Judicial Court, Superintendence of inferior courts.
Liability Company. Practice, Civil, Standing, Receiver.
Dickey, pro se.
S. Arcangeli, Assistant Corporation Counsel, & Stuart T.
Schrier, for the respondent, were present but did not argue.
petitioner James Dickey appeals from a judgment of a single
justice of this court denying his petition for extraordinary
relief pursuant to G. L. c. 211, § 3. Dickey, who is not
represented by counsel, sought relief from an order of the
Housing Court denying his motion to remove a receiver
appointed with respect to real property owned by the other
named petitioner, East Fourth Street, LLC, of which Dickey is
apparently the sole member and manager. We affirm.
underlying petition to appoint a receiver in the Housing
Court named as defendants "East Fourth Street, LLC"
and James S. Dickey, Manager." Dickey appeared pro se to
contest the appointment of a receiver. The Housing Court
rejected Dickey's arguments and appointed a receiver in
an order dated May 25, 2018. Dickey filed a motion to
reconsider or to remove the receiver. The Housing Court
denied the motion in an order dated June 21, 2018, stating,
"To the extent that Mr. Dickey filed the motion in his
individual capacity, he is not a party and has no standing to
appear before the court; if he has filed the motion in his
capacity as manager of the East Fourth Street LLC, he must be
represented by counsel."
initially sought review of the latter order from a single
justice of the Appeals Court pursuant to G. L. c. 231, §
118, first par. The single justice declined to grant relief.
Dickey then filed a petition in the county court pursuant to
G. L. c. 211, § 3, again asserting his request to remove
the receiver and arguing that he had standing to seek such
relief. The single justice denied the petition, stating that
"[r]elief under G. L. c. 211, § 3, is available
only under exceptional circumstances, and generally is not
available where there are alternative remedies. . . . The
petitioner has not demonstrated that such extraordinary
relief is appropriate here." Dickey now appeals.
affirm, for several reasons. First, we agree with the Housing
Court that Dickey, who is not an attorney, cannot present
arguments on behalf of his limited liability company, which
is the owner of the property that has been placed into
receivership. It is well settled under Massachusetts law
that, with one very limited exception not applicable here,
"corporations must appear and be represented in court,
if at all, by attorneys." Varney Enters., Inc. v.
WMF, Inc., 402 Mass. 79, 82 (1988). Accord Rental
Property Mgt. Servs. v. Hatcher, 479 Mass. 542, 549 n.7
(2018). We have applied this rule both to business
corporations, see Varney Enters., Inc., supra, and
to limited liability companies. See Kurbatzky v.
Commonwealth, 480 Mass. 1008, 1008 n.1 (2018).
See also Laverty v. Massad, 661 F.Supp.2d
55, 62 (D. Mass. 2009), citing First Taunton Fin. Corp. vs.
Arlington Land Acquisition-99, LLC, Mass. Super. Ct., No.
034449BLS (Suffolk County Feb. 27, 2006) (applying
Massachusetts law to conclude that "a member of [a
limited liability company] cannot bring an action in his own
name to enforce the rights or redress the injuries of the
[limited liability company]"). This is appropriate
because Massachusetts limited liability companies, like
Massachusetts business corporations, are legal entities with
the rights to sue and be sued separate and apart from their
shareholders and members. See G. L. c. 156C, §
55. Also, as the name implies, limited liability companies
limit the liability of their members, similarly to
corporations with respect to corporate shareholders.
See Cook v. Patient Edu, LLC, 465 Mass.
548, 553 & n.12 (2013). Thus, our observation in Varney
Enters., Inc., 402 Mass. at 82, that "[t]here is no
injustice in allowing natural persons to appear pro se, while
requiring persons who accept the advantages of incorporation
to bear the burden of hiring counsel to sue or defend in
court," applies equally to persons who accept the
advantages offered by organizing their businesses as limited
as a corollary, we hold that Dickey's ownership interest
in East Fourth Street, LLC, does not give him standing to
raise the claims of the company, pro se, in his individual
capacity. To hold otherwise would be to vitiate the
principles that corporations and limited liability companies
are entities that exist separate and distinct from the
individuals who own them and that for purposes of suing and
being sued they must therefore be represented by attorneys.
even apart from the question of Dickey's lack of
standing, we note that G. L. c. 211, § 3, is generally
not an appropriate avenue to challenge an order appointing a
receiver. Rather, such orders are immediately appealable to
the Appeals Court under the doctrine of present execution.
See, e.g., Albre v. Sinclair Constr. Co.,
345 Mass. 712, 712-713 (1963); Wax v. Monks, 327
Mass. 1, 2-3 (1951); New England Theatres, Inc. v.
Olympia Theatres, Inc., 287 Mass. 485, 490 (1934), cert.
denied sub nom. E.M. Loew's, Inc. v. New England
Theatres, Inc., 55 S.Ct. 509 (1935).
of these reasons, the single justice did not err or abuse her
discretion in denying the petition.