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Fighting a motion to vacate dismissal in MA

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I’m the defendant in a case that was dismissed, and the plaintiff is now seeking to have the dismissal vacated. I’d appreciate any advice. I do realize that if it’s not vacated, they could simply file a new complaint, but I have reasons to prefer that. The plaintiff is American Express, and I’ve redacted some specific information below that I’m not comfortable posting. Here’s the sequence of events:


Received, and answered complaint in June 2015.


Court processed the answer in early July 2015, and immediately set a case management conference date, which was in early September.


In August I received a set of interrogatories. I didn’t answer them, as I wanted to wait until after the case management conference, which was to be 2+ weeks prior to the due date for the answers.


I went to the case management conference, however nobody representing the plaintiff showed up, and the Judge dismissed the case.


In October I received a final request for answers to the interrogatories. I thought at the time that they must know about the dismissal, and that they had made some mistake in sending this. It actually did have a mistake on it, as it referred to an entirely different case number(I think from another state), so this contributed to my belief that the final request had been sent as a result of a clerical error.


In early January I received a motion for final judgement, scheduling a hearing in the beginning of February. This is when I realized that they actually don’t know that the case was already dismissed. This seems odd, as I know now that in MA District Court Joint Standing Order 1-04(quoted in the next paragraph), a case management conference is scheduled for no later than 4 months after the answer to a complaint is filed. Though looking at other case dockets online, this doesn’t appear to always be true, so I’m not certain what circumstances cause the case management conference to be scheduled.


Upon the filing of an answer by any defendant, the court shall immediately give notice to all parties in the action of a Case Management Conference pursuant to Mass. R. Civ. P. 16 to be held on a date certain within four months of the date of filing of such answer, or sooner if directed by the court or jointly requested by all parties. Such notice shall inform the parties of the purposes of the conference and the desirability of addressing any discovery issues prior to the conference. Counsel or pro se litigants shall appear in person at the Case Management Conference. The court may impose sanctions, including dismissal, default and assessment of costs, for failure to attend the conference without good cause.” - http://www.mass.gov/courts/case-legal-res/rules-of-court/district-muni/standing-orders/dist1-04.html


So, I showed up to the hearing for the motion for final judgement, and the plaintiff’s counsel(who I’m not sure is actually part of the law practice that is representing the plaintiff) saw me outside the courtroom, introduced himself, and started asking why hadn’t I sent answers to the interrogatories, and if I wanted to answer them now. I told him that I’d sent no answers, as the case had already been dismissed. He acted very surprised(I later thought it might be feigned surprise, but I don’t know what they would have to gain at that point by showing up for the pointless motion hearing), and rhetorically asked how that could’ve happened. He then asked if I remembered showing up for a court date(he may have specially mentioned a case management conference, I don’t recall), and no one being there for the plaintiff. I told him that’s what happened. He then said what they would do later was to file a motion asking the court for forgiveness for the oversight, and to vacate the verdict. We went into the courtroom, and he asked me to wait for a moment while he spoke privately to the clerk, which I thought was odd, but I did so. Then he called me over and the clerk asked something like if I agreed that the case had been dismissed, and that the hearing didn’t need to be held. I said yes.


Last week I received a motion to vacate the dismissal:




Now comes the Plaintiff, by and through its attorneys, ***, and hereby move the Court to vacate the dismissal. In support of this motion Plaintiff states the following:

1. Plaintiff filed a complaint in May of 2015.


2. Defendant was served the Complaint on June ***, 2015.


3. On or about September ***, 2015, the Court entered Judgement of Dismissal for failure to appear for a Case Management Conference. Defendant also failed to appear.


4. Plaintiff’s counsel did not receive a notice of the case management conference, and was unaware of the court date and the dismissal.


5. Plaintiff is unaware of any prejudice caused to the Defendant by granting this motion. Defendant failed to appear at the Case Management Conference as well.


6. Plaintiff requests the dismissal be vacated.






Rule 60(b) provides for relief from orders or final judgements upon such terms as are just. Rule 60(b)(1) provides : “The Court may relieve a party or his legal representation from a final judgement, order, or proceeding for the following reason: (1) mistake, inadvertence, surprise, or excusable; . . . or (6) any other reason justifying relief from the operation of the judgement.” “Although general factors have been identified for Courts to consider on Rule 60(b)(1) motions the inquiry is fact intensive and case specific.” McIsaac v. Cedergren, 54 Mass.App.ct 607, 609 (2002).

The general factors to be considered are:


(1) whether the offending party has acted promptly after entry of judgement to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to other party; (6) whether the error is chargeable to the party’s legal representative, rather than to the  party himself.


Berube v McKesson Wine & Spirits Co., 7 Mass.App.Ct. 426, 430-431, 388 N.E.2d 309 (1979).


WHEREFORE Plaintiff respectfully requests that the court:

a. vacate the dismissal; and

b. grant such relief it deems just.


Respectfully Submitted,



Their motion claims that I also failed to appear at the case management conference, which isn’t true. Unfortunately, looking at the docket online, although the dismissal entry says ”Judgement of Dismissal  , after plaintiff(s) failed to appear”(the Judgement of Dismissal notice I received in the mail says the same), the entry on the docket for the Case Management Conference says “Result: All Parties Failed to Appear, Event Not Held”. I’ve looked at other dockets online from that court, I’ve seen cases where when nobody(presumably) showed up to the conference, the case was dismissed, but the docket says ”Judgement of Dismissal  , after both parties failed to appear”. I went to the clerk’s office a few days ago to see if they could correct it, but there is no physical docket for the case, so the docket in the computer is all there is. I spoke to a clerk, and they thought the fact that the judgement itself says only that the plaintiff didn’t appear would likely be believed over the other docket entry.


I do feel that I would be prejudiced against by the plaintiff getting the dismissal vacated, as I feel that they are trying to choose their own timetable for the case, rather than what’s prescribed by rules of the court.


Does it really seem reasonable that the plaintiff’s counsel could have not received either the case management conference notice, or the judgement notice?


Should I file an opposition to their motion, or simply show up at the hearing?


How could I fight against this? Should I nitpick the idea that they didn’t know about the case management conference and dismissal by pointing out that the court’s calendar is public; that the court automatically schedules case management conferences when a complaint is answered; that the case management conference would always have been scheduled prior to when they claim to have still not known the case was dismissed; Will this get me anything, or because it’s the plaintiff’s attorney who should have kept track of the case, rather than the plaintiff, will it be forgiven? Should I say that they haven’t acted promptly after the dismissal?


It seems like their main point is that I also didn’t appear at the conference. Assuming I could show that I did appear, should they be giving some explanation for how they received no notice of the conference or the dismissal?


Also, if the dismissal is vacated, should I expect the plaintiff’s original set of interrogatories be back in effect, with the same number of days remaining to answer them as there was when the dismissal happened?


Thanks for any input.

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20 minutes ago, MApear said:

Assuming I could show that I did appear, should they be giving some explanation for how they received no notice of the conference or the dismissal?

Object based on you DID attend the conference.  Put all your brain power into it and accurately describe the sequence of events for the day and clearly state you are not clear why the court did not document your appearance.  Object based on the fact that Plaintiff is an officer of the court and responsible for ensuring they are aware of and attend all scheduled court dates when they file suit.  Their failure to appear and keep track of their cases unfairly prejudiced you from defending their suit and they should not be given special consideration by the court after all this time for their error.

Also object based on the rules of civil procedure and again as a licensed attorney his failure to do his job according to those rule should not adversely affect you.

I might even pay a consumer attorney a few hundred bucks to draft the objection for me so that it REALLY sticks.

23 minutes ago, MApear said:

Also, if the dismissal is vacated, should I expect the plaintiff’s original set of interrogatories be back in effect, with the same number of days remaining to answer them as there was when the dismissal happened?


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2 hours ago, MApear said:

dismissal entry says ”Judgement of Dismissal  , after plaintiff(s) failed to appear”(the Judgement of Dismissal notice I received in the mail says the same),

This is the one the Plaintiff says you also didn't attend? There's your proof in your favor.


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Attorney is an officer of the court, and no doubt would be aware of the rule that the conference would be so quickly set by the court.  Having not heard anything from the court within that 4 month time, if they are telling the truth, they would have then been responsible for checking with the court themselves to see the status.  But they did not show up, and they apparently did not check into it at all either.  The court rule you quoted says that the conference shall be scheduled within 4 months of the answer being filed.  Four months after you filed your answer would have been November.  If they had checked by November, as an officer of the court is obligated to do if he had not heard anything, they would have known the disposition of the case.  When they acted like they did not know it was dismissed, they very well might not have known.  Something else that's strange is that the court would allow a motion for final judgment to be scheduled in a case that the court already dismissed.  That makes no sense.  If you did not show up at that hearing in February, then the court could conceivably have dismissed the case, and then turned around and granted their MSJ....in the same case.  Both parties would have won....that's strange.  As someone mentioned, it's their job to keep up with the court and the status of their case.  It's not your job to do it for them. 


I've seen case law in other states where the court ruled that the attorney should have known better and had every opportunity and even obligation to keep informed of the docket, so that even if notice was truly not received, they would still be informed of the conference date.  You might look to see if you can find something similar in your state's case law.

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