Leslie A. Doughty v. Operational Services Division. ( 2023 )

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-1113
LESLIE A. DOUGHTY
vs.
OPERATIONAL SERVICES DIVISION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Nearly a year after the plaintiff's complaint was dismissed
for want of prosecution, the plaintiff moved to remove the
judgment of dismissal. A judge of the Superior Court denied the
motion, and the plaintiff appealed. We affirm the order denying
the motion to remove.
The complaint in the present case was filed in the Superior
Court on June 7, 2019. The plaintiff never filed a return of
service nor took action of any sort after filing a motion to
extend the discovery deadline in December 2019. A little more
than two years after the filing of the complaint, on June 18,
2021, the court issued a "notice of status review of the
docket," requiring the plaintiff to "report the status of the
action." An order entered on July 1, 2021, stating that
"[c]ounsel is to respond to the NOTICE OF STATUS REVIEW by July
18, 2021 or the complaint will be automatically DISMISSED." On
July 28, 2021, judgment entered dismissing the case. On June 8,
2022, nearly a year later, the plaintiff filed a motion seeking
to "remove" the judgment of dismissal. 1 After a hearing on July
18, 2022, a judge of the Superior Court denied the motion, and
this appeal followed.
In the memorandum filed in support of the motion to remove
the judgment of dismissal, and in her brief on appeal, the
plaintiff described the claim of injury on which her complaint
was based. Nowhere in her argument, however, does the plaintiff
offer any explanation for her failure to effect timely service
of her complaint, or otherwise attempt to demonstrate good cause
(or excusable neglect) to excuse the failure. See Mass. R. Civ.
P. 4 (j), as appearing in 402 Mass. 1401 (1988); Mass. R. Civ.
P. 60 (b) (1), 365 Mass. 828 (1974). Nor does the record
reflect any attempt by the plaintiff, even now, to effect
service of the complaint. We discern no error of law or abuse
1 The motion does not cite any rule supporting the request. We
construe it to have been advanced pursuant to Mass. R. Civ.
P. 60 (b) (1), 365 Mass. 828 (1974), which authorizes relief
from judgment based, among other things, on a showing of
excusable neglect.
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of discretion by the motion judge in denial of the plaintiff's
motion.
Order dated July 20, 2022,
denying motion to remove
judgment of dismissal,
affirmed.
By the Court (Green, C.J.,
Ditkoff & Hodgens, JJ. 2),
Clerk
Entered: August 21, 2023.
2 The panelists are listed in order of seniority.
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