Opinion
August 2, 2006.
Present: Forde Desmond, JJ.
Contract, For transcription services.
Practice, Civil, Dist./Mun. Cts. R. A. D. A., Rule 8A; Motion to remove default judgment.
Opinion reversing denial of defendant's motion to remove default judgment. Motion heard by Anderson, J.
Sheldon H. Ganz for the plaintiff.
Barbara C. Johnson, pro se.
The Appellant/Defendant, Barbara C. Johnson ("Johnson"), brought this expedited appeal pursuant to Dist/Mun. Courts R.A.D.A., Rule 8A, challenging the denial of her Motion to Remove Default Judgment. Legalink filed the underlying suit to recover for transcription services rendered at Johnson's request. On June 6, 2005, the defendant failed to appear at a pretrial conference. She was defaulted pursuant to Civil Case Management Joint Standing Order 104. On July 19, 2005, Johnson filed her motion to vacate the default judgment. The motion was denied after a hearing on August 11, 2005.
Considering all of the factors enumerated in Berube v. McKesson Wine and Spirits, 7 Mass. App. Ct. 426, 430-31 (1979), we conclude that the defendant's motion should have been allowed. The record on appeal demonstrates that the appellant's failure to appear on the day that the default judgment entered was not a deliberate flaunting of the process, but was due to illness. The default judgment entered at the pretrial conference stage of the proceedings. The appellee's case, which is not of the type that loses its substance from the passage of time, has suffered no prejudice other than delay. Before the default entered the appellant had pursued a defense vigorously, including filing a counterclaim. Our review of the record also indicates that the appellant's claims may not be utterly lacking in merit.
Based on all of the above we find that reversal is required and that the matter should be restored to the trial list. So ordered.