Opinion
21-P-388
05-10-2022
PAUL NOROIAN & another [1] v. NAIRA MATEVOSYAN. [2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from a default judgment and a permanent injunction entered against her. On appeal, the defendant challenges the entry of that judgment, the award of damages in favor of the plaintiffs, and the denial of her motion to dismiss. We affirm, addressing each of the defendant's claims in turn.
Default judgment.
The defendant first claims that, because she was not properly served with the plaintiff's complaint, the motion judge abused his discretion in entering a default judgment against her. Because the entry of a default judgment is a case management tool left to the sound discretion of the judge, we review it for an abuse of discretion. See Ciamp-All Corp. v. Foresta, 53 Mass.App.Ct. 795, 805 (2002). A judge's decision constitutes an abuse of discretion "where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). A party seeking to vacate a default judgment must show both good cause to vacate and the existence of a meritorious defense. Clamp-All Corp., supra at 806, citing Berube v. McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 430-431 (1979).
The motion judge found that the defendant had been properly served with the plaintiffs' complaint at her last known address and failed to respond, and the defendant has made no showing that the judge's finding was clearly erroneous. Additionally, the judge observed that the defendant was aware of the existence of the complaint, as the defendant filed a motion to dismiss with the court. The defendant then failed to appear for the hearing on both her own motion to dismiss and the plaintiffs' motion for entry of judgment, after e-mailing the court on the morning of the hearing and acknowledging that she was aware it was scheduled.
The defendant has shown neither good cause to vacate the default judgment nor the existence of a meritorious defense. Based on the defendant's knowledge of the complaint against her, her failure to answer the complaint, and her repeated refusal otherwise to engage in the litigation, we discern no abuse of discretion in the motion judge's entry of default judgment.
Motion to dismiss.
We discern no error in the motion judge's denial of the defendant's motion to dismiss, based on a claimed lack of personal jurisdiction over her and the absence of any injury in fact to the plaintiffs. We review the denial of a motion to dismiss de novo, accepting all facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff's favor. See Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). To survive a motion to dismiss, the plaintiff must allege facts that, taken as true, plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
Here, the plaintiffs' complaint alleges that the defendant repeatedly posted defamatory statements and false accusations against them on public websites, e-mailed and harassed their family and coworkers, attempted to tarnish their professional reputations, and harassed them over the course of more than a decade. Taken as true, these facts plausibly suggest an entitlement to relief. Additionally, jurisdiction was proper for the reasons set forth in the motion judge's memorandum and order, which found that the plaintiffs' injuries occurred in the Commonwealth, and that the defendant knowingly directed her actions against residents of the Commonwealth. Accordingly, we discern no error in the motion judge's denial of the defendant's motion to dismiss.
Damages.
There is likewise no merit in the defendant's claim that the award of damages -- following an evidentiary hearing that she refused to attend -- was error because she was entitled to a jury trial on damages.
"There was no error in the judge's refusal to allow a jury to assess damages because a party's right of trial by jury on assessment of damages following a default judgment is available only 'when and as required by statute.' Mass. R. Civ. P. 55 (b) (2). See Mass. R. Civ. P. 39 (a) (2), 365 Mass. 801-802 (1974). Cf. Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974); 6 Moore's Federal Practice par. 55.07, and n.5 (2d ed. 1979) . The former statutory right for such a hearing before a jury was abolished in 1974. See St. 1973, [c] 1114, § 171, and St. 1975, [c] 377, § 87, wherein G. L. c. 231, § 57, was repealed."Silkey v. New England Tel. & Tel. Co., 9 Mass.App.Ct. 816, 816 (1980). The defendant has not directed our attention to any other statute providing for a hearing before a jury in the present case.
The defendant's conclusory assertion that the judge erred in granting a permanent injunction is unsupported by appellate argument, and we accordingly reject it. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019); Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). The remaining arguments in the defendant's brief either were not raised below, are not properly before this court, or similarly lack support by appellate argument. To the extent we have not addressed them, they have not been overlooked; we find nothing in them that requires discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
The plaintiffs have requested an award of the attorney's fees incurred on appeal, as well as double costs. We agree that such an award is appropriate. The plaintiffs shall within fifteen days following this order file with this court and serve on the defendant a motion for determination of the amount of their attorney's fees incurred on appeal, supported by an affidavit detailing such fees, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant may, within fifteen days thereafter, file with this court and serve on the plaintiffs an opposition to the amount of fees so claimed.
Judgment affirmed.
Order entering permanent injunction affirmed.
Green, C.J., Wolohojian & Henry, JJ.
The panelists are listed in order of seniority.
Karine Martirosyan.