Opinion
19-P-1496
10-16-2020
Gerard D. GRANDOIT v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Gerard D. Grandoit, appeals from two judgments dismissing complaints against the Massachusetts Commission Against Discrimination (MCAD), Arbella Insurance Group (Arbella), and Roche Insurance Agency (Roche), for lack of subject matter jurisdiction and failure to state a claim pursuant to Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974). In this consolidated appeal, the plaintiff contends that both motion judges erred as a matter of law in concluding that there was no subject matter jurisdiction. We affirm the judgments in favor of the MCAD and Arbella, and vacate so much of the judgment in favor of Roche.
Background. The plaintiff filed a charge of discrimination with the MCAD on or about October 31, 2017, alleging that defendants Arbella and Roche discriminated against him with respect to the cancellation of his automobile insurance policy. The MCAD issued a finding of no probable cause to support the allegations and dismissed the complaint. The plaintiff appealed this finding and an investigating commissioner of the MCAD affirmed the dismissal on August 10, 2018.
The plaintiff then filed two complaints for administrative review in the Superior Court on or about September 17, 2018, one against the MCAD and Roche (case 18-02909), and the other against the MCAD and Arbella (case 18-02906), alleging that the MCAD improperly dismissed his case for lack of probable cause. In both cases, a judge of the Superior Court dismissed the complaints against the MCAD for lack of subject matter jurisdiction. The complaint against Arbella was dismissed for failure to state a claim upon which relief could be granted.
Discussion. The appeal from the dismissal of the MCAD is governed in all material respects by Grandoit v. Massachusetts Comm'n Against Discrimination, 95 Mass. App. Ct. 603 (2019), in which we held that the plaintiff has no right of appeal from the dismissal of a complaint before the MCAD for lack of probable cause. "As the Supreme Judicial Court concluded in Christo [v. Edward G. Boyle Ins. Agency, Inc.], 402 Mass. [815,] 818 [ (1988) ], a preliminary hearing before an investigating commissioner is not an ‘adjudicatory proceeding’ within the meaning of G. L. c. 30A, ‘and no statutory right of appeal for judicial review applies to ... a determination [by the investigating commissioner].’ " Grandoit, supra at 606. "Nor is judicial review available under the certiorari statute, G. L. c. 249, § 4. ‘Certiorari is a limited procedure reserved for correction of substantial errors of law apparent on the record created before a judicial or quasi-judicial tribunal.’ " Grandoit, supra at 607, quoting School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 575-576 (2007). As the Superior Court lacked jurisdiction in this matter, there was no error in dismissing the complaints against the MCAD.
While we have no jurisdiction over claims against the MCAD, with respect to Arbella "nothing in the statute precludes the complainant from filing a civil action under G. L. c. 151B, § 9, so long as it is initiated within the limitations period." Grandoit, 95 Mass. App. Ct. at 606. No such complaint is before us. The Superior Court judge, in granting Arbella's motion to dismiss, further noted that the plaintiff's complaint did not make any specific allegations against Arbella, nor did it seek relief from Arbella. The case was brought for judicial review of agency action. We agree that the complaint failed to state a separate claim against Arbella. See Buffalo-Water 1, LLC v. Fidelity Real Estate Co., LLC, 481 Mass. 13, 22 (2018).
Roche stands in a different posture. Roche never filed an appearance in the Superior Court action, and the motion judge's order applied to the MCAD only. For reasons unclear, judgment was then entered in favor of both the MCAD and Roche. While the rationale of the Arbella disposition may be fully applicable to Roche, no such ruling has been made in the Superior Court, and the dismissal of the case against Roche was premature.
Accordingly, in case 18-02906, the judgment is affirmed. In case 18-02909, so much of the judgment that dismisses the complaint against the MCAD is affirmed, and so much of the judgment that dismisses the complaint against Roche is vacated and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
affirmed in part; vacated in part and remanded