WAYLAND COLEMAN v. CAROL A. MICI & Others.

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-292
WAYLAND COLEMAN
vs.
CAROL A. MICI1 & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Wayland Coleman, appeals from a Superior
Court judgment dismissing his complaint for, inter alia, relief
in the nature of certiorari for want of prosecution. Concluding
that the dismissal was unwarranted where the plaintiff promptly
proffered a plausible reason for his delay in moving for
judgment on the pleadings and that less severe sanctions were
available to the judge, we vacate the judgment and remand for
further proceedings.
1 Individually and as Commissioner of Correction.
2 Kristie Ladouceur, individually and as superintendent of the
North Central Correctional Institution; Randolph Miller,
individually and as a disciplinary hearing officer; Kevin
Anahory, individually and as a director of inmate discipline;
and Thomas W. Perry Jr., individually and as a reporting
officer.
1. Background. The plaintiff filed his complaint on
January 24, 2020. According to the returns of service filed
with the Superior Court, service of the complaint was
accomplished on the various defendants between February 13 and
20, 2020. On May 15, 2020, the defendants filed the
administrative record with the court. See Superior Court
Standing Order 1-96(2); Crowell v. Massachusetts Parole Bd., 477
Mass. 106, 109 (2017). Counsel for the defendants signed a
certificate of service attesting that he mailed a copy of the
record to the plaintiff; the plaintiff alleges that this is not
so, but in fact can know only that he never received it.
On March 2, 2021, the plaintiff moved for entry of a
default on the ground that "[t]he Defendants have failed to
answer or otherwise defend as to Plaintiff's complaint, or serve
a copy of any answer or any defense which it might have had,
upon [plaintiff]." In response, on March 24, 2021, counsel for
the defendants informed the plaintiff that he had mailed a copy
of the administrative record in May 2020 and sent the plaintiff
another copy. The plaintiff acknowledges to us -- but was never
asked by the Superior Court judge -- that he received this copy.
The motion for entry of a default was never ruled on.
After nine months had passed without a ruling on the motion
for entry of a default, the defendants moved to dismiss for
failure to prosecute pursuant to Mass. R. Civ. P. 41 (b) (2),
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365 Mass. 803 (1974). The defendants did not identify any
manner in which they had been prejudiced by the delay. The
plaintiff promptly responded by asserting that the defendants
did not make timely service of the record on him and arguing
that, under these circumstances, his "request for entry of
default was the proper avenue for the Plaintiff to continue to
prosecute his complaint and seek redress." The defendants
responded by producing evidence that they did serve the
administrative record on the plaintiff. Without further
hearing, the judge allowed the motion to dismiss, which
functions as a dismissal with prejudice. See Mass. R. Civ. P.
41 (b) (3), as amended, 454 Mass. 1403 (2009). This appeal
followed.
2. Dismissal for want of prosecution. "The power to
invoke [the sanction of dismissal for want of prosecution] is
necessary in order to prevent undue delays in the disposition of
pending cases and to avoid congestion in the calendars."
Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641
(1986), quoting Link v. Wabash R.R., 370 U.S. 626, 629-630
(1962). Nonetheless, "[i]nvoluntary dismissal is a drastic
sanction which should be utilized only in extreme situations."
Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 471
(1991), quoting Monahan v. Washburn, 400 Mass. 126, 128 (1987).
"As a minimal requirement, there must be convincing evidence of
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unreasonable conduct or delay. A judge should also give
sufficient consideration to the prejudice that the movant [for
dismissal] would incur if the motion were denied, and whether
there are more suitable, alternative penalties." Monahan, supra
at 128-129. We review a dismissal for want of prosecution for
an abuse of discretion. See Anderson v. Sport Lounge, Inc., 27
Mass. App. Ct. 1208, 1209 (1989).
Superior Court Standing Order 1-96(4) requires the
plaintiff in an administrative review case to file a motion for
judgment on the pleadings within thirty days of service of the
administrative record.3 See Bulldog Investors Gen. Partnership
v. Secretary of the Commonwealth, 457 Mass. 210, 213 (2010);
Sullivan v. Superintendent, Mass. Correctional Inst., Shirley,
101 Mass. App. Ct. 766, 771 (2022). The standing order provides
no description of the proper procedure where, as here, there is
a pending motion for entry of a default for failure to serve the
administrative record in a timely fashion.
To be sure, the Superior Court judge would have acted well
within her discretion to require the plaintiff to file a motion
for judgment on the pleadings, irrespective of the pending
motion for entry of a default. See Miller v. Superintendent,
3 The deadline is extended where, unlike here, certain
preliminary motions are timely made. See Standing Order 1-
96(3).
4
Mass. Correctional Inst., Shirley, 99 Mass. App. Ct. 395, 400
(2021) (prisoner raised claim of late service of record in
motion for judgment on pleadings). Where the plaintiff,
however, was actively pursuing his case through a motion for
entry of a default and advanced a plausible theory why a motion
for judgment on the pleadings was not yet due, and the
defendants have not been prejudiced by any delay, this was not a
circumstance in which "a severe sanction is necessary."
Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45
Mass. App. Ct. 738, 740 (1998). Cf. Foley v. Walsh, 33 Mass.
App. Ct. 937, 938 (1992), quoting Hoch v. Gavan, 25 Mass. App.
Ct. 550, 552 (1988) (dismissal proper where, "on defendant's
challenge, the plaintiff fails to come forward with a showing of
reasonable excuse").
As we have held previously, "at least when there is no
showing of wilful delay or default by the plaintiff or serious
prejudice to the defendant, involuntary dismissal with prejudice
under rule 41(b)(2) constitutes reversible error when less
drastic sufficient sanctions exist." Dewing, 30 Mass. App. Ct.
at 472. Here, the judge could have directed the plaintiff to
file a motion for judgment on the pleadings notwithstanding the
pending motion for entry of a default or simply denied the
motion for entry of a default. So far as this record reflects,
either action would have gotten this case moving again and ripe
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for resolution. Accordingly, the dismissal was improper. See
id. at 468-469 (error to dismiss where no action taken for over
three years but no showing of prejudice or willful delay).
Contrast Anderson, 27 Mass. App. Ct. at 1209 (dismissal proper
where plaintiff's absence prevented empaneled jury from reaching
case); Hoch, 25 Mass. App. Ct. at 553 (dismissal proper where
defendant had significant "risk of being prejudiced in his
defense").
3. Conclusion. The judgment in favor of the defendants is
vacated, and the case is remanded for further proceedings.
So ordered.
By the Court (Massing,
Ditkoff & Singh, JJ.4),
Clerk
Entered: July 6, 2023.
4 The panelists are listed in order of seniority.
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