because this court recommends dismissal on the basis of res judicata and ERISA preemption, a lengthy analysis of the statute of limitations argument is not necessary. However, due to the extensive briefing of the matter by parties I feel compelled to comment on the issues raised.
It is undisputed that the plaintiffs claims of tortious interference with contract, intentional and negligent infliction of emotional distress, and loss of consortium are subject to the three year limitations period provided under Mass. Gen. Laws ch. 260, § 2A. 15 Likewise, the plaintiffs wrongful death claim is governed by its own three year statute of limitations. See Mass. Gen. Laws ch. 229, § 2. Morever, the plaintiffs state statutory claims are in the nature of consumer protection actions, which under Massachusetts law must be commenced within four years after the cause of action accrues. See Mass Gen. Laws eh. 260, § 5A (governing “[ajctions arising on account of violations of any law intended for the protection of consumers, including by not limited to ... chapter ninety-three A; ... chapter one hundred and seventy-six D”). Clarke’s death is logically the outside date on which these claims might have accrued. Thus, it appears that they would be time-barred unless the statute of limitations is tolled.
The plaintiff has also asserted common law breach of contract and breach of fiduciary duty claims.
16
The defendants contend that the applicable limitations period for these claims is three years while the plaintiff relies on the six year statute of limitations period provided under Mass. Gen. Laws ch. 260, § 2.
17
Both sides can find case law to support their claim. Thus, in
Pagliuca v. City of Boston,
the court held that although “[cjlaims for breach of contract are ordinarily subject to a more generous six year statute of limitations,
Again, in the instant case, it appears that the crux of the complaint is plaintiffs claim to tort-like damages for emotional distress, wrongful death and the like. Accordingly, it is most likely that a three year statute of limitations would apply, and the claims would be time-barred.
Dismissal at this stage, however, may not be appropriate under the doctrine of equitable tolling and the plaintiffs assertion in her complaint that she suffered from a mental incapacity.
18
A court does not automatically toll the statute of limitations due to the existence of a mental disability.
See Cherella v. Phoenix Techs. Ltd.,
More problematic than the named plaintiffs possible incapacity is the status of the children as minors who may be entitled to a tolling of the statute of limitations under Mass. Gen. Laws ch. 260, § 7.
See O’Brien v. Mass. Bay Transp. Auth.,
CONCLUSION
For all the reasons stated herein, I recommend that the each defendants’ Motion to Dismiss be ALLOWED. 19 June 25, 2001.
Notes
. For convenience, the defendants are referred to by their corporate names at the relevant time. The plaintiff previously moved to amend the complaint to add Magellan Health Services, Inc. ("Magellan”) on the grounds that Magellan is the alter ego of TAO. (Docket No. 17). That motion was denied without prejudice as there was nothing in the record to indicate that Magellan was a successor to TAO. (Docket No. 33). The plaintiff moved for reconsideration on the grounds that Magellan is the majority shareholder of Green Spring, the successor to TAO. For the reasons detailed in a separate order, that motion is DENIED. Nevertheless, all rulings made on TAO's motion to dismiss would apply equally to Magellan if it were named a party.
.Attached to the current complaint is a page from the 1993 AT & T Summary Plan Description for the AT & T Medical Expense Plan for Occupational Employees.
(See
Compl. Ex. C). AT & T has also submitted an entire copy of the Summary Plan Description which was in effect in 1994, which is the time period of the events forming the basis of the complaint.
(See
"Memorаndum in Support of Lucent Technologies Inc.’s Motion to Dismiss,” Docket No. 7, Ex. B., Tab A). The court considers this document without converting this action into a motion for summary judgment.
See Beddall v. State St. Bank & Trust Co.,
. “ 'Utilization review refers to an external evaluation of the appropriateness of a given course of treatment based upon established clinical criteria.’ ”
Danca v. Private Health Care Sys., Inc.,
. Three hospitals also were named as defendants. Two were dismissed for lack of personal jurisdiction. The claims against the third were referred to the Medical Malpractice Tribunal and were, therefore, no longer before the federal court at the time of the rulings discussed herein.
. While in his October 30, 1997 decision Judge Young stated that at a hearing he "did not grant the Plaintiff lеave to add AT & T as a defendant,”
. These claims include wrongful death (Count XI), loss of spousal and parental consortium (Counts XII and XIII), intentional and negligent infliction of emotional distress (Counts IX and X), and violations of Mass. Gen. Laws ch. 175, § 47B (Count IV) and ch. 93A (Count VII).
. In connection with her motion to reconsider the denial of her request for leave to file a third amended complaint, plaintiff argued that Judge Young had allowed her previous motion to add AT & T as a defendant. Judge Saris ruled that if that were the case, plaintiff had failed to serve AT & T in a timely manner. See supra.
. "What makes this honmutual’ is that the plaintiff ... could not rely on the earlier
. Even in the present case, plaintiff does not argue that the ERISA and preemption issues differ among the defendants. The only time AT & T is treated separately in the plaintiffs briefs is in connection with the "identity of parties” element of res judicata.
. Although cited by the defendants, the doctrine of privity does not preclude this sеcond suit against AT & T. "Nonparties may gain the benefit of a prior litigation if they were in
. Moreover, the allegations of the dismissed complaint and the instant complaint “are related in time, space, origin,” and if the original case and this case were tried they would involve the same witnesses. It, therefore, would conform to the parties’ expectations that the cases be combined. Under such circumstances, it is undisputable that the two actions arise out of “a common nucleus of operative facts.”
See Aunyx Corp. v. Canon USA, Inc.,
. Statutes concerning the regulation of insurance in Massаchusetts are found in chapters 174A-178 of the Massachusetts General Laws.
. Mass. Gen. Laws ch. 176G, § 8 addresses the public dissemination of false and misleading material by an HMO.
.Plaintiff also asserts that the defendants’ failure to provide the coverage required by ch. 175, § 47B constitutes an unfair practice under ch. 176D. However, as detailed above, ch. 175, § 47B does not create a private cause of action, and "no private right of action generally exists under Chapter 176D standing alone.” Ryan, 921 F.Supp. at 38.
. Mass. Gen. Laws ch. 260, § 2A provides: "Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries and actions of replevin, shall be commenced only within three years next after the cause of action accrues." (emphasis added).
. Assuming,
arguendo,
that the complaint raises a claim for breach of fiduciary duty under ERISA, the Act provides its own limitations period for such a claim.
See
29 U.S.C. § 1113. Under this statutory provision, a plaintiff must bring an action within six years after the date of the last action which constituted a breach or violation, or in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation.
See
29 U.S.C. § 1113(1)(A) and (B). However, if the plaintiff has actual knowledge of the breach or violation, the action must commence within three years.
See
29 U.S.C. § 1113(2). In this case's present posture, this court does not need to determine which, if any, limitations period would apply in this case.
See I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt., Inc.,
.Mass. Gen. Laws ch. 260, § 2 provides: "Actions of contract, other than those to recover for personal injuries founded upon contracts or liabilities, express or implied ..., shall excepted as otherwise provided, be commenced only within six years next after the cause of action accrues.” (emphasis added).
. Mass. Gen. Laws ch. 260, § 7 provides: "If the person entitled hereto is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed.”
. The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this rule shall preclude further appellate review.
See Keating v. Sec'y of Health & Human Servs.,