John French v. Commonwealth. ( 2023 )

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
22-P-523
JOHN FRENCH
vs.
COMMONWEALTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a judgment entered in the
Superior Court dismissing his negligence complaint and from an
order denying his motion for relief from judgment. He argues
that he did not receive a notice of a status review informing
him that the complaint would be dismissed if he did not respond.
We affirm.
Background. On April 5, 2018, the plaintiff filed a
complaint alleging that employees of the Commonwealth were
negligent in failing to remove snow and ice from the roof of a
building at MCI-Gardner, and the snow and ice slid off the roof,
seriously injuring him. The Commonwealth filed an answer to
that complaint on November 5, 2018.
The case lay dormant until August 20, 2021, when the
Superior Court issued a notice of status review of the docket
which required the plaintiff to indicate the status of the case
(e.g., whether the case was ready for trial or needed a pretrial
conference) and return the completed notice to the court. The
order stated in boldface type, "[i]f a copy of this notice is
NOT received by 09/17/2021, the complaint will automatically be
dismissed." The plaintiff did not return a copy of the notice.
On February 12, 2022, a judgment of dismissal issued
pursuant to Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908(1977), which was entered on the docket on February 15, 2022,
with notice sent to the parties pursuant to Mass. R. Civ. P. 77
(d), as appearing in 476 Mass. 1402 (2017).
On February 23, 2022, the plaintiff moved for relief from
judgment, unsupported by affidavit but asserting that "his
attorney never received the Order for Status Review." A
Superior Court judge denied the motion "for failure to file
pursuant to Superior Court Rule 9A." The plaintiff appealed
from the judgment and from the denial of his motion for relief
from the judgment.
Discussion. The plaintiff argues that the dismissal of his
complaint was reversible error because the dismissal did not
comply with the one-year notice provision of Mass. R. Civ. P. 41
(b) (1), 365 Mass. 803 (1974). The Commonwealth counters that
the complaint was dismissed for the plaintiff's failure to
comply with the order set forth in the August 20, 2021 notice of
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status review; moreover, dismissal without that one-year notice
was permitted by the language of the rule, "unless the court on
motion with or without notice shall otherwise order." Mass. R.
Civ. P. 41 (b) (1). See OneBeacon Am. Ins. Co. v. Narragansett
Elec. Co., 87 Mass. App. Ct. 417, 435-436 (2015) (Superior Court
possesses "inherent power to manage [its] case load and enforce
[its] lawful orders"). The Commonwealth further argues that
dismissal was warranted, notwithstanding the plaintiff's
counsel's claim that he never received the notice of status
review, because the plaintiff's counsel failed to check the
Superior Court docket for the nearly six-month period from
August 20, 2021, to February 15, 2022. See BJ's Wholesale Club,
Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588
(2001).
As noted above, the plaintiff's motion for relief from
judgment was not supported by an affidavit asserting that his
counsel did not receive the notice of status review. 1 The judge
denied the motion for relief from judgment "for failure to file
pursuant to Superior Court Rule 9A," which failure the plaintiff
has not remedied. See Rule 9A(b)(vii) of the Rules of the
Superior Court (2018) ("The court need not consider any motion
1 Contrary to the plaintiff's argument, the judge who denied the
motion for relief from judgment did not preclude him from filing
an affidavit.
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. . . that fails to comply with the requirements of this Rule"). 2
Neither the motion for relief from judgment nor the plaintiff's
brief cites to Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828(1974), or makes the showing it requires to meet the plaintiff's
burden to demonstrate excusable neglect. See Hermanson v.
Szafarowicz, 457 Mass. 39, 47 (2010) (judge not bound to accept
defendant's self-serving statement that only notice of lawsuit
he received was judgment of dismissal). Contrast Monahan v.
Washburn, 400 Mass. 126, 129 (1987) (vacating dismissal because
plaintiff's absence at trial due to "legitimate illness"). Nor
does the record reflect, even now, that the plaintiff has filed
any response to the August 20, 2021 notice of status review. We
discern no error of law or abuse of discretion in the judgment
2 Rule 9A sets forth the procedure for filing motions in Superior
Court. Before filing a motion, the moving party first "must
serve" the motion on the opposing party. Rule 9A(a)(1). Within
ten days of service of the motion, the opposing party may serve
a memorandum in opposition upon the moving party. Rule
9A(a)(2), (b)(4). Unless the moving party withdraws the motion,
within ten days of service of the opposition, the moving party
must file in Superior Court a package including the motion and
any opposition. Rule 9A(b)(2).
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dismissing the complaint and the order denying the plaintiff's
motion for relief from judgment.
So ordered.
By the Court (Henry, Grant &
Brennan, JJ. 3),
Clerk
Entered: October 11, 2023.
3 The panelists are listed in order of seniority.
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