MYRICK v. FAUST (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from the denial, by a single justice, of his “Motion Renewal and Request to Vacate the May 9th Denial” (motion). By his motion, the plaintiff sought to docket his appeal twenty-one months late. We affirm.

The underlying action was dismissed by a judge of the Superior Court on April 28, 2016. The plaintiff filed a notice of appeal on June 2, 2016. A clerk of the Superior Court sent notice of assembly of the record on July 25, 2016. See Mass. R. A. P. 9 (d), as amended, 417 Mass. 1601 (1994). The plaintiff was required to enter his appeal in this court within ten days of receiving the notice of assembly. See Mass. R. A. P. 10 (a) (1), as amended, 435 Mass. 1601 (2001). On August 5, 2016, the plaintiff notified this court that he “declined to enter” his appeal, and in fact no such appeal was docketed. This court on October 17, 2016, issued a notice of failure to enter a timely appeal. On May 8, 2018, the plaintiff filed a motion requesting that this court docket his appeal, and a single justice denied the motion on May 9, 2018. The plaintiff filed subsequent motions seeking additional relief. The single justice denied the motions. This appeal followed, challenging only the June 1, 2018, denial of his “Motion Renewal and Request to Vacate the May 9th Denial.”

Absent an abuse of discretion or clear error of law, an order of a single justice will not be reversed. Greco v. Suffolk Div. of Probate & Family Court Dept., 418 Mass. 153, 156 (1994). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The plaintiff had ten days from his receipt of the notice of assembly of the record to enter his appeal. Mass. R. A. P. 10 (a) (1). Here, he waited nearly twenty-one months. He has not demonstrated neglect attributable to circumstances beyond his reasonable control. See Mailer v. Mailer, 387 Mass. 401, 405-406 (1982). The plaintiff has failed to provide any rationale for failing to meet the deadline and, as such, has failed to demonstrate excusable neglect.²

Order of single justice entered June 1, 2018, affirmed.

FOOTNOTES

2.   The plaintiff's brief sets forth arguments that do not rise to the level of appellate argument as required by Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). To the extent we have not specifically commented, we have considered the plaintiff's remaining arguments and find them to be without merit. See Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), citing Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).