Opposition Brief — Li v. Raytheon Co (No. 08-909)

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| No. 08-909 FEB 2 3 2999

EI CEERK

IN THE

Supreme Court of the Anited States

YOnG LI,

Petitioner,

i.

RAYTHEON COMPANY AND OTHERS, .

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MASSACHUSETTS SUPREME JUDICIAL COURT

seemniell

emma

BRIEF OF RAYTHEON COMPANY IN

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI .

JAMES F’. KAVANAUGH, JR.

Counsel of Record

MICHAEL R. BERNARDO

CONN KAVANAUGH ROSENTHAL

PEISCH & FORD, LLP

Ten Post Office Square

Boston, Massachusetts 02109

Telephone: (617) 482-8200

Counsel for Respondent

Raytheon Company

Dated: February 23, 2009

BATEMAN & SLADE, INC. BOSTON. ALASSACHIUSETTS

QUESTION PRESENTED

i. Whether the Massachusetts Appeals

Court’s decision to affirm the dismissal of Peti-

tioner’s race discrimination and retaliation claims

for failure to state a claim upon which relief can be

granted constitutes a decision on an important fed-

eral question that conflicts with the decision of an-

other state court of last resort, a United States court

of appeals, or the relevant decisions of this Court, or

raises an important federal question that has not

been, but should be, settled by this Court.

uu

LIST OF PARTIES AND

RULE 29.6 STATEMENT

The parties named in the caption, Yong Li and

Raytheon Company (“Raytheon”), were not the only

parties to the proceedings before the Massachusetts

Supreme Judicial Court, Massachusetts Appeals

Court, and Massachusetts Superior Court. The

Massachusetts Division of Professional Licensure

was initially a named defendant but was dismissed

from the case at the Superior Court level. Petitioner

also indicated that her Petition does not seek Writ of

Certiorari as to Arthur Buliung, Ian C. Mitchell, and

John Didio, all of whom were defendants in the pro-

ceedings before the lower courts. (Pet. at 1 & n.1).

Raytheon has no parent companies, and there are no

publicly-held companies that own ten percent or

more of its stock.

ill

TABLE OF CONTENTS

QUESTION PRESINE BD vec ccccsccsccvecssccssessersseseess 1

LIST OF PARTIES AND RULE 29.6

a eI sed hccess ceca taxesverstesansoteranpaaielnapee ii

_ TABLE OF AUTHORITIES ............-0-ce-sesrrssoeseoseovers Vv

Fe I TT visicisveiccrshavidesersuits ccesertumnioninescnes 1

JURISDICTION ....scssssees tienen Beer 1

BEATUTES TRVOUN GD ccscesccecersessesccsssensssissopvecsssess 1

STATEMENT OF THE CASE. ........icceceeeseeeeseesenees 1

POCO, GI OUIIE oc iasisinsicccsdevesveccsevesessvenesess 1

FROCODEEE BIO oiviéssnissinvisecciivasivasenentvccsvnsens 3

REASONS FOR DENYING THE PETITION ......... 7

I. The Petition Should Be Denied

Because The Massachusetts

Appeals Court’s Decision Does

Not Raise An Important Federal

I cis ccickesccccaupardeeeis eicivinadeoders 7

II. The Petition Should Be Denied

Because The Massachusetis

Appeals Court’s Decision Is

Consistent With Massachusetts

Precedent And A Similar

Longstandiag Rule Of This

Court Concerning Appellate Review

1V

Of Dismissal Orders And

AER TTO POR LO CE PTOI CLAIR 8

III. The Petition Should Be Denied Because

The Massachusetts Appeals Court’s

Decision Is Consistent With The

Decisions Of A Majority of

United States Courts of Appeals

And Several State Appellate

IE ratciecccrnntoenss cian liabemcanioawinns 11

CPR NRT IIIIET. secdinpscannieivimcnvereininees’ fairs rciasicouensin 15

Vv

TABLE OF AUTHORITIES

CASES:

Albrecht v. First Federal Sav. and Loan Ass’n of

Grand Forks and Minot,

372 N.W.3d 893 (N.D. 1G8B5)........ccccsceecereceeses 13

Alholm v. Town of Wareham,

S58 N.£.2d 7EB (Ddase. 1976).........ccccrcerecreseres 9

. Best v. Kelly,

BP F.BE SRO AC. Car. FOOD ..ccoiscvcesccscarsesscveses 12

Bryson v. Brand Insulations, Inc.,

G21 F.2d G56 (Fd. Cir. TGBO) .....c.cccccccccssevscesese 12

First Gibraltar Bank, FSB v. Smith,

62 F.3d 133 (5th Cir. 1995) .cccccccesssessseeeseeen 12

Gonzalez-Gonzalez v. United States,

BET F.Be Bt (tat Gir. BOCL)...cccccesescsessvcses: 1l

Harper v. Clarke,

713 N.W.2d 502 (Neb. App. 2006)...........0..c006 13

Hoskins v. Poelstra,

G40 F.3d 761 (7tit, Car. BOOZ)....0..ccerscescosesesees 12

Leonhard v. United States,

633 F.2d 599 (2d Cir. 1980) .cccccccccccceecececees 11

MacCormack v. Boston Edison Co.,

O72 IN.E. 2d I Cia as. TGDE). 000... .ccocscccssesscess 14

vl

McKinney v. Oklahoma,

925 F.2d 363 (10th Cir. 1991)... .cccccescccseoesces 12

Neitzke v. Williams,

490 U.S. B19 (1989) .eccccccccccccecsssssccccceceecees 13

Omar vu. Sea-Land Service, Inc., _-

S13 F.8d GEC (Ht Cir. 1987)...0cccreccccecscevess 11

Sec. and Exch. Comm’n v. Chenery Corp.,

318 U.S. 80 (1943)........4.. aah eds enidednusousanedls 10

Smith v. Boyd,

945 F.2d 1041 (8th Cir. 1991).....cccccoccosceess 12

St. Germaine v. Pendergast,

584 N.E.2d 611 (Mass. 1992)........ccccccsceveecee 9

State ex rel. Scott v. Cleveland,

859 N.E.2d 923 (Ohi0 2006). .cccccseccceveeeees 13

Taie v. Department of Mental Health,

645 N.E.2d 356 (Mass. 19985)......cccccseccovsees 14

STATUTES & FEDERAL RULES:

I rss | os such aus eieseneceaauducensain 1

Re . sisesnacocseidocescereascnseredevBoes 1

ee ns. cn sun uuadendusoendos bavcwnses 11

Rule 10 of the Rules of the Supreme

Court of the United States.................. 7, 8, 10

Rule 14(1)(g) of the Rules of the Supreme

Court of the United States ...............0000- 1,2

Rule 15(2) of the Rules of the Supreme

Court of the United States ...............cceeeeeee

MASSACHUSETTS GENERAL LAWS & RULES

ee eI oy nua gg aieck vase wanusncnskeneatebatiacesousats 1,3

Mass.R.Civ.P. 12(b)(6) ...........00: sccm ueaens aeeaal passim

Mase R.Chv.P. TIGIND occsescosccsesssscense puauamaieasacad 8

TREATISES

5A C. Wright & A. Miller, Federal Practice and

Procedure: Civil § 1357 at 301 (2d ed. 1990).......... 13

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI

Respondent Raytheon Company respectfully

opposes the petition for writ of certiorari to review

the decision of the Massachusetts Appeals Court.

OPINIONS BELOW

As stated by Petitioner.

JURISDICTION

The Court has jurisdiction to review Peti-

tioner’s petition pursuant to 28 U.S.C. § 1257. Peti-

tioner incorrectly cited to 28 U.S.C. § 1254 as the ba-

sis for the Court’s jurisdiction in her petition.

STATUTES INVOLVED

Respondent contends that only Massachusetts

General Laws, Chapter 151B is involved and rele-

vant to the petition. |

STATEMENT OF THE CASE

Factual Background.

Respondent contends that Petitioner has ig-

nored her obligations under Rule 14(1)(g) of the

Rules of Supreme Court of the United States to pro-

vide a “concise statement of the case setting out the

facts material to consideration of the questions pre-

sented” and to “(i) ... specify the stage in the pro-

ceedings below, both in the court of first instance

and in the appellate courts, when the federal ques-

2

tions sought to be reviewed were raised; the method

or manner of raising them and the way in which

they were passed on by those courts; and pertinent

quotations of specific portions of the record or sum-

mary thereof, with specific reference to the places in

the record where the matter appears .. ., so as to

_ show that the federal question was timely and prop-

erly raised and that this Court has jurisdiction to re-

view the judgment on a writ of certiorari.” Instead,

Petitioner concedes that her “complaint was not ade-

quately written” but that “it is not necessary to list

the facts” of her case in the petition (despite the re-

quirements of Rule 14(1)(g)) because the petition

“has nothing to do with the merit of the case.” (Pet.

at 4).

Respondent submits that Petitioner’s State-

ment of the Case violates the letter and spirit of Rule

14(1)(g). The question presented in the petition fo-

cuses on the lower courts’ dismissal of her state race

discrimination and retaliation claims for failure to

state a claim upon which relief can be granted under

Rule 12(b)(6) of the Massachusetts Rules of Civil

Procedure. Thus, Petitioner's recitation of the facts

that are material to her claims and, by extension,

the Court’s consideration of the question presented

is essential to a determination of whether the lower

courts’ judgment constitutes an error that is appro-

priate for this Court to review on a writ of certiorari.

Pursuant to Rule 15(2) of the Rules of the Su-

preme Court of the United States, Respondent sub-

mits that the brief recitation of facts set forth in the

decision of the Massachusetts Appeals Court issued

on March 25, 2008, (Pet. at 4a-1la), is concise, cor-

rect, and sets out the facts material to consideration

3

of the question presented in the petition. Specifi-

cally, Petitioner’s racial discrimination claim

(brought under Massachusetts General Laws, Chap-

ter 151B) is based upon allegations that Raytheon,

in effect, supported misconduct by one of the Com-

pany’s human resources representatives, Arthur Bu-

liung. (Pet. at 5a). As the Massachusetts Appeals

Court observed, Petitioner did not allege in her com-

plaint that Mr. Buliung discriminated against her on

the basis of race. (Id.). Petitioner’s retaliation claim

(also brought under Massachusetts General Laws,

Chapter 151B) is centered on her allegations that

Raytheon (1) caused her to have a “mental evalua-

tion as a means of reprisal or to control anti-

discrimination complaint,” and (2) sent her a letter,

which she viewed as a threat to terminate her “while

she was exercising her right of Family Medical

Leave Act (FMLA).” As the Massachusetts Appeals

Court noted, Petitioner failed to allege in her com-

plaint the required element that she suffered an “ad-

verse employment action,” as defined under state

law. (Id.). Finally, as stated above, the petition does

not seek the Court’s review as to any claims origi-

nally brought against defendants-appellees Arthur

Buliung, Ian C. Mitchell, and John Didio. (Pet. at 1

&n.l). Therefore, Raytheon Company is the only

respondent for purposes of the Court’s consideration

of the petition.

Proceedings Below.

Respondent agrees with the major points set

forth in Petitioner’s description of the Proceedings

Below. Respondent, however, objects to certain ar-

gumentative statements made therein. Therefore,

for clarity of the record and convenience of the

4

Court, Respondent provides its own statement of the

Proceedings Below.

On May 11, 2006, Petitioner filed an eight-

count complaint in Massachusetts Superior Court.

In the complaint, Petitioner asserted, among other

claims, a race discrimination claim against Raytheon

(Count I); a retaliation claim against the Raytheon,

Ian C. Mitchell, and Arthur Buliung (Count Ij); a

claim for violation of the Massachusetts Civil Rights

Act (violation of First Amendment rights) against

Raytheon (Count IID; a claim for violation of the

Massachusetts Civil Rights Act (violation of Fifth

Amendment rights) against Raytheon and John

Didio (Count IV); a negligent/reckless/intentional in-

fliction of emotional distress claim against Raytheon,

Mr. Buliung, and Mr. Didio (Count V); a misrepre-

sentation claim against Mr. Buliung (Count VI); and

a claim for tortious interference with advantageous

[business] relations against Raytheon, Mr. Mitchell,

and Mr. Buliung (Count VII). (Pet. at 14a-32a).

On June 23, 2006, Raytheon, among other de-

fendants, filed a Motion to Dismiss all claims against

the Company. (Pet. at 5). On October 10, 2006, Pe-

titioner filed a Motion to Amend Complaint, in which

she proposed to add Scott Oglesby, Stephanie Kolen-

ski, and Irving Kooris as defendants, and proposed

new claims, including violation of “right of privacy”

against Raytheon (Count IX), violation of “mght of

consent” against Rayth on and Mr. Buliung (Count

X), violation of the Massachusetts Civil Rights Act

against Raytheon and Mr. Buliung (Count XI), and a

negligence claim against Raytheon (Count XII). Pe-

titioner also sought to add Ms. Kolenski to her mis-

5

representation count (Count VI), and to add Mr.

Oglesby to her tortious interference count (Count

VII). (Pet. at 5).

On October 11, 2006, the ‘superior Court

granted the defendants’ Motion to Dismiss in its en-

tirety but agreed to consider Petitioner's Motion to

Amend Complaint. (Jd.) Upon review of Petitioner's

Motion to Amend Complaint and the defendants’

Opposition, the Court denied Petitioner’s Motion on

November 6, 2006, and entered Final Judgment in

favor of all defendants on all claims in this case on

November 7, 2006. (Pet. at la).

Petitioner filed a Notice of Appeal from the

Final Judgment, as well as from the Superior Court’s

denial of her Motion to Amend Complaint, on No-

vember 21, 2006. (Pet. at 5). Om March 25, 2008,

the Massachusetts Appeals Court issued its decision,

affirming the Superior Court’s orders to dismiss the

case against all defendants and to deny Petitioner's

Motion to Amend Complaint. (Pet. at 3a-lla). In its

decision, the Appeals Court affimed the Superior

Court’s decision with respect to Couuts III, IV, VI,

and VIII of the complaint because Petitioner failed to

challenge the dismissal of these counts and, thereby,

waived the claims. The Appeals Court affirmed the

Superior Court’s dismissal of the remaining claims

(Counts I, II, V, and VII) pursuant to Mass.R.Civ.P.

12(b)(6) for failure to state a claim upon which relief

can be granted. Finally, as to Petitioner's appeal of

the Superior Court’s denial of her Motion to Amend

Complaint, the Appeals Court found that Petitioner

“failed to meet her burden of demonstrating error in

[the Superior] Court's ruling.” (Pet. at 10a-11la).

‘On May 21, 2008, Petitioner filed an Applica-

tion for Further Appellate Review of the case with

the Massachusetts Supreme Judicial Court. (Pet. at

7). Respondent opposed the Application on June 23,

2008. Petitioner’s Application was denied on July

23, 2008. (Pet. at 12a). Petitioner filed a Petition to

Reconsider the Court’s Denial of her Application for

Further Appellate Review on August 13, 2008. The

Court denied Petitioner’s Petition on September 8,

2008. (Pet. at 13a). Further, the relevant decisions

and orders below were not reported.

Petitioner’s petition concerns only her race

discrimination (Count I) and retaliation (Count ID

claims under state law against Raytheon. (Pet. at 1).

7

REASONS FOR DENYING THE PETITION

I. THE PETITION SHOULD BE DENIED

BECAUSE THE MASSACHUSETTS

APPEALS COURT'S DECISION DOES

NOT RAISE AN IMPORTANT FEDERAL

QUESTION.

The petition should be denied because it does

not implicate any of the compelling reasons cited by

the Court in Rule 10 of the Rules of Supreme Court of

the United States to grant a writ of certiorari, such

as a conflict regarding an important federal ques-

tion. Specifically, the question presented in the peti-

tion is based on the false premise that the Massa-

chusetts Appeals Court’s decision to affirm the

dismissal of Petitioner’s complaint on grounds that.

were valid but different than those relied on by the

Massachusetts Superior Court.is “unprecedent{ed] in

U.S. history” and conflicts with the “authoritative

decisions” of several United States courts of appeals

and other state courts of last resort on the “same is-

sue.” (Pet. at 9-10). Despite Petitioner’s apparent

attempt to frame the question presented as one that

implicates a federal question, the question actually

presented in the petition concerns only the applica-

tion of the Massachusetts Rules of Civil Procedure to

the particular facts of Petitioner’s case, which was

brought under state law in state court. Hence, Peti-

tioner’s appeal was properly considered and decided

by the Massachusetts Appeals Court, and the Mas-

sachusetts Supreme Judicial Court refused to recon-

sider said decision on Petitioner's Application for

Further Appellate Review. Because the question

‘ presented in the petition seeks review of a state de-

8

cision that analyzed the application of state-specific

court procedural rules, however, the petition does

not present this Court with a decision on an impor-

tant federal question that conflicts with the decision

of another state court of last resort, a United States

court of appeals, the relevant decisions of this Court,

or raise an important federal question that has not

been, but should be, settled by this Court. See Rule

10 of the Rules of Supreme Court of the United

States. Therefore, the petition should be denied.

Il. THE PETITION SHOULD BE DENIED

BECAUSE THE MASSACHUSETTS

APPEALS COURT'S DECISION IS

CONSISTENT WITH MASSACHUSETTS

PRECEDENT AND A SIMILAR

LONGSTANDING RULE OF THIS COURT

CONCERNING APPELLATE REVIEW OF

DISMISSAL ORDERS AND DECISIONS.

Assuming arguendo that the question pre-

sented in the petition is of the character considered

by the Court under Rule 10, the decision of the Mas-

sachusetts Appeals Court is consistent with applica-

ble Massachusetts appellate case law and, more gen-

erally, a similar longstanding rule of this Court

regarding appellate review of trial court dismissal

orders and decisions. In response to Raytheon’s Mo-

tion to Dismiss, the Massachusetts Superior Court

relied on Rule 12(b)(9) of the Massachusetts Rules of

Civil Procedure to dismiss Petitioner’s race discrimi-

nation and retaliation claims against Raytheon

based upon the “[p]endency of a prior action in a

court of the Commonweal!th.” (Pet. at 6a). The Mas-

sachusetts Appeals Court found that the Superior

Court erred in relying on Rule 12(b)(9) to dismiss Pe-

9

titioner’s race discrimination and retaliation claims

against Raytheon.. (Id.). The Appeals Court none-

theless affirmed the dismissal of the claims on the

alternative, valid ground that with respect to both

claims, Petitioner failed to state a claim upon which

relief can be granted. See Rule 12(b)(6) of the Mas-

sachusetts Rules of Civil Procedure; (Pet at 7a-8a).

Specifically, as to Petitioner’s race discrimination

claim, the Court found that Petitioner did not allege

in her complaint that Mr. Buliung discriminated

against her on the basis of race.. (Pet. at 8a). As to

Petitioner’s retaliation claim, the Appeals Court

found that Petitioner failed to allege in her com-

plaint the required element that she suffered an “ad-

verse employment action,” as defined under state

law. (Id.).

Petitioner argues that the Massachusetts Ap-

peals Court’s alleged “sua sponte” decision to affirm

the Superior Court’s ruling under Rule 12(b)(6) (as

opposed to affirming on grounds relied on by the Su-

perior Court) “is unprecedented in US history.” (Pet.

at 11). Contrary to Petitioner’s argument, the Mas-

sachusetts Appeals Court’s decision is consistent

with relevant Massachusetts precedent, which per-

mits appellate courts to affirm dismissal orders and

decisions on grounds different than those relied upon

by the trial court. Specifically, the Massachusetts

Supreme Judicial Court has stated that the granting

of a dispositive motion should be upheld “if there is

any valid ground on which the motion should have

been granted,” whether or not the valid ground was

relied on by the trial court. Alholm v. Town of

Wareham, 358 N.E.2d 788, 791 (Mass. 1976). See

also St. Germaine v. Pendergast, 584 N.E.2d 611,

10

614 & n. 9 (Mass. 1992)(any obvious ground, even

though not raised in the trial court, can be appropri-

ately usec. to uphold the judge’s grant of summary

judgment). This Massachusetts rule of appellate re-

view is consistent with this Court’s longstanding

rule that, “in reviewing the decision of a lower court;

it must be affirmed if the result is correct although

the lower court relied upon a wrong ground or gave a

wrong reason.” Sec. and Exch. Comm'n v. Chenery

Corp., 318 U.S. 80, 88 (1943)internal citations omit-

ted). According to the Court, “[t]he reason for this

rule is obvious. It would be wasteful to send a case

back to a lower court to reinstate a decision wnich it

had already made but which the appellate court con-

cluded should properly be based on another ground

within the power of the appellate court to formu-

late.” Jd. Based on the foregoing, even if the ques-

tion presented in the petition is of the character con-

sidered by this Court under Rule 10, there is no

basis to review or overturn the Massachusetts Ap-

peals Court’s decision to affirm the dismissal of Peti-

tioner’s race discrimination and retaliation claims

because the decision 1s consistent with Massachu-

setts precedent and a longstanding rule of this Court

concerning appellate review of trial court dismissal

orders and decisions.

11

Il. THE PETITION SHOULD BE DENIED

BECAUSE THE MASSACHUSETTS

APPEALS COURT’S DECISION IS

CONSISTENT WITH THE DECISIONS OF

A MAJORITY OF UNITED STATES

COURTS OF APPEAL AND SEVERAL

STATE APPELLATE COURTS.

- Petitioner asserts that the Massachusetts Ap-

peals Court’s “sua sponte” dismissal of her race dis-

crimination and retaliaticn claims for failure to state

a claim upon which relief can be granted is “un-

precedented in US history .. .,” and inconsistent

with principles of due process and the adversarial

process. (Pet. at 11-15). Petitioner’s assertions are

incorrect. The Massachusetts Appeals Court’s deci-

sion to dismiss Petitioner’s race discrimination and

retaliation claims on its own initiative under

Mass.R.Civ.P. 12(b)(6) is consistent with decisions of

a majority of United States courts of appeals inter-

preting the analogous Rule 12(b)(6) of the Federal

Rules of Civil Procedure and several state appellate

courts.

Specifically, a court “may dismiss a claim sua

sponte under Fed.R.Civ.P. 12(b)(6) . . .. Such a dis-

missal may be made without notice where the claim-

ant cannot possibly win relief.” Omar v. Sea-Land

Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987) (in-

ternal citations omitted); see, e.g., Gonzalez-Gonzalez

v. United States, 257 F.3d 31, 37 (1st Cir. 2001)(“If it

is crystal clear that the plaintiff cannot prevail and

that amending the complaint would be futile, then a

sua sponte dismissal [without notice] may stand...

”):; Leonhard v. United States, 63? F.2d 599, 609 &

12

n.11 (2d Cir. 1980)(the district court has the power.

to dismiss a complaint sua sponte for failure to state

a claim); Bryson v. Brand Insulations, Inc., 621 F.2d

556, 559 (3d Cir. 1980)(the district court may on its

own initiative enter an order dismissing the action

provided that the complaint affords a sufficient basis

for the court’s action); First Gibraltar Bank, FSB v.

Smith, 62 F.3d 133, 135 (Sth Cir. 1995)(sua sponte

dismissal of meritless counterclaim under Rule

12(b)(6) permitted even though defendant did not file

motion to dismiss for failure to state a claim for re-.

lief); Hoskins v. Poelstra, 320 F.3d 761, 763 (7tn Cir.

2003)Qjudges have ample authority to dismiss frivo-

lous or transparently defective suits spontaneously

under Fed.R.Civ.P. 12(b)(6), and “thus save everyone

time and legal expense”); Smith v. Boyd, 945 F.2d

1041, 1042-43 (8th Cir. 1991)(district court sua

sponte may dismiss complaint under Rule 12(b)(6) so

long as dismissal does not precede service of process;

although district court should provide pre-dismissal

notice, failure to give plaintiff notice and opportunity

to respond does not mandate reversal if it is patently

obvious that plaintiff couid not prevail based on facts

alleged in complaint); McKinney v. Oklahoma, 925

F.2d 363, 365 (10th Cir. 1991) (although preferred

practice is to accord plaintiff notice and opportunity

to amend complaint before acting upon motion to

dismiss for failure to state a claim, sua sponte dis-

missal under Rule 12(b)(6) is not reversible error

when it is patently obvious that plaintiff could not

prevail on the facts alleged and allowing opportunity

to amend complaint would be tutile); Best v. Kelly, 39

F.3d 328, 331 (D.C.Cir. 1994Xcomplaint may be

dismissed, sua sponte if need be, under Rule 12(b)(6)

wherever “the plaintiff cannot possibly win relief’).

13

See also 5A C. Wright & A. Miller, Federal Practice

and Procedure: Civil § 1357 at 301 (2d ed.

1990)(federal district court may dismiss meritless

claims sua sponte under Fed.R.Civ.P. 12(b)(6)). This

Court has not passed judgment on the permissible

scope of sua sponte dismissals under Fed.R.Civ.P.

12(b)(6). See Neitzke v. Williams, 490 U.S. 319, 329

& n. 8 (1989).

Several state appellate courts have followed

the majority of United States courts of appeals and

held that sua sponte dismissal of a complaint is war-

ranted where the claimant cannot prevail on the

facts alleged in the complaint. See, e.g., State ex rel.

Scott v. Cleveland, 859 N.E.2d 923, 926 (Ohio

2006)(sua sponte dismissal of claim without notice is

permissible under Rule 12(b)(6) where claimant can-

not possibly prevail on the facts alleged in the com-

plaint); Harper v. Clarke, 713 N.W.2d 502, 506-07

(Neb.App. 2006)\(same); Albrecht v. First Federal

Sav. and Loan Ass'n of Grand Forks and Minot, 372

N.W.2d 893, 894-895 (N.D. 1985)same).

The common theme among al! cf the above

referenced cases in which sua sponte dismissal (for

failure to state a claim upon which relief can be

granted) has been upheld is the court’s finding that

it is obvious that the claimant has failed to allege

facts that could possibly entitle her to relief. This

common theme is evident in the Massachusetts Ap-

peals Court’s decision to affirm the dismissal of Peti-

tioner’s race discrimination and retaliation claims.

Specifically, as the Massachusetts Appeals Court

noted, Petitioner cannot possibly prevail on her race

discrimination claim because she did not allege that

14

the Company or its agents discriminated against her

on the basis of race. (Pet. at 8a). Similarly, Peti-

tioner cannot prevail on her retaliation claim be-

cause she failed to allege that she suffered an ad-

verse employment action, which is a required

element of her prima facie case of retaliation under

Massachusetts law. See Tate v. Department of Men-

tal Health, 645 N.E.2d 1159, 1165 (Mass. 1995);

MacCormack v. Bosten Edison Co., 672 N E.2d 1, 7-8

(Mass. 1996). Therefore, consistent with the above

referenced federal and state case law, the Massachu-

setts Appeals Court properly dismissed Petitioner’s

race discrimination and retaliation claims under

Mass.R.Civ.P. 12(b)(6) for feilure to state a claim

upon which relief can be granted.

Finally, Petitioner was accorded due process

and permitted to participate in the “adversarial

process” in the Massachusetts courts -- her case was

considered by the Massachusetts Superior Court, the

Massachusetts Appeais Court twice (on appeal and

Petitioner's Petition for Rehearing), and the Massa-

chusetts Supreme Judicial Court twice (on Peti-

tioner’s Application for Further Appellate Review

and her Petition to Reconsider the Court’s denial of

her Application for Further Appellate Review). (Pet.

at 2-3).

Based on the foregoing, there is no conflict be-

tween the Massachusetts Appeal Court’s decision

and that of a United States court of appeals, state

court of last resort or this Court on an important

federal question that is appropriate for review and,

accordingly, Petitioner’s petition should be denied as

to the question presented.

15

CONCLUSION

For these reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

RAYTHEON COMPANY,

Respondent

By its attorneys,

JAMES F.. KAVANAUGH, JR.

Counsel of Record |

MICHAEL R. BERNARDO

CONN KAVANAUGH ROSENTHAL

PEISCH & FORD, LLP |

Ten Post Office Square

Boston, Massachusetts 02109

Telephone: (617) 482-8200

Counsel for Respondent

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