ELENA VOLKOVA v. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Proceeding without the assistance of counsel, the plaintiff, Elena Volkova, appeals from the dismissal of her amended complaint in the Superior Court pursuant to Mass. R. Civ. P. 12 (b) (7), 365 Mass. 754 (1974), and the denial of her motion for relief from judgment. The record shows that, due to the plaintiff's misunderstanding of the applicable procedural rules, she failed to serve Commerce Insurance Company (Commerce) with the amended complaint and summons after she added Commerce as a defendant in response to a judge's order finding that it is an indispensable party. Because we conclude that the sanction of dismissal was not warranted in these circumstances, we vacate the judgment of dismissal and remand for further proceedings consistent with this memorandum and order.

In 2021, the plaintiff was involved in a car accident that resulted in a claim payment of over $1,000 by her insurance provider, Commerce. After concluding that the plaintiff was more than fifty percent at fault, Commerce imposed a surcharge on the plaintiff's insurance premium pursuant to the Safe Driver Insurance Plan. See G. L. c. 175, § 113B; 211 Mass. Code Regs. § 74.00 (2013). The plaintiff challenged the imposition of the surcharge before the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board). Following a hearing, the board found that she had “failed to use sufficient care and ․ was unable to overcome the presumption of fault” and upheld the surcharge.

The plaintiff filed a complaint for judicial review in the Superior Court pursuant to G. L. c. 30A, § 14. Nine months later, the board moved to dismiss the complaint “due to [the plaintiff's] failure to properly name [Commerce] as a necessary party pursuant to Mass. R. Civ. P. 19 (a).” See Mass. R. Civ. P. 19 (a), 365 Mass. 765 (1974). In response, the first judge entered an order allowing the plaintiff twenty-one days to amend her complaint “to add Commerce Ins. Company as a party.” The plaintiff then filed an amended complaint listing Commerce as a defendant in the case caption.

Three months later, the board renewed its motion to dismiss the complaint because “[t]he docket does not reflect ․ that the plaintiff obtained a Summons from the Court” or that a summons, the amended complaint, or any other filing “was actually served on Commerce.” In opposing the motion to dismiss, the plaintiff argued that the board “d[id] not present any counter-arguments on the merits against my claim, but tries to play on procedural issues.” A second judge allowed the board's motion to dismiss because “almost [nineteen] months after the original complaint” the plaintiff had “yet to serve [Commerce]” with the amended complaint.

Under rule 19 (a), a party must be joined when either (1) its absence would prevent complete relief from being afforded those already parties, or (2) the party “claims an interest relating to the subject of the action” such that disposition in his absence may “impair or impede his ability to protect that interest or ․ leave any of the persons already parties subject to ․ double, multiple, or otherwise inconsistent obligations.” Mass. R. Civ. P. 19 (a). Under rule 12 (b) (7), a motion to dismiss may be filed for failure to join an indispensable party.

We agree with the first judge's ruling that Commerce is an indispensable party to the litigation and had to be joined as a party. The plaintiff's challenge to the board's decision calls for the surcharge to be overturned, an outcome that Commerce would “of necessity be affected by.” Lally v. Dorchester Div. of the Dist. Court Dep't, 26 Mass. App. Ct. 724, 729 (1988). In particular, Commerce will have to “return any premium paid as a result of the Surcharge” if the board vacates the plaintiff's determination of fault. 211 Code Mass. Regs. § 88.06 (4) (2017). See DeSimone v. Civil Service Comm'n, 27 Mass. App. Ct. 1177, 1179 (1989) (plaintiff obligated to join party that “would bear the burden of paying him” if he won requested relief).

We disagree, however, with the second judge's decision to dismiss the plaintiff's amended complaint under rule 12 (b) (7). The plaintiff complied with the first judge's order by filing an amended complaint that listed Commerce as a defendant. She did not, however, obtain and serve a summons, along with the amended complaint, on Commerce, as required by Mass. R. Civ. P. 4 (a), 365 Mass. 733 (1974). According to statements submitted by the plaintiff, she did not understand how to effect service on Commerce as a newly added defendant and requested from the clerk's office “instructions on how [she] should send the Amend[ed] Complaint,” which the office did not provide. Having earlier received a summons from the clerk's office immediately upon filing her original complaint, the plaintiff did not realize that she needed to request a new summons to issue against Commerce for it to be formally joined as a party.

Although self-represented litigants are generally “held to the same standards as practicing members of the bar,” Commonwealth v. Jackson, 419 Mass. 716, 719 (1995), it is also well established that, in the context of rule 19, a court should generally “afford [a] plaintiff every opportunity to add the absentee to the suit before it will order dismissal of the action” (citation omitted). Hamilton v. Conservation Comm'n of Orleans, 12 Mass. App. Ct. 359, 371–372 (1981). Because the plaintiff's failure to serve Commerce with a summons and the amended complaint resulted from her misunderstanding of the rules, not her flouting of “a direct command of the court,” we conclude that this case does not present the sort of “extreme circumstances” under which dismissal of the action is appropriate. See J.W. Smith & H.B. Zobel, Rules Practice § 19.9 (2d ed. 2025). Cf. Sommer v. Maharaj, 451 Mass. 615, 621 (2008) (court has power to dismiss lawsuit “when justified by a party's extreme conduct”). Accordingly, we vacate the judgment of dismissal and remand for further proceedings consistent with this memorandum and order.

So ordered.