Opinion
No. 11–P–2015.
2012-09-14
Phyllis R. PERRY, executrix, v. JOHN G. SAVAGE REALTY CORP. & another.
By the Court (CYPHER, GRAINGER & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
James Fitzgibbon appeals from a decision of a judge of the Superior Court denying his motion to dismiss for lack of subject matter jurisdiction. See Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974). He claims that the decedent in this wrongful death action was his employee, and that the exclusivity provision of the workers' compensation statute, see G.L. c. 152, § 24, imposes a jurisdictional bar to any claim against him in his capacity as the employer of the decedent, the plaintiff's deceased husband. Because this appeal is interlocutory in nature, we first must decide whether to hear this appeal under the doctrine of present execution. See Morrissey v. New England Deaconess Assn.—Abundant Life Communities, Inc., 458 Mass. 580, 585 n. 10 (2010); Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 97–98 (2011). As a general rule, a litigant may not pursue an interlocutory appeal in the absence of a statute or a rule that authorizes it. Morrissey v. New England Deaconess Assn.—Abundant Life Communities, Inc., supra. “There is no statute or rule applicable to the exclusivity question, and the ruling regarding subject matter jurisdiction is thus not properly the subject of interlocutory appeal.” Maxwell v. AIG Domestic Claims, Inc., supra at 99. Fitzgibbon argues that this bedrock principle has been subverted here because the judge did not, consistent with Wooten v. Crayton, 66 Mass.App.Ct. 187, 190 n.6 (2006), and cases cited, make factual findings on the issue of jurisdiction. Instead, she found that whether the decedent was an employee or an independent contractor was a “factual issue,” and denied the motion.
Because subject matter jurisdiction can be raised at any time, an appellate court does retain some discretion to consider the issue of jurisdiction in the context of an interlocutory appeal. Maxwell v. AIG Domestic Claims, Inc., supra. We therefore consider this appeal, but solely for the limited purpose of addressing the method by which subject matter jurisdiction should be determined in the Superior Court.
In Maxwell, supra, the Supreme Judicial Court decided the jurisdictional issue on the merits because the matter was fully briefed and the record was developed. Here we limit our consideration to the procedural issues, which also have been fully briefed, the resolution of which is necessary to a fair and complete disposition of the exclusivity question.
On a motion to dismiss for lack of subject matter jurisdiction, when a factual challenge has been made and matters outside the pleadings are presented and considered, the burden is on the plaintiff to prove jurisdiction. See Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 710 (2004); Wooten v. Crayton, supra. If the facts are contested, the “court enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction.” Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir.2001). However, the motion judge is obligated to find the jurisdictional facts.
Wooten v. Crayton, supra. Here, this was not done. Accordingly, the order denying the motion to dismiss must be vacated and the matter remanded for further proceedings consistent with this decision.
Where jurisdictional facts are so inextricably intertwined with the merits that the two may not be separated, the resolution of the jurisdictional issue is for the ultimate fact finder at trial. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (“If satisfaction of an essential element of a claim for relief is at issue, however, the jury is the proper trier of contested facts”). See Valentin v. Hospital Bella Vista, supra at 363 n.3. Here, however, the issue of exclusivity is collateral to, not an essential element of, the negligence claims presented. Maxwell v. AIG Domestic Claims, Inc., supra at 98 (“Present execution applies because the question of immunity is collateral to the merits of the case and because immunity from suit entitles a party to avoid not only liability but also the burden of the litigation”). Moreover, the question of the decedent's status as an employee or an independent contractor under the workers' compensation statute may be decided without reference to a jury because there is no right to a jury trial under G.L. c. 152.
So ordered.