Heard: November 6, 2017.
action commenced in the Superior Court Department on December
motion for relief from judgment, filed on February 26, 2016,
was heard by Elizabeth M. Fahey.
P. Magnuson (Joseph T. Toomey also present) for the
J. O'Connor for Infinex Investments, Inc.
Present: Kinder, Desmond, & Sacks, JJ.
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.
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.
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, " it initially sought only the
"entry of default, " with no actual judgment to
enter until after the requested hearing on damages.
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
on January 28, 2016 (the same day IFS filed both
applications), the clerk proceeded to enter a
"judgment""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
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) 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). 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. She therefore
allowed Infinex's motion for relief from judgment.
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,  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.