State civil case · Hampden Superior Court No. 1879CV00344
Waters v. Kearney
After seven years of litigation and two appellate reversals, Waters voluntarily dismissed the surviving libel claim with prejudice after stating that he would not proceed toward trial while the court left his December 2024 witness-protection motion and the alleged misconduct unresolved. Across three stages, Waters told the Superior Court that intimidation made it unsafe to identify witnesses, conduct discovery, and present evidence. Protection requests in 2019, 2020, 2022, and 2024 were denied or left unresolved without a reasoned decision on the safety evidence or a workable protective process; separate sanctions requests in 2022 and 2025 were denied without stated reasons. The first appeal restored the libel claim as to two drug-crime statements disposed of under the wrong legal rule. The second vacated the court’s dismissal because both stated grounds were incorrect.
- Filed May 2018
- Protection sought in four separate years
- Partial reversal August 2021
- Court-ordered dismissal vacated May 2024
- Separate sanctions denials in 2022 and 2025
- Waters voluntarily dismissed July 2025
The case in three stages
Two appellate reversals and a final unresolved protection cycle.
Each stage below gives the essential result and opens directly into the underlying filings, transcripts, rulings, and appellate decisions.
Default, unsafe evidence presentation, and first reversal
The defendants defaulted, but the court restored their opportunity to defend. Waters sought protection and told the court at the March 2019 summary-judgment hearing that intimidation prevented fair depositions and safe evidence presentation; he requested a continuance, but the hearing proceeded. The court disposed of every claim. The Appeals Court later restored the libel claim as to two drug-crime statements because the trial court had applied the wrong legal rule.
Unresolved threats, court dismissal, and second reversal
After remand, Waters filed an unopposed request to present evidence that intimidation had kept out of the original proceeding and an unopposed sanctions/default motion supported by private messages, police records, and sworn filings. After recorded threats against a subpoenaed evidence source, he again sought protection. The court denied sanctions without explanation, denied protection without a legally responsive analysis of the threat evidence or injunction factors, and dismissed the claim the day after Waters agreed to proceed to trial. The Appeals Court found both dismissal grounds incorrect and vacated the judgment.
Protection left undecided and voluntary dismissal
After the second reversal, Waters again sought protection before trial. That motion remained undecided while the defendants defaulted, the court removed default, and reconsideration established that the original defense affidavit had supplied only a conclusory meritorious-defense claim. The court allowed the defense to cure that deficiency and denied a separate sanctions request without stated reasons. With witness protection still unresolved and trial deadlines advancing, Waters voluntarily dismissed the surviving claim with prejudice.
Act I · 2018–2021
From complaint to first appellate correction.
This chronology is drawn from the docket, court-stamped filings, hearing transcripts, the 2019 memorandum of decision, and the Appeals Court’s Rule 23.0 memorandum and order. A recurring point in Waters’s filings and hearing statements was that public targeting of participants made it unsafe to identify witnesses and submit the evidence he wanted the court to consider.
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Complaint, amendment, service
Waters filed a defamation action on May 16, amended it on June 1, and obtained in-hand service on Kearney and the two entity defendants. The pleadings concerned a January 2017 blog; later pleadings added a May 2018 live show and Kearney’s November 2018 book.
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Default entered, then removed
Rule 55(a) defaults entered September 18. A first motion to remove default was denied. A renewed motion was allowed after a November 20 hearing, with answers due by November 26.
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Second amended complaint and injunction hearings
The court allowed a second amended complaint. Waters then sought a broad order removing and restraining publications that referenced him, stopping contact, and advancing the case. Hearings were held January 9 and 17. Waters said witnesses and people associated with him were being targeted and that protection was necessary to present evidence safely. The court denied relief.
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Dismissal motion converted to Rule 56
Because the defendants submitted affidavits and the court chose to consider them, the court converted the Rule 12(b)(6) motion to a summary-judgment motion, allowed further submissions, and held a March 12 hearing. Waters answered that he was not prepared, requested a continuance, said intimidation was preventing fair depositions and safe evidence presentation, and offered to file a narrower protection request. The hearing proceeded.
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All remaining claims disposed of
The Superior Court issued a thirteen-page memorandum allowing summary judgment or dismissal on all remaining counts. Judgment entered in late June; unserved John Doe claims were separately dismissed July 8. Waters filed a July 3 notice of appeal.
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Protection requested while the first appeal was pending
Waters filed a protection-order motion supported by a memorandum, affidavit, and exhibits. No written opposition appears on the docket. After a November 19 hearing, the court denied relief because the case was on appeal, no witnesses would appear in the appellate proceeding, and it regarded the issues as previously raised. The order did not address preservation or protection of witnesses and evidence if the judgment were reversed and the case returned for further proceedings.
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First partial reversal and remand
In No. 20-P-88, the Appeals Court affirmed most of the judgment but reversed the dismissal of Count IV insofar as it concerned statements that Waters sold drugs in California and shipped drugs to Massachusetts. The rescript reached Superior Court in September.
Claims and evidence
Every claim leads to the filings and context behind the result.
The judicial outcome is an entry point, not the final description of a claim. Follow any link to compare the allegations, evidence, evidence-safety objection, trial ruling, and appellate treatment.
| Count | Claim or subject | What happened | Evidence and context |
|---|---|---|---|
| I | Libel against unidentified John Doe writers | Summary judgment; unserved Doe claims separately dismissed; not part of the first appeal | Open procedural context |
| II | Entity-defendant libel based on the January 2017 blog | Affirmed on the available record | Open evidence and rulings |
| III & VI | Claims against Samantha Cardin | Voluntarily dismissed January 9, 2019; not before the appellate panel | Open procedural context |
| IV | Book accusations that Waters sold and shipped drugs | Reversed and returned for trial | Open the argument, rulings, and correction |
| IV | Other book statements concerning assault and the dog | Affirmed after the court proceeded over the evidence-safety objection | Open the safe-opportunity and record context |
| V | Slander based on statements during a live show | Affirmed on a different ground | Open the alternate-ground analysis |
| VII | Intentional infliction of emotional distress | Affirmed | Open claim context |
| VIII | Negligent publication | Affirmed | Open claim context |
| IX | Fraud | Affirmed | Open claim context |
| X | Loss of consortium | Affirmed | Open claim context |
Issue 1 · Default
The defendants defaulted, and Kearney’s affidavit supplied no facts supporting a meritorious defense.
The defendants were served in June 2018 and defaulted in September. A first motion to remove default was denied. A renewed motion was later allowed, restoring the defendants’ opportunity to litigate every claim. The central paper dispute was whether the required meritorious-defense showing had actually been made.
What Kearney’s affidavit said
Kearney attributed the missed deadline to Waters’s emails, a resulting police report, and distraction from the case. He said counsel was contacted after notice of default. The affidavit concluded only that the defendants had meritorious defenses; it did not identify a defense or state supporting facts.
What the accompanying memorandum added
Counsel’s memorandum—not Kearney’s affidavit—asserted truth and third-party publication. It also relied on the preference for decisions on the merits and argued that the early delay caused no prejudice.
Waters’s objection and the result
Waters argued that the default was deliberate, that the submitted emails did not support Kearney’s account, and that no fact-supported meritorious defense had been shown across the multi-count action. After a November hearing, the court removed default and later denied reconsideration.
Compare the paper showing made by each side
Defense papers
- Service occurred June 1; default entered September 18.
- Kearney said emails and a police report distracted him from the lawsuit.
- Counsel was contacted after notice of default.
- The affidavit contained only a conclusory assertion of meritorious defenses.
- The memorandum separately asserted truth and third-party publication.
Waters’s response
- The defendants knew they had been sued and were properly served.
- The submitted email chain did not say what Kearney attributed to it.
- Public statements were offered as evidence of a deliberate default strategy.
- The required defense showing was challenged as conclusory and unsupported.
- Waters identified evidentiary and collectability prejudice from delay.
What the first Appeals Court said—and what the affidavit actually contained
The panel held that the appeal from the default-removal order was untimely. It nevertheless stated that it would have affirmed because Kearney acted promptly after notice, offered an explanation, and “set forth the bases for potential defenses” early in the proceeding. That appellate description addressed the motion package as a whole. It did not change the text of Kearney’s affidavit, which identified no defense facts.
“Given these circumstances, particularly the fact that the motion to remove the default was early in the proceedings, we conclude that the motion judge did not abuse her discretion.”
Issue 2 · Injunction and litigation safety
The court denied protection without explaining how Waters could present witnesses and evidence safely.
Waters said continuing publications, threats, and harassment were deterring witnesses and impairing his ability to litigate. He requested broad speech-related relief, but he also asked to advance the merits and protect his ability to be heard. The court announced that he had shown neither likely success nor irreparable harm without analyzing the threat evidence, witness participation, governing authorities, balance of harms, or any narrower protective process.
What Waters presented
The motion sought removal and restraint of publications, no further contact, and an expedited merits proceeding. The memorandum argued continuing harm, defamation per se, witness intimidation, and impairment of Waters’s ability to present evidence safely.
What happened at the January 17 hearing
Defense counsel acknowledged serving the motion to dismiss that day. The judge stated that she had already received and read the defense’s injunction opposition, which attached the dismissal motion and Cardin affidavit. Waters said he had not read the opposition and had not had an opportunity to respond to the affidavit.
What the order supplied
The endorsement recited the ultimate conclusions that Waters lacked a likelihood of success and had not shown irreparable harm. It supplied no analysis connecting those conclusions to the submitted evidence or authorities. Reconsideration repeated the likelihood conclusion without addressing the unresolved evidence-safety problem.
Argument already before the trial court
Waters’s injunction memorandum argued that accusations of crime were defamatory per se and that attribution or the word “allegedly” did not make them nonactionable. It also linked the requested protection to his ability to present witnesses and evidence.
What appellate review later established
The Appeals Court later applied those defamation principles and restored the two drug-crime statements. It did not order the entire injunction granted; it demonstrated that the unexplained likelihood-of-success conclusion concealed a decisive legal error the memorandum had already identified.
Open the request, hearing record, orders, and appellate correction
Supporting exhibits concerning harassment and witness reluctance — content warning
Waters submitted these exhibits to show that online targeting affected safety, functioning, and witness cooperation. The injunction orders made no findings accepting or rejecting their authenticity, relevance, or effect on evidence presentation.
Issue 3 · Dispositive ruling
A dismissal motion became summary judgment, and every remaining claim was terminated.
The defendants supported their Rule 12(b)(6) motion with affidavits and other evidence outside the pleadings. Waters asked whether the court would exclude those materials. Once the court elected to consider them, Rule 12 required conversion to summary judgment and a reasonable opportunity for each party to present pertinent Rule 56 material. The court allowed supplemental filings through March 11 and held the hearing on March 12. Waters said he was not prepared, requested a continuance, and explained that intimidation prevented fair depositions and safe presentation of witnesses and evidence. The court proceeded.
February 1
Conversion ordered
The court stated that because it would accept the defendants’ affidavits, it would treat the motion as summary judgment.
March 11
Supplement deadline
Waters filed a supplementary brief and affidavit centered heavily on asserted intimidation and the need for protective measures.
March 12
Rule 56 hearing
Waters stated he was not prepared, requested a continuance, and explained that intimidation prevented fair depositions and safe evidence presentation. The court proceeded, addressed several defense arguments, and took the dispositive motion under advisement.
Procedural documents for conversion and the Rule 56 hearing
Flagship documentary comparison
The controlling legal argument was presented before judgment.
Waters’s January 2019 injunction memorandum cited the same defamation principles the Appeals Court later applied: imputing crime is defamatory per se, and repeating a charge with “allegedly” or a hearsay preface does not remove its defamatory character. His February opposition repeated those authorities. At the March hearing, he again identified the accusations that he sold and shipped drugs. The trial court nevertheless adopted the opposite qualifier rule without answering the cited cases.
Trial court · June 2019
The court treated “according to” and “allegedly” as cautionary language signaling speculation and held the first four book statements nonactionable.
Appeals Court · August 2021
“An imputation of crime is defamatory per se,” even when the charge is qualified by “it is alleged” or introduced with a truthful preface that someone else made the accusation.
Claims, evidence, and rulings
Open any claim to compare the allegation, evidence, trial ruling, and appellate result.
A judicial disposition is not presented as the whole story. Each section shows what was alleged, what evidence was offered or could not be developed safely, what the trial court decided, and what appellate review later corrected or could not reach.
1. Book accusations that Waters sold and shipped drugs — reversed
Waters argued
The accusations imputed crimes, were false, and remained actionable even when attributed to another speaker or prefaced with “allegedly.”
Trial court held
“According to” and “allegedly” were cautionary terms that signaled speculation; the statements therefore were not actionable.
Appeals Court held
The accusations stood on different footing because imputing crime is defamatory per se; qualifiers and truthful attribution do not erase that character.
What the record shows: this is the clearest first-cycle example of a legal rule presented below, rejected by the trial court, and later adopted on appeal.
2. Assault-and-dog statements — affirmed after the court proceeded over an evidence-safety objection
Defendants presented
Cardin’s affidavit, police and criminal materials, photographs, a victim-impact statement, and a veterinary report were submitted to support truth or substantial truth.
Waters objected before decision
At the March 12 hearing, Waters answered that he was not prepared, requested a continuance, and said reported witness intimidation prevented fair depositions and made it unsafe to present witnesses and evidence. He offered to submit a narrower protection request.
The court proceeded
The trial court later treated the defense materials as negating falsity and entered judgment because Waters had not responded with counter-affidavits or other competent evidence.
What the Appeals Court decided: the appellate appendix omitted several exhibits on which the trial judge had relied. On the materials available, the panel could not say that the judge erred, particularly where Waters had not submitted competent contrary evidence. The panel therefore affirmed these statements. It did not reconstruct evidence that had never been safely developed in the trial court or decide whether the court should have protected that process before imposing Rule 56 consequences.
What the record shows: two different record failures must not be collapsed. The incomplete appellate appendix weakened review of materials already filed below. The deeper problem asserted in the appeal was that the trial court proceeded after Waters expressly said intimidation prevented him from obtaining and presenting additional evidence. An appeal cannot review evidence that never entered the record because the requested safe opportunity was not provided.
3. January 2017 blog statements — affirmed
The trial court treated most challenged blog statements as expressions of opinion when read in the article’s full context. It separately held that two factual statements—where Waters lived and the timing of Facebook posts—were not shown to be reputationally damaging or economically harmful.
The Appeals Court reached the same general conclusion, relying heavily on contextual cautionary language and noting that the blog itself was missing from the appendix even though the trial judge had relied on it.
4. Live-show slander claim — affirmed for a different reason
The trial court held that the LLC statute was fatal to individual liability against Kearney. The Appeals Court did not rely on that reasoning. It held instead that the described statements were subjective opinions or substantially true and therefore nonactionable on the available record.
Why this distinction matters: an affirmance does not necessarily approve the trial court’s rationale. Appellate courts may affirm summary judgment on another ground supported by the record.
5. Emotional-distress, negligent-publication, fraud, and consortium claims — affirmed
- Intentional infliction: the trial court found the pleaded conduct insufficiently extreme and outrageous; the appeal also treated it as derivative of the unsuccessful blog defamation claim.
- Negligent publication: both courts treated it as a defamation fault theory rather than a separate cause of action.
- Fraud: the complaint did not plead the required inducement and detrimental reliance with particularity.
- Loss of consortium: the claim was not viable as Waters pleaded it.
6. Counts not decided on the merits in the first appeal
Count I · Unidentified John Doe writers
The trial court entered summary judgment and separately dismissed unserved John Doe claims. The Does were not parties to the first appeal, so the appellate panel did not decide those claims.
Counts III and VI · Samantha Cardin
Waters voluntarily dismissed these counts at the January 9, 2019 hearing. They were therefore not before the appellate panel. That procedural disposition did not adjudicate the later claim that Cardin’s evidence should be tested through safe discovery or used for impeachment on remand.
7. The deeper record failure — the evidence was not safely developed before appeal
At the opening of the March 12, 2019 hearing, the court asked whether Waters was prepared to oppose summary judgment. He answered no and requested a continuance. He said reported intimidation made it impossible to conduct a fair deposition, deterred people from participating, and made it unsafe to present evidence. He asked the court to protect his opportunity to be heard and offered to submit a more narrowly tailored request.
What Waters told the court
Witness intimidation “makes it so that I can’t do a deposition fairly and get a fair result.”
What the judgment later relied upon
Waters had not substantiated his position with counter-affidavits or concrete evidence.
Waters made the unequal treatment central to his appeal. The defendants had received relief from default under principles favoring decisions on the merits. Waters argued that Kearney’s original affidavit did not establish a legally sufficient meritorious defense. Yet Waters was denied his own merits opportunity after explaining why witnesses and evidence could not safely be presented. The Appeals Court held the default challenge untimely and stated that, even if reached, it would affirm because Kearney had identified potential defenses. That disposition does not erase the contrasting procedural opportunities documented by the record.
Separate appellate-appendix deficiency
Waters’s appellate appendix omitted the second amended complaint, which the panel obtained from Superior Court, and several exhibits the trial judge had considered: the blog, police and criminal records, victim-impact statement, photographs, and veterinary material. The panel said those omissions made many arguments “difficult, if not impossible” to evaluate.
That was a genuine appellate deficiency. It concerns documents already in the trial-court record. It does not answer the earlier question whether the trial court should have protected, continued, or otherwise managed the proceeding so that additional evidence could be developed safely before summary judgment.
Reform lesson: appellate completeness begins before an appeal. When a party reports that intimidation is obstructing discovery or evidence presentation, the court should decide the protection request, make findings, and provide a reviewable process before using the missing evidence as grounds for judgment.
First appellate decision
The first appeal restored the drug-libel claim and left most of the 2019 judgment in place.
The August 19, 2021 decision was a summary decision under Massachusetts Appeals Court Rule 23.0. It may be cited for persuasive value but is not binding precedent. The panel nevertheless squarely rejected the trial court’s legal treatment of the two accusations of drug crimes.
Affirmed
Most of the 2019 judgment
The panel affirmed the blog, live-show, emotional-distress, negligent-publication, fraud, and consortium dispositions; found no error on the limited injunction record; and held the default appeal untimely.
Reversed
Two accusations of drug crimes
The panel restored the part of Count IV based on statements that Waters sold drugs in California and shipped drugs to Massachusetts through the mail.
“Accordingly, we reverse so much of the judgment entered in favor of Kearney on Waters’s libel claim that is based on the statements that Waters sold drugs in California and shipped drugs to Massachusetts via USPS.”
Act II · 2021–2024
After the first reversal, litigation safety became the central barrier to trial.
The surviving claim returned to Superior Court with a simple merits question: whether Kearney could prove the truth of the accusations that Waters sold and shipped drugs. The record instead became dominated by alleged interference with witnesses, requests for protection, and the court’s effort to move the case to trial without resolving those requests in reasoned findings.
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The drug-libel claim returned
The first appellate rescript restored the part of Count IV based on statements that Waters sold drugs in California and shipped drugs to Massachusetts.
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Service, group-chat evidence, and fake-profile threats
A sheriff served Kearney with bank-attachment papers containing a therapist’s letter about the alleged harm. The filed exhibits show the served document posted to a private group chat shortly afterward, followed by messages concerning violent threats made by a fake profile in Waters’s name and how screenshots should reach Kearney. Waters later presented the sequence as evidence of coordinated litigation interference.
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Waters asked to present evidence not safely offered in 2019
An unopposed motion sought leave to re-decide portions of the previously dismissed claims. It stated that evidence withheld because of intimidation was also relevant to the surviving claim and would be used to impeach Samantha Cardin, the defense’s identified fact witness. The motion was not decided.
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Sanctions or default requested
Waters filed a sanctions/default motion and a fourteen-page memorandum supported by the group-chat screenshots, service evidence, police material, affidavits, and other exhibits. The docket records no written opposition to that motion.
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A subpoena was followed by recorded threats against the evidence source
Kearney was served with a witness subpoena on June 17. In a June 18 broadcast, he said he would contact the source’s customers, destroy her life, take away what she loved, and attend every court date. Waters submitted the statements in a sworn emergency motion seeking protection for her.
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Protection and consolidation requested
Waters filed a TRO/preliminary-injunction motion seeking witness protection and consolidation with a trial on liability. The motion argued that a prompt liability decision would reduce the incentive and opportunity to keep obstructing evidence presentation. No written merits opposition appears on the docket.
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The court denied protection without a legally responsive explanation
The endorsement called the request nonemergent, said the case had “spun off its axis,” emphasized the single remaining libel claim, and set an August final pretrial conference. Those remarks did not address the recorded threats, the subpoenaed source’s relevance to the remaining claim, the risk to evidence presentation, the injunction factors, or any narrower protective measure.
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Sanctions denied without explanation; Waters ultimately agreed to trial
At the opening of the final pretrial conference, the court denied the sanctions/default motion. Waters asked for an explanation; none was given. He said he could not safely identify outside witnesses while the intimidation remained unaddressed, but ultimately told the court, “fine. We’ll have a trial.”
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The case was dismissed for failure to prosecute
The next-day order relied on “no witnesses” and inability to articulate damages. It did not mention Waters’s agreement to proceed, his own availability as a witness, or the affidavits describing harm.
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The second appeal found both dismissal reasons incorrect
The Appeals Court held that Waters could testify, that defamation per se did not require proof of economic loss, that his affidavits described harm, and that no applicable part of Rule 41 justified dismissal. It vacated the judgment and remanded again.
The unopposed motion to re-decide: evidence the first judgment never heard
Why Waters sought leave
The motion said intimidation was the primary reason evidence had not been presented before the 2019 judgment. It argued that issue preclusion should not close issues that had never been fully litigated under those conditions.
Why the evidence still mattered
Waters said the same evidence supported portions of the dismissed claims, bore directly on the surviving libel claim, and would impeach Cardin. His affidavit quoted Cardin and Kearney inviting the earlier accusations to be litigated again during her April 2022 deposition.
What the court did
No opposition or ruling appears on the docket. When Waters raised the unresolved motion at final pretrial, the judge told him to take it up with the Appeals Court and proceeded as if only the narrow remanded claim could be considered.
The November 19 evidence chain
The filed record connects litigation service, a private group chat, fake-profile threats, and a proposed restraining order.
This is the central evidence behind the 2022 sanctions motion. The sequence matters more than any one screenshot. The filings identify a trigger, near-contemporaneous messages, a claimed litigation purpose, and independent records identifying the people and source of the private messages.
Litigation papers were served and posted
The attachment filing contained a therapist’s statement that identified Kearney as a primary source of Waters’s distress. A screenshot in the appellate record shows the sheriff-served paper posted in the private “BlogDat” chat with the message that a sheriff had just appeared at Kearney’s home.
The messages discuss how Kearney should “find” the threats
The filed screenshots show participants discussing whether the threats needed to be “found,” suggesting that several accounts send them privately, staggering the timing, improving the screenshots, and making the discovery appear credible. A later message attributed to Kearney’s account says, “im the one who did it.”
The discussion identifies a litigation consequence
Waters emailed counsel about the fake-profile threats and said they were witness intimidation. The forwarded email then appeared in the private group. When a participant asked what was happening, the account attributed to Kearney discussed using the threats to obtain an order because he could not stop Waters from filing lawsuits.
A police record identifies the group and the evidence source
A Holden police narrative identifies Kearney with the “Aidan Kearney” and “Clarence Woods Emerson” accounts, identifies the other group participants, and records that Cristina Yakimowsky admitted sharing messages because she objected to the harm she believed Kearney was causing. The officer also recorded that she feared retaliation.
What Waters asked the court to find
Waters argued that the sequence showed a coordinated attempt to fabricate threats in his name, obtain litigation leverage, punish evidence sources, and impair presentation of his civil case.
What Kearney filed in response
The docket records no written opposition to the May 2022 sanctions/default motion. Kearney’s June 27 filing concerned the hearing format, not the merits of the sanctions evidence.
What the court decided
The court denied sanctions at the August 30 conference without stating any reason or making findings on authenticity, account control, intent, litigation effect, or the requested remedy.
Watch the underlying source recordings
These recordings are included for readers who want to compare the filed screenshots with the source material. They contain threats, profanity, personal information, and discussion of self-harm.
Protection requested before trial
The June motions presented a current threat, a named evidence source, and a proposed path to the merits.
The filings did more than repeat old allegations. They identified the source of the private messages, documented a subpoena, quoted a new public threat made the next day, and asked the court to restrain retaliation while consolidating the injunction hearing with a liability trial.
TRO, preliminary injunction, and consolidation
Resolve liability and reduce the incentive to obstruct
Waters argued that Kearney had supplied no specific facts showing he was a drug dealer, that truth was an affirmative defense, and that a prompt liability determination would make further intimidation less useful. He also sought an order protecting named witnesses and potential witnesses.
June 18 threat and emergency motion
“I’m not gonna stop destroying your life”
Kearney was served with a witness subpoena on June 17. The next day, he publicly threatened to contact the source’s customers, damage her business and family relationships, continue until she begged for mercy, and attend every court date. Waters’s June 28 sworn motion tied the statements to her release of the private group-chat evidence and asked the court to protect her.
What the court wrote
The court said the request was not an emergency, that the four-year-old case had “spun off its axis,” and that the only remaining claim concerned statements that Waters sold drugs. It set a final pretrial conference and trial-setting date.
Why those remarks did not decide the protection request
Calling a request nonemergent could address immediate TRO treatment; it did not explain denial of a preliminary injunction, consolidation, or narrower witness protection. Case age and “spun off its axis” were characterizations, not findings about likelihood of success, irreparable harm, balance of harms, the recorded statements, subpoena timing, or the evidence source’s relevance.
Final pretrial and dismissal
The court denied sanctions without explanation, Waters agreed to trial, and the court dismissed the case the next day.
The transcript is the cleanest way to test the dismissal order. It shows both Waters’s distress over unresolved witness intimidation and his final answer when the judge asked whether the case would proceed.
Sanctions ruling
Denied at the start of the hearing
The court denied the pending sanctions/default motion orally. Waters asked whether there was an explanation. The judge gave none and redirected the discussion to scheduling a trial.
Witness and trial discussion
Outside witnesses felt unsafe; Waters remained a witness
Waters said he could not identify outside witnesses while the alleged threats remained unaddressed. After the court treated his conditional statements as a request to close the case, he answered: “All right, fine. We’ll have a trial.”
Defense’s proposed next step
Another summary-judgment motion on an issue already lost
Kearney asked for thirty days to move for summary judgment because the publication used the word “allegedly.” The court granted leave “if necessary.” The Appeals Court later noted that this exact qualifier issue had already been litigated in the first appeal and the defendants had lost.
Dismissal order · August 31, 2022
“Mr. Waters indicated that he had ‘no witnesses’; and that he was unable to articulate his damages.”
Appeals Court · May 28, 2024
“The judge’s stated reasons for the dismissal … were incorrect.”
| Dismissal rationale | What the transcript or record showed | What appellate review held |
|---|---|---|
| “No witnesses” | Waters was discussing the absence of witnesses other than himself and ultimately agreed to trial. | Waters’s own testimony remained available; dismissing for lack of witnesses was incorrect. |
| Unable to articulate damages | Waters had filed affidavits describing the alleged harm. | Defamation per se requires no proof of economic loss, and the affidavits identified testimony about harm. |
| Failure to prosecute | The docket contained extensive recent filings; defendants did not move to dismiss with notice. | No applicable part of Rule 41 supported voluntary or involuntary dismissal. |
Second appellate decision · No. 22-P-1105
The Appeals Court found both dismissal reasons incorrect and vacated the judgment.
The second appeal was unopposed; no appellee brief was filed. The panel reviewed the transcript, docket, dismissal order, and appendix and held that the next-day dismissal was an abuse of discretion.
Witnesses
Waters could testify himself
His statement that he had no witnesses meant no witnesses other than himself. Once he testified that the accusations were false, truth remained the defendants’ affirmative defense.
Damages
Economic loss was not required
Accusing a person of crime is defamation per se. The court also noted that Waters’s affidavits set out testimony he could give about the alleged harm.
Procedure
Rule 41 supplied no lawful basis
Waters did not file a signed voluntary stipulation, the case had not been inactive, the defendants did not move to dismiss with notice, and the action was not in a bench trial.
“Dismissal for failure to prosecute is a harsh punishment reserved for ‘extreme situations’ and was not warranted here.”
Act III · 2024–2025
The final remand exposed the same unequal-opportunity and reviewability problems.
After the second reversal, Waters again asked for protection before trial. The defendants then missed a status conference and were defaulted. The court removed that default, acknowledged on reconsideration that the original merits showing had been only conclusory, allowed the defense to cure it, and removed default again. The protection motion remained undecided, another sanctions motion was denied without a stated reason, and the case ended by dismissal with prejudice rather than trial.
December 13, 2024
Protection requested
A call log, police dispatch record, sworn affidavit, and injunction motion documented a new service and safety dispute.
January 29, 2025
Default entered
The clerk defaulted Kearney and the entity defendants after they failed to appear at the January status conference.
April 10, 2025
Original showing found deficient
On reconsideration, the court agreed that the defense had supplied only a conclusory claim of meritorious defenses.
July 7, 2025
Case dismissed
Waters dismissed the remaining claim with prejudice after renewed efforts to obtain a safe process and supervisory relief.
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Second remand and renewed request for protection
The Appeals Court rescript returned the case in June. On December 13, Waters filed an emergency preliminary-injunction and consolidation motion supported by an affidavit and exhibits addressing reported witness intimidation, continuing harm, and a same-day service dispute.
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Defendants failed to appear; default entered
The January 23 status conference was not held because the defendants failed to appear. The clerk entered default against Kearney, Worcester Digital Marketing, and Turtleboy Enterprises on January 29.
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Default removed on an unexplained good-cause finding
The defense moved to set aside default. Waters opposed and cross-moved for sanctions. On March 20, the court stated only that Kearney had shown good cause, removed default, denied sanctions, and directed the parties to schedule trial.
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Reconsideration established that a required showing had been missed
The court then agreed that Kearney had provided no more than a conclusory statement that he possessed meritorious defenses. It ordered a factual affidavit and warned that default would otherwise be reinstated. After a supplemental affidavit was filed, the court again removed default and set trial.
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Service and sanctions dispute denied without findings
Waters sought sanctions over the timing and substance of the defense reply, alleged misrepresentations, and the claimed deprivation of an opportunity to answer before the original ruling. The defense opposed. The court denied sanctions without explaining which factual or legal position controlled.
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Trial deadlines advanced while the protection motion remained unresolved
The docket records further dismissal motions, a missed final-pretrial conference, and requests for superintendence relief. The December injunction motion was never adjudicated on its factors or evidence.
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The remaining claim ended without trial
Waters filed a stipulation of dismissal with prejudice after stating that defense counsel had assented by email. The docket treated the case as disposed and canceled trial. The next day, the court marked the December injunction motion “No Action Taken” because of the dismissal.
1. December 13 protection record — what each source establishes
Call log and police record
The phone record shows a one-minute outgoing call to Kearney at 11:40 a.m. The police dispatch record documents Waters’s same-day report that the call concerned mailing legal papers and that Kearney said he would accuse Waters of intimidation. The police record documents the report; it is not an independent finding about what was said.
Waters’s sworn account
Waters swore that Kearney refused to provide a service address, said he would not respond, asked Waters not to mail papers, and then threatened to characterize the proposed mailing as a death threat. The affidavit connected the encounter to the earlier witness-intimidation record.
Relief requested
The motion asked for an expedited preliminary and permanent injunction hearing, consolidation with trial on liability, subpoenas, retraction of allegedly retaliatory content, restrictions pending bond or judgment, and sanctions if appropriate. The requested relief was broad, but it squarely presented the court with a safety and evidence-preservation dispute requiring a decision.
2. The 2025 default — the first merits objection was ignored until reconsideration
Defense position
Kearney said he no longer lived at his former address, did not receive notice of the conference or Waters’s motions, acted promptly after learning of default, and should receive the benefit of the policy favoring trial on the merits. The memorandum asserted that the defendants had “good and meritorious defenses” but did not identify supporting defense facts.
Waters’s first objection
The opposition opened with the absence of a supported meritorious defense. It cited five appellate decisions—Zurich, Johnny’s Oil, Clamp-All, Cicchese, and Bissanti—for the rule that a conclusory assertion is insufficient. It separately contested notice, willfulness, promptness, prejudice, good faith, and public-interest factors.
Defense reply
The three-page reply characterized prior misconduct, emotional harm, business issues, and criminal proceedings as irrelevant; challenged the form of Waters’s cross-motion under Rule 9A; and said the opposition did not answer the defense’s legitimate reasons. It did not answer the five cited authorities or identify specific facts supporting a merits defense.
March 20 order
“Defendant has shown good cause to set aside the entry of default.”
April 10 reconsideration order
“Plaintiff is correct the defendant did not provide more than a conclusory statement that he has meritorious defenses.”
Kearney filed the ordered affidavit on April 22. On May 7, the court stated that he had shown good cause and a meritorious defense, removed default, and set trial. That final order does not identify which affidavit facts supplied the defense or explain the remaining Rule 55(c) factors.
3. Reply-service and sanctions dispute — competing accounts, no findings
Waters argued
The defense filed its reply on March 18 but did not send it or notice of filing until 1:00 p.m. on March 20, after the court had acted. Waters relied on emails, Rule 5(d)(1), and Rule 9A; alleged that counsel’s communications created the impression that no immediate reply would be filed; and argued that the delay prevented a meaningful response.
Defense answered
Counsel said the March 18 submission was rejected by the clerk, was resubmitted and emailed on March 20, and that the court had not ruled before Waters received it. The defense denied a service violation, argued that Rule 11 did not apply, and characterized the sanctions request as meritless.
The record permits no resolution
The public docket lists the motion papers, reply, and Rule 9A certificate under March 18, while the defense later said its submission had been rejected and resubmitted on March 20. The order is dated March 20, but the docket does not establish the controlling intra-day sequence. The court denied sanctions without findings resolving service, prejudice, intent, or the competing procedural accounts.
4. How the case ended — the claim was relinquished, not adjudicated at trial
Further trial-court requests
Waters filed motions seeking dismissal because the court had not addressed the alleged misconduct. A May motion was denied for Rule 9A noncompliance. On May 21, the court stated that any request for pretrial injunction relief had to be served and filed under Rule 9A, while the December injunction motion remained on the docket without a merits ruling.
Supervisory relief pursued
The docket records emergency petitions for relief under G. L. c. 211, § 3 in June and a July 1 notice that a single justice had denied relief without a hearing. A June 16 final-pretrial conference was not held because Waters did not appear.
Renewed dismissal request
On July 2, Waters stated that continued proceedings without findings on the reported misconduct were futile and harmful, that he would not proceed under those conditions, and that he sought dismissal with prejudice. Those statements establish why Waters requested dismissal; they are not judicial findings about the disputed conduct.
On July 7, Waters filed a stipulation stating that defense counsel had assented to dismissal by email but had not signed the document. The docket treated the case as disposed and canceled the remaining trial dates. On July 8, the court took no action on both the renewed dismissal motion and the December injunction motion because the stipulation had ended the case.
Why lawmakers should care
The failure points are structural: silence hides error, ordinary review arrives late, and lost safety cannot be restored by remand.
The first appeal corrected a legal rule already presented below. The second corrected a dismissal based on two objectively false premises. On the final remand, reconsideration established that the first order removing default had accepted a conclusory meritorious-defense showing. None of those corrections repaired the years consumed, resolved the unreasoned sanctions denials, or restored a safe opportunity to present evidence while that evidence still mattered.
Minimal findings
A denial involving sanctions, witness safety, injunctions, or dispositive rights should identify the controlling standard, material facts, and principal reason. Findings would have made the 2022 intimidation evidence, the December 2024 protection request, the March default factors, and the later service dispute reviewable when correction still mattered.
Expedited plain-error review
When the record shows an obvious and consequential error—such as dismissing a claim because a self-represented plaintiff supposedly has no witness despite his own availability—a focused review path should correct it before years and additional harm accumulate.
Right to remedy
Remand cannot restore lost health, income, evidence, witness participation, or years of life. A narrow system-level remedy should address serious, objectively provable constitutional harm when ordinary review fails to prevent or meaningfully repair it.
Equal procedural opportunity
Rules favoring decisions on the merits should operate evenhandedly. If one party may cure defaults and supplement a conclusory merits showing, the other should not be denied any process to present evidence that he contemporaneously said intimidation kept out of the first judgment.
Primary-source library
Primary sources organized by the stage in which each decision was made.
Start with the docket and judicial decisions. Use the party filings to understand what each court had been asked to decide. The links below lead to court-stamped filings or source documents hosted on this site.
Core first-cycle record
Core second-cycle record
Second-cycle sanctions and witness-protection record
Default record
First-cycle injunction and protection record
Appeal-validity record
Waters filed his notice of appeal after the June judgment but before the separate July dismissal of unserved John Doe defendants. After a procedural dispute, the Superior Court allowed his renewed motion to treat the notice as valid.