LISA MASSARI v. EYE FOR COLOR, LLC [Note 1] and another [Note 2]

FINIGAN, J. The plaintiff is a former employee of defendant Eye for Color, LLC and its principal, Blair Hamaty, who brought a claim for unpaid commissions allegedly owed under G.L. c. 149, § 150, the Massachusetts Wage Act. She appeals from a summary judgment granted to the defendants based upon a finding by the trial judge that the plaintiff was no longer an employee of the defendants after June 30, 2016, the effective date of her resignation, and was consequently not owed any commissions. We affirm the judgment.

Facts. We glean the following from the pleadings and a transcript of a portion of the plaintiff's deposition, which is part of the record before us. The defendants operated a furniture business with several locations, including a store in Plymouth, Massachusetts. The plaintiff began working for the defendants as a salesperson in June of 2013. Working primarily at the Plymouth location, the plaintiff's duties were to greet customers as they entered the store and assist them in their interior design. As compensation, the defendants paid the plaintiff $400 per week plus a seven percent commission on sales generated by the plaintiff once a certain threshold was met. By e-mail dated June 21, 2016, the plaintiff announced her decision to accept a full-time job elsewhere and resigned with an effective date of June 30, 2016.

In May of 2017, the plaintiff filed a complaint seeking commissions for five sales that she alleged to have completed during her association with the defendants. In response, the defendants filed an answer and counterclaim for abuse of process. During pretrial proceedings, the plaintiff filed interrogatories and a request for production of documents, to which the defendants responded. Dissatisfied with the defendants' response, the plaintiff filed a final request for answers to interrogatories in September of 2017, followed by an application for entry of default pursuant to Mass. R. Civ. P. 33(a)(4). The defendants responded by filing a motion for summary judgment. After hearing, that motion was allowed in a written decision by the trial court judge. The plaintiff contends it was error to grant summary judgment for two reasons: (1) the clerk should have entered a default in favor of the plaintiff because of the defendants' failure to respond to interrogatories, and (2) genuine issues of material fact were present.

Standard of review. Summary judgment shall be granted where there are no genuine

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issues as to any material fact and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, "and [further] that the moving party is entitled to a judgment as a matter of law." Pederson v. Time. Inc., 404 Mass. 14, 17 (1989). In reviewing the grant of a motion for summary judgment, we conduct a de novo review of the evidence in the summary judgment record, and view the evidence in the light most favorable to the party opposing summary judgment. LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012).

Discussion. The plaintiff argues it was error for the court to reach the issue of summary judgment because the plaintiff had previously filed her application for entry of default under Mass. R. Civ. P. 33(a)(4), based upon the defendants' evasive and incomplete answers to interrogatories. Pursuant to the plaintiff's reading of Rule 33(a)(6), the clerk was required to enter judgment in the plaintiff's favor. We do not agree with the plaintiff's narrow reading Rule 33. Were we to adopt the plaintiff's interpretation, it would allow any party to deem responses to interrogatories as "evasive" and obtain a default judgment without any judicial involvement.

Rule 37 of the Mass. R. Civ. P. permits a party dissatisfied with discovery responses to file a motion to apply for an order compelling discovery. That rule further provides that an "evasive or incomplete answer is to be treated as a failure to answer." Mass. R. Civ. P. 37(a)(3). There is no corresponding provision in Rule 33, however. The relief provided by that rule, an entry of default, is reserved for those situations where no answers have been filed. See Mass. R. Civ. P. 33(a)(4) (beginning with the language: "In the event that answers or objections have not been received").

Here, the plaintiff did not file a motion for an order compelling discovery under Mass. R. Civ. P. 37. The nonresponsive or incomplete responses, argues the plaintiff, prevented her from adequately responding to the motion for summary judgment. Should a party need additional time to complete discovery before responding to the defendants' motion for summary judgment, it was incumbent upon the plaintiff to comply with the requirements of Mass. R. Civ. P. 56(f), which states, "Should it appear from the affidavits of a party opposing the motion that [she] cannot for reasons stated present by affidavit facts essential to justify [her] opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just." The plaintiff's failure to file an affidavit pursuant to Rule 56(f) is fatal to her contention that her ability to obtain satisfactory responses to interrogatories precluded her ability to advance an effective opposition to the motion for summary judgment. Murphy's Express, Inc. v. EBPJ, Inc., 1995 Mass. App. Div. 146, 148, citing Baker v. Monga, 32 Mass. App. Ct. 450, 453 (1992).

We turn now to the plaintiff's argument that the trial court should not have allowed the defendants' motion for summary judgment because a material question of fact existed, namely, whether she was an employee or an independent contractor after June 30, 2016, the effective date of her resignation. In her deposition, though, the plaintiff admitted she was working full time elsewhere and was no longer an employee of the defendants after June 30th. In order to state a claim under the Massachusetts Wage Act, a plaintiff must prove: (1) she was an employee under the statute, (2) her deferred compensation constitutes a wage under the statute, and

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(3) the defendants violated the act by not paying her the wages in a timely manner. Roche v. Morgan Collection, Inc., 882 F. Supp. 2d 247, 253 (D. Mass. 2012).

While the plaintiff received a weekly salary of $400 as an active employee of the defendants, the amount sought in her claim relates solely to unpaid commissions on five different sales that were apparently completed after she left the defendants' employment. Nowhere in the record are the five sales identified. In order for allegedly wrongfully detained commissions to be "definitely determined" as required for recovery under the Massachusetts Wage Act, commissions must be arithmetically determinable. Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 708 (2005). As noted by the trial judge in her finding, nothing before the court, by affidavit or otherwise, established any agreement between the parties that the plaintiff was entitled to be paid further commissions after her resignation. [Note 3] As the adverse party to the motion, the plaintiff may not simply rely upon mere allegations in her pleadings to establish a factual issue exists. Benson v. Massachusetts Gen. Hosp., 49 Mass. App. Ct. 530, 532 (2000).

Judgment affirmed.