Opinion
14-P-692
01-06-2015
WEN Y. CHIANG v. SANDY YEUNG.
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
The only matter before us is the appeal by the plaintiff, Wen Y. Chiang, from the denial of his motion for relief from judgment under Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). A motion for relief from judgment under rule 60(b)(6) asks the judge for an exercise of discretion, and should be allowed only when a circumstance exists that is not covered by rule 60(b)(1)-(5). See Parrell v. Keenan, 389 Mass. 809, 814-815 (1983). The plaintiff's case was not dismissed due to his mistake, inadvertence, surprise, or excusable neglect, and thus this case is not covered by rule 60(b)(1). See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 434 (1979). Other grounds for relief under Mass.R.Civ.P. (2)-(5) are not applicable. A motion for relief under rule 60(b)(6), like the one in this case, "requires compelling or extraordinary circumstances." Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 188 (1990). When such a motion is denied, review at this level is limited to determining whether there has been "a showing of a clear abuse of discretion." Scannell v. Ed. Ferreirinha & Irmao, LDA. 401 Mass. 155, 158 (1987).
The plaintiff's complaint for relief was dismissed without prejudice when he did not appear for a hearing on a motion for judgment on the pleadings filed by the defendant.
The record indicates that the plaintiff's complaint was dismissed and his motion for reconsideration was denied due to his carelessness and inexcusable neglect. See Tai v. Boston, 45 Mass. App. Ct. 220, 222-223 (1998). The plaintiff's complaint was filed in September, 2012. He maintains that he received no correspondence from the court throughout the course of the litigation and only learned of the default shortly before filing his rule 60(b) motion on July 26, 2013. However, the record indicates that the plaintiff was in communication with counsel for the defendant, who filed an answer to the complaint. Moreover, the defendant's motion for judgment on the pleadings was filed pursuant to Rule 9A of the Rules of the Superior Court (2013), and included in the documents filed with the court by the defendant was an opposition from the plaintiff. A party, even a self-represented party such as the plaintiff, has a duty to monitor the progress of a case and inquire into its status. We have examined the allegations set forth in the plaintiff's underlying complaint and, substantially for the reasons given by the defendant in her brief at pages six through eight, they lack merit. For these reasons, the plaintiff has failed to demonstrate compelling circumstances that indicate the judge below abused his discretion in denying the plaintiff's rule 60(b)(6) motion for relief. See Berube, 7 Mass. App. Ct. at 434 (explaining the policy whereby appellate courts show "marked deference" to decisions by trial court judges on motions such as this).
Judgment affirmed.
Order denying motion for relief from judgment affirmed.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 6, 2015.