2017 Mass. App. Div. 107

December 16, 2016 - June 29, 2017

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Coven, P.J., Nestor & Flynn, JJ.

Derek S.S. Rogers and Sean M. Callahan for the plaintiff.

Thomas R. Beauvais and Trevio Mintier [Note 1] for the defendant.

NESTOR, J. In this credit card collection action, the court entered default judgment for the plaintiff, Discover Bank ("Discover"), and dismissed the counterclaim of the defendant, James P. Hayes ("Hayes"), on the ground of a discovery violation. On appeal, Hayes maintains that the trial judge erred in entering a default judgment without a hearing on assessment of damages and in denying his motion for relief from judgment.

1. Procedural history. Hayes opened a credit card account with Discover Bank in 2005. Hayes made regular payments on the account until March, 2011. After that date, the account fell into arrears, and on October 16, 2014, the plaintiff filed a complaint seeking the unpaid balance of $5,854.84. The procedural history of the case is summarized as follows:

- December 1, 2014: Hayes files an answer and counterclaim.

- December 19, 2014: Discover files an answer to Hayes's counterclaim.

- March 4, 2015: Case management conference held. Hayes requests all correspondence be sent to 82 Otis Street, Unit 2, Cambridge, MA.

- July 24, 2015: Discover serves request for admissions, interrogatories, and request for production of documents on Hayes at that address by first class mail.

- September 8, 2015: Discover receives request for admissions responses from Hayes.

- September 8, 2015: Discover serves Hayes with a final request for answers to interrogatories at the 82 Otis Street, Unit 2, Cambridge, MA address.

- September 9, 2015: Parties appear at the pretrial conference. Hayes and his counsel appear and request an additional copy of the request for production of documents and interrogatories. Discover mails copies to the same address noting that they were originally served on July 24, 2015.

- October 27, 2015: Discover files an application for final judgment and dismissal of the counterclaim based on Mass. R. Civ. P. 33(a)(4).

- November 2, 2015: Judgment enters for Discover.

- November 6, 2015: Hayes's counterclaim is dismissed.

- December 15, 2015: Hayes files a motion for relief from judgment pursuant to Mass. R. Civ. P. 60(b).

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- January 15, 2016: After a hearing, Hayes's motion for relief from judgment is denied.

- January 26, 2016: Hayes files a notice of appeal.

2. Discussion. General Laws c. 231, ยง 108 provides: "Any party to a cause brought in the municipal court of the city of Boston, or in any district court, aggrieved by any ruling on a matter of law by a trial court justice, may as of right, appeal the ruling for determination by the appellate division pursuant to the applicable rules of court." Rule 4(a) of the District/Municipal Courts Rules for Appellate Division Appeal states: "If a post-judgment motion under the Massachusetts Rules of Civil Procedure is timely served or filed in the trial court, as the case may be, by any party . . . to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, if either motion is served within ten days after entry of judgment . . ., the ten-day time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion."

The trial court entered judgment for Discover Bank as to its complaint and Hayes's counterclaim on November 2, 2015 and November 6, 2015, respectively. The trial court issued an execution on November 17, 2015. It was not until December 15, 2015 that Hayes filed his motion for relief from judgment. The court denied the motion on January 15, 2016. Hayes did not file his notice of appeal until January 26, 2016.

Hayes did not appeal the entry of judgment in accordance with the rules of the court, as he did not file or serve [Note 2] his motion for relief from judgment within the required ten days. Therefore, Hayes's postjudgment motion failed to toll the time period for appealing from the judgment.

Hayes nevertheless maintains that the trial court judge erred in denying his motion for relief from judgment pursuant to Mass. R. Civ. P. 60(b). While the docket indicates that the court denied the defendant's motion for relief from judgment on January 14, 2016, the endorsed motion gives a date of January 15, 2016. The defendant's notice of appeal from the motion denial, filed on January 26, 2016, fell one day outside the ten-day window for filing a notice of appeal under Rule 4(a). This, by itself, is grounds for dismissal of the appeal.

We observe that even had Hayes's appeal been timely filed, we would not find that the motion judge had abused his discretion in denying Hayes's Rule 60(b) motion for relief.

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Hayes seeks relief from the judgment entered under Mass. R. Civ. P. 60(b). There are six grounds for relief under Rule 60(b): "(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from the operation of the judgment." Id.

Relief, however, should not be granted under Mass. R. Civ. P. 60(b)(6) unless the reason relied on is not a possible ground for relief under Rule 60(b)(1)-(5). See Brumfield v. Commonwealth, 400 Mass. 254, 256 (1987), citing Bird v. Ross, 393 Mass. 789, 791 (1985), and Chavoor v. Lewis, 383 Mass. 801, 805-806 (1981). It is clear from the record that Hayes is relying on Rule 60(b)(1), as in answer to the court's question -- "So what theory would your client be going on?" -- Hayes's counsel answered, "It would be under the excusable neglect issue, Your Honor." [Note 3]

The allowance of a Mass. R. Civ. P. 60(b)(1) motion is left to the sound discretion of the trial court judge. Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). See Bird, supra. Excusable neglect "is meant to apply to circumstances that are unique or extraordinary, not any 'garden-variety oversight.'" Tai v. City of Boston, 45 Mass. App. Ct. 220, 222 (1998), quoting Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981). Relief should be granted only "if the party seeking relief demonstrates that the mistake, misunderstanding, or neglect was excusable and was not due to his own carelessness." Id. at 223, quoting Reporters' Notes to Mass. R. Civ. P. 60(b)(1). See Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 227-228 (1979).

The record is virtually bereft of any facts demonstrating excusable neglect. Hayes merely alludes to what can be characterized only as a vague description as to why the interrogatories were not answered in a timely fashion. "It's just that the interrogatories themselves fell through the cracks," his counsel stated at the hearing on the motion for relief. At a minimum, we would expect a written motion indicating what section of Mass. R. Civ. P. 60 is being relied upon with an affidavit in support of the motion.

Discover complied with Mass. R. Civ. P. 33(a) by serving interrogatories at the address specified by Hayes at the case management conference. Discover sent a final request for interrogatories approximately forty-five days after service of the interrogatories and filed an application for final judgment and dismissal of the counterclaim some forty days after service of the final request for answers.

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It was within the discretion of the trial judge to rule that Hayes failed to meet the standards set forth in Mass. R. Civ. P. 60(b).

Accordingly, the appeal is dismissed.


[Note 1] Practicing under S.J.C. Rule 3:03.

[Note 2] In the appendix, Hayes has provided a copy of his motion for relief from judgment with an undated certificate of service that certifies the motion was served "on this day." While the motion is undated, it references an attached memorandum, dated December 1, 2015, and an affidavit by Hayes, dated November 18, 2015. Finally, the cover letter to the motion, memorandum, and affidavit, which is addressed to the trial court clerk's office for filing, is dated December 1, 2015. Each of these dates falls outside the ten-day window for service under Rule 4(a). See Arthur D. Little, Inc. v. East Cambridge Sav. Bank, 35 Mass. App. Ct. 734, 742-743 (1994) (postjudgment motion need not be filed within the ten-day period, it merely need be served on the opposing side within ten days).

[Note 3] It is incumbent on any party seeking relief under Mass. R. Civ. P. 60(b) to state in the motion under which of the subsections of the rule that the party is seeking relief. It is not for a judge to have to guess the grounds sought for relief. Failure to state the appropriate grounds of relief, in itself, may result in a denial of the requested relief.