Heard: June 5, 2017.
action commenced in the Superior Court Department on
September 16, 2014.
special motion to dismiss was heard by Robert A.
Cornetta, J., sitting by designation, and a motion to
vacate default was considered by him.
C. Cain for the defendants.
J. Hubbard for the plaintiff.
Present: Sullivan, Henry, & Shin, JJ.
plaintiff, David Ceruolo (David) sued his ex-wife Lyllian
Ceruolo (Lyllian),  and her mother, Martha Garcia (Garcia) for
defamation and negligent and intentional infliction of
emotional distress following the conclusion of a contentious
divorce. The defendants were defaulted in the civil action,
and moved unsuccessfully to remove the default. Lyllian and
Garcia appeal from the entry of a final judgment after a
hearing on assessment of damages, contending that the default
should have been vacated. David cross-appealed regarding
damages. We reverse the judgment and remand the case for
a contentious divorce action, Lyllian and her mother made
serious allegations regarding David's conduct. A Probate
and Family Court judge found the allegations unproven and
the entry of final judgment in the divorce case, David filed
this suit against Lyllian and Garcia. The defendants,
represented by counsel, filed a notice of appearance and a
notice of intent to file a special motion to dismiss pursuant
to G. L. c. 231, § 59H, the "anti-SLAPP"
statute. Thereafter, various procedural anomalies occurred.
Because the timing of subsequent events is of importance
here, we set out the timeline in some detail.
November 25, 2014,  Lyllian and Garcia timely filed the
special motion to dismiss. The judge considered both the
pleadings and the affidavit on file, as required by the
statute. See G. L. c. 231, § 59H ("the court shall
consider the pleadings and supporting and opposing affidavits
stating the facts upon which the liability or defense is
based"). The pleadings focused on conduct leading up to
and during the divorce. The affidavit of damages filed by
David made additional allegations not found in the complaint,
including a general statement that there was an ongoing
course of defamatory conduct after the entry of the decree.
On February 6, 2015, the judge allowed the motion as to those
statements that occurred "during" the divorce
action and up to the date of the decree, November 22, 2013.
The motion was denied to the extent that David could make a
showing that "the conduct complained of does not fall
under petitioning activity protected under the statute."
Thus, the judge left for another day what conduct fell
outside the scope of the anti-SLAPP statute.
days later, on February 12, 2015, the defendants served a
motion for more definite statement pursuant to Mass.R.Civ.P.
12(e), 365 Mass. 754 (1974), in accordance with Superior
Court Rule 9A (rule 9A). David timely served his opposition
on February 24, 2015. A reply brief and opposition to the
filing of the reply brief were exchanged, and the package was
complete on or about March 8, 2015. For reasons not apparent on
the record, the defendants did not file the package within
the ten-day time period set forth in rule 9A(b)(2). On March
24, 2015, David served a request for default pursuant to
Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974), which was docketed
on March 25 and allowed by the clerk the following day. The
entry of default was sent to David but not to the
and Garcia, unaware that the default had entered, but having
been served with the rule 55(a) request, filed their motion
for a more definite statement (omitting the contested reply
brief), pursuant to Mass.R.Civ.P. 12(e), on March 27, 2015.
That motion was denied on April 3, 2015, "in light
of" the earlier ruling on the anti-SLAPP motion. This
ruling, perhaps unintentionally, left unanswered how David
was to make the required showing that the complained of
conduct "did not fall under petitioning activity."
denial of the defendants' motion for a more definite
statement likewise was not received by defendants'
counsel. David then filed a motion for assessment of damages
and a motion for default judgment on April 21, 2015, which
was served on defense counsel. Notably, although the motion