TRIAL COURT RULES - SUMMARY PROCESS

I. Uniform Summary Process Rules

LIST OF RULES
1. 2. 3. 4. 5. 6. 7. Scope and Applicability of Rules. Form of Summons and Complaint; Entry of Action; Scheduling of Trial Date; Service of Process. Answer. Transfer of Action. Counterclaims. Motions. Discovery. 8. Jury Trial. 9. Equitable Relief. 10. Entry of Default, Entry of Dismissal; Removal of Default or Dismissal; Entry of Judgment After Trial, Default, or Dismissal; Notice. 11. Relief from Judgment. 12. Appeals 13. Execution. trative Justice of the Trial Court, shall be the only form of summons and complaint used in summary process actions. This form of Summary Process Summons and Complaint shall be considered a writ in the form of an original summons as required by G. L. c. 239, 2. This form shall be available in blank at each of the courts at which summary process actions may be commenced. (b) Service of Process. Service of a copy of a properly completed Summary Process Summons and Complaint shall be made on the defendant no later than the seventh day nor earlier than the thirtieth day before the entry day, provided, however, that service shall not be made prior to the expiration of the tenancy by notice of termination or otherwise except as permitted by statute. Service shall be made in accordance with Rule 4(d) of the Massachusetts Rules of Civil Procedure, provided that if service is not made in hand, the person making such service shall mail, first-class, to the defendant, at the address indicated on the Summary Process Summons and Complaint, a copy of the Summary Process Summons and Complaint; and provided further that return of service, including a statement of mailing where the latter was required, shall be made to the plaintiff only and shall be made in the appropriate space provided on the Summary Process Summons and Complaint. The date of service pursuant to this paragraph shall be deemed the date of commencement of the action subject to proper entry in accordance with the provisions of Rule 2(d). Service shall be made by those authorized to make service by Rule 4(c) of the Massachusetts Rules of Civil Procedure, provided that such service shall be made as required by this section. (c) Entry Date; Scheduling of Trial Date. Entry dates for summary process actions shall be each Monday and cases shall be placed on the list for hearing on the second Thursday following the entry date without any further notice to the parties. Subject to the prior approval of the Administrative Justice of his or her department, the First Justice of any division may designate Friday, Monday, Tuesday, and Wednesday as summary process trial days either as alternatives to Thursday or in addition to Thursday. The cases shall be placed on the list for hearing on the second Friday, the second Monday, the third Tuesday, or the third Wednesday after the Monday entry day without any further notice to the parties when such day has been designated as a summary process trial day. Summary process actions originally commenced in the Superior Court Department shall be added to the next non-jury list for assignment for trial. (d) Entry of Action. Summary process actions shall be entered by filing with the clerk of the court in which the action is to be heard the following documents: (1) the original of the properly completed form of Summary Process Complaint and Summons, a copy of which has been served on the defendant, with return of service recorded thereon; (2) a copy of any applicable notice(s) of termination of the defendants tenancy of the premises upon which the plaintiff(s) relies where such notice is required by law and any proof of delivery of such notice upon which the plaintiff(s) plans to rely at trial; (3) in jurisdictions wherein rent control is in effect a copy of a certificate of eviction granted by the appropriate rent control agency, or an affidavit of exemption; (4) in jurisdictions wherein local laws governing condominium conversion evictions are in effect, a copy of any applicable affidavit of compliance with such local laws; (5) any entry fee prescribed by law unless waived.

Rule 1 SCOPE AND APPLICABILITY OF RULES

These rules govern procedure in all summary process actions in the Trial Court of the Commonwealth. Procedures in such actions that are not prescribed by these rules shall be governed by the Massachusetts Rules of Civil Procedure insofar as the latter are not inconsistent with these rules, with applicable statutory law or with the jurisdiction of the particular court in which they would be applied. These rules and, where applicable, the Massachusetts Rules of Civil Procedure, shall be construed and applied to secure the just, speedy, and inexpensive determination of every summary process action. Any procedural steps taken in a summary process action before the effective date of these rules which conform to then-effective rules will be regarded as valid during the pendency of that action. All procedure after the effective date of these rules with respect to a pending summary process action will be governed by these rules. Commentary Four Departments of the Massachusetts Trial Court have jurisdiction over summary process actions (Superior Court, District Court, Boston Municipal Court and Housing Court). This set of rules replaces the disparate sets of preexisting rules in order to establish uniformity of procedure in the Trial Court. These rules seek to reconcile two competing principles. The rst is that time is of the essence in eviction cases. This is based on the notion that real estate constitutes unique property and that because it generates income, time lost in regaining it from a party in illegal possession can represent an irreplaceable loss to the owner. The Legislature clearly recognized these factors in creating a special chapter of the General Laws establishing a summary procedure. The other principle involved is the unique and fundamental need of tenants for dwellings that are habitable and secure. Recognition of this need has resulted in extensive changes through case law in the legal relationship between tenants and landlords and a host of legislative enactments providing tenants with new rights and remedies. These changes have made the legality of possession an often difcult and complex judicial question. The need, then, is for rules that will ensure expeditious proceedings and yet comprehend all potential substantive and procedural complexities. It is believed that these rules meet that need by addressing specically the basic procedural steps in summary process actions, by adopting by reference the Massachusetts Rules of Civil Procedure to cover any unusual procedural questions that may arise, and by stating in Rule 1 that the rules are to be construed and applied so as to secure the just, speedy, and inexpensive determination of summary process actions.

Rule 2 FORM OF SUMMONS AND COMPLAINT; ENTRY OF ACTION; SCHEDULING OF TRIAL DATE; SERVICE OF PROCESS
(a) Form of Summons and Complaint. The form of Summary Process Summons and Complaint, as promulgated by the Chief Adminis-

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On the appropriate portion of the Summary Process Summons and Complaint the reason(s) for eviction shall be indicated by the plaintiff(s) in concise, untechnical form and with sufficient particularity and completeness to enable a defendant to understand the reasons for the requested eviction and the facts underlying those reasons. (e) Method and Time for Filing. Filing of the Summary Process Summons and Complaint and necessary accompanying documents, if any, shall be by delivery in hand or by first-class mail to the clerk. Filing by mail is complete upon receipt by the clerk. Papers and documents required in accordance with the preceding paragraph shall be filed together no later than the close of business on the scheduled Monday entry day. Late filing of the summons and complaint shall not be permitted without the written assent of the defendant or the defendants attorney. Commentary (as Amended January 1986; February 1993) The procedure for commencing a summary process action under this rule can be summarized in the following three steps: First, a plaintiff wishing to institute an action must secure and complete the required form. One item he must indicate on the form is the date of the hearing. In order to determine this, the plaintiff must choose an entry day (any Monday) prior to which he can get effective service on the defendant and return of service. The hearing date will be on the second Thursday following the Monday entry day selected (unless Friday, Monday, Tuesday, or Wednesday, as a day other than or in addition to Thursday, is approved for that court). Although cases originally commenced in the Superior Court Department are at rst scheduled for a hearing on the second Thursday after the entry day, it is likely that such Superior Court cases would have to be rescheduled as provided in section (c). Second, the plaintiff must have a copy of the completed Summary Process Summons and Complaint properly served on the defendant and get the original of this form back from the process server showing a return of service. Service must be made not later than the seventh day nor earlier than the thirtieth day before the Monday entry day chosen. Therefore, service could be made on the Monday of the week prior to a Monday entry day. Note that Rule 2(b) provides that service is not to be made prior to the expiration of the tenancy except as permitted by law. See G. L. c. 186, 11, 12; G. L. c. 239, 1; see also, Hodgkins v. Price, 137 Mass. 13. Third, the plaintiff must le with the court the original of the completed Summary Process Summons and Complaint (showing return of service), the entry fee and possible certain other documents. This ling constitutes entry of the action. Filing must be made no later than the close of business on the Monday entry day. Note that if ling is by mail, the documents must arrive in court by the Monday entry day. The hearing will be on the second Thursday (or second Friday, second Monday, third Tuesday, or third Wednesday, if so designated) following the Monday entry day. This three-step procedure is required to allow exibility in the time for commencing these actions yet at the same time to provide an automatic hearing date that can be predetermined and communicated to the defendant with the summons and complaint. Commencement of the summary process action under these rules occurs when proper service of the Summary Process Summons and Complaint is completed, subject, however, to the proper entry of the action. It should be noted that the clerk should not refuse to accept a summons and complaint for failure to le documents which may be required by Rules 2(d)(2), (3) or (4). It is a matter for the determination of the court as to whether such documents are required. It should be noted further that the requirement in Rule 2(d)(3) that a certicate of eviction, if any is necessary, be led and served with the Summary Process Summons and Complaint satises the requirement of District Court Administrative Regulation No. 3-73 and the statutory law it reects. That regulation requires that a certicate of eviction, issued before the commencement of the action, be led with the court before any judgment will be entered. Rule 2(d) requires that the plaintiff state the reason(s) for eviction on the summons and complaint. While the substantive law of the Commonwealth may not always require a reason for termination of a tenancy, it does require a reason for eviction. That reason might be simply that a tenant is holding against the right of the landlord after the tenancy has been terminated. When the termination of the tenancy itself requires some reasone.g. breach of lease, termination in a rent control jurisdiction, nonpayment of rentthe reason for the termination must be provided. See G. L. c. 239, 1, 1A. It should be noted that the provisions of Mass. R. Civ. P. 6(a), concerning holidays, are applicable to summary process actions. Therefore, if the entry day or the day for ling answers is a holiday, the entry or ling day would be the next day on which the court is open for business. However, if the plaintiff selects a hearing date which is a holiday, the hearing would be scheduled either the next business day after the holiday or one week later on the following Thursday (or Friday or Monday, if applicable). In rent control jurisdictions, a certicate of eviction is a prerequisite to the commencement of a summary process action. The granting of a certicate of eviction by a rent control board is subject to judicial review. In Gentile v. Rent Control Board of Somerville, 365 Mass. 343, 350 f.n. 7, the Supreme Judicial Court stated that, if a complaint is led challenging the issuance of the certicate of eviction, in many instances that complaint and any related summary process action may be consolidated for trial. Therefore, the court should consider the possibility of consolidation in such cases in order to avoid piecemeal litigation.

Rule 3 ANSWER The defendant shall prepare a written answer containing at the top of the page the caption Summary Process Answer with the trial date set forth below the caption. The answer shall deny every statement in the complaint which is in dispute. The defendant shall also state in the answer any affirmative defense which may be asserted and may state any counterclaim permitted by Rule 5 of these rules. The answer shall be filed with the clerk and served on the plaintiff no later than the first Monday after the Monday entry day. The answer shall be filed by mailing first-class or by delivering a copy of it to the clerk. Service of the answer shall be made upon the plaintiff or plaintiffs attorney by firstclass mail or delivery pursuant to the provisions of Mass. R. Civ. P. 5(b), except that service by mail is complete upon receipt. Filing by mail is also complete upon receipt. Forms of answer, as promulgated by the Chief Administrative Justice of the Trial Court, shall be made available in each clerk-magistrates office.
Commentary (as Amended January 1986; February 1993) Default for failure to answer properly is dealt with in Rule 10 of these rules. By operation of Rule 1 of these rules, questions regarding service by delivery to the plaintiff, proof of service, the effect of failure to le, etc., are governed by the provisions of Mass. R. Civ. P. 5; however, service by mail is complete upon receipt rather than upon mailing. The requirement that answers be led and served no later than the rst Monday after the Monday entry day establishes that day as the last day for ling and service of the answer. An answer form, as promulgated by the Chief Administrative Justice of the Trial Court, may be obtained in the ofces of the clerks of the Housing Court, District Court, Boston Municipal Court and Superior Court Departments. The requirement of a caption and hearing date on the answer was inserted to assist the clerks in identifying summary process papers. Because of the commencement provisions in Rule 2, a clerk may choose not to assign docket numbers to answers until after the entry day. Except for the answer, however, all papers led with the clerk must contain the docket number. See Rules 6 and 7; see also, Mass. R. Civ. P. 10(a). Clerks should not refuse to accept answers led before the entry date.

Rule 4 TRANSFER OF ACTION

A party wishing to transfer a summary process action pending in another department to a division of the Housing Court Department pursuant to law shall do so by ling in both departments a completed transfer form provided by the clerk of the court where the action was

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commenced. The form shall be led in both courts no later than the day before the commencement of the trial. The clerk of the court from which the case is transferred shall forward to the clerk of the appropriate Housing Court division all relevant papers within four business days from the receipt of the transfer form. No entry fee shall be charged upon such transfer. Upon receipt of a copy of this form, the clerk of the Housing Court division shall insure that the case is scheduled forthwith and shall notify the parties in any practical way thereof. A demand for jury trial, if any, pursuant to Rule 8 of these rules, shall be made with the request for transfer. Failure of a party to make a timely transfer as provided above shall not prohibit the court in which the action has been commenced from allowing such transfer on motion for cause shown at any time during the proceedings. Commentary (as Amended January 1986) This rule refers to transfer of summary process actions from the Superior, District and Boston Municipal Court Departments to the Housing Court Department at the request of any party, as permitted by G. L. c. 185C, 20. The clerk of the Housing Court division should insure that the transferred case is scheduled for trial on a date that is convenient to the court and the parties and reasonably consistent with the time limitations in these rules; however, the clerk is not required to choose a Thursday, Friday, or Monday hearing date. A party may transfer an action even though an answer was not timely led. shall be without further notice at the time and on the date the case is originally scheduled for trial. If, however, a motion to dismiss is filed and served on or before the entry date and if the defendant so requests after notice to the plaintiff, the motion shall be heard on the Thursday (or Friday or Monday or second Tuesday or second Wednesday) following the entry date. If the motion is denied, continued, or taken under advisement at the hearing, the defendants answer shall continue to be due as provided in Rule 3 and the schedule for trial shall not be affected, unless the court otherwise orders. All other motions, including motions to allow late filing of pretrial motions, shall be made in such manner, at such time, and with such notice as the court may permit or direct. Commentary (as Amended January 1986; February 1993) This rule establishes the general requirement that all previously led motions shall be heard by the court on the originally scheduled trial day (i.e. the second Thursday, or the second Friday, the second Monday, the third Tuesday, or the third Wednesday in some courts, after the entry day) unless the court otherwise orders. The rule also establishes an alternative procedure if the defendant wishes to seek resolution of a motion to dismiss before the trial date. The motion to dismiss would be heard on the rst Thursday (or rst Friday or rst Monday or second Tuesday or second Wednesday) after the entry day; and, unless the motion is allowed or the court otherwise orders, the regular schedule for summary process cases (answer, trial date, etc.) would not be changed. Pretrial motions, other than motions to dismiss led pursuant to the alternative procedure (supra), must be led by the rst Monday after the Monday entry day. As to any other motions, the court has complete discretion concerning the manner of ling, notice, and hearing. Service of pretrial motions is made in the same manner as service of answers pursuant to Rule 3.

Rule 5 COUNTERCLAIMS
Counterclaims shall be permitted in accordance with the provisions of G. L. c. 239, 8A. Counterclaims shall be set forth in the defendants answer and shall be expressly designated as counterclaims. The right to counterclaim shall be deemed to be waived as to the pending action if such a claim is not led with the answer pursuant to Rule 3, unless the court shall otherwise order on motion for cause shown. Counterclaims shall not be considered compulsory; that is, they shall not be considered waived for the purpose of a separate civil action or actions if not asserted in a summary process action. No responsive pleading to a counterclaim is necessary. Commentary This rule recognizes the statutory right of summary process defendants to assert counterclaims. Counterclaims must be asserted with the defendants answer. A plaintiff against whom a counterclaim is asserted is not required to answer; but an answer to a counterclaim may be led prior to or at the time of the trial. The court may, of course, in its discretion grant a motion for a continuance in order to grant a party time to prepare a defense to a counterclaim. Because counterclaims are not compulsory, the court retains discretion to sever a counterclaim which cannot appropriately be heard as part of the summary process action. It would, however, appear to be contrary to the law to sever a counterclaim which is being relied upon as a defense under G. L. c. 239, 8A. It should be noted that the counterclaim provisions of G. L. c. 239, 8A apply to premises rented or leased for dwelling purposes.

Rule 7 DISCOVERY
(a) General. Either party may obtain discovery by serving on the opposing party a demand therefor and ling a copy of such demand with the court. Such service and ling shall be made no later than the rst Monday after the Monday entry day. A discovery demand, in the form provided in this section, shall be served on the opposing party by mailing rst-class or by delivering a copy of it to that party or that partys attorney. A discovery demand shall be led with the court by mailing rst-class or by delivering a copy of it to the clerk. Filing or service by mail is complete upon receipt. Discovery may be demanded in any of the following forms: (1) written interrogatories; (2) request(s) for admission; (3) request(s) for the production of documents. Neither written interrogatories nor requests for admissions shall exceed 30 in number including any interrogatories or requests subsidiary or incidental to other interrogatories or requests, however grouped or combined. Requests for discovery or further discovery not made in compliance with the requirements of this rule shall not be allowed unless on motion and for good cause shown. A request for discovery in response to an answer or counterclaim shall be deemed to establish good cause. All papers relating to discovery which are filed with the clerk shall contain the docket number of the case. (b) Postponement of Trial Date. Upon proper service and filing of a demand for discovery as required in section (a) above, hearing of the action shall be automatically postponed and rescheduled for the date two weeks from the original trial date. With the service of the discovery demand, the party demanding discovery shall notify the opposing party of the automatic two week postponement, the newly scheduled trial date, and the requirement in Rule 7(c) as to filing and service of responses no later than ten days after receipt of the request. (c) Response to Demand for Discovery; Relief or Objection. The party of whom discovery is demanded shall respond by filing and serving answers to the interrogatories and/or responses to the requests for admission, and/or by producing the documents no later than ten days after receipt of the requests. The response shall be completed upon its receipt. Each interrogatory shall be answered separately and fully in writing

Rule 6 MOTIONS
All pretrial motions shall be made in writing containing the docket number of the case, shall state with particularity the grounds therefor, shall include a brief written statement of reasons in support, shall set forth the relief or order sought, and, except as otherwise provided in this rule, shall be led with the court and served on the opposing party or that partys attorney, if any, no later than the rst Monday after the Monday entry day. A pretrial motion shall be led with the court by mailing rst-class or by delivering a copy of it to the clerk. A pretrial motion shall be served on the opposing party by mailing rst-class or by delivering a copy of it to that party or that partys attorney. Filing or service by mail is complete upon receipt. Unless the court otherwise orders, the hearing on pretrial motions

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under the penalties of perjury, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections by the attorney or person making them. The scope and procedure for requests for production of documents and responses thereto shall be made as permitted and as required by Mass. R. Civ. P. 34(a)(1) and (b); provided, however, that the time limits specified in this rule shall govern. The scope and effect of and the procedure for requests for admission and responses thereto shall be made as permitted and as required by Mass. R. Civ. P. 36; provided, however, that the time limitations specified in this rule shall govern. A party or the partys attorney objecting to or seeking relief from a discovery request may do so by a motion for protective orders or other relief which shall be filed within five days after receipt of such discovery request. (d) Enforcement of Discovery Demand. The fact of a partys failure to respond to a demand for discovery as required by this rule and within the time specified by this rule shall be brought to the attention of the court by the party aggrieved thereby or the partys attorney within five days after such failure by a motion for an order compelling discovery as permitted by Mass. R. Civ. P. 37(a) or by an application for final judgment for relief or dismissal. If a party willfully fails to respond to a discovery demand, on motion heard on the rescheduled trial date the court may make such orders in regard to the failure as are just, and among others the following: (1) an order that matters regarding which discovery is sought shall be taken to be established for the purposes of the action in accordance with the claim of the moving party; (2) an order refusing to allow the party failing to respond to support or oppose designated claims or defenses or prohibiting the party from introducing designated matters in evidence; (3) an order striking out pleadings or parts thereof or staying further proceedings until the discovery demand is satisfied or dismissing the action or any part thereof, or rendering a judgment by default against the party failing to respond. (e) Further Postponement of Trial Date. Upon proper service and filing of a motion for a protective order against a demand for discovery, or upon proper service and filing of a motion to compel response to a demand for discovery or for final judgment for failure to respond, the rescheduled trial date may be postponed and may be rescheduled, if needed, by the court following the hearing and ruling on such motion. Commentary (as Amended February 1993) This rule establishes a limited right to discovery in summary process actions. In keeping with the need for expeditious procedure, an automatic postponement of the trial date for two weeks from the originally scheduled date results from the timely service and ling of a discovery demand. This two-week postponement allows a reasonable time prior to the rescheduled trial date for a response to the demand and for action permitted by the rule, should a timely response not be made. The party demanding discovery must notify the opposing party of the automatic two-week postponement and of the requirements of Rule 7(c). It is noteworthy that demands for discovery must be led and served no later than the rst Monday after the Monday entry day. Because the answer and discovery deadlines fall on the same day, a plaintiff will often not know in time whether discovery is desirable because of the answer and any possible counterclaim. Therefore, section (a) provides that the plaintiffs request for discovery in response to an answer or counterclaim should be allowed on motion. In most cases, the defendant (tenant) will probably not object to any additional delay caused by the plaintiffs request for discovery. See Rule 6 [hearing on pretrial motions on date case is originally scheduled for trial]. In section (d), the sanctions listed for failure to respond to a discovery demand are based on Mass. R. Civ. P. 37(b)(2)(A), (B), and (C). For the requirements of service, see Rule 3 and Mass. R. Civ. P. 5. mand for jury trial shall be filed with the court no later than the date on which the defendants answer is due; (2) in cases transferred from a court in which jury trial is not available to one in which jury trial is available, such demand shall be filed with the transfer form pursuant to Rule 4 of these rules; and (3) in cases appealed to the Superior Court Department, such demand shall be filed within ten days of entry in the Superior Court. Commentary Jury trials are available in summary process actions in the Superior Court Department (whether the action was commenced there or is there on an appeal from the District Court Department or the Boston Municipal Court Department) and in the Housing Court Department (whether the action has been commenced there or has been transferred there). This rule governs the time for ling the demand for jury trial in each such situation. Determination of the issues in which jury trial is available and the procedures therefor are governed by Mass. R. Civ. P. 38, adopted by reference in this rule. It should be noted that jury trials in summary process actions are available in the Worcester Division and the Northern Essex Division (Haverhill) of the District Court Department pursuant to G. L. c. 218, 19A and 19B, respectively.

Rule 9 EQUITABLE RELIEF

The appointment of receivers and the issuance of restraining orders and injunctions shall be governed by applicable statutes and by Rule 65 and 66, respectively, of the Massachusetts Rules of Civil Procedure; provided, however, that the court may modify the time periods and notice requirements of those rules and otherwise fashion the relief it orders as it deems appropriate. Commentary This rule, in effect, permits the court to analogize to the procedures for equitable relief required in regular civil actions. Thus the rules referred to can serve as a guide to the court in fashioning the equitable relief it may order in a summary process action. Rule 9 reects the expanded scope of summary process. For several years, the District Court Department has had equitable power in housing cases under G. L. c. 186, 14 (injunctions against interference with utilities, etc.) and G. L. c. 218, 19C (injunctive relief to order sanitary code compliance similar to the powers given to the Superior Court Department in G. L. c. 111, 127H). Under G. L. c. 239, 8A, the court, in its discretion, may order that funds paid into court by a tenant be expended for repair of the premises at issue; the court may appoint a receiver to supervise this procedure. Other forms of equitable relief appear to be available to a defendant by way of counterclaim. For example, a counterclaim under G. L. c. 186, 14 could involve equitable relief. In short, all courts have the authority to issue injunctive relief in appropriate cases.

Rule 10 ENTRY OF DEFAULT, ENTRY OF DISMISSAL; REMOVAL OF DEFAULT OR DISMISSAL; ENTRY OF JUDGMENT AFTER TRIAL, DEFAULT, OR DISMISSAL; NOTICE
(a) Entry of Default. If a defendant fails to answer and also fails to appear for trial, said defendant shall be defaulted at the call of the trial list on the day set for hearing, provided that the plaintiff appears at the call of the list. If a defendant has led an answer but fails to appear for trial, said defendant shall also be defaulted provided that the plaintiff appears. If the plaintiff also fails to appear, the case shall be dismissed seven days after the trial date unless either party requests a new trial date within the seven day period. If the defendant appears but has failed to le a timely answer, no default shall enter and the court shall postpone the trial date one week from the original trial date, unless the plaintiff consents in writing to an immediate trial. If the defendant appears but has failed to le a timely answer and the plaintiff fails to appear, the court shall postpone the trial date one week from the original trial date and notice shall be sent to the plaintiff. If the plaintiff fails to appear after being notied of the new trial date, the case shall be dismissed.

Rule 8 JURY TRIAL

The provisions of Mass. R. Civ. P. 38 shall apply insofar as jury trial is available in the court where the action is pending, provided that: (1) in cases commenced in a court where jury trial is available, a de-

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(b) Entry of Dismissal. Dismissal shall be entered when a plaintiff fails to appear for trial, provided that the defendant has filed a timely answer and appears for trial. If the defendant files a timely answer but neither party appears for trial, the case shall be dismissed seven days after the trial date unless either party requests a new trial date within the seven day period. (c) Removal of Dismissal or Default. A default or a dismissal may be removed at the courts discretion, on its own initiative or on motion of either party in writing, at any time prior to the entry of judgment on such default or dismissal. (d) Entry of Judgment. All judgments shall be entered at 10:00 a.m., on the next business day following the courts decision after hearing or trial, or following the entry of default or dismissal, as the case may be, provided that (1) in the case of a default, said default is not removed prior thereto, (2) in the case of a finding pursuant to G. L. c. 239, 8A that the tenant owes rent, judgment shall be entered in accordance with that statute, and (3) where a default is pending no judgment shall be entered unless the following prerequisites are met: (i) The plaintiff shall file an affidavit made by a competent person, on the affiants own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in Article I of the Soldiers and Sailors Civil Relief Act of 1940, as amended, except upon order of the court in accordance with the Act. (ii) Where the complaint sets forth a claim for rent and/or use and occupation, the plaintiff shall file an affidavit stating the aggregate amount of payments, if any, which have been made subsequent to the date of the commencement of the action on account of such amount claimed. (iii) The clerk shall review the documents filed with the court. No judgment by default shall enter against any defendant where it appears from such review that the summons was not properly completed, served or returned, that the complaint was not properly completed or served, or that the other documents required to be filed with the court pursuant to Rule 2(d) have not been filed. (e) Notice. Notice of judgment shall be sent to all parties forthwith upon entry of judgment. Commentary This rule deals with two related but distinct subjects: (1) the entry of defaults and dismissals and (2) the entry of judgment after entry of default or dismissal, and after trial. Entry of default or dismissal can depend on two considerations, namely, whether defendant has led a timely answer and appeared for trial, and whether plaintiff appears for trial. Paragraphs (a) and (b) cover all situations involving failure of the parties to fulll either one of these requirements. Note, for example, that upon failure of the defendant to le a timely answer and appear, entry of default is in order if the plaintiff or his attorney appears. Under section (a), if a defendant who has not answered appears, plaintiff has the option of obtaining an automatic one week postponement or proceeding to trial forthwith. The plaintiff, therefore, could have an attorney present to answer the list and obtain defaults while avoiding unnecessary personal appearances. If default ultimately is entered and not removed prior to entry of judgment under paragraph (d), the defendant is left to his rights to relief from judgment under Rule 11 and to appeal under Rule 12. The provisions of G. L. c. 239, 9 and 10, whereby a tenant can apply for a stay of judgment and execution, are relevant here. Boston Municipal Court Departments. The right of an aggrieved party to a new trial on appeal provides the rationale for limiting the availability of relief under Rule 60 in those two Departments. See G. L. c. 231, 97. Section (b) applies to the Superior Court and Housing Court Departments. An aggrieved party in those departments does not have a right to a new trial; instead the appeal is heard in the Appeals Court. See G. L. c. 239, 5. It must be noted that the running of time for appeal in summary process actions is not affected by the ling of a motion under Rule 60. Rule 62(b) allows the court to stay execution under certain conditions upon ling of a motion under Rule 60. Stay of execution pending appeal is governed by G. L. c. 239, 5.

Rule 12 APPEALS
Any judgment in a summary process action, except a default judgment, may be appealed by an aggrieved party in accordance with the provisions of law. Upon receipt of notice of appeal and request for setting of bond within the time prescribed by G. L. c. 239, 5, the clerk shall forthwith schedule a hearing before the court on whether an appeal bond shall be required and on the form and amount of such appeal bond. The hearing shall be held within three business days of said receipt. Commentary The subject of appeals in summary process actions is directly governed by G. L. c. 239, 3 and 5. Section 3 requires that appeals from cases heard in the District Court Department be taken to the Superior Court Department and that appeal may be on either or both of the issues of possession or rent claimed. Section 5 sets forth the procedural mechanism for claiming and prosecuting appeals. No direct reference is made in either statute to a right on the part of a plaintiff to claim an appeal in a summary process action. However, the general terms of G. L. c. 231, 97 do confer upon plaintiffs in the District Court Department the right to appeal summary process actions to the Superior Court and, more specically, to take such appeals within the time limits specied in G. L. c. 239, 5. Read together, the provisions of G. L. c. 231, 97 and G. L. c. 239, 5 seem to require that just as a defendant, a plaintiff in the District Court or Boston Municipal Court Departments aggrieved by a judgment on the issue of possession or rent, or both, must le a notice of appeal with the court issuing the judgment within ten days of the judgment being entered. Detailed provisions regarding the appeal in summary process cases including bond requirements for an appealing defendant and appeal of the bond decision, are set forth in G. L. c. 239, 5. This statute should be consulted directly on questions relating to these procedures. Relief from a default judgment is subject to the provisions of Rules 11 and 12. It should be noted that the indigent court costs statute, G. L. c. 261, 27A et seq. places appeals bonds into the extra fees and costs category. The court can waive the appeals bond upon a determination of indigency pursuant to these sections of the General Laws or for such other reasons as the court deems proper.

Rule 11 RELIEF FROM JUDGMENT

(a) District and Boston Municipal Court Departments. In the District Court and Boston Municipal Court Departments, Rules 60 and 62(b) and (d) of the Massachusetts Rules of Civil Procedure, which deal with relief from judgment and stay of execution, respectively, shall apply to summary process actions; provided that relief under Rule 60(b) shall be available only in cases where the judgment has been entered on default or dismissal. In cases that have been heard on the merits, relief under Rule 60(b) shall not be available. (b) Superior and Housing Court Departments. In the Superior Court and Housing Court Departments, Rules 60 and 62 of the Massachusetts Rules of Civil Procedure shall apply to summary process actions. Commentary Section (a) of Rule 11 applies only to the District Court and

Rule 13 EXECUTION
Execution shall issue upon application, but not prior to the termination of the time limits imposed by applicable law and by the relevant provisions of Rules 60 and 62 of the Massachusetts Rules of Civil Procedure. Commentary Section 5 of Chapter 239 of the General Laws prohibits the issuance of execution in a summary process action prior to the expiration of ten days after the entry of judgment. If appeal is claimed, Mass. R. Civ. P. 62(d) stays execution pending appeal. When the defendant moves for a waiver of appeal bond, section 5 of Chapter 239 also prohibits the issuance of execution prior to the expi-

TRIAL COURT RULES - SUMMARY PROCESS

ration of six days from the courts decision on the motion, or prior to the expiration of the time specified for the taking of appeal, whichever is later. The statute also provides that where a defendant seeks review of the courts ruling on the motion for waiver of appeal bond, no execution may issue until the expiration of five days from the date defendant receives notice of the decision of the reviewing court. Of course, if the defendant posted bond after losing an appeal of the trial courts denial of waiver of that bond, execution would continue to be unavailable pending the completion of the appeal of the underlying judgment under Rule 62(d), cited above. Note should also be made of the special provision regarding execution in G. L. c. 239, 1A (recovery of possession before termination of a lease), and the provisions of G. L. c. 239, 9 and 10 regarding application for stay for judgment and execution.