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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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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

338092. 1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0063%3A2. Public record. Not legal advice.