Foreign Car Center, Inc. v. Arbella Mutual Insurance

2008 Mass. App. Div. 237, 2008 Mass. App. Div. LEXIS 34
CourtMassachusetts District Court, Appellate Division
DecidedOctober 17, 2008
StatusPublished

This text of 2008 Mass. App. Div. 237 (Foreign Car Center, Inc. v. Arbella Mutual Insurance) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foreign Car Center, Inc. v. Arbella Mutual Insurance, 2008 Mass. App. Div. 237, 2008 Mass. App. Div. LEXIS 34 (Mass. Ct. App. 2008).

Opinion

Greco, EJ.

Foreign Car Center, Inc. (“Foreign Car”) brought this action against three insurance companies, Royal Insurance Company (“Royal”), Arbella Mutual Insurance Company (“Arbella”), and Westport Insurance Corporation (‘Westport”), to recover damages for their alleged unfair settlement practices under G.Lc. 176D, §3(9) in violation of G.L.c. 93A. Foreign Car has appealed the dismissal of this action for failure to prosecute pursuant to Mass. R. Civ. R, Rule 41(b) (2).

This saga began in 1993 when Warren Five Cents Savings Bank, which was insured by Royal, recovered a judgment against Foreign Car in the amount of $16,000.00. After the bank obtained a writ of attachment, fifteen vehicles of Foreign Car were seized and sold. In May of 1998, Foreign Car brought various claims (to wit, for conversion, negligence, abuse of process, trespass, violation of its civil rights, and violation of G.L.c. 93A) in the Essex Superior Court against the individuals and entities involved in those seizures and sales. Foreign Car also alleged that their insurers, Royal, Arbella, and Westport, violated c. 93A. The superior court transferred the actions against the insurance companies to the Peabody Division of the District Court Department. Three months after the district court received this matter from the superior court, the three insurance companies moved that proceedings in the case be stayed until the underlying superi- or court action against their insureds was completed. That motion was allowed on September 15,1998.

The superior court case ended with jury verdicts against the parties insured by Westport in the amount of $9,110.00, and against the party insured by Arbella in the amount of $410.00. There was no recovery against Warren Five Cents Savings Bank, Royal’s insured. Those judgments were affirmed by the Appeals Court on January [238]*23826, 2005. See Foreign Car Ctr., Inc. v. Essex Process Serv., Inc., 62 Mass. App. Ct. 806 (2005).2

During the pendency of the superior court case, the district court action lay dormant. On February 1, 2007, Westport filed a motion to dismiss for failure to prosecute. Seven days later, Royal filed a similar motion. Arbella joined in those motions, but did not actually file a written motion of its own until March 14,2007. After a hearing, all three requests for dismissal were allowed on March 6, 2007 upon the trial judge’s finding that “the failure to prosecute [the claims] in any way for approximately 17 months warrants dismissal in order to prevent undue delays in the disposition of pending cases.” Foreign Car has appealed those dismissals.

A transcript of the hearing on the motions to dismiss has not been made part of the record before us. The record does contain, however, Royal’s memorandum in support of its motion to dismiss in which Royal stated that on June 8, 2005, it asked Foreign Car to agree to a dismissal. When Foreign Car responded that it intended to “reactivate” the case and seek discovery, Royal indicated that it would seek “costs and fees.” These assertions in Royal’s memorandum were not contradicted by Foreign Car in its opposition to the motions to dismiss. In any event, Foreign Car neither sought discovery, nor requested a trial date, and took no further action of any kind.

‘The allowance or denial of a motion to dismiss for failure to prosecute is committed to the judge’s sound discretion. (Citation omitted.) There is no error of law amounting to an abuse of discretion simply because a reviewing court might have reached a different result; the standard of review is not substituted judgment” (citation omitted). Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986). “Judicial discretion implies the ‘absence of arbitrary determination, capricious disposition, or whimsical thinking.’... The phrase imports ‘the exercise of discriminating judgment within the bounds of reason.’” Beninati v. Beninati, 18 Mass. App. Ct. 529, 533 (1984), quoting Davis v. Boston Elevated Ry., 235 Mass. 482, 496 (1920). “As with most rulings by a judge regarding the management of a case, ‘[o]nly in rare instances can it be ruled that there has been an abuse of discretion amounting to [an] error of law.’” Merles v. Lerner, 391 Mass. 221, 223-224 (1984), quoting Bresnahan v. Proman, 312 Mass. 97, 101-102 (1942).

“Judicial discretion, however, is not a unitary concept, and its scope varies depending upon the circumstances in which it is to be exercised.” Wilkins v. Cooper, 72 Mass. App. Ct. 271, 277 (2008). In determining whether there was an abuse of discretion in this case, we must keep in mind that “[t]rial on the merits of a plaintiff’s claim is strongly favored, and the involuntary dismissal of such a claim should be reserved for those situations where a severe sanction is necessary.” Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45 Mass. App. Ct. 738, 740 (1998), citing Monahan v. Washburn, 400 Mass. 126, 128-129 (1987). To warrant such a “drastic sanction... [a] s a minimal requirement, there must be convincing evidence of unreasonable conduct or delay. A judge should also give sufficient consideration to the prejudice that the movant would incur if the motion were denied, and whether there are more suitable, alternative penalties.” Monahan, supra. While “[t]he power to invoke [the sanction of dismissal for want of prosecution] is necessary in order to [239]*239prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars,” Bucchiere, supra at 641, quoting Link v. Wabash R.R, 370 U.S. 626, 629-630 (1962), ‘‘[c]oncern for the avoidance of a congested calendar must not come at the expense of justice.” Monahan, supra at 129.

Even though Foreign Car filed its complaint in 1998, the relevant period of delay here was the eighteen-month period from August of 2005, when the superior court case could be deemed to have officially ended with the issuance of executions, to March of 2007, when the trial court allowed the motions to dismiss. The seven-year period of inactivity before August of 2005 was chargeable to the insurance companies since they sought to have the district court proceeding stayed, although it should be noted that such a request is common in this type of litigation. It is difficult to characterize an eighteen-month delay as inordinate. See Bucchiere, supra at 642 (dismissal of case after a six and one-half year delay deemed “within the proper discretion of the trial judge”); Massachusetts Broken Stone Co., supra at 741 (dismissal affirmed on what Appeals Court called “close question” involving a six-year delay during which “the plaintiff... failed to initiate any form of affirmative prosecutorial activity”). During the delay in this case, none of the parties sought any court action. Royal was the only party to show at least some eagerness to move the case forward. Even after Royal threatened to seek dismissal, Foreign Car failed to follow through on its representation that it would proceed with discovery.

In an effort “to come forward with a showing of reasonable excuse” for not actively prosecuting this matter, Hoch v. Govan, 25 Mass. App. Ct.

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Related

Link v. Wabash Railroad
370 U.S. 626 (Supreme Court, 1962)
Monahan v. Washburn
507 N.E.2d 1045 (Massachusetts Supreme Judicial Court, 1987)
Shapiro v. Public Service Mutual Insurance
477 N.E.2d 146 (Massachusetts Appeals Court, 1985)
Merles v. Lerner
461 N.E.2d 772 (Massachusetts Supreme Judicial Court, 1984)
Hoch v. Gavan
520 N.E.2d 1319 (Massachusetts Appeals Court, 1988)
Beninati v. Beninati
468 N.E.2d 644 (Massachusetts Appeals Court, 1984)
Davis v. Boston Elevated Railway Co.
235 Mass. 482 (Massachusetts Supreme Judicial Court, 1920)
Bresnahan v. Proman
43 N.E.2d 336 (Massachusetts Supreme Judicial Court, 1942)
Bucchiere v. New England Telephone & Telegraph Co.
396 Mass. 639 (Massachusetts Supreme Judicial Court, 1986)
Massachusetts Broken Stone Co. v. Planning Board
701 N.E.2d 664 (Massachusetts Appeals Court, 1998)
Foreign Car Center, Inc. v. Essex Process Service, Inc.
821 N.E.2d 483 (Massachusetts Appeals Court, 2005)
Wilkins v. Cooper
890 N.E.2d 868 (Massachusetts Appeals Court, 2008)

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Bluebook (online)
2008 Mass. App. Div. 237, 2008 Mass. App. Div. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foreign-car-center-inc-v-arbella-mutual-insurance-massdistctapp-2008.