Opinion
14-P-300
12-23-2014
SONIA GARABEDIAN v. DONALD SCHOMER & others.
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 defendants provided medical care to Sonia Garabedian (plaintiff) from 2006 to 2008. The plaintiff sued the defendants after an alleged misdiagnosis for a neurological disorder, but the case was dismissed under Standing Order 1-88 for failure complete service. The plaintiff appeals from an order denying her "motion to vacate judgment of dismissal" pursuant to Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974). We affirm.
The plaintiff also appealed pursuant to rule 60(b)(6), but could not properly invoke that rule because a motion under that subsection is only appropriate when based on a reason other than those stated in rules 60(b)(1)-(5). See Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 228 (1979).
Discussion. The plaintiff argues that the Superior Court judge abused his discretion when he denied the motion to vacate dismissal. We disagree. "The exercise of the power to grant relief from a judgment rests within the sound discretion of the judge . . . ." Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). We will not reverse except on a showing of clear abuse of discretion. See McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 612 (2002); Tai v. Boston, 45 Mass. App. Ct. 220, 222 (1998). In reviewing a rule 60(b) decision, we consider, among other things, the factors laid out in Berube. The judge was well within his discretion to deny the plaintiff's motion.
These factors include: "(1)whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself." Tai, 45 Mass. App. Ct. at 224. Even though some of the Berube factors may provide limited support for the plaintiff's argument, there is not clear abuse of discretion here. See Scannell v. Ed. Ferreirnha & Irmao, Lda., 401 Mass. 155, 159-160 (1987).
The plaintiff specifically argues that relief should be granted for excusable neglect and that the error is chargeable to her legal representative, not to her. First, we conclude that the plaintiff failed to meet her burden of demonstrating that the "neglect was excusable" Tai, supra at 223. "Excusable neglect, at least in theory is something other than, 'Oops, I forgot,'" and is not meant to apply to garden variety oversight. Id. at 222. Not only did the plaintiff not file the "motion to vacate judgment of dismissal" until nearly one year after the dismissal, but counsel made no discovery requests and no contact with the defendants during that time. The plaintiff's counsel claimed he was not aware of the dismissal, even though evidence tends to show that he was notified of such by the court and the defendants. The plaintiff's counsel stated in an affidavit that he "had no record or memory" of receiving the court's judgment of dismissal and did not learn of the judgment until November, 2013. This is insufficient to overcome the plaintiff's burden. Second, we apply the general rule that "litigants are properly bound by the conduct of their attorneys." Tibbits v. Wisniewksi, 27 Mass. App. Ct. 729, 733 (1989). "While we have expressed reluctance about applying this principle categorically, we think it apt to do so when the lapse of time after judgment has been so long." Ibid. (citations omitted). If, after all this time, we decline to bind the plaintiff to counsel's neglect, we would be subverting the objective of finality written into rule 60(b). See ibid.
On December 17, 2012, the notice of dismissal was mailed to the plaintiff's attorney. On January 9, 2013, counsel for Wasserman sent a letter to the plaintiff's attorney and explained that Wasserman was not filing an answer because the case had been dismissed. This letter is included in the plaintiff's exhibits. He did not explain or refer to it.
The plaintiff also argues that the judge did not issue findings or reasoning to deny the motion other than a reference to "the reasons well articulated in the Defendant's opposition memorandum" and did not indicate that he considered the Berube analysis. Such findings and reasoning are not required. "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)(2)." Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). Even when the judge largely adopts the submission of counsel, we carefully scrutinize the record, but do not change the standard of review. See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451 (1991).
Even if the judge made no written findings of fact, Alaimo v. Fredette, 4 Mass. App. Ct. 866 (1976), we can infer that he found that the plaintiff did not demonstrate that delay was due to excusable neglect. See Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass.at 228.
This case is similar to McIsaac v. Cedergren, 54 Mass. App. Ct. at 612, where the plaintiff filed the complaint one day before the statute of limitations expired, more than four years after the incident at issue. It was dismissed for failure to serve the complaint in a timely manner pursuant to Standing Order 1-88. See id. at 607-608. The plaintiff filed a motion to vacate the dismissal on the ground of excusable neglect pursuant to rule 60(b)(1). Id. at 608. The court gave marked deference to the trial judge and noted, as we similarly conclude, that the judge was entitled to consider the disruptive effects to the judicial system caused by counsel's failure to serve the complaint and waiting to file the rule 60(b) motion until immediately prior to the deadline. See id. at 610. "Motions made under rule 60(b)(1)-(5) must be made within a reasonable time, not to exceed one year," Gath v. M/A-Com, Inc., 440 Mass. 482, 497 (2003), and "[t]he question of reasonable time, unlike the absolute one-year bar, is addressed solely to the judge's discretion." Ibid. (citations omitted). Here, the judge could have properly concluded that the approximately eleven month wait was unreasonable.
Finally, the plaintiff argues that the defendants will suffer no prejudice if the dismissal is vacated. We disagree and conclude that, as Wasserman argued in his opposition, the prejudice that would arise here is similar to that in Kennedy v. Beth Israel Deaconess Med. Center, Inc., 73 Mass. App. Ct. 459, 468 (2009). There, the plaintiff served the defendants approximately eighteen months after the statute of limitations expired and five and one-half years after treatment ceased. See id. at 468. Here, the plaintiff seeks to reopen the case approximately fourteen months past the expiration of the applicable statute of limitations. This court concluded in Kennedy that it could not "minimize the prejudice following from the passage of time . . . [t]he matter is stale, witnesses may be unavailable, memories faded and evidence may be lost, all policy reasons for the statute of limitations." Ibid. We agree.
The plaintiff claims she discovered her misdiagnosis on or around October 19, 2009, and that she served the defendants with her "motion to vacate judgment of dismissal" on December 13, 2013. For defendant Wasserman, the "motion to vacate judgment of dismissal" was served slightly over seven years after treatment ceased, a time outside of the statute of repose, G. L. c. 260, § 4.
Order denying motion to vacate judgment affirmed.
By the Court (Graham, Katzmann & Meade, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 23, 2014.