RAYMOND WILSON THIRD v. RUI SILVA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises out of a complaint filed in 2023 in the Superior Court, seeking damages for injuries sustained in a motor vehicle crash. The final trial conference was scheduled for February 20, 2025, and the trial for February 24, 2025.

On February 18, 2025, the pro se plaintiff posted a document on the door of the courthouse, which the court treated as a motion for a continuance. The handwritten document said, “Have clerk postpone upcoming dates of 2-20-25/2-24-25 and to notify [the defendant's lawyer] now not to come. Plaintiff has RSV [Respiratory Syncytial Virus]. I mailed out letters of such might not get them in time.”

The judge entered an order on February 19, 2025. The order read, “The court considering this a motion to continue upcoming dates allows the motion in part, continuing the FTC [final trial conference] for 2/20/25 to the morning of trial 2/24/25. Any further requests for a continuance of the trial date must be accompanied by a physicians note establishing the plaintiff is unable to appear and participate in trial on 2/24/2025.”

The defendant and counsel showed up at the court on February 24, 2025, but the plaintiff did not. The judge entered a judgment dismissing the complaint, without prejudice, for failure to prosecute. Counsel for the defendant asked at the hearing whether the complaint was dismissed without prejudice, and the judge said,

“Without prejudice. My only reservation, counsel, being the fact that [the plaintiff] indicated he has an illness․ It is dismissed and it will not be reinstated, unless [the plaintiff] takes some action by way of a motion. And, I'm not saying either ․ that I would allow that motion. I don't know what the content of it might be. I don't know what information ․ he might provide to me at that point in time.”

The plaintiff did not file a motion seeking relief from the judgment, Mass. R. Civ. P. 60, 365 Mass. 828 (1974), accompanied perhaps by a note from a doctor confirming the plaintiff's diagnosis and explaining the propriety or impropriety of his expressed concern about spreading the infection. Instead, the plaintiff filed a notice of appeal from the dismissal.

Some documents submitted as part of the plaintiff's appendix here reflect his diagnosis, and he avers that guidelines from the United States Centers for Disease Control and Prevention (CDC) prohibited his interacting with others for ten days after diagnosis; which, in his case, he asserts was on February 16, 2025. However, so far as we are aware, nothing in the Trial Court record corroborates the plaintiff's statement that he was diagnosed with RSV or even articulates what he alleges the CDC guidance states.

The only question before us is whether it was an abuse of discretion for the judge to dismiss the complaint without prejudice when the plaintiff failed to appear for the February 24, 2025, jury trial. See Anderson v. Sport Lounge, Inc., 27 Mass. App. Ct. 1208, 1209 (1989) (“Courts have inherent power to dismiss a case for lack of prosecution,” and decision is within “sound discretion of the judge”). It was not.

Having treated the document simply left on the door of the court house as a motion for a continuance based on the plaintiff having tested positive for RSV, the judge allowed it in part and specified that any further continuance required a doctor's note. Given the claim of a medical reason for a continuance, this was a reasonable course of action and not an abuse of discretion. Between the issuance of that order on February 19, 2025, and the date of the rescheduled conference on February 24, 2025, the plaintiff did not present a doctor's note to, or otherwise communicate with, the court at all. Thus, there is no showing that “the plaintiff's documented sickness precluded his presence at trial.” Anderson, 27 Mass. App. Ct. at 1209, citing Monahan v. Washburn, 400 Mass. 126, 129 (1987).

As a result, when the plaintiff failed to show up for the conference or trial, it was not an abuse of discretion to dismiss the case, particularly where the judge did so without prejudice, giving the plaintiff an opportunity to seek reinstatement, including by presenting medical information to the judge.¹

Because it involved no abuse of discretion or error of law, the judgment dismissing the case without prejudice is affirmed.²

So ordered.

FOOTNOTES

1.   In the transcript of the proceeding on February 24, 2025, the judge, perhaps incorrectly, referred to RSV as “basically a common cold.” Among other things, the opportunity to seek reinstatement provided an avenue for the plaintiff to provide information to the judge about the serious nature of RSV to the extent that has bearing on the question of the propriety of a continuance and/or his failure to appear.

2.   The plaintiff makes a series of allegations about this particular judge's assignment to his case, but points to no way in which the judge's assignment to the case was irregular or in violation of any rule or order.