MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a judgment entered in the Superior Court dismissing his negligence complaint and from an order denying his motion for relief from judgment. He argues that he did not receive a notice of a status review informing him that the complaint would be dismissed if he did not respond. We affirm.
Background. On April 5, 2018, the plaintiff filed a complaint alleging that employees of the Commonwealth were negligent in failing to remove snow and ice from the roof of a building at MCI-Gardner, and the snow and ice slid off the roof, seriously injuring him. The Commonwealth filed an answer to that complaint on November 5, 2018.
The case lay dormant until August 20, 2021, when the Superior Court issued a notice of status review of the docket which required the plaintiff to indicate the status of the case (e.g., whether the case was ready for trial or needed a pretrial conference) and return the completed notice to the court. The order stated in boldface type, “[i]f a copy of this notice is NOT received by 09/17/2021, the complaint will automatically be dismissed.” The plaintiff did not return a copy of the notice.
On February 12, 2022, a judgment of dismissal issued pursuant to Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908 (1977), which was entered on the docket on February 15, 2022, with notice sent to the parties pursuant to Mass. R. Civ. P. 77 (d), as appearing in 476 Mass. 1402 (2017).
On February 23, 2022, the plaintiff moved for relief from judgment, unsupported by affidavit but asserting that “his attorney never received the Order for Status Review.” A Superior Court judge denied the motion “for failure to file pursuant to Superior Court Rule 9A.” The plaintiff appealed from the judgment and from the denial of his motion for relief from the judgment.
Discussion. The plaintiff argues that the dismissal of his complaint was reversible error because the dismissal did not comply with the one-year notice provision of Mass. R. Civ. P. 41 (b) (1), 365 Mass. 803 (1974). The Commonwealth counters that the complaint was dismissed for the plaintiffs failure to comply with the order set forth in the August 20, 2021 notice of status review; moreover, dismissal without that one-year notice was permitted by the language of the rule, “unless the court on motion with or without notice shall otherwise order.” Mass. R. Civ. P. 41 (b) (1). See OneBeacon Am. Ins. Co. v. Narragansett Elec. Co., 87 Mass. App. Ct. 417, 435-436 (2015) (Superior Court possesses “inherent power to manage [its] case load and enforce [its] lawful orders”). The Commonwealth further argues that dismissal was warranted, notwithstanding the plaintiffs counsels claim that he never received the notice of status review, because the plaintiffs counsel failed to check the Superior Court docket for the nearly six-month period from August 20, 2021, to February 15, 2022. See BJs Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001).
As noted above, the plaintiffs motion for relief from judgment was not supported by an affidavit asserting that his counsel did not receive the notice of status review.
1
The judge denied the motion for relief from judgment “for failure to file pursuant to Superior Court Rule 9A,” which failure the plaintiff has not remedied. See Rule 9A(b)(vii) of the Rules of the Superior Court (2018) (“The court need not consider any motion ․ that fails to comply with the requirements of this Rule”).
2
Neither the motion for relief from judgment nor the plaintiffs brief cites to Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974), or makes the showing it requires to meet the plaintiffs burden to demonstrate excusable neglect. See Hermanson v. Szafarowicz, 457 Mass. 39, 47 (2010) (judge not bound to accept defendants self-serving statement that only notice of lawsuit he received was judgment of dismissal). Contrast Monahan v. Washburn, 400 Mass. 126, 129 (1987) (vacating dismissal because plaintiffs absence at trial due to “legitimate illness”). Nor does the record reflect, even now, that the plaintiff has filed any response to the August 20, 2021 notice of status review. We discern no error of law or abuse of discretion in the judgment dismissing the complaint and the order denying the plaintiffs motion for relief from judgment.
So ordered.
FOOTNOTES
1
. Contrary to the plaintiffs argument, the judge who denied the motion for relief from judgment did not preclude him from filing an affidavit.
2
. Rule 9A sets forth the procedure for filing motions in Superior Court. Before filing a motion, the moving party first “must serve” the motion on the opposing party. Rule 9A(a)(1). Within ten days of service of the motion, the opposing party may serve a memorandum in opposition upon the moving party. Rule 9A(a)(2), (b)(4). Unless the moving party withdraws the motion, within ten days of service of the opposition, the moving party must file in Superior Court a package including the motion and any opposition. Rule 9A(b)(2).