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Barron v. Brofsky

Superior Court of Massachusetts, Middlesex

February 3, 2016

James P. Barron
Jill J. Brofsky, Esq Opinion No. 132708


Robert B. Gordon, Justice

Having now reviewed the parties' submissions in this matter, and following a hearing held on February 1, 2016, the Court is of the view that the Defendant has demonstrated her entitlement to a dismissal of the action and final judgment in accordance with the plain terms of Mass.R.Civ.P. 33. The Defendant's Application for Dismissal and Final Judgment is, therefore, ALLOWED .


This case involves claims for legal malpractice that the Plaintiff has brought against the Defendant, a lawyer who represented him in post-divorce proceedings against his former spouse. The Plaintiff is himself a former licensed attorney, having been admitted to practice in the Commonwealth in 1985. Although now retired from the Massachusetts bar, Plaintiff continues to represent himself pro se in this and a variety of other malpractice and related matters in the courts.

On May 27, 2015, the Defendant served Plaintiff with her First Set of Interrogatories (the " Interrogatories"). The Interrogatories so propounded were just 17 in number and, based on the Court's review, entirely unexceptional in the liability and damages-related information sought therein. At no time thereafter, including to the present day, did the Plaintiff ever suggest to either the Court or opposing counsel that the Interrogatories were over-reaching or otherwise unfairly burdensome.

On June 2, 2015, the Plaintiff requested a 45-day extension of his time to respond to the Interrogatories. In support of this request, the Plaintiff cited the fact that he would be otherwise occupied as a pro se litigant in a multi-day trial commencing in mid-August 2015. The Defendant assented to this request; and the parties memorialized their understanding by email exchange in which they agreed that the Plaintiff's Answers to Interrogatories would be due on August 25, 2015.

The Plaintiff failed to produce the promised written discovery by the August 25 deadline. During the intervening extension period, however, the Plaintiff served his own Request for Admissions as well as a separate Motion to Amend the Complaint.

On September 12, 2015, counsel for the Defendant reminded the Plaintiff in writing that his Answers to Interrogatories were now substantially overdue and remained outstanding. At the same time, defense counsel proposed mediating the case with the Plaintiff, a suggestion to which the Plaintiff does not appear to have responded. Instead, the Plaintiff waited fully ten days before transmitting a one-line email in which he stated: " Please excuse the delay in answering, answers will be 'communicated' as soon as possible."

On September 24, 2015, nearly four months after the Interrogatories were originally served, the Defendant transmitted to the Plaintiff a Final Request for Answers to Interrogatories under Mass.R.Civ.P. 33(a)(3). In that transmittal, the Defendant cautioned the Plaintiff that, unless answers and/or objections were timely received, the Defendant intended to apply for a final judgment of dismissal in accordance with the provisions of Mass.R.Civ.P. 33(a)(4).

On September 24, 2015, the Plaintiff emailed counsel for the Defendant, acknowledging receipt of his Final Request for Answers to Interrogatories. In this email, the Plaintiff assured opposing counsel that he could " expect answers by the end of next week (October 2, 2015)." The Plaintiff, however, failed to produce answers to the Interrogatories within the promised time frame. Indeed, no answers to the Interrogatories were forthcoming at any point during the succeeding month. Accordingly, on November 4, 2015, more than 150 days following initial service of the Interrogatories, the Defendant filed and served her Rule 33(a)(4) Application for Dismissal and Final Judgment. The Plaintiff filed his Opposition to this Application on November 18, 2015, accompanying it for the first time with a draft set of unsigned Answers to Interrogatories.


Massachusetts Rule of Civil Procedure 33 provides a party who encounters an adversary's persistent refusal to answer interrogatories with two alternate avenues of relief. See Mass.R.Civ.P. 33. The aggrieved litigant may move for an order to compel answers to interrogatories under Mass.R.Civ.P. 37(a). In the alternative, the litigant may pursue the remedy of automatic dismissal (in the case of a defendant) under Mass.R.Civ.P. 33(a)(4). See id. Because the latter approach culminates in the more severe remedy, it entails more steps, takes more time, and affords the recalcitrant party more opportunities to avoid the sanction of dismissal. This is the course that the Defendant elected to follow in the case at bar, and the Court observes that she adhered to the template of the governing rule to the letter.

Under Mass.R.Civ.P. 33(a)(3), a party has 45 days in which to serve answers or objections to interrogatories that have been propounded to him. If this 45-day deadline passes with the served party failing to answer the interrogatories, the interrogating party may serve a " final request for answers, specifying the failure." Mass.R.Civ.P. 33(a)(3). That final request for answers must state that the interrogating party " may apply for final judgment for relief or dismissal" pursuant to Mass.R.Civ.P. 33(a)(4) " in the event that the answers or objections are not timely received." Id. Under the Rule, the party that has been served the interrogatories is required to serve answers, objections, or a combination of both " within 30 days from the date of service of the final request or prior to the filing of an application for a final judgment for relief or dismissal, whichever is later." Id.

Rule 33(a)(4) goes on to prescribe the specific procedure for seeking judgment against a litigant who has failed to serve answers to interrogatories in accordance with a final demand for same. And in evident consideration of the harshness of the remedy being sought, the Rule is quite strict about the specific content of the application that is required. Thus, the ...

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