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-1231
FRANCES DEROSA1
vs.
MELROSE WAKEFIELD HOSPITAL & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this medical malpractice action, the plaintiff, Frances
A. DeRosa, alleged that the actions of defendant Dr. Juan
Mendieta and defendant Melrose Wakefield Hospital (hospital)
caused the death of her mother. The claim against the hospital
was dismissed for failure to state a claim, and the claim
against Mendieta was later dismissed for the plaintiff's
noncompliance with discovery orders. The plaintiff's motion for
reconsideration was denied. We affirm the denial of the motion
1Individually and as personal representative of the estate of Rosalie DeRosa.
2 Juan Mendieta. for reconsideration, which is the only matter properly before
us.
Background. Accepting the allegations in the plaintiff's
pleadings as true, her mother, Rosalie DeRosa, died on January
2, 2015, while receiving treatment from Mendieta at the
hospital. The plaintiff filed a complaint in the Superior Court
on December 22, 2017, followed by an amended complaint on
February 28, 2018. On October 25, 2018, a judge allowed the
hospital's motion to dismiss for failure to state a claim. See
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The case
proceeded against Mendieta alone. Following lengthy pretrial
proceedings, the plaintiff's complaint against Mendieta was
dismissed on January 19, 2022, for her repeated noncompliance
with numerous judges' discovery orders. The plaintiff did not
file a timely notice of appeal from the judgment. Instead, on
February 17, 2022, she filed a motion for reconsideration, which
was denied on March 30, 2022. She filed a notice of appeal on
April 7, 2022, purporting to appeal from the judgment and from
the denial of reconsideration.
Discussion. 1. The appeal from the judgment is untimely.
"A timely notice of appeal is a jurisdictional prerequisite to
our authority to consider any matter on appeal," DeLucia v.
Kfoury, 93 Mass. App. Ct. 166, 170 (2018), and "we have the duty
2 to consider sua sponte whether we have jurisdiction." Wells
Fargo Bank, N.A. v. Sutton, 103 Mass. App. Ct. 148, 153 (2023).
"While the appeal from the denial of the plaintiff's motion for
reconsideration was timely as to the order denying the motion,
the 'appeal does not necessarily bring up the underlying
judgment [for defendants] which was entered on [January 19,
2022].'" Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184,
186 (1995), quoting Muir v. Hall, 37 Mass. App. Ct. 38, 40
(1994). To appeal from the judgment, the plaintiff was required
to file a notice of appeal within thirty days of its entry on
the docket. See Piedra, supra at 186-187; Mass. R. A. P.
4 (a) (1), as appearing in 481 Mass. 1606 (2019).
Although the plaintiff filed a motion for reconsideration
within that thirty-day period, the motion did not stop the clock
for filing the notice of appeal from the judgment. Had the
plaintiff timely filed or served one of the motions listed in
Mass. R. A. P. 4 (a) (2) -- all of which must be filed or served
within ten days of the judgment -- then the thirty-day period
would have started anew after the denial of such a motion. See
Piedra, 39 Mass. App. Ct. at 187; Mass. R. A. P. 4 (a) (2). But
the plaintiff's motion for reconsideration, even if treated as a
motion to alter or amend the judgment under Mass. R. Civ. P.
59 (e), 365 Mass. 827 (1974), or a motion for relief from the
3 judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),
was not filed within ten days and therefore did not suspend the
thirty-day deadline for filing the notice of appeal from the
judgment.3
Accordingly, the plaintiff's notice of appeal did not
"bring up" the January 19, 2022, judgment dismissing the
plaintiff's claims against the hospital and Mendieta. Piedra,
39 Mass. App. Ct. at 186. The only issue preserved for
appellate review is whether the motion for reconsideration was
properly denied.
2. Motion for reconsideration. During the discovery phase
of the case, Mendieta filed repeated motions to compel discovery
from the plaintiff. At least three judges entered orders
requiring the plaintiff to provide documents and answers to
interrogatories, to appear for a deposition, and to supply her
expert witness's report and curriculum vitae. In an order dated
November 24, 2021 (entered on November 29, 2021), following a
hearing in which the plaintiff participated by telephone, a
judge gave her a final warning:
"[The plaintiff] has consistently failed to comply with, or been dilatory in complying with, discovery obligations of this court. Accordingly, I ordered during the November 23
3 We further note that the plaintiff did not seek an enlargement of time for filing the notice of appeal. See Piedra, 39 Mass. App. Ct. at 187; Mass. R. A. P. 4 (c), as appearing in 491 Mass. 1606 (2019).
4 hearing, and now confirm, that she is ordered to supply a written report from a medical expert to defense counsel on or before December 22, 2021, with a copy to the court by that date. She is also ordered to attend her deposition by December 22, 2021. Failure to fulfill both of these obligations will result in dismissal of this suit for lack of prosecution without the need for further hearings."
Despite having received repeated chances and warnings, the
plaintiff did not supply or file the expert report and did not
appear for her deposition, which was scheduled for December 15,
2021.4 The judge accordingly ordered entry of a judgment of
dismissal based on the plaintiff's failure to comply with the
court order. Were the propriety of the order of dismissal
before us, we would discern no abuse of discretion. See Keene
v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235-236 (2003);
Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct.
426, 429-430 (1986). The order of dismissal was "appropriately
punitive in relation to the objectionable behavior." Grassi
Design Group, Inc. v. Bank of Am., N.A., 74 Mass. App. Ct. 456,
460 (2009).
In the plaintiff's motion for reconsideration, for the
first time she provided a letter from a doctor providing his
observations regarding the plaintiff's mother's care at the
4 There is no doubt that the plaintiff had notice of the deposition, as she called the office of Mendieta's counsel on the morning of December 15 and was given information regarding where to appear that same afternoon.
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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-1231
FRANCES DEROSA1
vs.
MELROSE WAKEFIELD HOSPITAL & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this medical malpractice action, the plaintiff, Frances
A. DeRosa, alleged that the actions of defendant Dr. Juan
Mendieta and defendant Melrose Wakefield Hospital (hospital)
caused the death of her mother. The claim against the hospital
was dismissed for failure to state a claim, and the claim
against Mendieta was later dismissed for the plaintiff's
noncompliance with discovery orders. The plaintiff's motion for
reconsideration was denied. We affirm the denial of the motion
1Individually and as personal representative of the estate of Rosalie DeRosa.
2 Juan Mendieta. for reconsideration, which is the only matter properly before
us.
Background. Accepting the allegations in the plaintiff's
pleadings as true, her mother, Rosalie DeRosa, died on January
2, 2015, while receiving treatment from Mendieta at the
hospital. The plaintiff filed a complaint in the Superior Court
on December 22, 2017, followed by an amended complaint on
February 28, 2018. On October 25, 2018, a judge allowed the
hospital's motion to dismiss for failure to state a claim. See
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The case
proceeded against Mendieta alone. Following lengthy pretrial
proceedings, the plaintiff's complaint against Mendieta was
dismissed on January 19, 2022, for her repeated noncompliance
with numerous judges' discovery orders. The plaintiff did not
file a timely notice of appeal from the judgment. Instead, on
February 17, 2022, she filed a motion for reconsideration, which
was denied on March 30, 2022. She filed a notice of appeal on
April 7, 2022, purporting to appeal from the judgment and from
the denial of reconsideration.
Discussion. 1. The appeal from the judgment is untimely.
"A timely notice of appeal is a jurisdictional prerequisite to
our authority to consider any matter on appeal," DeLucia v.
Kfoury, 93 Mass. App. Ct. 166, 170 (2018), and "we have the duty
2 to consider sua sponte whether we have jurisdiction." Wells
Fargo Bank, N.A. v. Sutton, 103 Mass. App. Ct. 148, 153 (2023).
"While the appeal from the denial of the plaintiff's motion for
reconsideration was timely as to the order denying the motion,
the 'appeal does not necessarily bring up the underlying
judgment [for defendants] which was entered on [January 19,
2022].'" Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184,
186 (1995), quoting Muir v. Hall, 37 Mass. App. Ct. 38, 40
(1994). To appeal from the judgment, the plaintiff was required
to file a notice of appeal within thirty days of its entry on
the docket. See Piedra, supra at 186-187; Mass. R. A. P.
4 (a) (1), as appearing in 481 Mass. 1606 (2019).
Although the plaintiff filed a motion for reconsideration
within that thirty-day period, the motion did not stop the clock
for filing the notice of appeal from the judgment. Had the
plaintiff timely filed or served one of the motions listed in
Mass. R. A. P. 4 (a) (2) -- all of which must be filed or served
within ten days of the judgment -- then the thirty-day period
would have started anew after the denial of such a motion. See
Piedra, 39 Mass. App. Ct. at 187; Mass. R. A. P. 4 (a) (2). But
the plaintiff's motion for reconsideration, even if treated as a
motion to alter or amend the judgment under Mass. R. Civ. P.
59 (e), 365 Mass. 827 (1974), or a motion for relief from the
3 judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),
was not filed within ten days and therefore did not suspend the
thirty-day deadline for filing the notice of appeal from the
judgment.3
Accordingly, the plaintiff's notice of appeal did not
"bring up" the January 19, 2022, judgment dismissing the
plaintiff's claims against the hospital and Mendieta. Piedra,
39 Mass. App. Ct. at 186. The only issue preserved for
appellate review is whether the motion for reconsideration was
properly denied.
2. Motion for reconsideration. During the discovery phase
of the case, Mendieta filed repeated motions to compel discovery
from the plaintiff. At least three judges entered orders
requiring the plaintiff to provide documents and answers to
interrogatories, to appear for a deposition, and to supply her
expert witness's report and curriculum vitae. In an order dated
November 24, 2021 (entered on November 29, 2021), following a
hearing in which the plaintiff participated by telephone, a
judge gave her a final warning:
"[The plaintiff] has consistently failed to comply with, or been dilatory in complying with, discovery obligations of this court. Accordingly, I ordered during the November 23
3 We further note that the plaintiff did not seek an enlargement of time for filing the notice of appeal. See Piedra, 39 Mass. App. Ct. at 187; Mass. R. A. P. 4 (c), as appearing in 491 Mass. 1606 (2019).
4 hearing, and now confirm, that she is ordered to supply a written report from a medical expert to defense counsel on or before December 22, 2021, with a copy to the court by that date. She is also ordered to attend her deposition by December 22, 2021. Failure to fulfill both of these obligations will result in dismissal of this suit for lack of prosecution without the need for further hearings."
Despite having received repeated chances and warnings, the
plaintiff did not supply or file the expert report and did not
appear for her deposition, which was scheduled for December 15,
2021.4 The judge accordingly ordered entry of a judgment of
dismissal based on the plaintiff's failure to comply with the
court order. Were the propriety of the order of dismissal
before us, we would discern no abuse of discretion. See Keene
v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235-236 (2003);
Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct.
426, 429-430 (1986). The order of dismissal was "appropriately
punitive in relation to the objectionable behavior." Grassi
Design Group, Inc. v. Bank of Am., N.A., 74 Mass. App. Ct. 456,
460 (2009).
In the plaintiff's motion for reconsideration, for the
first time she provided a letter from a doctor providing his
observations regarding the plaintiff's mother's care at the
4 There is no doubt that the plaintiff had notice of the deposition, as she called the office of Mendieta's counsel on the morning of December 15 and was given information regarding where to appear that same afternoon.
5 hospital, which she characterized as "the expert letter that was
needed." The plaintiff argues that in denying the motion for
reconsideration, the judge "made errors of law by not accepting
evidence that proved [her] case and not giving [her] a trial."
We review the denial of a motion for reconsideration for
abuse of discretion. See Dacey v. Burgess, 491 Mass. 311, 317
(2023); Audubon Hill S. Condominium Ass'n v. Community Ass'n
Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 469-470
(2012). While changed circumstances, such as newly discovered
information, can serve as a proper basis for a judge to
reconsider a prior ruling, see id. at 470, we discern no abuse
of discretion in the judge's determination that reconsideration
was not warranted here.
The letter attached to the plaintiff's motion does not
qualify as "newly discovered." Through reasonable diligence,
the plaintiff could have obtained an expert report during the
discovery process and avoided dismissal in the first place. See
Wojcicki v. Caragher, 447 Mass. 200, 213 (2006) (evidence is
considered newly discovered only if unknown and unavailable
despite exercise of diligence). The judge was not required to
afford the plaintiff yet another chance to comply with the
court's multiple discovery orders. See Inman v. American Home
Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir. 1997)
6 (refusing to set aside default judgment as defendants' delayed
compliance with discovery requests "does not excuse their
earlier inattention and comes too late" to warrant relief). Nor
did the late provision of the doctor's letter cure the
plaintiff's other violations of discovery orders, including her
multiple failures to attend her own deposition.
The plaintiff may perceive it as unfair that she will not
have her day in court. It was, however, within the plaintiff's
power to follow the applicable procedural rules and court
orders. She failed, repeatedly, to do so. "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).
Order dated March 30, 2022, denying motion for reconsideration, affirmed.
By the Court (Massing, Hand & Smyth, JJ.5),
Clerk
Entered: November 8, 2024.
5 The panelists are listed in order of seniority.