NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-478
BRIAN SMITH & another 1
vs.
MARGARET BRUZELIUS & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court judge allowed the defendants' motions to
dismiss the plaintiffs' complaints. After the deadline for
filing notices of appeal lapsed, the plaintiffs filed motions
with a single justice of this court seeking leave to file late
notices of appeal. The single justice denied relief and denied
a motion for reconsideration, and this appeal followed. We
affirm the decision of the single justice.
Background. We summarize the pertinent procedural
background. Margaret and Brian Smith, the plaintiffs, filed in
the Superior Court three separate complaints. Each complaint
arose out of the same set of events that followed Margaret
1 Margaret Anne Smith. 2 Donna Lisker, Mary Harrington, Beth Powell, Kathleen McCartney, Kristin Hughes, Paul Lannon, Holland Knight, LLP, and Smith College. Smith's efforts to drop a class while attending Smith College.
A Superior Court judge denied the plaintiffs' motion to
consolidate and dismissed the complaints on November 19, 2021,
in a single order applicable to all three actions. The
plaintiffs did not file notices of appeal regarding those
decisions.
After the thirty-day deadline for filing a notice of appeal
expired under Mass. R. A. P. 4 (a) (1), as appearing in 481
Mass. 1606 (2019), the plaintiffs filed several motions in the
single justice session of this court. On February 18, 2022,
Brian Smith filed a sixty-five page motion (with attachments) to
"Extend Deadline to File Notice of Appeal." On March 8, 2022,
Brian Smith and Margaret Smith filed a fifteen-page motion (with
attachments) to "Restore Right to File a Notice of Motion After
Appeals to Restore Rights to File Reconsideration Motions
Obstructed by Error." On that same date, Brian Smith filed a
sixty-five page "revised" motion to "Extend Deadline to File
Notice of Appeal." All three motions sought to preserve, or
resurrect, the plaintiffs' appellate rights relative to their
complaints that were dismissed in the Superior Court.
On March 15, 2022, the single justice denied relief after
concluding that the plaintiffs did not establish the requisite
excusable neglect for failing to file notices of appeal and did
not demonstrate a meritorious appellate issue. The plaintiffs
2 did not file a notice of appeal regarding that decision.
Instead, on March 25, 2022, the plaintiffs filed a "Motion for
Leave to File a Late Reconsideration Motions and Related
Relief," citing Mass. R. A. P. 14 (b), as appearing in 481 Mass.
1626 (2019). In that motion, the plaintiffs acknowledged that
their "prior filing was deficient with respect to citing law or
explaining on what authority" they were proceeding. Through
this new filing, they sought to establish excusable neglect for
failing to file notices of appeal in the Superior Court, and
they also sought to establish a meritorious appellate issue with
respect to the dismissals. On March 31, 2022, the single
justice treated the March 25 motion as a motion for
reconsideration of his March 15 decision and denied relief. The
plaintiffs filed a notice of appeal from this decision on May 2,
2022.
Discussion. An appeal "shall be taken by filing a notice
of appeal with the clerk of the lower court." Mass. R. A. P. 3
(a), as appearing in 481 Mass. 1603 (2019). In a civil case
involving private parties, the notice "shall be filed with the
clerk of the lower court within 30 days of the date of the entry
of the judgment, decree, appealable order, or adjudication
appealed from." Mass. R. A. P. 4 (a) (1). A single justice of
an appellate court may enlarge the time for filing a notice of
appeal "for good cause shown." Mass. R. A. P. 14 (b). Good
3 cause requires (1) excusable neglect and (2) a meritorious
appellate issue. Bernard v. United Brands Co., 27 Mass. App.
Ct. 415, 418 n.8 (1989), citing Mass. R. A. P. 4 (c), as
amended, 378 Mass. 928 (1979). Excusable neglect contemplates
"emergency situations only" (citation omitted). Pierce v.
Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 717 (2019). We
review the single justice's decision "for errors of law and, if
none appear, for abuse of discretion." Troy Indus., Inc. v.
Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010). "[T]he
burden of showing an abuse of discretion is a difficult one to
carry." Id.
On appeal, the plaintiffs raise three primary issues and
pose numerous subsidiary questions relative to actions taken in
the trial court, but those wide-ranging, fact-intensive matters
are not responsive to the discrete issue presented in this
appeal. To be clear, the only matter before this court is the
single justice decision that entered on March 31, 2022. In
denying the plaintiffs' motion, the single justice treated the
matter as a motion for reconsideration of his earlier decision
on March 15, 2022. We discern no error of law or abuse of
discretion relative to the single justice's denial of the motion
for reconsideration.
The single justice denied the plaintiffs' motions seeking
to preserve or resurrect their appellate rights because the
4 plaintiffs did not establish excusable neglect for failing to
file notices of appeal and did not demonstrate a meritorious
appellate issue. In response, the plaintiffs took this denial
as an invitation to write a better motion that addressed the
deficiencies pointed out by the single justice. In fact, in the
motion seeking reconsideration, the plaintiffs agreed that their
"prior filing was deficient" and sought to remedy the
deficiency. A motion for reconsideration, however, is more than
just taking a "second bite at the apple" following a judge's
decision that points out deficiencies in the original
presentation. Liberty Square Dev. Trust v. Worcester, 441 Mass.
605, 611 (2004). Rather, a motion for reconsideration should
specify either changed circumstances (such as newly discovered
evidence or a development of relevant law), or a particular and
demonstrable error in the original decision. Audubon Hill S.
Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc.,
82 Mass. App. Ct. 461, 470 (2012). Also, when new information
is offered following a judicial decision, as here with the
single justice, a party should show some good reason for its
failure to submit the information to the judge earlier. Cf.
Mass. R. Civ. P.
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NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-478
BRIAN SMITH & another 1
vs.
MARGARET BRUZELIUS & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court judge allowed the defendants' motions to
dismiss the plaintiffs' complaints. After the deadline for
filing notices of appeal lapsed, the plaintiffs filed motions
with a single justice of this court seeking leave to file late
notices of appeal. The single justice denied relief and denied
a motion for reconsideration, and this appeal followed. We
affirm the decision of the single justice.
Background. We summarize the pertinent procedural
background. Margaret and Brian Smith, the plaintiffs, filed in
the Superior Court three separate complaints. Each complaint
arose out of the same set of events that followed Margaret
1 Margaret Anne Smith. 2 Donna Lisker, Mary Harrington, Beth Powell, Kathleen McCartney, Kristin Hughes, Paul Lannon, Holland Knight, LLP, and Smith College. Smith's efforts to drop a class while attending Smith College.
A Superior Court judge denied the plaintiffs' motion to
consolidate and dismissed the complaints on November 19, 2021,
in a single order applicable to all three actions. The
plaintiffs did not file notices of appeal regarding those
decisions.
After the thirty-day deadline for filing a notice of appeal
expired under Mass. R. A. P. 4 (a) (1), as appearing in 481
Mass. 1606 (2019), the plaintiffs filed several motions in the
single justice session of this court. On February 18, 2022,
Brian Smith filed a sixty-five page motion (with attachments) to
"Extend Deadline to File Notice of Appeal." On March 8, 2022,
Brian Smith and Margaret Smith filed a fifteen-page motion (with
attachments) to "Restore Right to File a Notice of Motion After
Appeals to Restore Rights to File Reconsideration Motions
Obstructed by Error." On that same date, Brian Smith filed a
sixty-five page "revised" motion to "Extend Deadline to File
Notice of Appeal." All three motions sought to preserve, or
resurrect, the plaintiffs' appellate rights relative to their
complaints that were dismissed in the Superior Court.
On March 15, 2022, the single justice denied relief after
concluding that the plaintiffs did not establish the requisite
excusable neglect for failing to file notices of appeal and did
not demonstrate a meritorious appellate issue. The plaintiffs
2 did not file a notice of appeal regarding that decision.
Instead, on March 25, 2022, the plaintiffs filed a "Motion for
Leave to File a Late Reconsideration Motions and Related
Relief," citing Mass. R. A. P. 14 (b), as appearing in 481 Mass.
1626 (2019). In that motion, the plaintiffs acknowledged that
their "prior filing was deficient with respect to citing law or
explaining on what authority" they were proceeding. Through
this new filing, they sought to establish excusable neglect for
failing to file notices of appeal in the Superior Court, and
they also sought to establish a meritorious appellate issue with
respect to the dismissals. On March 31, 2022, the single
justice treated the March 25 motion as a motion for
reconsideration of his March 15 decision and denied relief. The
plaintiffs filed a notice of appeal from this decision on May 2,
2022.
Discussion. An appeal "shall be taken by filing a notice
of appeal with the clerk of the lower court." Mass. R. A. P. 3
(a), as appearing in 481 Mass. 1603 (2019). In a civil case
involving private parties, the notice "shall be filed with the
clerk of the lower court within 30 days of the date of the entry
of the judgment, decree, appealable order, or adjudication
appealed from." Mass. R. A. P. 4 (a) (1). A single justice of
an appellate court may enlarge the time for filing a notice of
appeal "for good cause shown." Mass. R. A. P. 14 (b). Good
3 cause requires (1) excusable neglect and (2) a meritorious
appellate issue. Bernard v. United Brands Co., 27 Mass. App.
Ct. 415, 418 n.8 (1989), citing Mass. R. A. P. 4 (c), as
amended, 378 Mass. 928 (1979). Excusable neglect contemplates
"emergency situations only" (citation omitted). Pierce v.
Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 717 (2019). We
review the single justice's decision "for errors of law and, if
none appear, for abuse of discretion." Troy Indus., Inc. v.
Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010). "[T]he
burden of showing an abuse of discretion is a difficult one to
carry." Id.
On appeal, the plaintiffs raise three primary issues and
pose numerous subsidiary questions relative to actions taken in
the trial court, but those wide-ranging, fact-intensive matters
are not responsive to the discrete issue presented in this
appeal. To be clear, the only matter before this court is the
single justice decision that entered on March 31, 2022. In
denying the plaintiffs' motion, the single justice treated the
matter as a motion for reconsideration of his earlier decision
on March 15, 2022. We discern no error of law or abuse of
discretion relative to the single justice's denial of the motion
for reconsideration.
The single justice denied the plaintiffs' motions seeking
to preserve or resurrect their appellate rights because the
4 plaintiffs did not establish excusable neglect for failing to
file notices of appeal and did not demonstrate a meritorious
appellate issue. In response, the plaintiffs took this denial
as an invitation to write a better motion that addressed the
deficiencies pointed out by the single justice. In fact, in the
motion seeking reconsideration, the plaintiffs agreed that their
"prior filing was deficient" and sought to remedy the
deficiency. A motion for reconsideration, however, is more than
just taking a "second bite at the apple" following a judge's
decision that points out deficiencies in the original
presentation. Liberty Square Dev. Trust v. Worcester, 441 Mass.
605, 611 (2004). Rather, a motion for reconsideration should
specify either changed circumstances (such as newly discovered
evidence or a development of relevant law), or a particular and
demonstrable error in the original decision. Audubon Hill S.
Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc.,
82 Mass. App. Ct. 461, 470 (2012). Also, when new information
is offered following a judicial decision, as here with the
single justice, a party should show some good reason for its
failure to submit the information to the judge earlier. Cf.
Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974) (allowing for
relief from judgment due to "mistake, inadvertence, surprise, or
excusable neglect"). The plaintiffs' motion for reconsideration
did not attempt to make the requisite showing and instead
5 focused on trial court proceedings. Therefore, we discern no
error of law, and we conclude that the plaintiffs have not met
their burden of showing an abuse of discretion by the single
justice.
We are not insensitive to the fact that the result we have
reached in this case, dictated by salutary rules of procedure
and the broad discretion of the single justice, frustrates the
plaintiffs' efforts over the past three years to present their
claims at trial. We must keep in mind, however, that "[r]ules
of procedure are not just guidelines. Their purpose is to
provide an orderly, predictable process by which parties to a
lawsuit conduct their business." USTrust Co. v. Kennedy, 17
Mass. App. Ct. 131, 135 (1983). The central misstep here
occurred when the plaintiffs failed to file notices of appeal
from the dismissals of the complaints. Filing such a notice is
neither onerous nor complex and "merely requires a one-sentence
document indicating the party's intent to appeal and the names
of all parties." Commonwealth v. Smith, 491 Mass. 377, 384
(2023). Though we are cognizant of the plaintiffs' pro se
status, they did not take the necessary step to initiate the
appeal. As a result, their case derailed, and they did not meet
the requisite legal standards to get it back on track. Rather
than acknowledging this critical misstep, the plaintiffs blame
the Superior Court Clerk's Office for providing incorrect advice
6 and setting in motion a series of events that ultimately led to
this appeal. Even if reliance on incorrect advice permitted the
single justice to find excusable neglect, it did not require it.
See Krupp v. Gulf Oil Corp., 29 Mass. App. Ct. 116, 119 (1990)
("We know of no authority for treating as excusable neglect
reliance on a clerk's incorrect advice concerning a general
principle of law"). "Although some leniency is appropriate in
determining whether pro se litigants have complied with rules of
procedure, the rules nevertheless bind pro se litigants as all
other litigants." Brown v. Chicopee Fire Fighters Ass'n, Local
1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990).
Conclusion. The single justice did not err or abuse his
discretion in denying the plaintiffs' motion for
reconsideration. 3
Order of single justice dated March 31, 2022, denying motion for reconsideration, affirmed.
By the Court (Neyman, Sacks & Hodgens, JJ. 4),
Clerk
Entered: August 17, 2023.
3 The defendants' motion for appellate attorney's fees is denied. 4 The panelists are listed in order of seniority.