Opinion
15-P-602
04-26-2016
ELIAHU MAZIN v. TOWN OF NORWOOD & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, the plaintiff, Eliahu Mazin, appeals from a Superior Court judge's order denying the plaintiff's motion to recuse the judge, and from a judgment dismissing the action as to the defendant police Officers Paul Leear and Thomas Annino. We affirm.
Discussion. 1. Motion to recuse. Mazin's first attempt to appeal the December 26, 2014, order denying his motion to recuse was not properly before this court. However, because his direct appeal also challenges the denial of his motion to recuse, we reach this issue on the merits.
The order denying Mazin's motion to recuse was interlocutory and, as such, the appeal of just that order before the dismissal entered was not properly before this court. See Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 467 (1975).
"The determination of recusal is left to the judge's sound discretion." Avelino-Wright v. Wright, 51 Mass. App. Ct. 1, 8 (2001). Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 546-547 & nn.5-6 (1998). Here, the judge properly consulted his "own emotions and conscience" and determined that he is free of bias or prejudice in the case. Lena v. Commonwealth, 369 Mass. 571, 575 (1976). He also objectively evaluated whether his impartiality might reasonably be questioned and determined that it could not. See Demoulas, supra. Despite Mazin's assertions to the contrary, our review of the record reveals no evidence of the judge's bias or prejudice towards the defendants. We discern no error or abuse of discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. Motion to dismiss. "The allowance or denial of a motion to dismiss for failure to prosecute [under Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974),] is committed to the judge's sound discretion." Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986). See L.L., supra at 185 n.27.
On November 16, 2015, in a thorough twelve-page memorandum and order, the judge properly allowed the remaining defendants' motion to dismiss Mazin's complaint against the remaining defendants pursuant to Mass.R.Civ.P. 41(b)(2). Judgment then entered dismissing the complaint as to the defendant police officers. Mazin had failed to comply with Mass.R.Civ.P. 4(d)(1), 365 Mass. 734 (1974), and with the December 26, 2014, Superior Court order providing that service must occur by February 9, 2015. Mazin's apparent service of the officers in a separate action does not constitute service in this case.
He had not yet served the individual defendants with a summons and complaint, nearly eleven months after the order.
The judge was more than patient with Mazin. The judge considered his status as a self-represented litigant and his indigency. The judge allowed Mazin further additional time for service. On July 7, 2015, the judge also provided him with summons for service on the two defendant police officers, despite the fact that Mazin still had not attempted to serve the defendants within forty-five days following the court's December, 2014, order. Mazin instead served two defendants who had already been dismissed from the case, the Town of Norwood and the Norwood Police Department. Mazin has not shown good cause why he has not served the individual defendants and thus the judge properly allowed the defendants' motion to dismiss. See Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401 (1988). We discern no error or other abuse of discretion. See L.L., 470 Mass. at 185 n.27.; Shuman v. The Stanley Works, 30 Mass. App. Ct. 951, 953 (1991).
The Town of Norwood and the Norwood Police Department had been dismissed from the case, and that dismissal was affirmed on appeal, leaving only Leear and Annino as possible defendants. See note 1, supra.
To the extent that we do not address the plaintiff's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 26, 2016.