## Facts

- As alleged in the complaint, between 1969 and 1972, when Stephen M. Embry was between 12 and 14 years old, he was sexually assaulted by Ben Merritt, a Harvard swim coach and Harvard employee.
- Embry alleged the assaults occurred on Harvard’s campus, including at the pool, in the locker room, and in the showers, during a Harvard swimming program.
- Embry alleged Harvard negligently put Merritt in a role giving him access to boys and knew or negligently failed to discover that Merritt was sexually abusing minors on Harvard grounds.
- Embry alleged he did not remember the abuse and/or did not understand he had been harmed until March 2008.
- In March 2008, Embry contacted Harvard’s legal department to report that a former Harvard employee had sexually abused him.
- On March 4, 2010, a Harvard staff attorney responded that Harvard could not corroborate Embry’s claims and declined his request for financial compensation.
- On July 12, 2012, Embry sued Harvard asserting claims based on negligent supervision and related theories tied to the alleged sexual abuse.
- On November 6, 2013, the Superior Court dismissed the case as untimely under the applicable limitations period, concluding the claims accrued no later than March 2008.
- Embry appealed. While the appeal was pending, the Legislature enacted Chapter 145 of the Acts of 2014, which created G.L. c. 260, § 4C½, establishing a seven-year, discovery-based limitations period for certain third-party negligence claims arising from sexual abuse of a minor and stating it applied even if claims had lapsed or were time-barred.
- The Appeals Court granted Embry leave to file a motion for relief from judgment in the Superior Court, and Embry moved for relief under Mass. R. Civ. P. 60(b)(5) and 60(b)(6).

## Issues

1. Whether Rule 60(b)(5) applies to a judgment dismissing an action as time-barred on the ground that it is “no longer equitable that the judgment should have prospective application.”
2. Whether the postjudgment enactment of G.L. c. 260, § 4C½—expressly written to apply to lapsed or time-barred claims—constituted extraordinary circumstances justifying relief from the dismissal under Rule 60(b)(6).
3. Whether reopening the case would be futile because Embry’s pleading was insufficient to state a viable claim against Harvard.

## Decision

- The court denied relief under Rule 60(b)(5), reasoning that a dismissal is not the type of forward-looking judgment with “prospective application” contemplated by the rule.
- The court granted relief under Rule 60(b)(6), holding that a postjudgment change in law with retroactive effect can justify vacating a final judgment and that Chapter 145’s retroactivity provision was written broadly to reach claims that had already lapsed or been time-barred.
- The court concluded Embry sought Rule 60(b)(6) relief within a reasonable time after the intervening legislation and the Appeals Court’s order granting leave to return to the trial court.
- The court rejected Harvard’s futility argument at this stage, finding the allegations were sufficient to justify reopening and allowing the action to proceed rather than ending the case on the prior limitations ruling.
- The court allowed Embry’s motion for relief from judgment, vacated the prior dismissal, and reinstated the case.

## Legal Principles

- Rule 60(b)(5) is aimed at judgments with ongoing, forward-looking effect (such as injunctions or decrees requiring continuing supervision); a simple order dismissing a case does not qualify as a judgment with “prospective application.”
- Rule 60(b)(6) permits relief from a final judgment for “any other reason justifying relief,” and may apply when there is a postjudgment change in law that the Legislature intended to apply retroactively.
- In deciding Rule 60(b)(6) motions, courts consider whether the circumstances are exceptional, whether the motion was filed within a reasonable time, whether reopening would affect substantial rights, and whether the moving party’s claim is sufficiently meritorious to justify setting aside the judgment.
- Legislative intent controls whether a limitations enactment applies retroactively; Chapter 145’s express language that the new period applies regardless of accrual, filing date, lapse, or prior time bar supported applying G.L. c. 260, § 4C½ to Embry’s previously dismissed action.
- G.L. c. 260, § 4C½ provides a seven-year limitations period (from discovery) for certain third-party negligence claims connected to sexual abuse of a minor, including claims premised on negligent supervision or negligent contribution to the abuse.

## Conclusion

The Superior Court held that the earlier statute-of-limitations dismissal had no “prospective application” for Rule 60(b)(5) purposes, but that the Legislature’s intervening enactment of G.L. c. 260, § 4C½—expressly written to apply to lapsed and time-barred claims—created the type of exceptional, retroactive change in law that supported relief under Rule 60(b)(6), warranting vacatur of the dismissal and reinstatement of Embry’s action.


Embry v. President & Fellows of Harvard College, No. MICV201301338, 2014 Mass. Super. LEXIS 206, 2014 WL 7778960 (2014)