Opinion
16-P-893
05-16-2017
Laura MELO v. COMPREHENSIVE PSYCHIATRIC ASSOCIATES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the summary judgment on her claims arising from the termination of her employment with the defendant. She also appeals the order denying her motion to set aside the judgment. Because the plaintiff failed to oppose the defendant's summary judgment motion in accordance with Superior Court Rule 9A(b)(5), we affirm.
In response to the defendant's motion, the plaintiff submitted a one-page response that neither specifically controverted any of the facts asserted by the defendant to be undisputed, nor argued why the defendant was not entitled to judgment as a matter of law based on those facts. In allowing the motion, the judge stated that the failure to controvert the defendant's rule 9A(b)(5) statement of facts rendered those facts admitted, and that the "mere assertion that there are multiple issues of material facts is insufficient to defeat a motion for summary judgment." See Rule 9A(b)(5)(ii). It was within the judge's discretion to so rule.
Based on the facts as thus admitted, we review the order allowing the motion for summary judgment de novo. Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804 (2014). "If the moving party, in its pleadings and supporting documentation pursuant to Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002), asserts the absence of any triable issue, the nonmoving party must respond and make specific allegations sufficient to establish a genuine issue of material fact." Ibid. The nonmoving party "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989), citing Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976).
The facts as admitted negated elements of each of the plaintiff's claims by showing that the defendant did not intentionally or negligently make a fraudulent misrepresentation to the plaintiff concerning her continued employment, was not negligent in its dealings with the plaintiff, did not breach an express or implied warranty, and did not violate G. L. c. 93A. Accordingly, summary judgment was appropriate.
The judge acted within her discretion in denying the plaintiff's subsequent motion to set aside the judgment. The motion asserted that, under Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 927-928 (1st Cir. 1983), the judge was obligated, notwithstanding the plaintiff's wholly insufficient summary judgment opposition, to independently review the entire summary judgment record herself in search of disputed material facts. But Rule 9A(b)(5) was adopted precisely to relieve judges from the task of ferreting through summary judgment records in this fashion, and instead to permit them to treat as admitted those facts that the moving party has properly asserted to be undisputed and the nonmoving party has failed to properly controvert. See Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399-401 (2002).
We decline to award appellate attorney's fees.
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Judgment affirmed.
Order denying motion to set aside judgment affirmed.