Opinion
13-P-244
02-18-2014
BEGASHAW AYELE v. G2 SECURE STAFF, LLC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an employment matter stayed and sent to arbitration after G2 Secure Staff, LLC (G2), moved to compel arbitration and stay proceedings. On September 26, 2012, G2's motion was allowed. Pro se plaintiff, Begashaw Ayele did not file a timely notice of appeal. Instead, on December 11, 2012, Ayele filed a motion for leave to file a late notice of appeal. Ayele's motion was denied on December 14, 2012, without prejudice because Ayele had not complied with the service requirements imposed by Superior Court rule 9A. Ayele did not refile the motion. On January 2, 2013, Ayele filed a notice of appeal. G2 moved to strike. G2's motion was allowed, and the notice of appeal was struck.
While the defendant's motion was pending, Ayele filed a petition with the Single Justice for leave under rule Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), to extend the appeal period. See 13-J-0015. The Single Justice denied Ayele's petition. Ayele then filed a notice of appeal from the Single Justice's decision. Discussion - late notice of appeal and single justice matter. Even if the Superior Court order, entered on February 1, 2013, striking the plaintiff's initial notice of appeal were properly before us, we would nonetheless conclude that the Superior Court judge did not abuse her discretion. We note that the plaintiff's initial notice was filed without leave, after a different Superior Court judge had already denied the plaintiff leave because the plaintiff's motion failed to comply with Superior Court rule 9A, and without benefit of a renewed motion. The plaintiff having failed to file an effective notice of appeal from any Superior Court order, we do not reach his arguments pertaining to those orders.
Massachusetts Rules of Appellate Procedure 14(b) States: 'a single justice for good cause shown may upon motion enlarge the time prescribed by these rules . . .').
We review the Single Justice's January 31, 2013, decision for abuse of discretion. Lawrence Savings Bank v. Garabedian, 49 Mass. App. Ct. 157, 161 (2000). Discretion will be 'deemed abused when 'its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice." Ibid., quoting from Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass. App. Ct. 426, 429 (1986). We discern no such abuse in this case. The Single Justice was not compelled to credit the plaintiff's explanation as to why he did not notice an appeal and the plaintiff did not otherwise demonstrate 'good cause shown.' Mass.R.A.P. 14(b). We also note in passing that the plaintiff's purported Superior Court appeal is at best of doubtful merit. See McInnes v. LPL Fin., LLC, 466 Mass. 256, 260-261 (2013) (Under the Federal Arbitration Act and the Massachusetts Arbitration Act, 'where the parties have executed an arbitration agreement and the agreement is not invalid on legal or equitable grounds, the agreement to arbitrate is enforceable against the parties').
We deny the defendant's motion for appellate attorney's fees and double costs.
Order of the single justice affirmed.
By the Court (Wolohojian, Agnes & Sullivan, JJ.),