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Saturn Funding, LLC v. NRO Boston, LLC

Superior Court of Massachusetts, Suffolk

February 21, 2017

Saturn Funding, LLC
v.
NRO Boston, LLC et al No. 136108

         MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' NRO BOSTON, LLC AND NORTH RIVER OUTFITTERS, NRO SPORT, LLC, NRO EDGARTOWN, LLC, JASON INDELICATO AND ALICE INDELICATO'S MOTION TO REMOVE DEFAULT AND FILE ANSWER AND AFFIRMATION DEFENSES LATE

          Elizabeth M. Fahey, Justice of the Superior Court.

         The defendants move under Mass.R.Civ.P. 55(c) and 60(b) to vacate a Default Judgment by Confession against NRO Boston, LLC, North River Outfitters, NRO Sport, LLC, NRO Edgartown, LLC, Alice Indelicato, and Jason Indelicato that was obtained by Saturn Funding, LLC. Plaintiff opposes this motion on the grounds that the defendants have not shown good cause under Mass.R.Civ.P. 55(c) to set aside the entry of Mass.R.Civ.P. 55(a) default. Pursuant to the plaintiff's request under Mass.R.Civ.P. 55(b)(1), defendants were all defaulted.[1] Judgment by Default entered on January 3, 2017. For the reasons stated herein, the defendants' motion is ALLOWED .

         ANALYSIS

          Mass.R.Civ.P. 60(b) states in part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (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 . . . or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court . . .

          Whether or not to grant relief under Mass.R.Civ.P. 60(b) " rests within the sound discretion of the judge" and is " to be applied 'toward the objective that legal procedure becomes the vehicle for determination of the issues upon their merits instead of upon refinement of procedure . . .'" Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 429, 388 N.E.2d 309 (1979) (quoting Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733, 736 (Fla.Dist.Ct.App. 1964)). " Rule 60(b) is remedial in character and subject to a liberal interpretation and application in a situation where the mischief leading to the judgment occurs at the pretrial stage." Berube, 7 Mass.App.Ct. at 429. The instant case deals with Rule 60(b)(1), as defendants seek relief from a final judgment due to mistake, inadvertence, surprise, or excusable neglect. The burden of proving that one of these conditions exists, and that it merits relief falls on the defendants. Hermanson v. Szafarowicz, 457 Mass. 39, 46, 927 N.E.2d 982 (2010) (citing Gath v. M/A-Com, Inc., 440 Mass. 482, 497, 802 N.E.2d 521 (2003)).

          Whether relief should be granted is determined by the circumstances of each case, considering the following factors:

(1) [W]hether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself; for " the courts have been reluctant to attribute to the parties the errors of their legal representatives." (Internal citations omitted.)

Hermanson, 457 Mass. at 47 n. 11; Berube, 7 Mass.App.Ct. at 430-31.

         a. The Defendants Have Acted Promptly

         The moving parties in the case at hand have acted promptly in filing their motion to vacate the New York judgment by confession.[2] Plaintiff filed its verified complaint to domesticate the judgment by confession in Suffolk Superior Court on August 16, 2016. Def. Exh. A at para. 7. A default judgment was entered against the defendants on January 3, 2017 and the defendants filed their motion to vacate along with their answer to the complaint and affirmative defenses on January 9, 2017. Def. Exh. B. Docket at 2. If plaintiff's service was good, an answer was due by December 14, 2016. Def. Exh. A at para. 8; contra, Hermanson, 457 Mass. at 47 (finding that the defendant did not act promptly by filing motion for relief from judgment until seven months after sheriff's levy was entered on his property); Garabedian v. Schomer, 22 N.E.3d 177, 86 Mass.App.Ct. 1126, (2014) (finding the trial court judge did not abuse their discretion by denying plaintiff's motion to vacate judgment of dismissal when motion was filed almost one year after the dismissal).

         b. The Claims Defendants Seek to Revive Have Merit

         The second factor to consider is whether the claim the defendants seek to revive has merit. The evidence provided so far supports a determination that the defendants may have a meritorious defense to the judgment by confession. The defendants do not have to prove their claim has a " certainty of success, " only that " the claim is one 'worthy of judicial investigation because [it] rais[es] a material question of law meriting discussion and decision, or a real controversy as to essential facts arising from conflicting ...


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