Opinion
No. 12–P–353.
2013-10-25
Evlyn A. SCHULTZ & another v. Vincent GATELY & another.
By the Court (HANLON, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Evlyn A and Gordon N. Schultz appeal from the dismissal of their case on the day of trial after they informed the court that they were not willing to move forward with the case as scheduled, and declined to proceed if their motion to continue was not allowed. The defendants moved to dismiss, and the judge dismissed the case. We affirm.
Whether the judge's dismissal of the case is viewed in the context of denial of the motion to continue, or dismissal for want of prosecution, the judge's order will be disturbed only “upon a determination that it is so arbitrary, capricious, whimsical or idiosyncratic that it constitutes an abuse of discretion.” Monahan v. Washburn, 400 Mass. 126, 128 (1987). See Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986) (“The allowance or denial of a motion to dismiss for failure to prosecute is committed to the judge's sound discretion”); Mass.R .Civ.P. 41(b)(2), 365 Mass. 803 (1974). The complaint was filed on August 24, 2007. A pretrial conference was held on April 12, 2011, and the case was scheduled for trial on October 24, 2011. In their April 11, 2011, joint pretrial statement, the parties represented they would need three to four days of trial. At a pretrial conference held on October 17, 2011, counsel to the plaintiffs represented that the trial would take four to five half-days. Trial was scheduled for November 30, 2011, but was rescheduled for December 7, 2011, at the request of the plaintiffs' counsel due to a family illness. The judge allocated three full days rather than four to five half-days for the trial.
On December 7, 2011, the plaintiffs declared themselves not ready for trial. Although the basis of the motion to continue focused primarily on the late production of exhibits by both parties, the judge determined that there was no prejudice and gave the parties the balance of the day to review exhibits. The plaintiffs declined to go forward on this basis. The judge warned the plaintiffs that their refusal to go forward would result in dismissal. The judge's decision to hold trial in a four year old case on the day trial was scheduled was not an abuse of discretion. See Anderson v. Sport Lounge, Inc., 27 Mass.App.Ct. 1208, 1209–1210 (1989) (affirming allowance of defendant's motion to dismiss for failure to prosecute where plaintiff failed to move forward with case on first day of trial).
The plaintiffs produced some 100 exhibits to the defendants on the day before trial. The defendants declared themselves ready. The representation to the judge was that the exhibits were comprised primarily of the contracts which were the subject of the action, photographs, and electronic mail.
Judgment affirmed.