MULLEN v. PLYMOUTH ROCK STUDIOS LLC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is a Wage Act case filed in the Superior Court by the plaintiff. Defendant Joseph DiLorenzo appeals from an order denying his postjudgment motion for reconsideration. We affirm.

DiLorenzo's filings with this court are significantly noncompliant with our procedural rules.³ “Because [DiLorenzo's] record appendix [is] insufficient to permit us to consider [his] claim[s] on appeal, ․ we [are] unable to consider [his] arguments.” Camillo v. Camillo, 31 Mass. App. Ct. 286, 286 (1991). The defendant's brief is replete with “factual assertions without the required references to the record,” id. at 287, citing Mass. R. A. P. 16 (a) (3), 365 Mass. 860 (1974), and Mass. R. A. P. 16 (e), as amended, 378 Mass. 940 (1979), and there are incomplete transcripts before us, despite his assertion to the Superior Court that he did not intend to order a transcript.

“It is the responsibility of the parties and primarily the appellant to reproduce in the record appendix such court documents and exhibits ․ as may assist the appellate court in deciding the appeal.” Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 10 n.3 (1994). “[I]n a civil case, the record transmitted by the clerk of the lower court consists of ‘two certified copies of the docket entries,’ Mass.R.A.P. 9 (d), [as appearing in 378 Mass. 935 (1979),] and no more. It is the duty of the appellant to bring any other part of the record on appeal” to us. Camillo, 31 Mass. App. Ct. at 291. The defendant cannot assume that we have what is his burden to provide. See Mass. R. A. P. 8 (b) (1), as amended, 430 Mass. 1603 (1999); Mass. R. A. P. 8 (b) (3) (ii), as amended, 428 Mass. 1601 (1998); Mass. R. A. P. 9 (c) (1), as amended, 378 Mass. 935 (1979); Mass. R. A. P. 9 (c) (2), as amended, 437 Mass. 1602 (2002).⁴ See also Doten v. Doten, 395 Mass. 135, 139 (1985). In addition, we do not consider documents submitted by the defendant, although we have reviewed them, that were not before the motion judge. See Commonwealth v. Alphas, 430 Mass. 8, 21 (1999) (Greaney, J., concurring).

“The fact that the [defendant] represents himself does not excuse his noncompliance with procedural rules.” Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184 (1994). His claims cannot succeed “because of the lack of record support.” Camillo, 31 Mass. App. Ct. at 288.⁵

Order entered November 22, 2017, denying motion for reconsideration affirmed.

FOOTNOTES

3.   DiLorenzo filed numerous documents, however, absent from the record appendix is the complaint, the complete summary judgment record, and the decisions on the motions for summary judgment and for reconsideration. Moreover, DiLorenzo's brief does not contain adequate record citations. DiLorenzo also failed to consult with the plaintiff's counsel on the contents of the record appendix, thus precluding the plaintiff from designating content. DiLorenzo's first brief and appendix were not docketed by this court's Clerk's office due to their noncompliance with the Massachusetts Rules of Appellate Procedure. The notice to DiLorenzo included a check list of the noncompliant aspects of his filings. Notwithstanding, his revised brief and appendix, which were accepted for filing by this court's Clerk's office, contained similar issues.

4.   We cite to the Massachusetts Rules of Appellate Procedure as they existed at the time that the briefs were filed. Those rules have since been revised and became effective as of March 1, 2019.

5.   A question arose at oral argument as to whether the judgment in this case took into account the settlements with other defendants. Nothing herein precludes DiLorenzo from seeking relief from the judgment on this point only. We express no opinion as to the likelihood of success on such a motion.