Opinion
16-P-1359
07-24-2017
Muhammad Khurram I. KHAN v. PAMEDGE, INC., & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brought suit in Superior Court against Georgia corporation Pamedge, Inc., and its president, Faisal Aziz, to recover unpaid wages under the Massachusetts Wage Act. After the defendants failed to answer, a judge entered a default judgment against them. They now appeal from the denial of their motion to vacate the default judgment. We affirm.
Background. The plaintiff filed his complaint on December 10, 2015. On or about December 15, 2015, he mailed the summons and complaint by Federal Express to Pamedge's offices and Aziz's home in Georgia. The package for Pamedge was signed for by someone other than its registered agent for service; the package for Aziz was signed for by an "N. Ahdar," a name similar to that of Aziz's mother.
On January 19, 2016, after the defendants failed to answer or otherwise respond to the complaint, the plaintiff filed a request for default under Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974). A default order entered on February 2, 2016. Two weeks later, the defendants filed a motion to remove the default, arguing, among other things, that they "categorically denie [d] each and every allegation made by" the plaintiff. The motion was set for a hearing on March 10, 2016.
Although the trial court docket reflects that the default entered on January 19, the order itself is dated February 2.
Two days before the hearing, the defendants filed a "Response to Motion to Appear," providing "reasons or grounds for not personally appearing" at the hearing, expressing their belief that they would be accepting the court's jurisdiction by attending the hearing, and stating again that they denied the allegations raised by the plaintiff. The defendants then failed to appear at the March 10 hearing. Nonetheless, the judge allowed Aziz's motion to remove the default, provided that he file an answer or motion to dismiss within twenty days. The judge denied Pamedge's motion solely on the basis that a corporation must appear with counsel.
In the ensuing two months, Aziz failed to comply with the judge's order, and no counsel entered an appearance on Pamedge's behalf. As a result, on May 2, 2016, the plaintiff filed a motion for default judgment under Mass.R.Civ.P. 55(b)(1), as amended, 454 Mass. 1401 (2009), which a second judge allowed the following day. Another month later, on June 1, 2016, the defendants moved to vacate the default judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), arguing that the judgment was void for improper service and that it should be vacated for mistake or excusable neglect. A third judge denied the motion to vacate, finding that "[a]mong other reasons, defendants have not articulated a viable defense." This appeal followed.
Pamedge had obtained Massachusetts counsel by this point. Later, Pamedge successfully moved to admit its managing counsel pro hac vice.
Discussion. Rule 60(b)"provides a limited exception to the finality of a judgment," allowing relief "in a narrow set of circumstances, specified in subdivisions (b)(1) through (b)(6), to accomplish justice." Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012) (quotation omitted). The defendants cite three grounds for their assertion that the third judge should have granted them relief from the default judgment.
First, the defendants contend that the default judgment was void under rule 60(b)(4) because the complaint was improperly served by Federal Express, instead of by postal service, and was not signed by Aziz or Pamedge's registered agent for service. We review the denial of relief under rule 60(b)(4) de novo. See Field v. Massachusetts Gen. Hosp., 393 Mass. 117, 118 (1984).
The defendants' argument is disposed of by Jones v. Boykan, 79 Mass. App. Ct. 464 (2011), which holds that improper service does not render a judgment void under rule 60(b)(4) so long as the defendant "had at all material times adequate notice of the complaint and a meaningful opportunity to be heard in answer to the claims raised." Id. at 469. The defendants do not dispute that they had actual notice of the complaint. In fact, they acknowledged they had notice by denying in their initial papers "each and every" allegation made by the plaintiff. The defendants could also have been "heard in answer" had they appeared at the hearing on their motion to remove the default. Further, despite their failure to appear, the first judge gave Aziz twenty more days to answer or move to dismiss—and no doubt would have given Pamedge the same opportunity had it appeared with counsel—but Aziz failed entirely to comply. Regardless of any deficiencies in service, therefore, the defendants are not entitled to relief under rule 60(b)(4). See Jones, 79 Mass. App. Ct. at 470 ( rule 60 [b][4] inapplicable where defendants had actual notice of action but no "reasonable explanation for neglecting to inquire as to the status of the case until filing an emergency motion in response to the default judgment").
The Supreme Judicial Court reversed Jones on grounds not pertinent to this appeal, specifically noting that our decision concerning the propriety of the default judgment as to the individual defendant, regarding the adequacy of service of process, was "not before [the court] on limited further appellate review." Jones v. Boykan, 464 Mass. 285, 294 n.7 (2013).
Second, the defendants argue that the judge should have vacated the default judgment under rule 60(b)(1) because it was the product of "mistake, inadvertence, surprise, or excusable neglect." A party seeking rule 60(b)(1) relief "must show both a good reason to remove the default [judgment] and also the existence of meritorious claims or defenses." Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002). The motion "is committed to the sound discretion of the trial judge," and the judge's decision "will not be reversed on appeal absent a clear showing of abuse of discretion." Christian Book Distribs., Inc. v. Wallace, 53 Mass. App. Ct. 905, 906 (2001).
We agree with the judge that the defendants did not raise any meritorious defenses; for this reason alone, the judge properly denied relief under rule 60(b)(1). See Clamp-All Corp., 53 Mass. App. Ct. at 806. In addition, the defendants failed to show that their neglect was excusable and "not due simply to [their] own carelessness." Gath v. M/A-Com, Inc., 440 Mass. 482, 497 (2003). "Excusable neglect requires circumstances that are unique or extraordinary[, not] any kind of garden-variety oversight." Johnny's Oil Co., 82 Mass. App. Ct. at 708–709, quoting from Feltch v. General Rental Co., 383 Mass. 603, 613–614 (1981). The defendants have not come close to identifying such circumstances. See Hermanson v. Szafarowicz, 457 Mass. 39, 47–48 (2010) (judge did not abuse discretion in finding no excusable neglect, even where defendant claimed that he was mentally and physically incapacitated when he was served and attorney told him that case had been dismissed).
The contracts attached to the defendants' "Response to Motion to Appear" do not support their argument that the plaintiff agreed to submit his claims to arbitration. The employment agreement in effect when the complaint was filed contains no arbitration clause. While the other contracts do contain arbitration clauses, they concern matters not implicated by the complaint, such as intellectual property rights and confidentiality.
--------
Last, the defendants rely on rule 60(b)(6), the catch-all provision. Rule 60(b)(6) allows for relief only in "extraordinary circumstances" that are "not a possible ground for relief under rule 60(b)(1)-(5)." Bromfield v. Commonwealth, 400 Mass. 254, 256-257 (1987). Accord Owens v. Mukendi, 448 Mass. 66, 71-72 (2006). The defendants cite no grounds apart from their arguments under rule 60(b)(1) and (4) and therefore have no claim to relief under rule 60(b)(6).
Order denying motion to vacate default judgment affirmed.