SEAVIEW RETREAT, INC., & Others v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & Another.

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-1272

SEAVIEW RETREAT, INC., & others1

vs.

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Seaview Retreat, Inc., Stephen B. Comley,

II, and Aseda Aborgah, appeal from a Superior Court judge's

order denying their cross motion for relief from judgment of

dismissal under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).

We affirm.

Background. On or around September 27, 2011, the

defendant, Michele A. Falzone, a former employee of Seaview

Retreat, Inc., filed a complaint against the plaintiffs with the

Massachusetts Commission Against Discrimination (MCAD). Falzone

1 Stephen B. Comley, Second, and Aseda Aborgah.

2 Michele A. Falzone.
alleged that her employment was terminated in retaliation for

making an internal complaint of sexual harassment after she

overheard another employee make a sexually explicit comment.3

Following an evidentiary hearing, an MCAD "single commissioner"

concluded that the plaintiffs were jointly and severally liable

for retaliation.4 The plaintiffs appealed to the full

commission, which affirmed the decision of the hearing officer.

The plaintiffs then filed a complaint in the Superior Court

seeking judicial review of the final agency decision pursuant to

G. L. c. 30A, § 14, and G. L. c. 151B, § 6, and declaratory

relief under G. L. c. 231A, §§ 1 and 2.

On July 25, 2019, the MCAD filed a copy of the

administrative record of the proceedings. Pursuant to Superior

Court Standing Order 1-96 (4) (2015), the plaintiffs were

required to file a motion for judgment on the pleadings within

thirty days of the filing of the administrative record. The

plaintiffs did not file the required motion within thirty days.

On April 8, 2021, after a status conference, a Superior Court

3 The facts described by the plaintiffs in their appellate
brief differ in substance from the facts found by the hearing
officer. Determinations of fact and credibility were already
made by the single commissioner and have not been challenged on
appeal as clearly erroneous.

4 The single commissioner ordered the plaintiffs to pay
Falzone $25,000 in damages for emotional distress and $6,940 in
damages for back pay.

2
judge extended the deadline to file a motion for judgment on the

pleadings to August 13, 2021. By that time, the plaintiffs

still had not filed the required motion. On October 14, 2021,

the judge issued an order for status review to the parties,

which stated that "if notice is not received by 11/15/2021 the

complaint will be dismissed." The plaintiffs did not respond to

the judge's order. On January 5, 2022, the judge issued another

order that "[t]he clerk will dismiss the case in 30 days absent

written communication from a plaintiff." No plaintiff

responded, and on February 15, 2022, the judge dismissed the

plaintiffs' complaint.

On September 12, 2022, the MCAD filed a motion to issue

separate amended judgments. The plaintiffs filed an opposition

to the motion along with a cross motion for relief from judgment

of dismissal pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828

(1974), requesting further leave to file a motion for judgment

on the pleadings. In the cross motion, the plaintiffs stated

that their counsel was suffering from "medical issues and

complications exacerbated by the COVID 19 pandemic during the

fall and winter of 2021-2022" and did not receive actual notice

of the October 14, 2021 order for status review. After a

hearing, a Superior Court judge allowed the MCAD's motion for

separate judgments and denied the plaintiffs' motion for relief

from judgment. This appeal ensued.

3
Discussion. The plaintiffs argue that the judge abused his

discretion in denying their cross motion for relief from

judgment of dismissal. "Rule 60 (b) (1) of the Massachusetts

Rules of Civil Procedure authorizes the court to grant relief

from judgment in cases of 'mistake, inadvertence, surprise or

excusable neglect.'" Christian Book Distribs., Inc. v. Wallace,

53 Mass. App. Ct. 905, 906 (2001). Alternatively, relief under

rule 60 (b) (6) may be granted "when the vacating of judgment is

justified by some reason other than those stated in subdivisions

(1) through (5)" that presents "extraordinary circumstances"

(citations omitted). Owens v. Mukendi, 448 Mass. 66, 71 (2006).

The party seeking rule 60 (b) relief "bears the burden of

justifying failure to avoid the mistake or inadvertence"

(citation omitted). Tai v. Boston, 45 Mass. App. Ct. 220, 223

(1998). "[T]he denial of a motion under [r]ule 60 (b) will be

set aside only on a clear showing of an abuse of discretion"

(quotation and citation omitted). Atlanticare Med. Ctr. v.

Division of Med. Assistance, 485 Mass. 233, 247 (2020).

The plaintiffs have failed to demonstrate excusable neglect

or extraordinary circumstances warranting relief. The judge was

not required to credit counsel's assertion that he did not

receive notice of the October 14, 2021 order for status review,

as he acknowledged that he had received every other notice from

4
the Superior Court and neither his email nor his office address

had changed.5

Even assuming that counsel for the plaintiffs did not

receive actual notice, he does not deny that he was aware of the

August 13, 2021 deadline to file a motion for judgment on the

pleadings. His stand-alone claim that "medical issues and

complications" prevented him from "personally attending [c]ourt

hearings or appearing in any public venue" does not explain his

failure to file the required motion by the deadline or during

the several months between the deadline and dismissal. While a

failure to receive notice may justify a judge's decision to

exercise their discretion and allow a motion for relief from

judgment, it does not compel a ruling that the judge abused

their discretion in denying such a motion. See Bird v. Ross,

393 Mass. 789, 791 (1985). Indeed, where, as here, counsel was

provided with multiple notices of the Superior Court's intent to

dismiss the plaintiffs' complaint, yet did not respond, we

cannot discern any abuse of discretion. See L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of

5 During a November 10, 2022 hearing, counsel suggested that
emails from the court "sometimes get[] bounced into a spam
folder . . . . And I suspect that that's what happened in this
case with respect to the notice of the status review." He did
not provide an explanation as to why he did not check the docket
after the deadline to file a motion for judgment on the
pleadings had passed.

5
discretion occurs where judge made clear error of judgment in

weighing factors relevant to decision "such that the decision

falls outside the range of reasonable alternatives").

Finally, the judge did not abuse his discretion in

declining to reach the merits of the plaintiffs' claims. Even

if some factors "may provide limited support for the plaintiff's

argument, an appellate court will not reverse a motion judge's

decision 'except upon a showing of a clear abuse of

discretion.'" McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 612

(2002), quoting Tai, 45 Mass. App. Ct. at 224. As the

plaintiffs have failed to make such a showing, we affirm.

Order denying motion for
relief from judgment
affirmed.

By the Court (Neyman, Singh &
Toone, JJ.6),

Clerk

Entered: December 5, 2024.

6 The panelists are listed in order of seniority.

6