Opinion
No. 11–P–1333.
2012-07-20
Richard ASADOORIAN v. Dax B. GRANTHAM.
By the Court (CYPHER, GREEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 23, 2009, plaintiff Richard Asadoorian filed the underlying action against defendant Dax B. Grantham for breach of a settlement agreement and promissory note pursuant to G.L. c. 93A. On September 13, 2010, the Superior Court judge allowed the defendant's application for final judgment of dismissal pursuant to Mass.R.Civ.P. 33( a )( 4 ), as appearing in 436 Mass. 1401 (2002), based on the plaintiff's failure to respond to interrogatories, and judgment was entered for the defendant. On September 15, 2010, the judge denied the plaintiff's request for a hearing on the plaintiff's own motion to compel discovery. The plaintiff at the time of the failure to respond to interrogatories was incarcerated at MCI Norfolk.
The plaintiff appeals the judgment pro se, arguing that the judge abused his discretion (1) in allowing the defendant's application for final judgment, and (2) in denying the plaintiff a hearing on his motion to compel discovery. We affirm the judgment.
Discussion. As an initial matter, on the record before us it appears that the plaintiff's appeal was not timely, as judgment was entered on September 13, 2010, and the notice of appeal was filed on October 20, 2010. See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1990) (in a civil case, a notice of appeal must be filed “within thirty days of the date of the entry of the judgment appealed from”).
However, even if the appeal were timely in this case, the plaintiff's claims would not succeed. “The entry or removal of a default judgment ... ‘has to do with the management of the case and, as such, is committed to the sound discretion of the [lower court] judge.’ “ Clamp–All Corp. v. Foresta, 53 Mass.App.Ct. 795, 805 (2002), quoting from Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429 (1986). Such discretion is only abused if “its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice.” Clamp–All Corp. v. Foresta, supra, quoting from Greenleaf v. Massachusetts Bay Transp. Authy ., supra.
“While a default is an extreme sanction ... rule 33(a) ... is explicit that ... a disregard of the proper procedures ‘shall’ result in a default.” Kenney v. Rust, 17 Mass.App.Ct. 699, 703–704 (1984). Furthermore, “Mass.R.Civ.P. 55(c) requires that ‘good cause’ be shown before a party may be relieved of the default.” Id. at 704.
We conclude that it was within the discretion of the motion judge to find that the plaintiff's partial response of May 24, 2010, to the interrogatories did not relieve him of his procedural obligations. The defendant's letter and affidavit of May 24, while listing some understandable reasons for the delay, did not constitute a demonstration of an inability to comply that would preclude the sanction of default judgment. See Partlow v. Hertz Corp., 370 Mass. 787, 790 (1976). While the plaintiff's letter indicated that his papers were “displaced and strewn about” as a result of his transfer to a new housing facility, and that he had limited access to those papers, the judge was within his discretion to find that these circumstances still did not justify the plaintiff's lengthy delay in responding to the interrogatories. The May 24 letter was sent over ninety days after the plaintiff had been served with the interrogatories on February 9, 2010, and the plaintiff made no additional response before the default judgment entered on September 13, 2010. Furthermore, the partial response of May 24 contained none of the information requested in the interrogatories, and thus did not indicate “efforts at compliance” that might justify the delay and render default judgment improper. Compare Bob Berman Assocs., Inc. v. Gross, 15 Mass.App.Ct. 1000 (1983).
With respect to the plaintiff's second argument, the decision whether to hold a hearing on the defendant's motion to compel discovery was likewise a matter of discretion for the judge, see F .W. Webb Co. v. Avrett, 422 Mass. 625, 627–628 (1996), and the record does not show that the judge abused his discretion in denying the hearing.
The defendant has requested appellate attorney's fees and costs. In the exercise of our discretion, we deny the request.
Judgment affirmed.