Edward Joseph Donahue v. Wendy Anne Sullivan.

• Court: Massachusetts Appeals Court
• Decided: November 10, 2025
• Docket: 24-P-0701
• Status: Unpublished

Opinion

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

24-P-701

EDWARD JOSEPH DONAHUE

vs.

WENDY ANNE SULLIVAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In April 2022, the plaintiff, Edward Joseph Donahue, filed

a complaint in the Superior Court against the defendant, Wendy

Anne Sullivan,1 alleging she received his social security checks

and kept them for herself. The defendant filed a motion to

dismiss, which was denied by a judge (first judge) after a

hearing in October 2022. After neither party took further

action in the case for approximately eighteen months, a second

judge ordered that a status report be filed by March 8, 2024.

The plaintiff did not respond to the second judge's order by the

March 8 deadline and on March 15, 2024, the second judge

1The defendant is the plaintiff's daughter. She did not file a brief on appeal. dismissed the case for failure to prosecute. A judgment of

dismissal entered on that date. On April 5, 2024, the plaintiff

filed a status report and a motion to revoke the order of

dismissal. The first judge denied the motion to revoke the

dismissal and the plaintiff's subsequent motion for

reconsideration. On appeal, the plaintiff argues that the first

judge abused her discretion in denying his motion to revoke the

order of dismissal.2 We affirm.

Discussion. Under Mass. R. Civ. P. 41 (b) (2), 365 Mass.

803 (1974), the judge may dismiss a case "for failure of the

plaintiff to prosecute or to comply with . . . any order of

court." The allowance of a motion to dismiss under this rule

can be "harsh," Bucchiere v. New England Tel. & Tel. Co., 396

Mass. 639, 642 (1986), but the decision is "committed to the

judge's sound discretion," and "is critical to the orderly and

expeditious disposition of cases and the calendar as a whole."

Id. at 641. "Only in rare instances can it be ruled that [such

2 The plaintiff's motion to revoke the dismissal did not expressly seek relief from the judgment. See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]), although he later invoked rule 60 (b) in his motion for reconsideration. The plaintiff has appealed only from the order denying his motion to revoke the dismissal; he did not notice an appeal from the underlying judgment of dismissal or the order denying his motion for reconsideration.

2 an order constitutes] an abuse of discretion amounting to [an]

error of law" (citation omitted). Id.

We discern no abuse of discretion here. The first judge

denied the plaintiff's motion to revoke an order of dismissal

because no action had been taken in the case for eighteen months

and plaintiff's counsel had not been in contact with the

plaintiff for several months. See Bucchiere, 396 Mass. at 640

(dismissal for lack of prosecution where plaintiffs took no

affirmative steps for more than six years after filing their

complaint, including "two years of [complete] inaction"); Hoch

v. Gavan, 25 Mass. App. Ct. 550, 552-553 (1988) (holding

dismissal proper after four years without proper service).

Contrast Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct.

467, 471 (1991) (judge abused discretion in dismissing for lack

of prosecution where plaintiff completed discovery, manifested

intention to go to trial, and was merely awaiting trial date).

We discern no abuse of discretion in the first judge's

determination that the plaintiff's failure to maintain contact

with his attorney while living in Denmark was not a satisfactory

reason for his inaction. Nor, where we infer that the first

judge discredited plaintiff's counsel's explanation for missing

the status report deadline, do we discern an abuse of discretion

in that aspect of her ruling. See Casey v. Casey, 79 Mass. App.

3 Ct. 623, 633 (2011) (appellate court defers to trial judge's

credibility determinations). See Hoch, 25 Mass. App. Ct. at 552

("judge in discretion may dismiss an action when in the course

of the litigation there has been long-extended inaction by the

plaintiff and . . . plaintiff fails to come forward with a

showing of reasonable excuse").

Order denying motion to revoke order of dismissal affirmed.

By the Court (Rubin, Hand & Smyth, JJ.3),

Clerk

Entered: November 10, 2025.

3 The panelists are listed in order of seniority.