Opinion
20-P-1354
03-23-2022
Bharanidharan PADMANABHAN v. Mark G. DAVIS & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
At a hearing on the plaintiff's motion for entry of a default judgment against the two defendants, a Superior Court judge not only removed the defaults but dismissed the plaintiff's verified complaint. On the plaintiff's appeal, we reverse and remand.
Background. The plaintiff, Bharanidharan Padmanabhan, M.D., Ph.D., hired defendant Robert Sweeney to serve process on fifteen defendants in an unrelated case, paying him $800 for the job. Sweeney, in turn, subcontracted the job to defendant Mark G. Davis. After he had not received returns of service, the plaintiff contacted Sweeney, the party with whom he had contracted. Sweeney disclaimed responsibility and directed the plaintiff to deal directly with Davis. According to the verified complaint, Davis claimed to have served process but -- despite repeated requests by the plaintiff -- never provided returns of service. When pressed by the plaintiff or his counsel, Davis either stated that he already had mailed the returns of service, or simply refused to respond.
This prompted the plaintiff to file the current action against both Sweeney and Davis, sounding in contract and G. L. c. 93A. The plaintiff sought injunctive relief (principally the promised returns of service), and attorney's fees. Both Sweeney and Davis defaulted by not providing timely answers. The plaintiff moved for entry of a default judgment, and a hearing on that motion was held before a Superior Court judge (first judge) on September 20, 2016. The plaintiff and Sweeney appeared, both representing themselves, but Davis did not. The plaintiff made it clear that he was seeking only equitable relief, principally, the promised returns of service or at least an explanation of what happened. The first judge expressed his skepticism that Davis ever made, or even attempted, service in the underlying case. Stating that "[s]omehow this has to be gotten to the bottom to," the first judge directed that the parties come back to another hearing in two weeks.
Sweeney meanwhile sought to file a late answer, and eventually filed a motion to remove the default.
The first judge appears to have considered it telling that no motion allowing Davis to serve as a special process server ever had been filed.
The new hearing was held on October 5, 2016, but before a different judge (second judge). Sweeney appeared, this time with counsel, and the plaintiff and Davis appeared pro se. The transcript of the hearing reveals that the plaintiff was requesting entry of a default judgment in a particular form that included six parts apparently detailed in a draft that was provided to the second judge. That draft is not included in the record appendix, and we therefore do not know the details of the plaintiff's request. What is before us suggests that, in part, the plaintiff was seeking to require that Davis provide sworn testimony in court to explain what had happened with service. In any event, Sweeney's counsel argued that the court had no authority to grant the specific relief set forth in the draft default judgment, an argument with which the second judge agreed.
Despite the fact that the scheduled hearing was on the plaintiff's motion for a default judgment, Sweeney's counsel orally requested that the case be dismissed. The judge sua sponte asked Davis if he also wanted the case dismissed, and, unsurprisingly, Davis answered in the affirmative. After the judge stated that she was going to vacate the defaults and dismiss the case, Sweeney's counsel offered for the record a basis for her doing so, namely that "it appears that the plaintiff is seeking forms of relief that the Court is not authorized to afford the plaintiff." The judge expressly endorsed that statement as "the grounds on which [she was] dismissing the case." The plaintiff then filed a motion for reconsideration, which the second judge summarily denied.
Discussion. We begin by noting that, properly viewed, the second judge took various discrete actions here. First, she denied the plaintiff's motion for entry of a default judgment. Second, she vacated the defaults that had entered against both defendants. Third, she dismissed the plaintiff's verified complaint. We address these actions in order.
This ruling does not appear on the docket, but it is implicit in her other actions.
Especially in light of the fact that the form of the specific default judgment that the plaintiff had requested be entered is not before us, we cannot reasonably say that the second judge abused her discretion in denying the plaintiff's motion to enter that judgment. Whether the judge abused her discretion in vacating the defaults presents a closer question, especially where it is not clear that either defendant provided an adequate explanation for his tardiness in answering. See Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 707-708 (2012) (under Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974), defendant seeking to remove default must show "good cause," which "requires a showing by affidavit that the defendant had a good reason for failing to plead or defend in a timely manner and had meritorious defenses"). However, a judge has substantial discretion in deciding whether to remove a default, and the plaintiff has not specifically challenged the defendants’ compliance with the procedural requirements of Mass. R. Civ. P. 55 (c). We conclude that the plaintiff has not shown an abuse of discretion here.
The allowance of the defendants’ oral motions to dismiss presents a different sort of issue altogether. For one thing, the second judge's entertaining oral motions to dismiss at a hearing on the plaintiff's motion for a default judgment presents at least the potential for unfair surprise. Cf. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616 n.10 (1980) (reversible error to consolidate hearing on preliminary injunction with trial on merits absent "clear and unambiguous notice"). We have substantive concerns as well. In evaluating a motion to dismiss, the judge was required to accept, as true, the allegations of the plaintiff's verified complaint. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Those allegations plainly stated claims that both defendants violated their contractual obligations. The verified complaint specifically alleged that Davis made service (as Davis himself maintained) but refused to provide the corresponding returns of service. It also requested injunctive relief that was well within the court's authority that fit the violation (an order requiring the defendants to deliver the returns of service they had agreed to provide).
To be sure, various oral statements made at the two hearings emit of some uncertainty with regard to key factual issues, such as whether Davis ever served or even attempted to serve the relevant court papers. That uncertainty potentially affects the precise nature of the violations that the plaintiff could prove and the related issue of what relief would be appropriate to remedy that violation. Such uncertainty stems from the plaintiff's inability to get to the bottom of what happened, despite his diligent efforts. Moreover, such uncertainty potentially could be resolved in discovery (during which the plaintiff could pursue his desire to have Davis provide sworn testimony about what happened). In the interim, where the plaintiff had pleaded viable claims against both Sweeney and Davis, it was premature for the second judge to conclude that, as a matter of law, no appropriate injunctive or declaratory relief was within the authority of the court to provide.
Lest today's ruling be misconstrued, we add two additional comments. First, our reasoning should not be read as necessarily endorsing the specific relief that the plaintiff may be seeking. We note, for example, that to the extent that the plaintiff is seeking to compel the defendants to provide their other clients with a particular notification (as his appellate brief suggests), his standing to do so has not been established.
Second, we note that the litigation at issue here is now over six years old, raising the possibility that at least some aspects of this controversy have become moot in the interim. We do not address those issues today.
For example, to the extent that the plaintiff was seeking to document neglect by process servers in an effort to excuse tardiness in his serving defendants in the underlying action, see G. L. c. 260, § 32, intervening events may well have rendered that interest moot.
For the reasons set forth above, we vacate the judgment of dismissal and remand the case for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded