MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff is a special education teacher licensed by defendant Department of Elementary and Secondary Education (DESE). In 2017, she brought tort claims against DESE and defendant Department of Children & Families (DCF) alleging that these agencies caused her damages by failing to take certain steps to clear her name of allegations that she had abused or neglected her students. After DCF and DESE (collectively, the agencies) filed motions for summary judgment that the plaintiff did not oppose, a Superior Court judge entered judgment dismissing the case. The defendant challenges that dismissal, as well as orders by the same judge with respect to certain discovery issues. We affirm.
Background. In 2010, DCF received reports, pursuant to G. L. c. 119, § 51B, that the plaintiff had abused and neglected four of her students. DCF initially found the allegations “supported,” but -- after a so-called fair hearing -- the agency reversed its position as to two of the students. Following judicial review pursuant to G. L. c. 30A, § 14, a Superior Court judge on December 10, 2014, entered judgment that DCF had erred in finding support for the allegations with respect to the two remaining students. That ruling, which DCF did not appeal, effectively cleared the plaintiff of the allegations that had been included in the 51A reports.
However, after judgment entered in the c. 30A appeal, it appears that DCF did not fully update its records regarding the plaintiff for approximately one year. As a result, according to the plaintiffs complaint, she suffered various damages during that period, including lost job opportunities, from having her name remain on a “registry of alleged perpetrators.” The plaintiff alleged similar problems with DESEs record keeping and disclosure systems.
After the beginning of the COVID-19 pandemic, the agencies requested an amendment to the applicable tracking order, which was allowed. Under the amended terms, summary judgment motions were required to be served by June 11, 2020, and filed by July 10, 2020. The agencies served and filed summary judgment motions within those deadlines in accordance with the procedures mandated by Superior Court Rule 9A. Those motions set forth the agencies’ positions as to how on uncontested facts, the plaintiffs claims failed as a matter of law. For example, among other arguments, DESE maintained that it was immune from liability pursuant to G. L. c. 258, § 10 (e), while DCF pointed out that the plaintiff in fact was hired by the one potential employer who had made an inquiry about her status.
3
After having been served with the summary judgment motions pursuant to Rule 9A, the plaintiff did not participate in the mandated Rule 9A process, including the requirement that she respond to the agencies’ proffered statements of material fact. See Superior Court Rule 9A (b) (5) (iii) (A) (“For purposes of summary judgment, each fact set forth in the moving partys statement of facts is deemed to have been admitted unless properly controverted in the manner set forth in this Paragraph (b) (5) (iii) (A)”). Nor did the plaintiff file any opposition to the motions for summary judgment in accordance with Rule 9A (or otherwise) or request an extension of time to do so. Finally, the plaintiff did not file a certificate pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), setting forth why she could not respond to the summary judgment motions until specified discovery was provided.
4
On August 28, 2020, a Superior Court judge allowed the agencies’ unopposed summary judgment motions, and judgment entered dismissing the case on September 9, 2020. At that point, the plaintiff did not file any motion, such as one pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), arguing that -- because of extenuating circumstances -- she should be given a chance to respond to the agencies’ summary judgment motions notwithstanding her flouting of the mandated procedures.
5
Instead, the plaintiff chose to appeal the judgment.
Discussion. Because the plaintiff did not follow the procedures mandated by Rule 9A (or oppose the agencies’ motions otherwise), the judges decision to allow the unopposed motions is reviewable only for an abuse of discretion. See Malden Police Patrolmans Assn v. Malden, 92 Mass. App. Ct. 53, 56 (2017) (decision whether to excuse violations of Rule 9A procedures reviewable only for an abuse of discretion). To show an abuse of discretion, the plaintiff must demonstrate “ ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Especially in light of the extent to which the plaintiff flouted the rules here, she cannot demonstrate that the judge abused his discretion in allowing the agencies’ unopposed motions.
6
As we have emphasized in the specific context of Rule 9A:
“[r]ules of procedure are not just guidelines. Their purpose is to provide an orderly, predictable process by which parties to a law suit conduct their business. Any litigant who fails to turn a procedural corner squarely assumes the risk that the rules infraction will be used against him and the rule vigorously enforced by the trial judge.”
Malden Police Patrolmans Assn, supra at 56, quoting USTrust Co. v. Kennedy, 17 Mass. App. Ct. 131, 135 (1983).
7
For the sake of completeness, we note that even now, the plaintiff has not demonstrated how the legal arguments on which the agencies relied in their motions for summary judgment are unfounded.
8
The plaintiff also challenges the various rulings made on July 21, 2020, on several discovery motions. The plaintiff has not demonstrated that the judge abused his discretion in those rulings. It suffices to say that there was ample evidence before the judge that the plaintiff had neglected her discovery obligations -- both with respect to her responses to the agencies’ discovery requests and with respect to the overly broad demands she had made of the agencies.
Judgment affirmed.
FOOTNOTES
3
. It also appears undisputed that once the plaintiff, through counsel, pointed out that the information in DCFs system was stale, DCF almost immediately fixed the problem.
4
. To the extent that the plaintiff suggests that her filing of a request for entry of judgment pursuant to Mass. R. Civ. P. 33 (a), as appearing in 436 Mass. 1401 (2002), was an adequate procedural substitute for doing what she was required to do and somehow prevented entry of summary judgment against her, she simply is wrong. Moreover, the plaintiff has not demonstrated how invocation of Rule 33 (a) would have been proper.
5
. The plaintiff now highlights three factors to us: the COVID-19 pandemic, the fact that at a discovery motion hearing on July 20, 2020, a Superior Court judge stated that a hearing on the summary judgment motions would not be held “until [plaintiffs counsel] has an opportunity to be able to pursue his discovery assuming [it is done] in conformity with the rules,” and the fact that counsel for the agencies at least once had offered to agree to provide the plaintiff additional time. Putting aside that the judges comment at the discovery motion hearing hardly provides the open-ended license that the plaintiff claims, it bears noting that on the day following the hearing, the judge ruled in the agencies’ favor on the pending discovery motions (with the orders docketed on July 24, 2020), and discovery in any event closed prior to the allowance of the unopposed summary judgment motions.
6
. The plaintiff suggests that the judge was required to hold a hearing on the motions for summary judgment. She did not request such a hearing, and thereby waived any right to one. See Superior Court Rule 9A (a) (1); 9A (c) (2).
7
. To the extent that there were any extenuating circumstances present, the plaintiff should have presented them to the Superior Court, not tried to raise them for the first time on appeal.
8
. We note that the factual record was established by the agencies’ statement of material fact in accordance with Rule 9A, and that the only merits-based arguments raised in the plaintiffs brief refer to statutes that were not raised in the complaint and which were not the subject of the agencies’ summary judgment motions.