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Institution For Savings In Newburyport And Its Vicinity v. Another

Appeals Court of Massachusetts, Essex

February 27, 2018

MATTHEW LANGIS & another. [1]

          Heard: November 6, 2017.

         Civil action commenced in the Superior Court Department on December 19, 2014.

         A motion for relief from judgment, filed on February 26, 2016, was heard by Elizabeth M. Fahey.

          Eric P. Magnuson (Joseph T. Toomey also present) for the plaintiff.

          Kevin J. O'Connor for Infinex Investments, Inc.

          Present: Kinder, Desmond, & Sacks, JJ.

          SACKS, J.

         This appeal raises a question regarding the procedure to be followed when a plaintiff files a properly supported application for default judgment for failure to serve interrogatory answers under Mass.R.Civ.P. 33(a)(4), as appearing in 436 Mass. 1401 (2002), but no final judgment can enter because damages have not yet been determined. The question is whether a defendant seeking relief from the initial action on such an application must satisfy the "excusable neglect" standard under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974), requiring "unique or extraordinary" circumstances, Feltch v. General Rental Co., 383 Mass. 603, 614 (1981) (quotation omitted), or merely the less demanding "good cause" standard for removal of a default under Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), i.e., "a good reason for failing to . . . defend in a timely manner and . . . meritorious defenses." Johnny's Oil Co. v. Eldayha, 82 Mass.App.Ct. 705, 708 (2012). Our prior decisions strongly suggest, and we now determine, that rule 55(c)'s good cause standard governs.


         The case arises out of a complaint filed in the Superior Court involving a commercial dispute. On December 18, 2015, after the defendant Infinex Investments, Inc.

         (Infinex), missed a previously extended deadline for serving interrogatory answers on the plaintiff, Institution for Savings in Newburyport and its Vicinity (IFS), IFS served a final request for answers pursuant to rule 33(a)(3). On January 28, 2016 -- the day after Infinex's final rule 33(a)(4) deadline for serving such answers expired -- IFS filed a properly supported "application for default judgment, " pursuant to Mass.R.Civ.P. 33(a)(6), as appearing in 454 Mass. 1404 (2009), which included a request for a hearing on damages, pursuant to Mass.R.Civ.P. 55(b)(2), as amended, 463 Mass. 1401 (2012). IFS's application and accompanying affidavit stated that, under "governing case law, "[2] it initially sought only the "entry of default, " with no actual judgment to enter until after the requested hearing on damages.

         Simultaneously with its application for default judgment, IFS filed a separate "application for entry of default" pursuant to rules 33(a)(4), 33(a)(6), and Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974). Attached to this latter application was a proposed form of "notice of entry of default under rule 55(a), " which included the statement that a default was entered and that "[J]udgment for the amount and costs due will be entered . . . by the [c]ourt after assessment under [r]ule 55(b)(2), unless the default is earlier set aside by the [c]ourt for cause shown under [r]ule 55(c)."

         Nevertheless, on January 28, 2016 (the same day IFS filed both applications), the clerk proceeded to enter a "judgment"[3]"on liability only, " stating that IFS was required to move for an assessment of damages. On February 1, Infinex served its interrogatory answers. For reasons not shown in the record, IFS's separate application for entry of default was not docketed until February 2. On February 9, Infinex filed a notice of intent to file a motion for relief from judgment. On February 10, a judge allowed IFS's separate application for entry of default and ordered "default to enter."[4]

         On February 26, Infinex filed its motion for relief from judgment, pursuant to rule 60(b)(1), asserting that the failure to answer the interrogatories was due to excusable neglect. After extensive briefing supported by multiple affidavits, a second judge (the judge)[5] determined that Infinex had shown excusable neglect. The judge relied primarily on the combination of Infinex counsel's particularly intense workload (he had spent most of the month before the interrogatory answers' final due date traveling, in order to complete discovery in another document-intensive case in which he had recently been hired as lead counsel); counsel's illness during part of the time the interrogatories were outstanding; and counsel's calendaring mistake (he had calculated the final day for serving the interrogatory answers as February 1, rather than January 27).[6] The judge also ruled that all six factors listed in Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 430-431 (1979), weighed in favor of granting relief for excusable neglect.[7] She therefore allowed Infinex's motion for relief from judgment.

         IFS filed a petition under G. L. c. 231, § 118, first par., seeking relief from the judge's decision, or in the alternative, leave to pursue an interlocutory appeal; the petition was denied by a single justice of this court. The parties then filed a stipulation of dismissal with prejudice of IFS's action against both defendants, [8] subject only to IFS's right to appeal the judge's decision on the motion (and the defendants' right to seek attorney's fees). IFS then filed this appeal.

         D ...

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