MYRICK v. HARVARD UNIVERSITY (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kyl V. Myrick, appearing pro se, appeals from a judgment dismissing his employment discrimination claim as well as two orders by single justices of this court denying his motions to remand for what he claims are “defective records” and for “rule 60(b) matters.” Because we discern no error, procedural or otherwise, we affirm.

No later than November 2010, Myrick was told by Harvard University (Harvard) that Harvard was no longer going to continue his appointment as an “Associate.”²

In 2014 Myrick filed an employment discrimination claim against Harvard in the Norfolk County Superior Court. That action was dismissed. Myrick later filed a new action in the Suffolk County Superior Court entitled “Civil Complaint Against Hindrance of Review by Civil Session.” The Suffolk County matter was dismissed, under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for failure to state a claim for which relief may be granted. This consolidated appeal addresses the judgment dismissing the Suffolk County matter as well as two orders by single justices of this court denying motions to remand the matter to the Superior Court.

1. Motion to dismiss. We review an order allowing a motion to dismiss under Mass. R. Civ. P. 12 (b) (6) de novo. See A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424 (2018). “We accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff.” Dartmouth v. Greater New Bedford Regional Vocational Tech. High Sch. Dist., 461 Mass. 366, 374 (2012). The court will accept all the plaintiff's factual allegations as true at this stage; however, the plaintiff must plausibly allege an entitlement to relief above the speculative level. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

We discern no error in the order dismissing the Suffolk County matter. In that case, Myrick was attempting to relitigate his claim of employment discrimination, which had already been dismissed. He captioned his complaint a “Hindrance of Review,” which fails to set out a recognizable cause of action. Moreover, he alleged that Harvard defamed him when defending the Norfolk County matter by stating that Myrick was not employed by Harvard but rather that his position as “Associate” was only a courtesy. As correctly noted by the judge in the Suffolk County matter, assuming that Myrick stated a proper cause of action, litigation privilege would protect those statements. See Sriberg v. Raymond, 370 Mass. 105, 108 (1976) (“statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding”).

2. Single justice orders. Myrick fails to articulate, nor do we see, any abuse of discretion or error of law in the two single justice orders denying Myrick's motion to remand a case during the pendency of his appeal. See Mass. R. A. P. 15 (c), as appearing in 481 Mass. 1627 (2019). See also Troy Indus., Inc. v. Samson Mfg. Co., 76 Mass. App. Ct. 575, 581 (2010).³

Judgment affirmed.

Single justice orders dated January 12, 2021, and January 14, 2022, affirmed.

FOOTNOTES

2.   Myrick claims that he was an employee while Harvard claims that this was a courtesy appointment and did not result in an employment relationship.

3.   The single justice order entered on January 12, 2021, resolved the single error in the trial court docket noted by Myrick's motion, obviating any need for a remand. The single justice order entered on January 14, 2022, denied Myrick's request for a remand to allow the Superior Court to entertain postjudgment motions for relief under Mass. R. Civ. P. 60 (b).