Handbook of Civil Procedure in the Massachusetts District Court

HANDBOOK OF CIVIL PROCEDURE IN THE MASSACHUSETTS DISTRICT COURT

SPECIAL ALERT

New Requirements in Civil Actions in the District Court, the Boston Municipal Court, and the Superior Court Effective March 1, 2008

We are pleased to provide you with the following summary of important new requirements affecting every civil action in the 62 courts constituting the Massachusetts District Court and the eight courts constituting the Boston Municipal Court. One of the new requirements also affects money damage actions in the Superior Court.

This summary has been prepared by Marc G. Perlin and John M. Connors, co-authors of the Handbook of Civil Procedure in the Massachusetts District Court, Third Edition.

These requirements result from recent caselaw from the Supreme Judicial Court and a series of amendments to the Massachusetts Rules of Civil Procedure, effective March 1, 2008.

The rule changes apply to all “actions commenced on or after March 1, 2008, and, with respect to pending actions commenced on or after August 31, 2004 [the date that the statewide one-trial system became effective in Massachusetts], the amendments are applicable to procedural steps occurring on or after March 1, 2008” (Order of the Supreme Judicial Court dated November 28, 2007). The full text of the rule changes and the accompanying Reporter’s Notes are included with this Special Alert.

A complete analysis of these changes, as well as all of the many other fundamental changes of the past five years, will be provided in the new edition of the Handbook that will be available later this year.

1. Clarification of the $25,000 “Procedural Amount” Requirement for Money Damage Actions in the District Court, the Boston Municipal Court, and the Superior Court.

The recent decision by the Supreme Judicial Court in Sperounes v. Farese, 449 Mass. 800, 873 N.E.2d 239 (2007) affirmed several key features of the statewide one-trial system for money damage actions in the District Court, the Boston Municipal Court, and the Superior Court. This opinion also addressed ambiguities in the one-trial legislation regarding the $25,000 “procedural amount” limit.

Here are the key points:

• There is no monetary limit on District Court, Boston Municipal Court, and Superior Court subject matter jurisdiction in money damage cases. A plaintiff can seek, and the court can award, damages in any amount.

• The relevant statute for the District Court and Boston Municipal Court, G.L. c. 218, § 19, sets forth a “procedural amount” requirement: A money damage action may proceed in the District Court or Boston Municipal Court “only if there is no reasonable likelihood that the recovery by the plaintiff will exceed $25,000.…”

• If the defendant properly and timely asserts that the plaintiff has violated the procedural amount requirement in the District Court or Boston Municipal Court (see item 3, below) and the court agrees, the case must be dismissed. If the case is dismissed, the plaintiff may recommence the action in the Superior Court.

• If the defendant does not timely raise the defense of improper procedural amount, this defense is waived.

• Even if the defendant fails to raise the defense of improper procedural amount, the District Court or Boston Municipal Court judge, as a matter of discretion, may raise this issue sua sponte. And if, after soliciting “responses” and holding a hearing if requested, the court finds that there is a reasonable likelihood of recovery of more than $25,000, the court, as a matter of discretion, may dismiss the case.

• If the court does raise the issue sua sponte, the Supreme Judicial Court in Sperounes mentioned the following factors the court “should” consider (and about which the parties can argue) in exercising its discretion to retain or dismiss the case: ♦ whether “the amount reasonably likely to be recovered by the plaintiff…is marginally or substantially higher than $25,000;” ♦ “whether the matter would be more appropriate for a jury of twelve or a jury of six;” ♦ “whether resolution of the matter will be substantially delayed by dismissal, or particularly costly to the parties because of the number of filings that will need to be repeated in the Superior Court;” ♦ “whether the action is similar in scope to those that fit within the $25,000 limitation;” and ♦ “other relevant factors presented by the parties.”

• In the Superior Court, the relevant statute, G.L. c. 212, § 3, provides that a money damage action may proceed “only if there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000 .…”

2 2. Other Important Points Regarding the Procedural Amount Requirement.

• The procedural amount requirement does not apply to counterclaims.

• The court’s determination of whether the procedural amount requirement has been satisfied or violated is to be based upon the statement of damages form or cover sheet that is filed together with the complaint.

• There is no requirement that a clerk in the District Court or Boston Municipal Court identify and bring to a judge’s attention cases where a procedural amount violation is likely (e.g., where the plaintiff’s claim exceeds $25,000). Therefore “sum certain” cases in which the defendant defaults will go to judgment without coming before a judge, and the resulting judgment may not be subject to a later challenge based on the procedural amount requirement.

3. How a Defendant Raises the Procedural Amount Issue.

A defendant who intends to raise the defense of improper procedural amount in the District Court, the Boston Municipal Court, or the Superior Court may do so either in the answer to the plaintiff’s complaint or in a motion to dismiss under Mass. R. Civ. P. 12, as amended effective March 1, 2008.

Here are the important points in this rule change:

• The defense of “improper amount of damages” has been added as a tenth ground for dismissal in Rule 12(b). Thus, a defendant may now seek dismissal under Rule 12(b)(10).

• This defense may be set forth in the defendant’s answer or in a pre-answer motion.

• Under amended Rule 12(h), if the defense of improper amount of damages is not raised in the answer or a motion to dismiss, the defendant has waived the defense.

• If the defendant has failed to raise the defense in the answer or in a pre-answer motion to dismiss, the defendant may be able nevertheless to raise the defense of improper amount of damages by means of an amendment pursuant to Rule 15.

4. New Requirement for Judges in the District Court and Boston Municipal Court to Make Written Findings of Fact and Rulings of Law in Jury-Waived Cases.

Rule 52(c) of the Mass. R. Civ. P. has been amended, effective March 1, 2008, to require a judge in a jury-waived civil case in the District Court or Boston Municipal Court to make findings of fact and rulings of law “provided that any party submits before the beginning of any closing arguments proposed findings of fact and rulings of law.”

This change eliminates the often confusing procedure that has existed for many years of filing Requests for Rulings of Law (see item 5, below).

Here are other key points:

• The amended rule also provides that a party may submit supplemental proposed findings and rulings within three days (presumably within three days after the beginning of any closing arguments) “as long as that party, before the beginning of any closing arguments, has filed proposed findings and rulings and has made a request to file supplemental proposed findings and rulings.”

• The proposed findings and rulings and any request to submit supplemental proposals may be contained in a single document.

• It is not clear whether the court’s obligation to make written findings and rulings is limited just to the findings and rulings proposed by a party or whether the submission of any proposed finding or ruling triggers the court’s responsibility to make all findings and rulings relevant to its decision.

5. Repeal of Rule 64A, Requests for Rulings of Law.

Rule 64A of the Mass. R. Civ. P., Requests for Rulings of Law in District Court, has been repealed, effective March 1, 2008.

This means that the entire mechanism under that rule by which parties filed requests for rulings and by which judges either allowed or denied those requests has been abolished. It has been replaced by the fundamentally different procedure, described above in item 4, by which the court in jury-waived cases must make written findings of fact and rulings of law if proposed findings and rulings have been timely submitted.

As a result of this change, a party’s appeal to the Appellate Division will most often consist of a challenge to the court’s rulings (and the legal sufficiency of the evidence to support its findings), rather than whether the court’s allowance or denial of a request for a ruling was proper.

6. Complete Text of Rule Changes and Reporter’s Notes.

There have been other changes to the Massachusetts Rules of Civil Procedure effective March 1, 2008. The complete text of all of the changes and the Reporter’s Notes are set forth below.

4 Rule 1. SCOPE OF RULES

[Sixth definition] “Municipal Court of the City of Boston” or “Boston Municipal Court” shall mean a division of the Boston Municipal Court Department of the Trial Court, or a session thereof for holding court.

Reporter’s Notes – 2008 The definition of “Municipal Court of the City of Boston” has been amended in light of legislation in 2003 transferring various Divisions of the District Court Department located in Suffolk County to the Boston Municipal Court. See G.L. c. 218, § 1 and G.L. c. 218, § 50. Whenever the term “District Court” is used in the Massachusetts Rules of Civil Procedure, the reference is to be construed as including the Boston Municipal Court, unless “the context means something to the contrary.” Mass. R. Civ. P. 1, sixth definition.

Rule 1A. TRANSITIONAL RULE FOR DISTRICT COURT LITIGATION IN PROGRESS ON JULY 1, 1996

[This rule is repealed.]

Reporter’s Notes – 2008 Rule 1A, entitled Transitional Rule for District Court Litigation in Progress on July 1, 1996, was repealed in 2008.

Rule 12. DEFENSES AND OBJECTIONS – WHEN AND HOW PRESENTED – BY PLEADING OR MOTION – MOTION FOR JUDGMENT ON PLEADINGS

Rules 12(b)(9) and (10) (9) Pendency of a prior action in a court of the Commonwealth; (10) Improper amount of damages in the Superior Court as set forth in G. L. c. 212, § 3 or in the District Court as set forth in G. L. c. 218, § 19.

Rule 12(h)(1) (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, misnomer of a party, pendency of a prior action, or improper amount of damages is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

5 Reporter’s Notes – 2008 Rule 12(b) has been amended to add a new numbered defense, 12(b)(10). This defense permits a defendant to raise by motion to dismiss the issue whether the amount of damages that the plaintiff is reasonably likely to recover meets the requirements of G.L. c. 212, § 3 (Superior Court) or G.L. c. 218, § 19 (District Court and Boston Municipal Court). Under G.L. c. 212, § 3, an action may proceed in the Superior Court “only if there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000...” Under G.L. c. 218, § 19, an action may proceed in the District Court or Boston Municipal Court “only if there is no reasonable likelihood that recovery by the plaintiff will exceed $25,000...” Before the addition of new Rule 12(b)(10), the issue whether the plaintiff met the statutory requirements regarding the $25,000 amount was not included among the defenses enumerated in Rule 12(b), and presumably could be raised only in the answer. With this amendment, the issue may now also be raised by a motion to dismiss. In addition, Rule 12(h) has been amended to provide that failure to raise improper amount of damages in a motion to dismiss or answer constitutes a waiver. Violation of the statutory requirements regarding the $25,000 amount is procedural, not jurisdictional. G.L. c. 212, § 3A(b); G.L. c. 218, § 19A(b). See Sperounes v. Farese, 449 Mass. 800 (2007). In Sperounes, the Court held that under the statewide one-trial system, a District Court judge must dismiss an action where an objection has been made and where there is a reasonable likelihood the plaintiff will recover more than $25,000. However, where the defendant does not object, a District Court judge has the discretion to dismiss the action sua sponte or to permit it to proceed. Sperounes v. Farese, supra at 806-807.

Rule 13. COUNTERCLAIM AND CROSS-CLAIM

[Rule 13(j) is deleted.]

Reporter’s Notes – 2008 Rule 13(j) (“Transferred, Appealed and Removed Actions”) has been deleted. It had been included in the original version of the Mass. R. Civ. P. because the Massachusetts Rules of Civil Procedure, when first promulgated, did not apply in the District Court.

Rule 38. JURY TRIAL OF RIGHT

[Rule 38(e) is deleted.]

Reporter’s Notes – 2008 Rule 38(e), entitled “District Court,” has been deleted, now that jury trials are available in the District Court under the statewide one-trial system, applicable to civil actions commenced on or after August 31, 2004 (St. 2004, c. 252). Thus, the provisions of Rule 38 governing the right to jury trial, demand, specification, and waiver, are applicable in the District Court.

Rule 39. TRIAL BY JURY OR BY THE COURT

Rule 39(a) [Second sentence] In the District Court, the action shall be designated upon the docket as a jury action in accordance with the statutory provisions governing trials by jury in the District Court.

Reporter’s Notes – 2008 A new second sentence has been added to Rule 39(a) to deal with statutory requirements in the District Court regarding designating an action on the docket as a jury action. The statewide one-trial statute provides in G.L. c. 218, § 19B(a) as follows:

In any case in which a party has filed a timely demand for a jury trial, the action shall not be designated upon the docket as a jury action until after the completion of a pretrial conference, a hearing on the results of the conference and until the disposition of any pretrial discovery motion and compliance with any order of the court pursuant to the motions.

Rule 39(d), entitled “District Court,” has been deleted, since jury trials are available under the statewide one-trial system in District Court civil actions. Thus, Rule 39, as amended by the addition of the above sentence to Rule 39(a), will be applicable in the District Court.

Rule 42. CONSOLIDATION: SEPARATE TRIALS

Rule 42(d) (d) District Court: Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the constitution of this Commonwealth or as set forth in a statute.

Reporter’s Notes – 2008 Rule 42(d) has been amended to add language that appears in Rule 42(b) regarding the constitutional right to trial by jury. In light of the 2003 legislation transferring various divisions of the District Court Department located in Suffolk County to the Boston Municipal Court Department and with the creation of divisions in the Boston Municipal Court Department (G.L. c. 218, § 1 and G.L. c. 218, § 50), Rule 42(c) and Rule 42(d) are also applicable in the Boston Municipal Court Department.

7 Rule 47. JURORS

Rule 47(c) (c) District Court: Additional Jurors. The court may order impanelled a jury of not more than eight members and the court shall have jurisdiction to try the case with such jury as provided by law. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 additional jurors are to be impanelled.

Reporter’s Notes – 2008 Rule 47 has been amended to add an additional section (c) dealing with six-person juries in the District Court. Rule 47(b) applies to all courts other than the District Court. New Rule 47(c) provides for impanelling up to eight jurors. The statewide one-trial statute provides that the number of peremptory challenges is two for each party. G.L. c. 218, § 19(B)(c).

Rule 48. NUMBER OF JURORS – MAJORITY VERDICT

The parties may stipulate that the jury shall consist of any number less than twelve, or less than six in the District Court, or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

Reporter’s Notes – 2008 The title of Rule 48 has been changed to “Number of Jurors--Majority Verdict” in light of the fact that there are six-person juries in the District Court. The language of Rule 48 has likewise been amended.

Rule 52. FINDINGS BY THE COURT

Rule 52(c) (c) District Court: Effect. In all actions tried upon the facts without a jury, except as otherwise provided in Rule 65.3, the court shall find the facts specially and state separately its conclusions of law thereon, provided that any party submits before the beginning of any closing arguments proposed findings of fact and rulings of law. Upon request made before the beginning of any closing arguments, such party shall have the right to submit supplemental proposed findings of fact and rulings of law within three days. Each proposed finding of fact and ruling of law should be set forth concisely in a separately numbered paragraph covering one subject. Judgment shall be entered pursuant to Rule 58. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)(2).

Reporter’s Notes – 2008 Rule 52 has been amended to require findings of fact and rulings of law in jury-waived cases in the District Court and Boston Municipal Court, but only if a party has submitted, before the beginning of any closing arguments, proposed findings and rulings. This differs from practice in the Superior Court under Rule 52(a), which requires Superior Court judges to make findings and rulings as a matter of course in jury-waived actions, whether or not a party has submitted proposed findings and rulings. Requiring a party to submit proposed findings and rulings as a condition to the court’s making findings and rulings is justified by the volume and nature of the civil caseload in the District Court and Boston Municipal Court. The rule also provides a party with the absolute right to a three-day period in which to submit supplemental proposed findings and rulings, as long as that party, before the beginning of any closing arguments, has filed proposed findings and rulings and has made a request to file supplemental proposed findings and rulings. The proposed findings and rulings and the request to file supplemental proposed findings and rulings may be contained in the same document. The amendments to Rule 52(c) include a general description of the format and content of proposed findings and rulings by a provision that they be set forth concisely and in separately numbered paragraphs covering one subject for each request. In doing so, the rule intends to state a preferred, but not mandatory, format and content for proposed findings and rulings. A judge in the District Court or Boston Municipal Court may make findings and rulings, sua sponte, even where doing so is not required by this rule. Simultaneously with the amendments to Rule 52(c), Rule 64A, Requests for Rulings of Law in District Court, was repealed. The repeal of Rule 64A eliminates the “requests for rulings” procedure that had been in place in the District Court and Boston Municipal Court. Under that procedure, a party could obtain rulings of law from the court by filing requests for rulings of law prior to the beginning of any closing arguments. This prior procedure merely required the court to allow or deny a requested ruling of law, and did not require the court to make its own rulings of law. Under the prior procedure, there was no mechanism for a party to require findings of fact in District Court and Boston Municipal Court jury-waived actions. Under the amended language of Rule 52(c), a party now has the opportunity to require both findings of fact and rulings of law from the trial judge. The repeal of Rule 64A also eliminates the provisions regarding “warrants” requests. These were requests that the evidence warrants a finding for the requesting party or does not warrant a finding for the opposing party. The requirement of findings and rulings under Rule 52(c) applies to all District Court and Boston Municipal Court cases governed by the Massachusetts Rules of Civil Procedure, that is, “cases traditionally considered tort, contract, replevin, or equity actions, except small claims actions.” Rule 81(a)(2). No attempt has been made in the rule or in the Reporter’s Notes to list all of the types of District Court and Boston Municipal Court actions in which findings and rulings are not required. Supplementary process is one example where findings and rulings should not be required, since supplementary process is a statutory proceeding not falling within the ambit of cases that would be “traditionally considered tort, contract, replevin, or equity.” Summary process, however, presents a different example and a different result. Although under the Massachusetts Rules of Civil Procedure, findings and rulings are not required in District Court and Boston Municipal Court summary process actions (because of the language

9 in Rule 81(a)(2)), the application of Rule 1 of the Uniform Summary Process Rules would result in a requirement of findings and rulings in District Court and Boston Municipal Court summary process cases pursuant to the procedure set forth in Rule 52(c). Rule 1 of the Uniform Summary Process Rules adopts the Massachusetts Rules of Civil Procedure, “insofar as the latter are not inconsistent with” the Uniform Summary Process Rules. Thus, Uniform Summary Process Rule 1 would make amended Rule 52(c), with its requirement of findings and rulings in the District Court and Boston Municipal Court upon the filing of proposed findings and rulings, applicable to summary process cases in those courts. It should be noted that in summary process cases in the Superior Court and Housing Court, findings and rulings are required as a matter of course pursuant to Rule 52(a) (made applicable to summary process cases in those courts by virtue of Uniform Summary Process Rule 1).

Rule 55. DEFAULT

Rules 55(b), subparagraphs (3) and (4) (3) The provisions of subparagraph (b)(2) supplement, but do not supersede, any other requirements of notice established by law. (4) Affidavit Required. Notwithstanding the foregoing, no judgment by default shall be entered until the filing of an affidavit made by any competent person, on the affiant's own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in the "Servicemembers Civil Relief Act," as set forth in 50 U.S.C. App. §§ 501 et seq., except upon order of the court in accordance with the Act.

Reporter’s Notes – 2008 Prior to the 2008 amendments, there were different provisions regarding default for the Superior Court and District Court. In the Superior Court, the pre-2008 version of this rule authorized the clerk to enter a judgment by default in “sum certain” cases if the defendant had been defaulted for failure to appear; otherwise, the matter had to be presented to the court (Rule 55(b)(1) and (2)). In the District Court, the pre-2008 version of this rule authorized the clerk to enter a judgment by default in “sum certain” cases, regardless of whether the default had been based on defendant’s failure to appear (Rule 55(b)(3) and (4)). See Reporter’s Notes to the 1996 amendments to the Mass. R. Civ. P. (merging the District Court Rules into the Mass. R. Civ. P.). The 2008 amendments to Rule 55 serve to eliminate the differing default provisions for the Superior Court and the District Court. The amended language adopts for the District Court the Superior Court version of Rule 55. Accordingly, Rule 55(b)(3) and (4), which had contained the District Court version, have been deleted. Also, Rule 55(b)(5) and (6) have been renumbered as Rule 55(b)(3) and (4). In light of the above, the titles to subparagraphs (1) and (2) of Rule 55(b) have been changed to read “(1) By the Clerk” and “(2) By the Court.” In addition, the text of the pre-2008 version of subparagraph (5) – now renumbered as subparagraph (3) – has been amended to delete the reference to (b)(4).

10 Unrelated to the statewide one-trial system, the reference in renumbered Rule 55(b)(4) to the “Soldiers’ and Sailors’ Civil Relief Act” of 1940 has been deleted and replaced with the “Servicemembers Civil Relief Act.” Congress renamed the Act and updated the Act in 2003.

Rule 64A. REQUESTS FOR RULINGS OF LAW IN DISTRICT COURT

[This rule is repealed.]

Reporter’s Notes – 2008 Rule 64A, entitled Requests for Rulings of Law in District Court, was repealed in 2008. For procedure to obtain findings of fact and rulings of law in jury-waived cases in the District Court and Boston Municipal Court, see Rule 52(c), as amended in 2008.

Rule 80. STENOGRAPHIC REPORT OR TRANSCRIPT

Rule 80(c) (c) District Court: Stenographers. The appointment of stenographers in District Court proceedings shall be in accordance with the applicable statute. Whenever the testimony of a witness at a trial or hearing which was officially stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony. Subject to the discretion of the court, parties may be permitted to record stenographically the proceedings in civil actions at their own expense.

Reporter’s Notes – 2008 Rule 80(c), dealing with stenographic reports in the District Court, has been amended in light of the following language in the statewide one-trial law (see G.L. c. 218, § 19B(d)):

(d) The justice presiding at the jury of 6 session may, upon the request of a party, appoint a stenographer; provided, however, that where the party claims indigency, the appointment is determined to be reasonably necessary in accordance with chapter 261; and provided, further, that the court electronic recording system is not available or not properly functioning....The request for the appointment of a stenographer to preserve the testimony at a trial shall be given to the clerk of the court by a party, in writing, no later than 48 hours before the proceeding for which the stenographer has been requested....The original recording of proceedings in a district court or in the Boston municipal court made with a recording device under the exclusive control of the court shall be the official record of the proceedings....

11 Rule 81. APPLICABILITY OF RULES

Rule 81(a)(1) [item 10] 10. proceedings to foreclose any mortgage on real estate brought in compliance with the “Servicemembers Civil Relief Act,” as set forth in 50 U.S.C. App. §§ 501 et seq.

Reporter’s Notes – 2008 Unrelated to the statewide one-trial system, the reference in item 10 of Rule 81(a)(1) is amended to delete the reference to the “Soldiers’ and Sailors’ Civil Relief Act,” which was renamed as the “Servicemembers Civil Relief Act” and updated by Congress in 2003.