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Cormier v. Pezrow New England2/27/2001
Hampden.
May 16, 2000.
Practice, Civil, Motion to dismiss, Venue, Judgment notwithstanding verdict, Directed verdict. Employment, Discrimination.
Civil action commenced in the Superior Court Department on December 6, 1994.
A motion to dismiss was heard by Francis X. Spina, J., and the case was tried before Judd J. Carhart, J.
The plaintiff, Kenneth J. Cormier, filed a one-count complaint in the Hampden County Superior Court against the defendant, Pezrow New England, Inc., alleging age discrimination in violation of G. L. c. 151B, ? 4(1B). The defendant filed a motion to dismiss based on improper venue. Mass.R.Civ.P. 12(b)(3), 365 Mass. 755 (1974). After a hearing, a Superior Court judge (motion judge) denied the motion.
At the jury trial, the defendant filed motions for a directed verdict after the close of the plaintiff's evidence and again at the close of all of the evidence based, among other things, on a claim of improper venue. The motions were denied by a judge (trial judge) and the jury returned a verdict for the plaintiff in the amount of $209,500 ($139,500 in economic damages and $70,000 for emotional distress). The trial judge ruled that the plaintiff's termination by the defendant was "willful" and doubled the award of damages pursuant to G. L. c. 151B, ? 9.
After the verdict, the defendant filed a motion for entry of judgment notwithstanding the verdict. Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). The motion was denied by the trial judge and judgment entered in favor of the plaintiff.
On appeal, the defendant challenges the motion judge's denial of its motion to dismiss the complaint and the trial judge's denial of its motions for a directed verdict and for a judgment notwithstanding the verdict. The defendant also claims that the trial judge committed error in doubling the award of damages.
1. The defendant's motion to dismiss the complaint. General Laws, c. 151B, ? 4(1B), makes it an unlawful practice for an employer to discharge an individual because of his or her age. Any action alleging such an unlawful discharge must be brought "in the superior or probate court for the county in which the alleged unlawful practice occurred." G. L. c. 151B, ? 9, as appearing in St. 1974, c. 478.
The defendant's motion to dismiss was accompanied by an affidavit. See Smith & Zobel, Rules Practice ? 12.14, at 304 (1974) ("Many of the defenses which may be raised by motion . . . under Rule 12(b) will require supporting affidavits because the defense [improper venue] will often not appear on the face of the complaint"). See also Simplex Time Recorder Co. v. Federal Ins. Co., 37 Mass. App. Ct. 947, 948 (1994).
According to the motion and affidavit, the defendant's only Massachusetts office is located in Westwood, Massachusetts, which is located in Norfolk
County. The decision to discharge the defendant was made in Westwood, and the plaintiff was discharged in the defendant's Enfield, Connecticut, office.
The plaintiff responded with an affidavit which stated that he lived in Hampden County and that his "area of responsibility on behalf of the defendant was primarily and almost exclusively in Hampden County. . . ."
In denying the defendant's motion to dismiss the complaint for improper venue, the motion judge made the following findings of fact. The defendant, a Massachusetts corporation, conducted business in Hampden County; the plaintiff's base of operations was in Hampden County; and most of the plaintiff's work for the defendant was in Hampden County. The judge also noted that the plaintiff lived in Hampden County. The j
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