The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1172
STEPHEN STOUTE
vs.
JOSEPH AOUN & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In December 2021, the plaintiff filed an action against
Northeastern University (university) and "its board of
trustees."2 In August 2022, a judge of the Superior Court
dismissed the matter as to the individual defendants and
partially dismissed it as to the university. Later, after the
plaintiff failed to appear for a deposition noticed by the
university, the university moved for dismissal. The judge
1Jeffrey Clarke, Richard D'Amore, Jeffrey S. Bornstein,
Edward G. Galante, Joseph M. Tucci, David L. House, Ralph C.
Martin, Chaitanya Chet Kanojia, and Northeastern University.
The defendants' names are styled as they were in the original
complaint.
2Northeastern University, in its brief, contends that the
named defendants include both present and former trustees.
issued an order of dismissal, and a judgment of dismissal
entered in June 2024, from which the plaintiff now appeals. We
affirm.
Background. The original complaint alleged that the
university committed a breach of a written agreement with the
plaintiff regarding his admission to its college of engineering
and sought $10,000 in damages. Specifically, the plaintiff
alleged that the university agreed to admit him upon his
completion of certain coursework, but failed to do so, causing
emotional distress, economic losses, and reputational harm. The
plaintiff also alleged that he had sent a G. L. c. 93A demand
letter to the defendants. The plaintiff served but never filed
an alternative version of the complaint, raising claims of race-
based discrimination and seeking $20,000 in damages.3 The served
complaint incorporated exhibits, including the alleged written
agreement.4
The defendants filed a motion to dismiss for failure to
state a claim, the plaintiff opposed it, and a hearing was held
in July 2022. The judge allowed the motion as to all individual
3 In the exercise of her discretion, the judge considered
this amended complaint, and we do the same.
4 The alleged written agreement was a form denying the
plaintiff's admission into the college of engineering and
stating that "another review will be conducted upon receipt of
evidence of successful completion of [certain] coursework."
2
defendants and as to the claim of negligent infliction of
emotional distress against the university and denied the motion
as to the plaintiff's claims of breach of contract, racial
discrimination, intentional infliction of emotional distress,
and violation of G. L. c. 93A as against the university.
Discovery disputes followed, and the university moved for
dismissal pursuant to Mass. R. Civ. P. 37 (d), 365 Mass. 797
(1974), based on the plaintiff's alleged failure to respond to
written discovery. Before this motion was ruled on, the
university filed a second rule 37 (d) motion to dismiss for the
plaintiff's failure to appear at a scheduled deposition. The
judge allowed this second rule 37 (d) motion to dismiss in June
2024, finding that the plaintiff took the position that he need
not appear for a deposition "because it does not take place in a
courtroom" and that the plaintiff "underst[ood] the method and
purpose of discovery rules" but did not wish to follow them.
The judge found that the plaintiff's actions were "willful" and
"made in bad faith," where the plaintiff failed to respond to
discovery requests after an order compelling him to do so, "sent
discovery requests to a judge" "instead of trying to reschedule
the deposition," and was unwilling to confer with counsel
regarding the discovery disputes, as required by Rule 9C of the
Rules of the Superior Court (2023). The judge concluded that
3
the sanction of dismissal was just and appropriate in the
circumstances and dismissed the complaint.
Discussion. We review a dismissal under rule 37 for an
abuse of discretion. See Partlow v. Hertz Corp., 370 Mass. 787,
790 (1976). Dismissal is an appropriate sanction where there is
a "finding of willfulness or bad faith." Keene v. Brigham &
Women's Hosp., Inc., 439 Mass. 223, 236 (2003). The plaintiff
argues on appeal that he was not the wrongdoer -- that he was
not required to participate in the deposition because it was
noticed in bad faith and that he was not required to produce
documents because he was never informed "who would cover the
cost for reproduction of documents."5 He also argues that the
discovery requests were a "fishing expedition." However, the
plaintiff does not elaborate on these points or explain why, for
example, the deposition was noticed in bad faith. Nor does the
plaintiff support his arguments with reference to support from
5 In his brief, the plaintiff also discusses his attempt to
name the defendants' counsel as a defendant, his request for a
jury trial, and certain ex parte communications he sent to the
judge, which were not responded to, none of which "rise[] to the
level of appellate argument" and which are not considered here.
Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003
(2011). See Mass. R. A. P. 16 (a) (9), as appearing in 481
Mass. 1628 (2019) ("[t]he argument shall contain . . . the
contentions of the appellant . . . with citations to the
authorities and parts of the record on which the appellant
relies").
4
the record6 or legal authority. See Mass. R. A. P. 16 (a) (9),
as appearing in 481 Mass. 1628 (2019). Based on the arguments
and record before us, we discern no reason to disturb the
judge's determination that the plaintiff's refusal to
participate in discovery was willful and undertaken in bad
faith.
Judgment of dismissal
affirmed.
By the Court (Hershfang,
Hodgens & Smyth, JJ.7),
Clerk
Entered: March 13, 2026.
6 In fact, the plaintiff has not provided the court with a
record appendix to review his claims, and the only record
appendix before us was submitted by the university.
7 The panelists are listed in order of seniority.
5