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Appeals Court of Massachusetts.



Decided: February 04, 2021

By the Court (Lemire, Ditkoff & Grant, JJ.2)


Two of the defendants, The Netherlands Insurance Company and Excelsior Insurance Company, appeal from an order of a Superior Court judge denying their motion to dismiss the plaintiff's cross appeal for failure to docket the cross appeal in a timely manner. See Mass. R. A. P. 10 (a) (1), as appearing in 481 Mass. 1618 (2019). Discerning no abuse of discretion in the judge's determination that there was no inexcusable neglect in light of issues using the electronic filing system and the sudden illness and departure of a critical paraprofessional, we affirm.

The parties received the notice of assembly from the Superior Court on or about February 5, 2020, and had fourteen days thereafter to docket their appeals. See Mass. R. A. P. 10 (a) (1) (A). The plaintiff failed to do so, however, until March 10, 2020. Three days after the plaintiff docketed the appeal, the defendants filed a motion in Superior Court seeking to have the plaintiff's cross appeal dismissed.

In ruling on a motion to dismiss for failure to timely docket an appeal, a trial court judge may dismiss the appeal “only upon a finding of inexcusable neglect.” Mass. R. A. P. 10 (c), as appearing in 481 Mass. 1618 (2019). “[E]xcusable neglect is meant to apply to circumstances that are unique or extraordinary, not to any ‘garden-variety oversight.’ ” Pierce v. Hansen Eng'g & Mach. Co., 95 Mass. App. Ct. 713, 717 (2019), quoting Shaev v. Alvord, 66 Mass. App. Ct. 910, 911 (2006). Excusable neglect “is [meant] to take care of emergency situations only.” BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001), quoting Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981). We review the judge's decision for an abuse of discretion. See Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011). Accord Howard v. Boston Water & Sewer Comm'n, 96 Mass. App. Ct. 119, 124-125 (2019).

Here, plaintiff's counsel -- who practices in Illinois and who has been admitted pro hac vice -- submitted an affidavit recounting that, in early February, he directed his staff to set up an e-filing account, but they encountered difficulties. Counsel then personally called the clerk's office and was advised that he would not be able to pay the docketing fee through the e-filing system until the defendants docketed the appeal (which occurred on February 14, 2020). Four days after the defendants docketed their appeal, staff for plaintiff's counsel again encountered difficulties accessing the e-filing system, reached out to the clerk's office, and received instructions to wait another few days. Counsel then asked one paraprofessional to monitor the e-filing system and to docket the plaintiff's cross appeal as soon as possible. That paraprofessional, however, became unexpectedly ill, missed several days of work, and ultimately left her position without performing the required task. Counsel immediately contacted the clerk's office upon discovering the problem on March 9, 2020, and docketed the plaintiff's cross appeal on March 10, 2020.

We cannot conclude on this record that the judge abused her discretion in concluding that there was no inexcusable neglect here. Unlike cases where a garden-variety miscommunication between attorneys was the cause of the delay, see, e.g., Pierce, 95 Mass. App. Ct. at 715-716, here a critical paraprofessional became unexpectedly ill and ultimately left counsel's employ. Rather than demonstrating inattention, counsel and his staff consistently and repeatedly contacted the clerk's office, sought advice, and followed the advice received. Contrast BJ's Wholesale Club, Inc., 52 Mass. App. Ct. at 588 (no attempt to contact clerk's office until after expiration of deadline). We can discern no abuse of discretion in the judge's conclusion that the combination of an unexpected illness and problems with the e-filing system negated a finding of inexcusable neglect. Accordingly, we affirm.3

Order denying motion to dismiss cross appeal affirmed.


3.   We reject the defendants’ suggestion that the plaintiff did not receive leave to docket the cross appeal late. As the single justice determined in No. 2020-P-225, the Superior Court judge allowed the late docketing. As a matter of law, the judge's finding that there was no inexcusable neglect required that “the court shall enlarge the appellant's time for taking the required action.” Mass. R. A. P. 10 (c).

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