Opinion
20-P-1294
05-24-2021
Charles C. MORGAN v. The GENERAL SOCIETY OF MAYFLOWER DESCENDANTS & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from an order of a Superior Court judge that denied his motion, purportedly made pursuant to Mass. R. Civ. P. 23.1, 365 Mass. 768 (1974), seeking to provide notice of a proposed settlement to the other members of the defendant organization (GSM) and to schedule a hearing regarding that settlement. We affirm.
The plaintiff commenced this action in 2018, later amending his complaint in 2019, alleging that GSM breached its fiduciary duty to its members. The defendants moved to dismiss the complaint, arguing that the plaintiff lacked standing to bring the derivative action, and a Superior Court judge allowed the motion. The plaintiff timely appealed from the judgment, but during the pendency of the appeal, the parties negotiated a settlement and stipulated to the dismissal of the appeal with prejudice pursuant to Mass. R. A. P. 29, 481 Mass. 1660 (2019). As a result, this court dismissed the plaintiff's appeal. The stipulation of dismissal made final the Superior Court's determination that it did not have subject matter jurisdiction over the case and its judgment of dismissal. See Saint Louis v. Baystate Med. Ctr., Inc., 30 Mass. App. Ct. 393, 402 (1991). Pursuant to that final judgment, the plaintiff has no standing to bring a derivative suit; he is not entitled to any process under Mass. R. Civ. P. 23.1.
The judge also denied the plaintiff's motion for reconsideration.
The plaintiff's argument that the stipulation of dismissal, by its reference to Mass. R. Civ. P. 23.1, conferred jurisdiction on the Superior Court is unavailing. It is well established that "[s]ubject matter jurisdiction cannot be conferred by consent, conduct or waiver." Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981). See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 547 (2018). Even if the parties, through the stipulation of dismissal, had agreed to treat the lawsuit as a derivative action (and, thus, subject to the provisions of Mass. R. Civ. P. 23.1 ), that agreement could not override the earlier judgment of the Superior Court that it lacked subject matter jurisdiction over the case, a determination that became final upon dismissal of the appeal from that judgment. ,
GSM filed a motion to dismiss this appeal and a request for attorney's fees and costs, which was denied without prejudice to renewal in GSM's brief. GSM did not renew its request for attorney's fees and costs in its brief. As for GSM's renewed request for dismissal in its brief, it is denied in light of the disposition of this appeal.
The plaintiff's request for attorney's fees and costs is denied.
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Order dated August 20, 2020, affirmed.