On the state of this record, which fails to demonstrate any consideration of the threshold factors as required by Monahan, we have no hesitation in concluding that it was "erroneously Draconian," id.
SAMPLE MOTION FOR RECONSIDERATION IN MASSACHUSETTS TRIAL
The law stronglyįavors a trial on the merits of a claim." Concern for the avoidance of a congestedĬalendar must not come at the expense of justice. Incur if the motion were denied, and whether there are more suitable,Īlternative penalties. Give sufficient consideration to the prejudice that the movant would
As a minimal requirement, there must beĬonvincing evidence of unreasonable conduct or delay. "Involuntary dismissal is a drastic sanction which should be utilized Our disposition is governed by the holding in Monahan v. We reverse the judgment of dismissal here as presenting one of the rare cases where the trial judge, while undoubtedly and properly motivated by a desire to dispose of cases expeditiously, nonetheless failed to exercise his discretion properly. 41(b)(2) for failure to prosecute is committed to the sound discretion of the trial judge and can be reversed only in the rare instance that it is so arbitrary, capricious, whimsical, or idiosyncratic that it constitutes an abuse of discretion amounting to an error of law. Dewing appealed from that judgment on July 27, 1989. On June 27, 1989, his motion for reconsideration was denied, again without a hearing, and judgment was entered that day dismissing the action on the merits. Dewing filed a motion for reconsideration, repeating his prior points and noting further that he had no way to cause the court to schedule the case for trial but could only await a trial date.
A Superior Court judge allowed the defendants' motions for involuntary dismissal without a hearing on April 19, 1989. No assertion was made by either Driscoll or USAA that it had suffered any prejudice as a result of Dewing's inaction.ĭewing filed timely oppositions to the motions, maintaining that he had completed all the discovery he needed and had at all times since July, 1985, been ready to appear for 41(b)(2), "for want of prosecution." The sole stated ground for those motions was that Dewing had taken no action to prosecute his case against the defendants since July, 1985. Superior Court sent the parties a notice and order warning that the case, having remained inactive since July 30, 1985, "is to be dismissed as of February 28, 1990, unless the case is otherwise disposed of pursuant to Rule 41(b)(1) of the M.R.C.P." Two weeks later, both Driscoll and USAA filed motions to dismiss Dewing's complaint with prejudice, pursuant to Mass.R.Civ.P.
On February 28, 1989, a regional administrative judge of the Thereafter, no party undertook any action in the litigation until March, 1989. On or about July 30, 1985, USAA filed and served on the other parties a certificate of readiness under Superior Court Rule 35, requesting that the action be placed on the advanced section of the jury trial list for the week of October 1, 1985. Him adequately of the policy limitations and demanded a jury trial.īetween February, 1983, and March, 1985, the parties engaged in limited discovery. Dewing's complaint contained several counts based upon the defendants' allegedly negligent and deceptive failure to inform Driscoll Insurance Agency (Driscoll), contained an exclusion which denied him coverage for such an accident, he sued Driscoll and USAA in November, 1982. Upon learning that his automobile insurance policy, underwritten by United Services Automobile Association (USAA) and sold to him by J.B. John Dewing "totalled" his new Volkswagen Rabbit automobile in a one-car accident in December, 1981. Driscoll Insurance Agency.ĭani Linn Woods, for United Services Automobile Association, submitted a brief. ĬIVIL ACTION commenced in the Superior Court Department on November 24, 1982.
Of readiness under rule 35 of the Superior Court. Passage of time following a defendant's filing in 1985 of a certificate The plaintiff nor any showing of prejudice to the defendants by the mere Where the record showed no evidence of unreasonable conduct or delay by In a civil action, the judge improperly dismissed in 1989 the plaintiff'sġ982 complaint under Mass.R.Civ.P. Present: BROWN, PERRETTA, & LAURENCE, JJ.
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