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Updated August 24, 2020

A motion for summary judgment, opposition, or cross-motion must be accompanied by a Joint Appendix containing, as exhibits, all documents referred to in the motion, opposition, cross-motion, or memoranda supporting or opposing summary judgment. Rule 9A(b)(5)(v). The moving party is responsible for assembling the Joint Appendix, with cooperation from the opposing party. Id.

The Joint Appendix must begin with an index of exhibits. Id. The index is followed by consecutively numbered (not lettered) exhibits, which must be separated by a numbered tab divider unless the pages of the Appendix are consecutively numbered. Id.

The moving party, when serving the motion and related papers on the opposing party, must also serve copies of the exhibits on which the moving party relies. Id. If the opposing party relies on the same exhibits, the opposing party must refer to those exhibits using the exhibit numbers assigned by the moving party. Id. Any additional documents relied upon by the opposing party must be added to the Appendix, using exhibit numbers or pagination beginning with the next consecutive number following the last exhibit number or page used by the moving party. Id. The opposing party must serve any additional exhibits, and an index thereto, on the moving party when the opposing party serves opposition or cross–motion papers. Id.

The moving party must certify that the Joint Appendix includes any exhibits served by the opposing party. Id. That certification should be included at the end of the Appendix index.

The parties’ memoranda of law, when citing to an exhibit, must reference both the exhibit and a paragraph of the statement of material facts.  Id.

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Updated August 24, 2020

A litigant may sometimes file a summary judgment reply memorandum without first obtaining the court’s permission.

Superior Court Rule 9A(a)(3) does not require a party to obtain the court’s permission before filing a reply memorandum if: (1) the “matters raised in the opposition … were not and could not reasonably have been anticipated and addressed in the moving party’s initial memorandum”; (2) the reply is limited to addressing such matters; and (3) the reply does not exceed five typed double-spaced pages.  “No other reply or surreply submission shall be filed without leave of court, which will be granted only in exceptional circumstances.”

Leave of court is required to exceed the page limit for a permitted reply or to file a reply that does not satisfy the requirements outlined above.  Leave may be applied for by filing a request captioned as a pleading.  The length of the request must “not exceed one page … (not counting the caption and title).”  The request must “state the grounds and specific relief sought (e.g., a specific proposed new page limit).”  Finally, the request must be addressed to “Session Clerk, ATTN: Session Judge,” rather than directly to the judge.

Reply memoranda should not be filed a matter of course.  Nor should a reply merely repeat arguments made in the moving party’s primary memorandum.  An effective reply is brief and targeted, focusing only on answering an unexpected argument or, perhaps, on correcting important misstatements of law or fact in the opposition.

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Updated August 24, 2020

Summary judgment is appropriate when the summary judgment record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c).  A fact is “material” if it would affect the outcome of the suit. An issue is “genuine” where a reasonable finder of fact could return a verdict for the non-moving party.

The moving party bears the initial burden of demonstrating the absence of a triable issue and that the summary judgment record entitles him to judgment as a matter of law. The moving party may satisfy its burden by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the non-moving party has no reasonable expectation of proving an essential element of his case at trial.

Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact.  The opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion.  Moreover, the non-moving party cannot create a material issue of fact and defeat summary judgment simply by submitting affidavits that contradict its own previously sworn statements.

If the moving party has carried its burden, and the opposing party has not responded with specific facts to establish a genuine, triable issue, the court grants the motion for summary judgment.

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Updated August 24, 2020.

Massachusetts Rule of Civil Procedure 56(f) provides,

When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Thus, a party opposing a motion for summary judgment may ask the court to defer ruling on the motion until further discovery is conducted.  Particularly where a motion for summary judgment is filed long before the scheduled close of discovery, a court may be inclined to allow further discovery by a party opposing the motion.

The court faced with a Rule 56(f) motion should consider authoritativeness, timeliness, good cause, utility, and materiality.

Although a Rule 56(f) motion is committed to the court’s discretion, and the court may grant such a motion even when all five criteria are not established, when all five requirements are satisfied, a strong presumption arises in favor of relief.

A Rule 56(f) motion must be filed in a timely manner (as soon as possible after service of a motion for summary judgment is advisable), and must be supported by an “authoritative” affidavit based on the affiant’s personal knowledge.

With respect to good cause, the party seeking additional discovery must show that it has diligently pursued discovery but has not been able to obtain the discovery it now seeks.  Possible justifications might be that the party seeking relief under Rule 56(f) propounded discovery but the motion for summary judgment was filed before answers were received, or that the party seeking summary judgment has refused to produce requested discovery.

The utility factor is satisfied by showing that there is a plausible basis for believing that the discoverable facts specified in the Rule 56(f) motion exist.

Materiality is established where the discovery sought by the Rule 56(f) motion, if obtained, will influence the outcome of the pending summary judgment motion.  The threshold of materiality is necessarily low.  The facts that the party invoking Rule 56(f) seeks to discover must be foreseeably capable of breathing life into his claim or defense.

Rule 56(f) should be liberally applied where the interests of justice would be served, and relief under Rule 56(f) is strongly supported where the party moving for summary judgment has sole possession of the facts needed to oppose the motion.  Moreover, the Rule 56(f) motion need not be based on evidence admissible at trial, so long as it rises sufficiently above mere speculation.

However, a party may not use Rule 56(f) to “fish” for evidence in hopes of finding something helpful to that party in the course of the discovery procedure.

Notably, a court deciding a Rule 56(f) motion must separately analyze each claim as to which additional discovery is sought.  The legal elements of each claim or defense define the facts which a party must prove.  They therefore circumscribe the evidence which, if discovered, would be material to those claims and defenses and would potentially influence the outcome of the pending summary judgment motion.  A court may grant a Rule 56(f) motion as to discovery on some claims but deny it as to other claims.

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Updated August 24, 2020

Under Massachusetts Rule of Civil Procedure 56(g), the court may impose sanctions on a party who files an affidavit in support of or in opposition to a motion for summary judgment, where the court concludes that “any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay.” In such a case, the court “shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.”

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Updated August 24, 2020

The Business Litigation Session (“BLS”) of the Massachusetts Superior Court has adopted its own procedural order governing partial dispositive motion, including motions for partial summary judgment. That order requires parties to confer with each other and with the judge before they file any motions that will be only partially dispositive of the case. According to the BLS, some such motions “consume substantial amounts of the court’s and the parties’ time and resources but often do not substantially reduce the length of the litigation or trial.”

Under the procedural order, a party moving for partial summary judgment is required to confer with the opposing party and with the judge before filing any motions that will be only partially dispositive of the case. The moving party must file a Certificate of Compliance with the motion package that details the steps taken by the parties to comply with this procedural order.

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Because the denial of a motion for summary judgment does not decide the case, it is an interlocutory order and usually is not immediately appealable. However, the doctrine of present execution allows appellate review of denials of summary judgment motions in a few situations (e.g., where the moving party asserts immunity). A party whose motion for summary judgment has been denied may also obtain appellate review if the trial court reports its order to the Appeals Court or by filing a petition in the Appeals Court for interlocutory review under Massachusetts G.L. c. 231, §118.

The allowance of a motion for summary judgment as to all claims by all parties fully disposes of the case and is appealable. The grant of a partial summary judgment generally is not appealable because it does not determine all claims as to all parties. However, a partial summary judgment may be appealed if the trial court enters a certification under Mass. R. Civ. P. 54(b) that “there is no just reason for delay.”

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Updated August 24, 2020

Under Massachusetts Superior Court Rule 9A(c)(2), a party who desires a hearing on a motion for summary judgment must request a hearing.  However, Rule 9A(c)(3) provides that requests for hearings on motions for summary judgment “will ordinarily be allowed.”

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On its face, Mass. R. Civ. P. 60(a), provides a method by which to correct “clerical mistakes in judgments … and errors arising from oversight or omission….”  Obviously, the Rule covers the correction of scrivener’s errors, typos and the like.  Perhaps surprisingly, however, Rule 60(a) also offers a method by which to obtain important, substantive modifications of judgments.

Consider a divorce case in which the wife seeks to vacate or to amended a judgment nisi  which incorporates a settlement agreement between the husband and the wife, because that agreement failed to reflect the parties’ actual agreement as to property division and was inconsistent with the court’s intent to provide a 50-50 overall division of marital assets.  The court may be convinced to correct the judgment nisi  by altering the incorporated settlement agreement to reflect the terms actually agreed by the parties.

Massachusetts Rule of Domestic Procedure 60(a), which is identical to Mass. R. Civ. P. 60(a), states:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

Rule 60(a) applies not just to clerical mistakes, but also to “errors [in the judgment] arising from oversight or omission.”[1]  It applies not just to mistakes of the court, but also to those of the parties,[2] the clerk[3], or the jury.[4]  Moreover, unlike a Rule 60(b) motion for relief from judgment, which must be brought either within one year or a reasonable time, depending on the ground asserted, a Rule 60(a) motion may be brought at any time (even after the judgment has been affirmed on appeal, so long as the appellate court has not ruled on the alleged error).[5]

Rule 60(a) applies where judgment entered by the court fails to reflect what the court intended at the time, not when the judgment says what the court intended but a party claims that the court was wrong.[6]  In Tomkins v. Tomkins, 65 Mass. App. Ct. 487, 492, the court stated:

Rule 60(a) “seeks to ensure that the record of judgment reflects what actually took place,” Reporter’s Notes to Mass.R.Civ.P. 60, …. “Rule 60(a) does not apply unless the mistake springs from some oversight or omission; it does not cover mistakes which result from deliberate action.”

In Gagnon v. Fontaine, 36 Mass. App. Ct. 393 (1994), the Appeals Court explained:

There are different approaches to analyzing rule 60(a) issues, each representing a slightly different emphasis: (1) determining whether the judgment reflects the intent of the court at the time it was entered; and (2) determining whether the relief requested is essentially “clerical” in nature rather than “substantive” in nature. The two analyses are interrelated, not discrete. See DeLuca v. DeLuca, 26 Mass.App. at 194, 525 N.E.2d 435; Dalessio v. Dalessio, 409 Mass. at 832-833 n. 6, 570 N.E.2d 139.

As the Montana Supreme Court has aptly said in a context similar to that in this case:  “The rule is well settled in this state that a trial court has … the power at any time to amend any judgment it has rendered, to the end that such judgment will correctly express what the court actually decided, where error has crept into the judgment by reason of misprision on the part of the clerk, the court, or the attorneys, appearing on the face of the record….

“It is, however, equally well settled that where the judgment correctly expressed the decision of the court, no matter how erroneous that decision may have been and no matter how proper the attempted amendment may be, after the judgment has been rendered and entered, the trial court cannot modify the judgment so as to change the rights thereby fixed and determined….”  Oregon Mort. Co. v. Kunneke, 76 Mont. 117, 123-124, 245 P. 539 (1926).

“If the flaw lies in the translation of the original meaning to the judgment, then [r]ule 60(a) allows a correction; if the judgment captures the original meaning but is infected by error, then the parties must seek another source of authority to correct the mistake.” See United States v. Griffin, 782 F.2d 1393, 1396-1397 (7th Cir.1986). “The [r]ule does not permit alterations of factual and legal decisions deliberately made,” Id. at 1396, or correction of “errors of substantive judgment,” Jones v. Anderson-Tully Co., 722 F.2d 211, 212 (5th Cir.1984). In this case, rule 60(a) would allow only the enforcement of the first judge’s intent in entering the divorce judgment, not a change in its substantive provisions.[7]

Massachusetts and Federal cases provide no “bright line” rules as to what distinguishes a “substantive” error from a “clerical” error.[8]  However, the mere fact that correcting an error would have significant substantive effects does not prevent the error from being clerical and subject to revision under Rule 60(a).[9]

While the court in Gagnon said that errors have been deemed clerical when the error is apparent on the face of the judgment, and stated that it would be more “troublesome” if the alleged error were not apparent on the face of the judgment, the court also acknowledged that where the Rule 60(a) motion is decided by the same judge who entered the judgment, who presumably knows what the court intended, Rule 60(a) might be used to correct errors not clear on the face of the judgment.[10]

Rule 60(a) has been applied in cases where a judgment failed to incorporate a portion of a settlement agreement which the court had intended to incorporate.  In Sanborn v. Johns, 19 Mass. App. Ct. 721 (1985), the parties signed a stipulation and the judge dictated it into the record and placed the stipulation “on file.”  As entered, however, the stipulation omitted two paragraphs relating to the division of real and personal property.  In a footnote, the Appeals Court stated:

If, as the evidence suggests, the judge hearing the divorce intended to include paragraphs 3 and 4 in the divorce decree, but neglected to do so, Mass.R.Dom.Rel P. 60(a) (1975), authorizes correction of the judgment at any time. See 11 Wright & Miller, Federal Practice and Procedure § 2854 (1973); Jackson v. Jackson, 276 F.2d 501, 503 (D.C.Cir.), cert. denied, 364 U.S. 849, 81 S.Ct. 94, 5 L.Ed.2d 73 (1960).[11]

Rule 60(a) has also been used to make other significant changes to divorce judgments[12], and to correct errors in a complaint that were later incorporated in a judgment.[13]

In our hypothetical, the wife would argue that that the court had made clear that it intended a 50-50 division of marital assets and believed that the separation agreement which it incorporated into the judgment nisi achieved that result.  Having entered a judgment which, by incorporating the separation agreement as finally drafted did not achieve the equal division intended, the court should alter its judgment to reflect its present intent at the time the judgment was entered.  The fact that the error may not be apparent on the face of the judgment should not mater, assuming that the judge hearing the Rule 60(a) motion also entered the judgment.

Rule 60(a) offers an additional method by which to obtain a modification of a judgment.  When the judgment arguably does not reflect the judge’s intent, a motion under Rule 60(a) should be considered.

[1] Morris v. Morris, 70 Mass. App. Ct. 1110, 2007 WL 3333245, *2 (11/9/07).

[2] Labor v. Sun Hill Industries, Inc., 48 Mass. App. Ct. 369, 372 (1999), citing Rule 60(a) Reporter’s Note.  See also Bruno Independent Living Aids v. Jones, 2007 WL 1075198, *2 (Mass. App. Div. 4/9/07).

[3] Silva v. Associated Building Wreckers, Inc., 87 Mass. App. Ct. 1104, 2015 WL 478671, *2 (2/6/15) (unpublished Rule 1:28 opinion); Mystic Landing, LLC v. OMLC, LLC, 81 Mass. App. Ct.  1127, 2012 WL 1145948, * 2 (4/9/12) (unpublished Rule 1:28 opinion), citing Rule 60(a) Reporter’s Note

[4] Mystic Landing, 2012 WL 1145948, *2, citing Rule 60(a) Reporter’s Note.

[5] Silva, 2015 WL 478671, *3; Fitzgerald v. Fitzgerald, 76 Mass. App. Ct. 1106, 2010 WL 46377, * 1 (1/8/10) (unpublished Rule 1:28 opinion).

[6] Mallowes v. Marion Lands Trust, LLC, 86 Mass. App. Ct. 1102, 2014 WL 2974769, *3 (7/3/14) (unpublished Rule 1:28 opinion); Silva, 2015 WL 478671, *2.

[7] Id. at 396-98.  (Emphasis added, footnote references omitted).

[8] Gagnon, 36 Mass. App. Ct. at 399

[9] Id. at 400.  (“That a substantive change in an award could result from a correction of a ‘scrivener’s error’ is not a barrier to implementation of the rule. Inevitably, changes made pursuant to rule 60(a) may have ‘significant effects.’”).

[10] 36 Mass. App. Ct. at 400-401 and n.7.

[11] 19 Mass. App. Ct. at 725 n.4.

[12] Morris v. Morris, 70 Mass. App. Ct. 1110, 2007 WL 3333245, *2 (11/9/07) (unpublished Rule 1:28 opinion) (using Rule 60(a) to alter judgment which had given wife a right of first refusal on real estate to instead give wife option to purchase, because “judge acted well within his discretion to conclude that his own earlier judgment did not accurately reflect his ‘contemporaneous intent in framing the judgment.’”  Court cited Sanborn for proposition that Rule 60(a) authorizes correction of the judgment at any time where it does not reflect judge’s intent); DeLuca v. DeLuca, 26 Mass. App. Ct. 191, 193-94 (1988) (using rule 60(a) to alter judgment to make clear that property allotted to wife would not be subject to husbands $350,000 floating line of credit), citing Sanborn).

[13] Mystic Landing, 2012 WL 1145948, *2-3; Labor, 48 Mass. App. Ct. at 372.