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Appeals Court of Massachusetts.

Mark BAUERSACHS v. Alan AARON & another.1


Decided: March 02, 2021

By the Court (Blake, Desmond & Hand, JJ.2)


The plaintiff, Mark Bauersachs, appeals from a decision of the Appellate Division of the District Court Department (Appellate Division) affirming orders denying the plaintiff's motion to extend the time for filing a notice of appeal and dismissing the plaintiff's appeal. We affirm.

Background. The plaintiff and his wife filed the instant case against the defendants, Alan Aaron and Rachel Minutolo, alleging malicious prosecution and civil conspiracy as a result of Aaron's role as an attorney and Minutolo's role as a constable in a prior summary process action.3 Aaron moved to dismiss the plaintiff's complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and 12 (b) (9), as amended, 450 Mass. 1403 (2008), and Minutolo moved to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), or in the alternative, moved to stay the action until the appeal from the summary process action was decided. Following a hearing, the judge allowed the motions to dismiss in a margin endorsement “as to all counts for either issue preclusion, failure to state a claim, or both.” The judge's ruling was entered on June 26, 2018, and notice was sent to the parties that day. The judgment of dismissal was also entered on June 26, 2018, but the docket does not indicate whether notice of the judgment was sent to the parties.

The plaintiff filed a notice of appeal on July 13, 2018, seventeen days after the entry of judgment and seven days after the deadline for filing a notice of appeal. See Rule 4(a) of the Dist./Mun. Cts. Rules for Appellate Division Appeal (2013) (Rule 4[a]). Both defendants moved to dismiss the appeal as untimely, and the plaintiff moved for an extension of time, pursuant to Rule 4(c) of the Dist./Mun. Cts. Rules for Appellate Division Appeal (Rule 4[c]). After a hearing, the judge concluded that no showing of excusable neglect or other good cause was made. As a result, he denied the plaintiff's motion for an extension, and dismissed the plaintiff's appeal. See Rule 4(c). The plaintiff appealed from the denial of his motion for an extension and the dismissal of his appeal to the Appellate Division. The Appellate Division affirmed, and this appeal followed.

Discussion. Pursuant to Rule 4(a), a notice of appeal to the Appellate Division must be filed within ten days after the date of the entry of the judgment in the case being appealed. Rule 4(c) permits a judge to extend the time for filing a notice of appeal by ten days where, on motion, the moving party shows “excusable neglect or other good reason.” “Decisions on requests for extension of time are reviewed for an abuse of discretion.” Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct. 157, 161 (2000).

The plaintiff first contends that it was abuse of discretion to deny his motion for an extension because the clerk failed to mail notice of the judgment of dismissal until June 28, 2018, two days after judgment was entered.4 However, “we do not find excusable neglect in the ‘simple case of reliance by the parties on the clerk's duty to send notice of orders’ where they had neglected ‘their obligation to check the docket entries periodically.’ ” BJ's Wholesale Club v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001), quoting Abbott v. John Hancock Mut. Life Ins. Co., 18 Mass. App. Ct. 508, 513 (1984). Rather, “[t]he concept of excusable neglect is meant to apply to circumstances that are unique or extraordinary, not to any ‘garden-variety oversight.’ ” Shaev v. Alvord, 66 Mass. App. Ct. 910, 911 (2006), quoting Feltch v. General Rental Co., 383 Mass. 603, 613-614 (1981). Indeed, “[it] is meant to take care of emergency situations only.” See Lawrence Sav. Bank, 49 Mass. App. Ct. at 161, quoting Bernard v. United Brands Co., 27 Mass. App. Ct. 415, 418 (1989).

Here, the plaintiff had an independent obligation to monitor the case's docket, and we discern no abuse of discretion in the determination that his failure to do so did not constitute excusable neglect. Moreover, as noted by the Appellate Division, the plaintiff actually received notice of the judgment of dismissal on July 2, 2018, and nevertheless failed to file his notice of appeal in a timely manner. Rather, the plaintiff worked on July 3 and went on a family vacation on July 4, returned on July 8, and did not file his notice of appeal until July 13.5 Accordingly, even if a two-day delay in sending notice of the judgment was sufficient to warrant a finding of excusable neglect for a period of time, that time expired when the plaintiff inexplicably failed to file the notice of appeal within ten days of being duly notified of the judgment.

Additionally, the plaintiff argues that the judge should have granted him an extension because he misunderstood the substance of the judge's orders and rulings. However, pro se litigants are held to the same standards as litigants represented by counsel and are bound to the same procedural rules. See Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985). “A flat mistake of [the plaintiff] about the meaning of a statute or rule may not justify relief.” Goldstein v. Barron, 382 Mass. 181, 186 (1980). Ultimately, the circumstances here are not “unique or extraordinary,” and do not warrant a finding of excusable neglect for the plaintiff's delay in filing his notice of appeal. Shaev, 66 Mass. App. Ct. at 911. As a result, we perceive no abuse of discretion in the denial of the plaintiff's motion for an extension or the dismissal of his appeal.6

Decision and order of Appellate Division affirmed.


3.   The plaintiff's wife is not a party to this appeal.

4.   Though the trial judge did not expressly find that the clerk delayed in sending notice of the judgment to the parties, the docket does not indicate whether notice was sent, and the plaintiff submitted to the court an envelope, in which he received the notice, bearing a postmark date of June 28, 2018. Accordingly, the Appellate Division assumed for the purpose of the appeal that the clerk sent notice to the parties two days after the judgment entered. We do the same.

5.   The plaintiff failed to submit an affidavit to establish the facts in support of his motion. See Dist./Mun. Cts. Supp. R. Civ. P. 105 (“The court need not hear any motion, or opposition thereto, grounded on facts, unless the facts are verified by affidavit, or are apparent upon the record and files, or are agreed to and stated in writing signed by the attorneys for the parties interested”). At the hearing on the motion to dismiss, the pro se plaintiff represented the facts about when he received notice of the judgment, the timing of his family vacation, and the date of his response. The judge accepted these representations.

6.   The plaintiff's claims addressing the merits of the judgment of dismissal are not properly before us and we decline to address them. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019).

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