CARMINE FOSSILE v. NEAL FOSSILE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from summary judgment entered against him in the Superior Court. We affirm.

Background. The plaintiff instituted this action against his two brothers and the companies that the parties operated together, alleging negligence, fraud and deceit, conversion, self-dealing, breach of fiduciary duties, misappropriation of corporate assets, and a request for an accounting. The defendants filed counterclaims.

The defendants filed their first motion for summary judgment on March 4, 2024. The plaintiff moved to strike the motion, or in the alternative, extend time to answer. The judge allowed the plaintiff's motion and ordered that any motion for summary judgment be served by May 31, 2024, and any opposition by July 1, 2024. The defendants timely served their motion and filed it with the court.

The plaintiff did not file an opposition with the court in this matter. Instead, two weeks after the deadline for filing an opposition had passed, on July 15, 2024, in a separate Superior Court case between the parties, the plaintiff filed a “Notice of Filing Motion to File Answer to Summary Judgment Late Together with Opposition.”⁴

On August 22, 2024, fifty-two days after the deadline for the plaintiff to file an opposition has passed, the judge granted the defendants’ motion for summary judgment. The judge determined that “[u]pon consideration of the pleadings, the lack of opposition by the Plaintiff, and the appropriate legal standards, the Defendants’ Motion for Summary Judgment is allowed.” She noted that “the Plaintiff has a history of failing to file responsive pleadings and thereafter, months later, seeking relief. Here, the Court has held the papers for well over a month in the event Plaintiff's counsel belatedly filed a response, which he has not done.” Rather than seek reconsideration or relief from the judgment or wait for damages to be determined, the plaintiff appealed.

Discussion. We review the judge's decision to allow the defendants’ unopposed motion for an abuse of discretion.⁵ See Malden Police Patrolman's Ass'n v. Malden, 92 Mass. App. Ct. 53, 56 (2017). To show an abuse of discretion, the plaintiff must demonstrate “ ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge acted well within her discretion, given the plaintiff's failure to oppose the defendants’ motion. Judges have the inherent power to manage their dockets. See Commonwealth v. Charles, 466 Mass. 63, 73 (2013). That is what occurred here. Not only did the plaintiff fail to comply with the judge's deadline of July 1, but he also failed to file a late notice of opposition in the proper case. And nothing in the record shows that the plaintiff served the defendants with this notice or any motion in opposition. The judge waited fifty-two days after the plaintiff failed to meet the deadline and only then issued her ruling. Given these circumstances, the plaintiff has not demonstrated that the judge abused her discretion.

The plaintiff also argues for the first time on appeal that his failure to oppose the motion constituted excusable neglect. The issue is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (“An issue not raised or argued below may not be argued for the first time on appeal” [citation omitted]). In any event, the plaintiff's argument would still fail because the plaintiff failed to establish excusable neglect.

“Rule 60 (b) (1) allows a judge to grant relief from a judgment on the grounds of ‘mistake, inadvertence, surprise, or excusable neglect.’ ” Gath v. M/A-COM, Inc., 440 Mass. 482, 496-497 (2003). The party arguing excusable neglect “bears the considerable burden of showing that the mistake was indeed excusable, and not due simply to its own carelessness.” Id.

The plaintiff argues that it was excusable neglect to file the notice of late opposition in the wrong case. But assuming this was excusable, the plaintiff's continued failure to file a late opposition was not. At no point did the plaintiff, after filing the notice, proceed to file a late opposition. Nor did the plaintiff explain, either in the Superior Court or on appeal, what prevented him from doing so. This unexplained failure to oppose the defendants’ motion prevents the plaintiff from demonstrating excusable neglect.

Conclusion. We affirm the August 22, 2024 order granting summary judgment in favor of the defendants and remand the matter to the Superior Court for further proceedings consistent with this memorandum, including a determination of damages.⁶

So ordered.

FOOTNOTES

4.   No certificate of service for this motion is in the record. Moreover, the plaintiff did not submit a late opposition in either case.

5.   Ordinarily, we limit our review to final judgments. See Institution for Sav. in Newburyport & Its Vicinity v. Langis, 92 Mass. App. Ct. 815, 818 (2018). Here, although “judgment” entered, the judgment was not final, because the defendants’ motion for assessment of damages, costs, and interest remains unresolved. But because the matter is fully briefed and the same arguments likely will return on appeal, we exercise our discretion to address them. See id. at 818-819; Landry v. Massachusetts Port Auth., 89 Mass. App. Ct. 307, 310 (2016).

6.   Because of this disposition, the defendants’ motion to expand the record is moot.