LEGAL DOCUMENTS

COMMONWEALTH OF MASSACHUSETTS

This case is now before the court on plaintiff's (Sr. Plante) motion for relief from judgment pursuant to Mass. R. Civ. P. 60(b)(1) from this court's decision of August 27, 1996 granting summary judgment in favor of the defendant Samaritans. Sr. Plante contends that she is entitled to relief from judgment due to her former counsel's "excusable neglect"; specifically, she argues that former counsel failed to proffer sufficient, non-hearsay facts to overcome Samaritan's motion for summary judgment. For the reasons set forth below, plaintiff's motion is denied.

DISCUSSION

In Berube v. McKesson Wine & Spirits Co., the Appeals Court enunciated the relevant factors to be considered by a judge in ruling on a motion such as this for relief from judgment under Rule 60(b)(1). 7 Mass. App. Ct. 426 (1979). Under Berube, the court must consider at least the following factors in deciding the motion:

1. whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom;
2. whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit;
3. whether the neglectful conduct occurs before trial, as opposed to during, or after the trial;
4. whether the neglect was the product of a consciously chosen course of conduct on the part of counsel;
5. whether prejudice has resulted to the other party; and
6. whether the error is chargeable to the party's legal representative, rather than to the party [herself]...

Sr. Plante filed the instant motion within one year from the date of the summary judgment decision. Further, there is no dispute that the alleged error was the fault of her former counsel, rather than Sr. Plante, and that such error occurred before trial. However, the balance of the factors outweigh those in Sr. Plante's favor: the lack of merit of her defamation claim, the prejudice to the Samaritans, and the neglect being a product of conscious choice by her former counsel (given that the alleged neglect concerns the preparation of an opposition to summary judgment).²

Moreover, in Woo v. Moy, the Appeals Court denied defendant's Rule 60(b) motion noting, "[s]ummary judgment is not a casual procedure. It is a proceeding that bids fair to be dispositive of the case and casual or supine reaction to a moving party's affidavits is not a minor error." 17 Mass. App. Ct. 949, 949-950 (1983). In that case, the Appeals Court distinguished counsel's conduct of failing to use the deposition of the defendant, which disclosed disputes over material facts, in opposition to plaintiff's motion for summary judgment from other cases such as where counsel could not be present, a "minor error" for nonpayment of costs was committed, or a default judgment entered. Id.

The court is guided by the distinction drawn in Woo and this views the conduct of Sr. Plante's former counsel as the result of a conscious effort in preparing the opposition to the summary judgment, rather than the result of a minor error. See also Picucci v. Town of Kittery, ME., 101 F.R.D. 767, 769 (1st Cir. 1984) ("Absent some 'unique or extraordinary' circumstance,...which justifies the intervention of the Court to alleviate the damage done by errors or omissions of persons who operate outside the control of the Court, such errors or omissions are not the basis for a determination of 'excusable neglect' under the provisions of Fed. R. Civ. P. 60(b).").

Finally, the Court finds that the parties' interests in the finality of litigation likewise supports denial of the motion. Woo, 17 Mass. App. Ct. at 950 ("finality of litigation [is] an appropriate consideration when acting on a rule 60(b) motion").³

ORDER

For the foregoing reasons, it is hereby ORDERED that plaintiff Beverly Plante's motion for relief [from] judgment is DENIED

NOTES:

¹Michael D. Moran, Ellie Leite, and Peter L. Paull, Jr., each individually and as members of the board of directors, for the Samaritans of Fall River/New Bedford, Inc.

²In support of this motion, Sr. Plante filed another affidavit. This affidavit does not change the court's analysis or reasoning in its summary judgment decision.

³The court recognizes [and] is aware that on September 10, 1997, the Appeals Court granted Sr. Plante leave to file a late notice of appeal from the summary judgment granted against her in this action. So, in that respect, the court recognizes that finality has not yet been achieved in this case.

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