Jordan L. Michelson v. Trustees of Boston College.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-714

JORDAN L. MICHELSON

vs.

TRUSTEES OF BOSTON COLLEGE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jordan L. Michelson, appeals from decisions

of two Superior Court judges entered in favor of the defendant.

He claims that the judges erred in dismissing counts II through

IV of his complaint pursuant to Mass. R. Civ. P. 12 (b) (6);

denying his motion for leave to supplement and amend the

pleadings pursuant to Mass. R. Civ. P. 15; and granting the

defendant's cross-motion for summary judgment on count I for

breach of contract. We affirm.

Discussion. 1. Motion to dismiss. The plaintiff claims

that the first judge erred in allowing the defendant's motion to

dismiss counts II through IV of the complaint. We disagree.

1 Doing business as Boston College Law School.
We review the allowance of a rule 12 (b) (6) motion to

dismiss de novo. See A.L. Prime Energy Consultant, Inc. v.

Massachusetts Bay Transp. Auth., 479 Mass. 419, 424 (2018). We

take all allegations in the complaint as true and draw

reasonable inferences in the plaintiffs' favor. See Iannacchino

v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008). "The ultimate

inquiry is whether the plaintiff[] alleged such facts,

adequately detailed, so as to plausibly suggest an entitlement

to relief." Greenleaf Arms Realty Trust I, LLC v. New Boston

Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012). "While a

complaint attacked by a . . . motion to dismiss does not need

detailed factual allegations . . . a plaintiff's obligation to

provide the 'grounds' of his 'entitle[ment] to relief' requires

more than labels and conclusions . . . . Factual allegations

must be enough to raise a right to relief above the speculative

level" (citation omitted). Iannacchino, supra at 636.

a. MCRA claims. Counts II and III of the complaint

alleged violations of the Massachusetts Civil Rights Act (MCRA)

pursuant to G. L. c. 12, § 11i. "To establish a claim under the

[MCRA], 'a plaintiff must prove that (1) the exercise or

enjoyment of some constitutional or statutory right; (2) has

been interfered with, or attempted to be interfered with; and

(3) such interference was by threats, intimidation, or

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coercion'" (citation omitted). Glovsky v. Roche Bros.

Supermrkts, Inc., 469 Mass. 752, 762 (2014).

Here, the judge properly dismissed the plaintiff's MCRA

claims for failure to allege sufficient facts regarding the

defendant's use of threats, intimidation, or coercion. See

Glovsky, 469 Mass. at 762. The plaintiff's general allegations

and "mere declaration" of the defendant's policies do not amount

to threats, intimidation, or coercion.2 See Id., at 764. The

plaintiff does allege that "opinions tending to champion

principles of equal opportunity and non-discrimination have been

aggressively marginalized: on [d]efendant's campus, the

prevailing wisdom is that being heard defending universal civil

rights is social suicide, while being caught on the record with

such an opinion is career suicide." The plaintiff's burden

requires more than mere colorful labels and conclusions; in the

2 For example, the plaintiff asserts in his brief that he
alleged threats, intimidation, or coercion by stating that the
defendant "promulgated 'facially biased' policies, championed
'explicitly prejudicial' goals, and willfully 'legitimize[d] the
primacy of stereotypes.'" Such allegations, even assuming them
to be true for purposes of the rule 12 (b) (6) inquiry, do not
amount to (1) threats: "the intentional exertion of pressure to
make another fearful or apprehensive of injury or harm"; (2)
intimidation: "putting in fear for the purpose of compelling or
deterring conduct"; or (3) coercion: "the application to
another of such force, either physical or moral, as to constrain
him to do against his will something he would not otherwise have
done." Glovsky, 469 Mass. at 763, quoting Haufler v. Zotos, 446
Mass. 489, 505 (2006). The cases cited by the plaintiff on this
issue are inapposite.

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absence of additional factual allegations regarding the

"aggressive[] marginaliz[ation]" of opinions and the "prevailing

wisdom" on campus, the plaintiff's MCRA claims do not rise above

the speculative level and are therefore insufficient to survive

a motion to dismiss.3 See Iannacchino, 451 Mass. at 636. That

the plaintiff "subjectively may have felt 'threatened' or

'intimidated' does not suffice." Glovsky, 469 Mass. at 764.

b. Chapter 151B claim. Count IV of the complaint alleges

the defendant's violation of G. L. c. 151B. "There are two

largely independent avenues for redress of violations of the

anti-discrimination laws of the Commonwealth, one through the

[Massachusetts Commission Against Discrimination] (MCAD) (G. L.

c. 151B, §§ 5-6) and the other in the courts (G. L. c. 151B,

§ 9)." Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass.

815, 817 (1988)." In general, "before initiating a § 9 action,

the plaintiff must have filed a timely complaint [with the MCAD]

within six months of the act of discrimination." Id. However,

"[a]n aggrieved person may also seek temporary injunctive relief

3 The plaintiff also claims, for the first time on appeal,
that he was not required to allege "threats, intimidation, or
coercion" to state a claim under the MCRA, as the MCRA is
coextensive with 42 U.S.C. § 1983, and the plaintiff
sufficiently stated a claim under § 1983. In this posture, we
treat this issue as waived. See Century Fire & Marine Ins.
Corp. v. Bank of New England-Bristol County, N.A., 405 Mass.
420, 421 n.2 (1989) ("An issue not raised or argued below may
not be argued for the first time on appeal").

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in the superior . . . court . . . to prevent irreparable injury

during the pendency of or prior to the filing of a complaint

with the commission" (emphasis added). G. L. c. 151B, § 9.

The parties do not dispute that the plaintiff did not file

a complaint with the MCAD prior to filing his claim in the

Superior Court. Therefore, to the extent count IV sought relief

other than a temporary injunction, the claim was properly

dismissed. See Christo 402 Mass. at 817.

With respect to the plaintiff's ability to seek temporary

injunctive relief, the argument is moot. "[L]itigation is

considered moot when the party who claimed to be aggrieved

ceases to have a personal stake in its outcome" (citation

omitted). Lynn v. Murrell, 489 Mass. 579, 582 (2022). "A party

no longer has a personal stake in a case where a court can order

no further effective relief" (quotation and citation omitted).

Id. Here, the first judge denied the plaintiff's motion for a

preliminary injunction, and the plaintiff does not claim any

associated error. Accordingly, we cannot order any further

effective relief with respect to the plaintiff's claim under

G. L. c. 151B.4

4The plaintiff also claims that the first judge erred in
dismissing counts II through IV of the complaint because the
facts alleged stated other causes of action. See Colorio v.
Marx, 72 Mass. App. Ct. 382, 386 (2008) ("Under the
Massachusetts practice of notice pleading, there is no

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2. Rule 15 motion. Next, the plaintiff claims that the

second judge erred in denying his motion to supplement and amend

the complaint pursuant to Mass. R. Civ. P. 15. We disagree.

"A party may amend its pleading by leave of court," which

"shall be freely given when justice so requires." Sharon v.

Newton, 437 Mass. 99, 102 (2002), quoting Mass. R. Civ. P.

15 (a), 365 Mass. 761 (1974). "Although leave to amend is

within the discretion of the judge, leave should be granted

unless there appears some good reason for denying the motion."

Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549 (1987).

Such reasons include undue delay, bad faith, and undue prejudice

to the party opposing the motion. Id. at 549-550.

The denial of a motion to amend is reviewed for abuse of

discretion, Brown v. Savings Bank Life Ins. Co., 93 Mass. App.

Ct. 572, 587 (2018), a "demanding standard."5 Audubon Hill S.

Condominium Ass'n v. Community Ass'n Underwriters of Am., 82

Mass. App. Ct. 461, 472 (2012). An abuse of discretion exists

where the judge "made 'a clear error of judgment in weighing'

requirement that a complaint state the correct substantive
theory of the case" [quotation and citation omitted]). Because
this has been raised for the first time on appeal, we treat it
as waived. See Century Fire & Marine Ins. Corp., 405 Mass. 420,
421 n.2 (1989).

5 The denial of a motion to supplement is likewise reviewed
for an abuse of discretion. See Vigorito v. Chelsea, 95 Mass.
App. Ct. 272, 276 (2019).

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the factors relevant to the decision, such that the decision

falls outside the range of reasonable alternatives" (citations

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, where the judge properly considered the fact that

motions for summary judgement had already been filed and heard,

we cannot say that she abused her discretion in denying the

plaintiff's rule 15 motion. See, e.g., Ward v. Schnurr, 103

Mass. App. Ct. 308, 317-318 (2023); Minkina v. Frankl, 86 Mass.

App. Ct. 282, 293-294 (2014).

3. Summary judgment. Finally, the plaintiff claims that

the second judge erred in allowing the defendant's cross-motion

for summary judgment on the plaintiff's breach of contract

claim. We disagree.

We review the grant of summary judgment de novo. See Le

Fort Enters., Inc. v. Lantern 18, LLC, 491 Mass. 144, 149

(2023). "Summary judgment is appropriate where there is no

material issue of fact in dispute, and the moving party is

entitled to judgment as a matter of law." Berry v. Commerce

Ins. Co., 488 Mass. 633, 636 (2021), citing Kourouvacilis v.

General Motors Corp., 410 Mass. 706, 716 (1991). Where the

party opposing summary judgment bears the burden of proof at

trial, the moving party may prevail "if he demonstrates, by

reference to material described in Mass. R. Civ. P. 56 (c),

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unmet by countervailing materials, that the party opposing the

motion has no reasonable expectation of proving an essential

element of that party's case." Kourouvacilis, supra. The

"moving party need not submit affirmative evidence to negate one

or more elements of the other party's claim." Id.

"To prevail on a claim for breach of contract, a plaintiff
must demonstrate that there was an agreement between the
parties; the agreement was supported by consideration; the
plaintiff was ready, willing, and able to perform his or her
part of the contract; the defendant committed a breach of
the contract; and the plaintiff suffered harm as a result"
(citation omitted).

Vacca v. Brigham & Women's Hosp., Inc., 98 Mass. App. Ct. 463,

467 (2020).

Although the judge focused on the issue of breach, we need

not address it, as the antecedent issue of formation is

dispositive. See Colony of Wellfleet, Inc. v. Harris, 71 Mass.

App. Ct. 522, 529 (2008) ("court will affirm a judgment as long

as the result is correct on any ground apparent on the record

that supports the result reached by the trial court").

Contract formation requires a "manifestation of mutual

assent." I & R Mechanical Inc. v. Hazelton Mfg. Co., 62 Mass.

App. Ct. 452, 454-455 (2004). "The manifestation of mutual

assent between contracting parties generally consists of an

offer by one and the acceptance of it by the other." Id. at

455. In other words, "there must be agreement between the

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parties on the material terms of th[e] contract, and the parties

must have a present intention to be bound by that agreement."

Situation Mgt. Sys. v. Malouf, Inc., 430 Mass. 875, 878 (2000).

With respect to online contracts, to satisfy the requirement of

mutual assent, the offeree must demonstrate either (1) that they

affirmatively agreed to the terms; or (2) that assent can be

inferred from other actions taken by the offeree. See Kauders

v. Uber Techs., Inc., 486 Mass. 557, 574-575 (2021).

Here, the plaintiff's breach of contract claim is premised

on the parties' express agreement to a nondiscrimination term,

the incorporation6 of which was purportedly effected by the

defendant's publication of a "notice of nondiscrimination" on

its website.7 The plaintiff contends that, through this

6 We assume, arguendo, that the parties entered into a
contractual relationship for the provision of a legal education.
See Schaer v. Brandeis Univ., 432 Mass. 474, 478 (2000). See
also Corso v. Creighton Univ., 731 F.2d 529, 531 (8th Cir. 1984)
("relationship between a university and a student is contractual
in nature"). The narrow issue is whether such contract included
a nondiscrimination term.

7 The plaintiff also asserts in his brief that the defendant
breached the implied covenant of good faith and fair dealing.
See, e.g., Robert & Ardis James Found. v. Meyers, 474 Mass. 181,
189 (2016). However, as the plaintiff recognizes in his
petition for direct appellate review, his "theory on summary
judgment was modest and specific: the motion did not ask the
court to infer an implied contractual term or invoke the
doctrine of 'good faith and fair dealing,' but consigned itself
to the most basic theory of express contract based on the
'Notice of Nondiscrimination' posted by the [defendant]." We

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publication, the defendant "made an explicit promise to all

prospective students," and that, since "[n]ondiscrimination is

the [defendant]’s official policy, [it] is therefore enforceable

as a contractual provision."

The plaintiff's position neglects the fundamental principle

of contract law that the parties must mutually assent to the

contract's terms. See I & R Mechanical Inc., 62 Mass. App. Ct.

at 454-455. In its cross-motion for summary judgment, the

defendant demonstrated through reference to the parties'

consolidated statement of fact that the plaintiff's breach of

contract theory relied solely on the defendant's online

publication of the notice of nondiscrimination, and that no

other evidence existed tending to prove the parties' agreement

to a nondiscrimination term. "That showing having been made,

the plaintiff was required to respond by 'set[ting] forth

specific facts showing that there is a genuine issue for

trial.'" Kourouvacilis, 410 Mass. at 716, quoting Mass. R. Civ.

P. 56 (e). As the plaintiff failed to assert any additional

facts in support of the conclusion that he even viewed, let

alone assented to, the defendant's notice of nondiscrimination,

therefore treat this issue as waived. See Century Fire & Marine
Ins. Corp., 405 Mass. at 421 n.2.

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the grant of summary judgment was appropriate.8 See Kauders, 486

Mass. at 574-575; I & R Mechanical Inc., supra.

Judgment affirmed.

By the Court (Meade,
Hodgens & Toone, JJ.9),

Clerk

Entered: June 6, 2025.

8 To the contrary, in his opposition to the cross-motion for
summary judgment, the plaintiff restated his position that the
defendant's publication of the notice of nondiscrimination, in
and of itself, amounted to a "manifestation" creating a
contractual obligation. The plaintiff cites to Guckenberger v.
Boston Univ., 974 F. Supp. 106, 150 (D. Mass. 1997), for the
proposition that contract terms "can be derived from statements
in handbooks, policy manuals, brochures, catalogs,
advertisements, and other promotional materials." However, as
here, the judge in Guckenberger ultimately concluded that the
brochures at issue did not create binding contractual terms as
to the plaintiffs who failed to establish that they ever
received the brochures. Id. at 151.

9 The panelists are listed in order of seniority.

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