FIORAVANTI v. SWENSON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Raymond Fioravanti appeals from the judgment dismissing his complaint for modification dated January 13, 2017, and amended January 13, 2018, filed in the Probate and Family Court. For the reasons that follow, we reverse the dismissal of Fioravanti's complaint.

Background. We briefly summarize the procedural history of this case. Fioravanti filed a complaint for modification of the court's child support order, alleging that the financial conditions of his former wife, Caryn Swenson, were not accurately represented at the time the order was entered. Swenson filed a motion to dismiss the complaint for modification, which Fioravanti opposed. Prior to the hearing on Swenson's motion to dismiss, Fioravanti amended his complaint pursuant to rule 15 (a),¹ and sought sole custody of the parties' son and modification of the child support order. Following a hearing, the judge dismissed Fioravanti's amended complaint, reasoning that Fioravanti could not amend his pleading as of right after Swenson had filed a motion to dismiss. Fioravanti's motion to reconsider was denied by the same judge. Thereafter, Fioravanti sought leave to amend his complaint, which was granted by a different judge. This judge later vacated the order allowing the motion to amend and then denied the motion to amend. The judge also dismissed Fioravanti's original complaint. This appeal followed.

Discussion. We review the grant of a motion to dismiss de novo. Edwards v. Commonwealth, 477 Mass. 254, 260 (2017). In so doing, “[w]e accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).

“It is familiar ground that a trial judge should be generously disposed to motions to amend pleadings.” DiVenuti v. Reardon, 37 Mass. App. Ct. 73, 77 (1994). However, a party may not amend his or her complaint as of right after a responsive pleading is served. Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). Here, the judge dismissed Fioravanti's first amended complaint for modification of judgment, ruling that Fioravanti was preempted from amending his complaint after Swenson filed her motion to dismiss, identifying her motion to dismiss as a responsive pleading. A motion to dismiss, however, “is not a responsive pleading within the meaning of Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), and therefore [Fioravanti] could amend [his] complaint once as a matter of right.” National Equity Props., Inc., v. Hanover Ins. Co., 74 Mass. App. Ct. 917, 918 (2009). See Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549 (1987). As noted by the judge, Mass. R. Civ. P. 15 (a) and Mass. R. Dom. Rel. P. 15 (a) are identical in language. Therefore, the outcome is the same regardless of which rule Fioravanti sought to amend his complaint under. See National Equity Props., Inc., supra, quoting Keene Lumber Co. v. Leventhal, 165 F.2d 815, 823 (1st Cir. 1948) (“ ‘We take it that a motion to dismiss is not a “responsive pleading” within [Fed. R. Civ. P. 15 (a)],’ which is substantially the same as Mass. R. Civ. P. 15 (a)”). We reverse the judgment dismissing Fioravanti's complaint, and the case is remanded for further proceedings in accordance with this memorandum and order.² The amended complaint shall be treated as the operative complaint in the Probate and Family Court.

So ordered.

reversed and remanded

FOOTNOTES

1.   He filed the motion without reference to the Massachusetts Rules of Domestic Relations Procedure or the Massachusetts Rules of Civil Procedure.

2.   Because we reach this conclusion, we need not address Fioravanti's remaining arguments on appeal.