WAYLAND COLEMAN v. CAROL A. MICI & Others.

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

22-P-292

WAYLAND COLEMAN

vs.

CAROL A. MICI1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Wayland Coleman, appeals from a Superior

Court judgment dismissing his complaint for, inter alia, relief

in the nature of certiorari for want of prosecution. Concluding

that the dismissal was unwarranted where the plaintiff promptly

proffered a plausible reason for his delay in moving for

judgment on the pleadings and that less severe sanctions were

available to the judge, we vacate the judgment and remand for

further proceedings.

1 Individually and as Commissioner of Correction.
2 Kristie Ladouceur, individually and as superintendent of the
North Central Correctional Institution; Randolph Miller,
individually and as a disciplinary hearing officer; Kevin
Anahory, individually and as a director of inmate discipline;
and Thomas W. Perry Jr., individually and as a reporting
officer.
1. Background. The plaintiff filed his complaint on

January 24, 2020. According to the returns of service filed

with the Superior Court, service of the complaint was

accomplished on the various defendants between February 13 and

20, 2020. On May 15, 2020, the defendants filed the

administrative record with the court. See Superior Court

Standing Order 1-96(2); Crowell v. Massachusetts Parole Bd., 477

Mass. 106, 109 (2017). Counsel for the defendants signed a

certificate of service attesting that he mailed a copy of the

record to the plaintiff; the plaintiff alleges that this is not

so, but in fact can know only that he never received it.

On March 2, 2021, the plaintiff moved for entry of a

default on the ground that "[t]he Defendants have failed to

answer or otherwise defend as to Plaintiff's complaint, or serve

a copy of any answer or any defense which it might have had,

upon [plaintiff]." In response, on March 24, 2021, counsel for

the defendants informed the plaintiff that he had mailed a copy

of the administrative record in May 2020 and sent the plaintiff

another copy. The plaintiff acknowledges to us -- but was never

asked by the Superior Court judge -- that he received this copy.

The motion for entry of a default was never ruled on.

After nine months had passed without a ruling on the motion

for entry of a default, the defendants moved to dismiss for

failure to prosecute pursuant to Mass. R. Civ. P. 41 (b) (2),

2
365 Mass. 803 (1974). The defendants did not identify any

manner in which they had been prejudiced by the delay. The

plaintiff promptly responded by asserting that the defendants

did not make timely service of the record on him and arguing

that, under these circumstances, his "request for entry of

default was the proper avenue for the Plaintiff to continue to

prosecute his complaint and seek redress." The defendants

responded by producing evidence that they did serve the

administrative record on the plaintiff. Without further

hearing, the judge allowed the motion to dismiss, which

functions as a dismissal with prejudice. See Mass. R. Civ. P.

41 (b) (3), as amended, 454 Mass. 1403 (2009). This appeal

followed.

2. Dismissal for want of prosecution. "The power to

invoke [the sanction of dismissal for want of prosecution] is

necessary in order to prevent undue delays in the disposition of

pending cases and to avoid congestion in the calendars."

Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641

(1986), quoting Link v. Wabash R.R., 370 U.S. 626, 629-630

(1962). Nonetheless, "[i]nvoluntary dismissal is a drastic

sanction which should be utilized only in extreme situations."

Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 471

(1991), quoting Monahan v. Washburn, 400 Mass. 126, 128 (1987).

"As a minimal requirement, there must be convincing evidence of

3
unreasonable conduct or delay. A judge should also give

sufficient consideration to the prejudice that the movant [for

dismissal] would incur if the motion were denied, and whether

there are more suitable, alternative penalties." Monahan, supra

at 128-129. We review a dismissal for want of prosecution for

an abuse of discretion. See Anderson v. Sport Lounge, Inc., 27

Mass. App. Ct. 1208, 1209 (1989).

Superior Court Standing Order 1-96(4) requires the

plaintiff in an administrative review case to file a motion for

judgment on the pleadings within thirty days of service of the

administrative record.3 See Bulldog Investors Gen. Partnership

v. Secretary of the Commonwealth, 457 Mass. 210, 213 (2010);

Sullivan v. Superintendent, Mass. Correctional Inst., Shirley,

101 Mass. App. Ct. 766, 771 (2022). The standing order provides

no description of the proper procedure where, as here, there is

a pending motion for entry of a default for failure to serve the

administrative record in a timely fashion.

To be sure, the Superior Court judge would have acted well

within her discretion to require the plaintiff to file a motion

for judgment on the pleadings, irrespective of the pending

motion for entry of a default. See Miller v. Superintendent,

3 The deadline is extended where, unlike here, certain
preliminary motions are timely made. See Standing Order 1-
96(3).

4
Mass. Correctional Inst., Shirley, 99 Mass. App. Ct. 395, 400

(2021) (prisoner raised claim of late service of record in

motion for judgment on pleadings). Where the plaintiff,

however, was actively pursuing his case through a motion for

entry of a default and advanced a plausible theory why a motion

for judgment on the pleadings was not yet due, and the

defendants have not been prejudiced by any delay, this was not a

circumstance in which "a severe sanction is necessary."

Massachusetts Broken Stone Co. v. Planning Bd. of Weston, 45

Mass. App. Ct. 738, 740 (1998). Cf. Foley v. Walsh, 33 Mass.

App. Ct. 937, 938 (1992), quoting Hoch v. Gavan, 25 Mass. App.

Ct. 550, 552 (1988) (dismissal proper where, "on defendant's

challenge, the plaintiff fails to come forward with a showing of

reasonable excuse").

As we have held previously, "at least when there is no

showing of wilful delay or default by the plaintiff or serious

prejudice to the defendant, involuntary dismissal with prejudice

under rule 41(b)(2) constitutes reversible error when less

drastic sufficient sanctions exist." Dewing, 30 Mass. App. Ct.

at 472. Here, the judge could have directed the plaintiff to

file a motion for judgment on the pleadings notwithstanding the

pending motion for entry of a default or simply denied the

motion for entry of a default. So far as this record reflects,

either action would have gotten this case moving again and ripe

5
for resolution. Accordingly, the dismissal was improper. See

id. at 468-469 (error to dismiss where no action taken for over

three years but no showing of prejudice or willful delay).

Contrast Anderson, 27 Mass. App. Ct. at 1209 (dismissal proper

where plaintiff's absence prevented empaneled jury from reaching

case); Hoch, 25 Mass. App. Ct. at 553 (dismissal proper where

defendant had significant "risk of being prejudiced in his

defense").

3. Conclusion. The judgment in favor of the defendants is

vacated, and the case is remanded for further proceedings.

So ordered.

By the Court (Massing,
Ditkoff & Singh, JJ.4),

Clerk

Entered: July 6, 2023.

4 The panelists are listed in order of seniority.

6