MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Webster Bank, National Association, N.A. (bank), appeals from a Superior Court judgment dismissing its legal malpractice complaint for failure to prosecute.
2
After the parties agreed to a stay pending an appeal, the bank took no action on this lawsuit between when the stay expired in October 2014 (or, at the latest, January 2016) and October 21, 2021, despite repeatedly asserting in communications to the defendants that the case was ready to proceed, as early as December 2015. Concluding that the motion judge acted within his discretion in dismissing the action for failure to prosecute and that there was no evidence of judicial bias, we affirm.
1. Involuntary dismissal. “On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court.” Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). “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 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). There was none.
The bank argues that its delay was justified because it needed to obtain possession of the property that was the focus of its legal malpractice claim before it could assess its losses. See Foley v. Walsh, 33 Mass. App. Ct. 937, 938 (1992) (improper to dismiss for failure to prosecute where “the record shows that the plaintiff made numerous attempts, at intervals of no more than one year, to obtain [defendants] residential address in order to effect service”). It is not usually the case, however, that tort actions are stayed until all future damages have been incurred, and the parties contemporaneous actions do not support the banks position now.
The parties November 2009 joint motion to stay stated that a stay was necessary pending the foreclosure, and the banks demand for damages is based on the amount obtained at the foreclosure sale.
3
Even before the June 2018 foreclosure, on December 7, 2015, the bank wrote to the defendants, “I believe that it is time that our case proceed.” Again, on January 29, 2016, the bank wrote to the defendants, “It is time for us to litigate the legal malpractice/fraud case or settle.” On July 13, 2018, after the foreclosure, the bank wrote to the defendants, “now that Webster has foreclosed, its loss can be established and this case either settled or litigated.” The bank, however, took no action until October 21, 2021, a few months after the bank obtained possession of the property on June 30, 2021. The motion judge was entitled to credit the banks contemporaneous statements over its later litigation position.
In light of this, the motion judge acted within his discretion in dismissing the action where the bank did nothing in the action for three years after foreclosing on the property and several years after the last formal stay expired.
4
See Hoch v. Gavan, 25 Mass. App. Ct. 550, 552-553 (1988) (holding dismissal proper after four years without proper service). Although “we are mindful that dismissal is a harsh result, rule 41 (b) (2) would be ineffective if a judge were unable to exercise his discretion to dismiss a case for want of prosecution” when several years have “elapsed without any form of affirmative prosecutorial activity.” Bucchiere, 396 Mass. at 642 (affirming dismissal after six and one-half years had elapsed).
5
2. Judicial bias. The bank argues that the motion judge exhibited bias, but it made no objection or request for recusal in the trial court. “Substantial authority exists that recusal motions filed after [an adverse ruling] are presumptively untimely at least absent a showing of good cause for tardiness.” Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 547 (1998). The plaintiffs “belated request suggests a tactical decision in the face of an adverse ruling.” Matter of a Care & Protection Summons, 437 Mass. 224, 239 (2002). Moreover, we discern no evidence of judicial bias from the judges comments that “Webster Bank is in the business of -- of giving out mortgages and foreclosing on them when theyre not being paid,” and that “its a multibillion dollar corporation.” A judge may consider a partys sophistication in weighing whether a delay was reasonable. See Cabot Corp. v. AVX Corp., 448 Mass. 629, 644 (2007) (considering sophistication of plaintiff in weighing reasonableness of delay in bringing suit).
Judgment affirmed.
FOOTNOTES
2
. The plaintiff alleged several causes of action against each defendant. The precise claims are not relevant to this appeal.
3
. The motion read in part, “in order to fully determine the amount of damages claimed by the plaintiff, the plaintiff must take actions to mitigate its loss by means of foreclosing on [the] property and that said mitigation inures to the benefit of all of the moving parties.” We do not suggest that pending foreclosure proceedings would have excused the banks delay absent an agreement by the parties.
4
. The last stay expired either on October 7, 2014, when the judgment after rescript for the property owners appeal issued or -- taking matters rather generously -- on January 14, 2016, when the United States Supreme Court denied certiorari.
5
. We need not determine whether, as the motion judge found, the defendants were prejudiced by the delay. The motion judges decision did not rely on the finding of prejudice, and such a finding was not necessary to justify a dismissal. Similarly, we need not imagine whether some lesser sanction would have sufficed. The motion judge considered that possibility but found that lesser sanctions “would only reward Websters dilatory conduct.” We note that the bank first identified a lesser sanction at oral argument before us. We need not address issues that were not raised in the trial court. See Jacobs v. Massachusetts Div. of Med. Assistance, 97 Mass. App. Ct. 306, 311 n.7 (2020).