Opinion
10-P-1420
12-20-2011
JAY PATRICK MELLEN v. SAFETY INSURANCE COMPANY & 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
This is a pro se appeal from an order dismissing the plaintiff's merits-based appeal. The plaintiff generally alleges that he was involved in a car crash with one of the individual defendants. That individual was insured through Safety Insurance Company (Safety). Safety later brought a subrogation claim against the plaintiff. That claim eventually was dismissed in the Boston Municipal Court Department because the plaintiff's insurer, Travelers Insurance Company, was part of the same 'insurance family.' No appeal was taken.
Almost immediately upon dismissal of Safety's subrogation action, the plaintiff filed in the Superior Court the present action against Safety and the two individual defendants, claiming, among other things, that the defendants violated G. L. c. 93A, and his civil rights by filing a baseless civil case against him while he was out of the Commonwealth and unable to answer the complaint. A judge dismissed the plaintiff's claims on the defendants' motions pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). Judgment entered on October 7, 2009. The plaintiff hand-delivered to the court his notice of appeal on Tuesday, November 10, four days late (thirty days from entry of judgment was Friday, November 6). On motion, a second judge struck the plaintiff's notice and dismissed his appeal. On appeal, the plaintiff argues that the three-day notice extension provided by Mass.R.A.P. 14(c), 365 Mass. 859 (1974), renders his notice timely. We find no merit in the claim and, accordingly, affirm, substantially for the reasons set forth in the judge's memorandum of decision and order.
A timely notice of appeal is jurisdictional. Pierce v. Board of Appeals of Carver, 369 Mass. 804, 811 (1976). The plaintiff neither filed his notice of appeal within thirty days of the date of the entry of judgment, nor sought leave to file late. Moreover, the second judge specifically found that the plaintiff's failure to timely file the notice of appeal was, in any case, not the result of excusable neglect.
'The plaintiff, an experienced litigator, has not offered any argument or evidence that his untimeliness is attributable to excusable neglect. . . . Tai v. City of Boston, 45 Mass. App. Ct. 220, 222 (1998) (excusable neglect is something other than 'oops, I forgot').'
Finally, we reject the plaintiff's unsupported claim that the three-day extension provided by rule 14(c) renders his notice timely. First, the plaintiff's notice of appeal was four days late. And second, rule 14(c) applies in those cases where a party is required to act within a prescribed period 'after service of a paper upon him.' Here, as the second judge noted, although the plaintiff was mailed notice of the judgment pursuant to Mass.R.Civ.P. 77(d), as amended, 454 Mass. 1404 (2009), the court's act of mailing the notice does not constitute serving a paper upon a party for the purpose of rule 14(c).
Order dismissing appeal affirmed.
By the Court (Rapoza, C.J., Mills & Graham, JJ.),