Judicial Court, Superintendence of inferior courts.
Malpractice, Tribunal, Bond. Appeals Court, Jurisdiction.
Superior Court, Jurisdiction. Jurisdiction, Superior Court.
Derrick Washington, pro se.
A. Weigand for the defendant.
petitioner, Derrick Washington, appeals from a judgment of a
single justice of the county court denying his petition
pursuant to G. L. c. 211, § 3. We affirm.
2011, Washington commenced a medical malpractice action in
the United States District Court for the District of
Massachusetts against the respondent, Maryjo Gagliani, and
several other individuals. Gagliani requested review by a
medical malpractice tribunal pursuant to G. L. c. 231, §
60B, and the case was referred to the Superior Court in
Suffolk County for that purpose. See Feinstein v.
Massachusetts Gen. Hosp., 643 F.2d 880, 888 (1st Cir.
1981). In its report issued in September, 2014,
the tribunal determined that Washington's claim was not
sufficient to raise a legitimate question of liability
appropriate for judicial inquiry, and therefore found for
then filed a motion in the Superior Court to reduce the
amount of the bond that would be required for him to pursue
his claim in the face of the adverse tribunal ruling,
pursuant to G. L. c. 231, § 60B, sixth par. A judge in
the Superior Court denied that motion. Washington next filed
in the Superior Court a notice of appeal that was dated
October 19, 2014, and docketed on October 27, 2014. He sought
to appeal to the Appeals Court from the tribunal's
ruling. The notice of appeal was never processed,
however, i.e., no record was assembled in the Superior Court.
Gagliani, for her part, filed a motion in the Superior Court
to dismiss Washington's complaint for failure to post the
bond. A judge in the Superior Court purported to allow
Gagliani's motion on December 24, 2014, and a judgment of
dismissal to that effect was entered on June 25, 2015. But
see Clarke v. Heisey, 16
Mass.App.Ct. 976, 976 (1979) (similar procedural history;
holding that Superior Court "of course, could not
dismiss an action brought in the Federal court"). The
matter was then transferred back to the Federal court.
the tribunal's report was officially sent back to the
Federal court, the Federal action had already moved forward.
After the tribunal issued its decision, Washington filed a
motion in the Federal action in October, 2014, to stay the
Federal proceedings pending his appeal in the State court.
Gagliani, in turn, filed a motion in the Federal action in
December, 2014, to dismiss the complaint against her on
account of Washington's failure to post a bond. In March,
2015, Washington's motion to stay was denied and
Gagliani's motion to dismiss was allowed. Washington
nonetheless continued to take steps to pursue his appeal from
the tribunal ruling to the Appeals Court. When he learned
from the Appeals Court, in August 2015, that it had no record
of his appeal, and that his case had been sent by the
Superior Court back to the Federal court, he filed a petition
for relief in the county court pursuant to G. L. c. 211,
§ 3, seeking to have his case reinstated in the Superior
Court and to be permitted to proceed with his appeal to the
Appeals Court from the adverse tribunal ruling. A single justice
denied the petition.
in his G. L. c. 211, § 3, petition, Washington sought
relief from the Superior Court's "failure to docket
and recognize his appeal of" the tribunal's ruling.
At that point, however, the State courts no longer had
jurisdiction over Washington's case. The Federal court
had sent the case to the Superior Court for the sole purpose
of convening the medical malpractice tribunal requested by
Gagliani. See Feinstein, 643 F.2d at 885-887. After
the tribunal issued its ruling, the proper place for
Washington to proceed was in the Federal courts. See
Clarke, 16 Mass.App.Ct. at 977. In the
Clarke case, which involves a similar procedural
history, after the tribunal had ruled in favor of the
defendant, the plaintiffs did not file a bond and instead
sought to appeal to the Appeals Court from the tribunal's
ruling. Id. at 976. The Appeals Court dismissed the
appeal, noting that once the tribunal had rendered its
decision, "any further proceedings belonged in the
Federal court." Id.
here. The Superior Court and the Appeals Court had no
jurisdiction after the tribunal's ruling to act further
with respect to that ruling. At most, the Superior Court
might have had the authority to rule on Washington's
motion to reduce the amount of the bond, but even that is
questionable. See Pallazola v.
Rucker, 602 F.Supp. 459, 460 (D. Mass.1984)
(Superior Court judge who presided over tribunal denied
plaintiff's motion to waive bond; plaintiff then moved
in Federal court for reconsideration of tribunal
ruling as well as for reconsideration of action on motion to
reduce bond). The place for Washington to pursue his claims
and to challenge the tribunal's ruling, if he wished to
do so, was in the Federal courts. Indeed, as we have noted,
the Federal court proceedings continued even as Washington
was attempting to pursue his appeal to the Appeals Court.
can receive the review to which he is entitled in the Federal
courts. When the judgment in the Federal action becomes
final,  he will have an opportunity to appeal from
it and challenge the dismissal of his claim against Gagliani,
just as he would have been entitled to do if the action had
originated in the State court. In short, he has not been
prejudiced by any of the events in the State courts that
ensued after the tribunal issued its decision.
these reasons, there was no error in the single justice's
denial of Washington's G. L. c. 211, § 3, petition.