LENIN ROA & Another v. CITY OF LAWRENCE & 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

24-P-1072

LENIN ROA & another1

vs.

CITY OF LAWRENCE & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This matter arises from the plaintiffs' complaint against

the defendants related to water damage the plaintiffs sustained

to their home because of clogged storm drains. The plaintiffs

argue on appeal that the Superior Court judge erred in her

denial of their motion for extension of time to serve one of the

defendants, National Water Main Cleaning (NWMC), and her denial

of their motion for reconsideration of the same. The Superior

Court granted NWMC's motion to dismiss the complaint. We

affirm.

1 Ariela Roa.

2 National Water Main Cleaning.
Background. The plaintiffs allege that their home

sustained damage when water from the catch basins in the street

backed into and flooded their home. On April 6, 2022, the

plaintiffs filed an action naming as defendants the City of

Lawrence, Roadway Maintenance Services, and BMC Corporation.3 On

February 23, 2024, the plaintiffs filed a motion to amend their

complaint to add NWMC as a party. On March 5, 2024, the judge

allowed the motion without a hearing. On March 6, 2024, the

plaintiffs filed a revised second amended complaint.

On June 4, 2024, the plaintiffs filed a motion to extend

the time for service on NWMC by thirty days pursuant to Mass. R.

Civ. P. 6 (b) (1), 365 Mass. 747 (1974), and Mass. R. Civ. P.

4 (j), as appearing in 402 Mass. 1401 (1988). In support of

their motion, the plaintiffs stated that they did not receive

notice that the judge allowed their motion to amend and learned

that the motion had been granted after searching the docket on

the court's internet database. On June 7, 2024, the judge

denied the plaintiffs' motion, noting that the court confirmed

that the notices had been issued and stating that she did not

credit the plaintiffs' assertions that they failed to receive

3 On January 29, 2024, the complaint against Roadway
Maintenance Services was dismissed by agreement of the parties.
On February 26, 2024, the complaint against BMC Corporation was
similarly dismissed by agreement of the parties. On June 25,
2024, the parties agreed to dismiss the City of Lawrence from
the complaint.

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notice that their motion to amend had been allowed. On June 26,

2024, the plaintiffs filed a motion for clarification or

reconsideration of the judge's denial of their motion to extend

time to serve process, arguing that the sheriff's department was

behind in service due to a staff shortage. On June 27, 2024,

the judge denied this motion. A second judge allowed the

defendant's unopposed motion to dismiss on July 25, 2024, and

dismissed the plaintiff's revised second amended complaint on

August 16, 2024.

Discussion. The plaintiffs contend that the judge abused

her discretion in denying their motion to extend the time for

service pursuant to Mass. R. Civ. P. 4 (j), as appearing in 402

Mass. 1401 (1988). Mass. R. Civ. P. 4 (j) provides the relevant

deadline for service of a civil complaint:

"If a service of the summons and complaint is not made upon
a defendant within 90 days after the filing of the
complaint and the party on whose behalf such service was
required cannot show good cause why such service was not
made within that period, the action shall be dismissed as
to that defendant without prejudice upon the court's
initiative with notice to such party or upon motion."

A judge may exercise her discretion to allow a motion to

extend the time to serve process after the expiration of the

specified deadline "where the failure to act was the result of

excusable neglect." Mass. R. Civ. P. 6 (b) (2), 365 Mass. 747

(1974). We review the judge's decision to deny the plaintiffs'

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motion to extend time to serve process for abuse of discretion.

See Patterson v. Hantzes, 5 Mass. App. Ct. 806, 806 (1977)

(reviewing "allowance of the late filing of the plaintiffs'

answer to the defendants' counterclaim" for "abuse of

discretion"). Trial judges abuse their discretion when

committing "a clear error of judgment in weighing the factors

relevant to the decision . . . such that the decision falls

outside the range of reasonable alternatives" (quotation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

In a letter to the defendant's attorney dated May 10, 2024,

the plaintiff's attorney acknowledged that he checked the case

docket online, learned that his motion to amend the complaint

had been allowed, and asked whether the defendant's attorney

would accept service. On May 13 and June 3, 2024, defense

counsel, via email, agreed to accept service. The plaintiffs'

counsel, however, did not file a motion to extend the time to

serve process until June 4, 2024.4

The plaintiffs argue that they did not receive notice that

their motion to amend had been allowed. In her reasons for

denying the plaintiffs' motion to extend time, however, the

4 The plaintiff incorrectly contends that the ninety-day
time period expired on June 6, 2024. Having reviewed the
docket, we conclude that the ninety-day period expired on June
3, 2024, or at the latest on June 4, 2024.

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judge noted that the court had confirmed that the notices had

been issued and that she did not credit the plaintiffs'

assertion that they did not receive notice of the allowance of

their motion to amend until May 13, 2024, when they searched the

docket on MassCourts.5 The judge also noted that the plaintiffs

had "previously been reminded to attend to deadlines

appropriately."6 The judge found that the plaintiffs made no

efforts to effectuate service through the sheriff's department

until an unspecified date, which the judge inferred was three

months after the filing of the second amended complaint. The

judge also found that the plaintiffs knew the business address

of the defendant and the name and address of defense counsel

since at least February 6, 2024, the date the plaintiffs drafted

their second amended complaint. Our review of the record

supports the judge's findings, and we conclude that the

plaintiffs failed to demonstrate excusable neglect for failing

to effectuate service. Therefore, the judge did not abuse her

discretion in denying the plaintiffs' motion to extend.

5 Even if we were to accept the plaintiffs' assertion that
they did not receive notice of the allowance of their motion
until May 13, 2024, the plaintiffs still had twenty-one days to
effectuate service but failed to do so.

6 On December 8, 2022, the judge allowed the plaintiffs'
motion to enlarge the time to answer interrogatories, stating
"Plaintiff is advised not to await such time as to create an
'emergency' and thereby bypass Rule 9A."

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The plaintiffs contend that the judge erred in denying

their motion for reconsideration. We disagree. "[A] motion for

reconsideration calls upon the discretion of the trial judge."

Audobon Hill S. Condominium Ass'n v. Community Ass'n

Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 466 (2012). A

motion for reconsideration "shall be based on (1) newly

discovered evidence that could not be discovered through the

exercise of due diligence before the original motion was filed;

(2) a change of relevant law; or (3) a particular and

demonstrable error in the original ruling or decision." Rule 9D

of the Rules of the Superior Court (2023). The plaintiffs

failed to demonstrate any of the factors in their motion for

reconsideration. In denying the plaintiffs' motion for

reconsideration, the judge referred to her reasons for the

denial of the plaintiffs' motion to extend time and added,

"while plaintiff[s] may not be held responsible for the

sheriff's staffing shortage, Plaintiffs are responsible if they

did not forward the documents in need of service to the sheriff

prior to 6/3/24. Failure to serve is not synonymous with 'good

cause' why service was not made." The plaintiffs had been on

notice since at least May 13, 2024, that their motion to amend

had been allowed but still failed to effectuate service.

Furthermore, they waited until June 4, 2024, to file their

request for additional time for service. We conclude that the

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judge did not abuse her discretion in denying the plaintiffs'

motion to reconsider.

Judgment affirmed.

By the Court (Meade, Shin &
Tan, JJ.7),

Clerk

Entered: August 26, 2025.

7 The panelists are listed in order of seniority.

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