2016 Mass. App. Div. 115

July 22, 2016 - September 30, 2016

Appellate Division Northern District

Court Below: District Court, Malden Division

Present: Coven, P.J., Singh & Crane, JJ.

Frank J. Maier for the plaintiff.

Eric Estevez, pro se.

CRANE, J. This is an appeal from the denial of a motion for relief from judgment by the Malden Division of the District Court after the plaintiff commenced a separate action to collect on this judgment in the Salem Division and sought an attachment on trustee process in that action.

The plaintiff commenced this action in the Malden Division on June 30, 2014. It sought to recover the balance due for tuition and fees allegedly incurred by the defendant while enrolled as a student at Northeastern University during the academic year 2010-2011.

On August 5, 2014, the defendant filed a motion to dismiss upon the grounds that the claims were barred by a three-year statute of limitations; the plaintiff was engaging in employment discrimination; and failure to state a claim under Mass. R. Civ. P. 12(b)(6). On October 22, 2014, the court denied the defendant’s motion to dismiss. The defendant never filed an answer or counterclaim. On the same date, the court allowed the plaintiff’s motion for summary judgment. Thereafter, on February 24, 2015, the court entered judgment for the plaintiff and awarded damages in the amount of $10,974.00. The defendant never appealed from this judgment.

On January 4, 2016, the defendant filed a “motion to dismiss/motion to vacate.” The grounds for the motion were improper venue, statute of limitations, and that the defendant was going to file a counterclaim for an unspecified breach of contract. The motion was not accompanied by any affidavit. After hearing on January 15, 2016, the court denied the motion. The defendant has filed this appeal. [Note 1]

We treat the motion from which the defendant appeals as one for relief from judgment under Mass. R. Civ. P. 60(b), although he did not caption it as such. In reviewing the grant or denial of any motion under Rule 60(b), the appellate courts accord broad discretion, even “marked deference,” to the motion judge. Tai v. City of Boston, 45 Mass. App. Ct. 220, 224 (1998). Only a showing of “clear abuse of discretion” will result in reversal. Id., quoting Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 158 (1987). An abuse of discretion occurs when a judge made a clear error in judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Page 116

At the hearing on the motion, the defendant failed to present any information that might support relief from judgment under Rule 60(b). Instead, the defendant raised the defense of improper venue, which was waived because it was not asserted when the defendant filed his original motion to dismiss in response to the complaint. There was also sufficient basis for venue in the Malden Division, since the defendant gave a Wakefield mailing address in an earlier motion filed with the court. Improper venue may be waived, and it does not make a judgment void unless the court was without subject matter jurisdiction. M.B. v. J.B., 86 Mass. App. Ct. 108, 115-116 (2014). Similarly, there was no basis for a statute of limitations defense since the action was commenced well within the applicable six-year statute of limitations for matters in contract. G.L. c. 260, § 2. Last, an unspecified counterclaim is not grounds for relief from judgment. The motion judge did not abuse his discretion in denying the defendant’s motion.

Judgment affirmed.


[Note 1] The defendant did not appear for oral argument before this Appellate Division.