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
Elizabeth M. Fahey, Justice of the Superior Court.
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. Judgment by Default entered on January
3, 2017. For the reasons stated herein, the defendants'
motion is ALLOWED .
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
(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
Hermanson, 457 Mass. at 47 n. 11; Berube, 7
Mass.App.Ct. at 430-31.
The Defendants Have Acted Promptly
moving parties in the case at hand have acted promptly in
filing their motion to vacate the New York judgment by
confession. 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).
The Claims Defendants Seek to Revive Have Merit
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 ...