Patrick Louis v. Legal Sea Foods, LLC.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-194

PATRICK LOUIS

vs.

LEGAL SEA FOODS, LLC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Before us is the appeal of plaintiff Patrick Louis from the

denial in the Superior Court of his motion brought under Rule

60 (b) of the Massachusetts Rules of Civil Procedure, 365 Mass.

828 (1974), seeking relief from the summary judgment entered in

this matter. The plaintiff filed no opposition to the motion

for summary judgment, and it was allowed as unopposed. Summary

judgment entered against the plaintiff on March 3, 2020. The

plaintiff did not appeal. On February 26, 2021, the plaintiff

served his rule 60 (b) motion. He argued that he did not

receive the motion for summary judgment, although the

certificate of service stated that it was mailed to a proper

address for him. He also argued that the defendant did not

"meet and confer" prior to the filing of the motion for summary

judgment.
After hearing, the motion judge denied the rule 60 (b)

motion. The judge did not credit the plaintiff's assertion that

he did not receive the summary judgment motion and attachments,

and the judge found that the service of the motion and

accompanying papers complied with Mass. R. Civ. P. 5 (b), as

amended, 488 Mass. 1402 (2021), and that prior to filing the

summary judgment motion, counsel for the defendant sent two e-

mail messages to the plaintiff informing the plaintiff of the

defendant's intent to file a summary judgment motion and seeking

a rule 9C conference. See Rule 9C of the Superior Court (2018).

The plaintiff did not respond. The judge also found that the

plaintiff, having himself filed a summary judgment motion that

was denied, was well aware of the procedure for filing a summary

judgment motion and chose to ignore the defendant's motion when

filed.

The judge also found that the delay of a year in bringing

the rule 60 (b) motion was unacceptable, where the plaintiff did

not provide any reason for the delay.

We review the denial of the rule 60 (b) motion for abuse of

discretion. A rule 60 (b) motion must be brought "within a

reasonable time." Whether viewed as a motion under rule

60 (b) (3) for fraud, which may not be brought more than one

year after the entry of judgment, see Mass. R. Civ. P. 60 (b),

or under rule 60 (b) (4), alleging that the judgment was void,

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the motion had to be brought within a reasonable time. Given

the judge's findings about the plaintiff's knowledge of the

summary judgment motion, we see no abuse of discretion in the

judge's determination that waiting almost a year to bring the

rule 60 (b) motion was not within a reasonable time. Even if we

were to leave aside the judge's findings about the plaintiff's

knowledge of the motion, the plaintiff has conceded that, on

March 6, 2020, a few days after the entry of the summary

judgment, he received notice that judgment had entered. Given

this, and the absence of any explanation for the delay, even if

the plaintiff had not known about the motion when it was filed

or ruled upon, where he failed to take any action for almost a

year, without explanation, there is no error in the conclusion

that the rule 60 (b) motion was not "made within a reasonable

time." Mass. R. Civ. P. 60 (b).

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For this reason alone, the order denying the rule 60 (b)

motion is affirmed.

So ordered.

By the Court (Rubin, Neyman &
Walsh, JJ. 1),

Clerk

Entered: December 11, 2023.

1 The panelists are listed in order of seniority.

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