No. 2005-00666-A.Commonwealth of Massachusetts Superior Court. WORCESTER, SS.
January 17, 2006.
MEMORANDUM AND ORDER
PETER W. AGNES, Jr., Justice.
1. This is a civil action in which the defendant, represented by counsel for the first time, has filed a motion to be relieved of a judgment entered by default on August 5, 2005. The defendant relies on an affidavit of its president, Robert Brindley, who states that in April, 2004, there was a contract between the plaintiff and defendant construction companies whereby the defendant was to perform foundation work on one apartment building that plaintiff was constructing at 505 Mill Street in Worcester. The defendant further states that after it completed its work, plaintiff inquired about performing foundation work at a second site. However, defendant maintains no agreement for the second project was ever reached, and it never commenced performance at a second site. The plaintiff offers a starkly different picture. According to the affidavit by Carl Foley, the plaintiff’s president, the parties reached an agreement for foundation work at a second site and that the defendant commenced performance of the work on the deepest part of the foundation site (the so-called “elevator pit”), but failed to complete its obligations.
2. Putting aside the factual differences over the merits, the affidavit by Brindley concedes that he was properly served with the complaint in this case on May 5, 2005 and choose not to engage an attorney, respond or otherwise resolve the dispute. In particular, he states that “[d]ue to the fact that I have never been involved in litigation, and due to the fact that I believe this claim to be totally baseless, I did not seek legal counsel and I was unaware that I was required to file an answer in the above-referenced matter.” Affidavit of Robert Brindley, para. 15.
3. I do not credit that portion of the Brindley affidavit in which he asserts that he was unaware that an answer had to be filed. A notice about the requirement of a responsive pleading appears prominently on the summons form used to complete service. Also, it appears from other statements in the Brindley affidavit that he did come to court for the hearing in this case on September 19, 2005 and visited the clerk’s office. There is no indication that Mr. Brindley appeared in the courtroom. There is no evidence whatsoever that he was led to believe that he did not have to file an answer by anyone employed by the clerk’s office. In fact, it is the experience of this court that the Worcester Superior Court Clerk’s staff are extremely helpful to persons who appear as parties or witnesses, and take pains to assist unrepresented parties to understand the law.
4. Applicable legal principles. Mass. R. Civ. P. 60(b)(1) provides, in part, that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for (1) mistake, inadvertence, surprise, or excusable neglect. . . .” In Berube v. McKesson Wine and Spirits Co., 7 Mass. App. Ct. 426, 430-431
(1979), the Appeals Court described some of the factors to be considered in determining whether to grant relief from a default judgment on grounds of excusable neglect: “(1.) whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2.) whether there is a showing by affidavit or otherwise apparent on the record, that the claim sought to be revived has merit; (3.) whether the neglectful conduct occurs before trial as opposed to after trial; (4.) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5.) whether prejudice has resulted to the other party; (6.) whether the error is chargeable to the party’s legal representative rather than the party himself.” “Excusable neglect, at least in theory, is something other than `oops, I forgot.’ It is meant to apply to circumstances that are unique or extraordinary, not any `garden-variety oversight.'” Tai v. City of Boston, 45 Mass. App. Ct. 220, 222 (1998). See also Goldstein v. Barron, 382 Mass. 181, 186 (1980) (Relief is not justified for any kind of garden variety oversight.). “Excusable neglect requires more than a demonstration of simple good faith.” Brunelle v. Blais,
18 Mass. L. Rptr. 556, 559, Worcester Superior Court 2004-0920 (2004) (Agnes, J.) (In the context of a motion to dismiss under Mass. R. Civ. P. 4(j) and 6(b)). “[T]he determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). The party seeking relief bears the burden of justifying failure to avoid the mistake or inadvertence. Id.
at 223. See also Russell v. Foley. 278 Mass. 145, 148 (1932) (“It would not be the exercise of sound judicial discretion to vacate a judgment merely to relieve a party from the consequence of intelligent or intentional carelessness or laxity. . . .”); Tai v. City of Boston, 45 Mass. App. Ct. 220, 222 (1998) (“Excusable neglect, at least in theory, is something other than `oops, I forgot.’ It is meant to apply to circumstances that are unique or extraordinary, not garden-variety oversight”).
5. In the present case, there is an absence of any good reason for the default. The presence of Mr. Brindley at court on the day of the default strongly suggests his awareness of the corporation’s legal obligations. He made the choice to forego the advice and expertise of a lawyer. In these circumstances, the default simply cannot be described as “excusable.” Moreover, I am not persuaded from my review of the affidavits that the defendant has demonstrated that there is a meritorious issue to be resolved.
ORDER
For the above reasons, the defendant’s motion is DENIED.