This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After two and one-half years of litigation, diligently supervised by a judge of the Land Court, the judge ordered entry of summary judgment in favor of the defendant on two counts of the plaintiff's verified complaint. Finding it undisputed that the defendant was the holder of both the first mortgage encumbering the plaintiff's property in Ashland and the plaintiff's note in the original principal amount of $244,000, the judge entered a declaration that the defendant was entitled " to exercise all rights available under G. L. c. 244, § 14 for breach of the Mortgage, including without limitation the right to foreclose the Mortgage by exercise, in accordance with that statute, of the power of sale granted by the Mortgage." See Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571, 969 N.E.2d 1118 (2012). The judge dismissed as moot the count of the complaint seeking to enjoin the defendant's earlier attempt to foreclose, and dismissed the remaining claims in the complaint, without prejudice, for lack of subject matter jurisdiction.
The plaintiff timely filed a notice of appeal from the judgment. On appeal, however, the plaintiff does not identify any record evidence that creates a genuine issue as to any material fact calling into question the defendant's status as holder of the first mortgage or the note. Rather, he contends that the judge abused his discretion by refusing to allow the plaintiff to amend his complaint and by denying his attempts to compel further discovery. We affirm.
After a responsive pleading has been served, " a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). " [A] motion to amend should be allowed unless some good reason appears for denying it." Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 289, 361 N.E.2d 1264 (1977). Prejudice to the nonmoving party, such as introducing " a new set of facts or a new theory of recovery" late in the proceedings, Ritter v. Bergmann, 72 Mass.App.Ct. 296, 303, 891 N.E.2d 248 (2008), provides " good reason" for denying a motion to amend, id. at 302.
Furthermore, a judge's decision to deny a party's request for additional discovery before allowing the opposing party's summary judgment motion is reviewed for abuse of discretion. See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307, 565 N.E.2d 1205 (1991). To justify further discovery, and the attendant delay of the summary judgment proceedings, the burden is on the party opposing summary judgment to show a factual basis for his opposition to the motion and need for discovery. See The Alphas Co. v. Kilduff, 72 Mass.App.Ct. 104, 107-108, 888 N.E.2d 1003 (2008).
The plaintiff commenced this case in the Land Court on October 8, 2010. As the litigation developed, a question arose regarding the defendant's authorization to foreclose on the plaintiff's second mortgage securing a note in the original principal amount of $61,000. To resolve this issue -- and to forego further discovery disputes -- at a hearing held on January 8, 2013, the judge asked the defendant to file a binding stipulation that it would never seek to foreclose on, or seek any deficiency with respect to, the second mortgage. The judge also set a deadline of January 31, 2013, for the defendant to file its summary judgment motion with respect to the first mortgage.
After initially indicating its agreement to stipulate regarding the second mortgage, the defendant sought relief from the judge's request by filing a " Motion to Rescind Court's January 8, 2013 Ruling Regarding Second Mortgage and Promissory Note." In response, the plaintiff filed a document styled as " Opposition to Defendant's Motion to Rescind Court's January 8, 2013 Ruling Regarding Second Mortgage and Promissory Note and Cross Motion to Amend Complaint." The plaintiff sought to amend the complaint " for the purposes of adding the Second Mortgage Holder and updating the facts and allegations set forth in the Plaintiff's original Complaint."
After a hearing on the defendant's motion and the plaintiff's cross motion, held on February 5, 2013, the defendant formally filed a stipulation that it " does not have the authority or right to foreclose on the [plaintiff's] second mortgage" and " that it is not authorized to and does not intend to foreclose on the [plaintiff's] second mortgage either now or in the future." With respect to the plaintiff's motion to amend the complaint to add other parties " so we can find out what's going on," the judge observed, " But that comes too late. . . . You need to respond to the summary judgment motion regarding the ability or not of this defendant that you sued in October of 2010 to conduct a valid foreclosure sale."
Having reviewed the entire record, we conclude that the judge had good reason, in his exercise of case management, and did not abuse his discretion in denying the plaintiff's motion to amend the complaint. Moreover, although the judge gave him ample opportunity, the plaintiff did not demonstrate that further discovery would assist in his opposition to the defendant's motion for summary judgment with respect to the first mortgage. Thus, the judge did not abuse his discretion in denying the plaintiff's requests to compel discovery. There being no genuine issue as to any material fact, see Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002), the judge did not err in entering summary judgment for the defendant.
Cypher, Meade & Massing, JJ.