by Hon. Robert B. Gordon and Hon. Debra A. Squires-Lee
Voice of the Judiciary
Commentators have written a good deal about the changes to Massachusetts Superior Court Rules 9A and 9C that went into effect on November 1, 2018. Rule 9A governs the process by which nearly all civil motions are filed in the Superior Court, and Rule 9C requires parties to confer prior to filing most of these motions. Together, Rules 9A and 9C promote judicial efficiency and streamline civil litigation. However, the two years since their amendment have witnessed continuing non-compliance with Rules 9A and 9C; and we, who have been Associate Justices on the Superior Court since 2013 and 2018 respectively, have noted some persistent areas of confusion within the bar. Below are some of the most frequent issues or questions we encounter, together with our answers.
- I called opposing counsel and left a message (or I sent an email to opposing counsel) and have not heard back. Does that satisfy Rule 9C’s conferral obligation? The Rule expressly requires that conferences shall be by “telephone or in person.” The reason is clear. Communicating by telephone or in person increases the likelihood that parties will narrow the “areas of disagreement to the fullest extent,” as required by the Rule. Further, the Rule requires “good faith” efforts. A single or even a series of emails does not suffice. Three or more unreturned calls should, however, and likely will prompt intervention by the Court in a Rule 16 Conference.
- I served my motion with a cover letter saying if you want to confer, let me know. Does that satisfy the conferral obligation? In addition to the requirement that conferral be by telephone or in person, Rule 9C requires that the parties confer “in advance of serving any motion under Mass. R. Civ. P. 8(a), 12 (except Rule 12(c) motions in administrative appeals), 26, 37, 41(b)(2) (first sentence) or 56.” (Emphasis added.) Practitioners should note that, following public comment, the Superior Court approved an amendment to the scope of Rule 9C such that Rule 9C would apply to all motions governed by Rule 9A. The court is awaiting approval from the Supreme Judicial Court on this amendment.
Requiring a conference prior to service of a motion saves resources, and improves the chance of either narrowing the issues presented in the motion or eliminating the need for the motion altogether. By contrast, once a lawyer has drafted and served a motion (and charged the client), that lawyer is more apt to dig in his or her heels and be less likely to make compromises. Further, if the parties confer only after service of a motion, but do not fully bridge the divide between their positions, they often simply file the originally served and opposed motion papers with the court without disclosing that they had reached compromises on some aspects of the motion. With the average caseload in each civil session in Suffolk County Superior Court on the order of 700 cases, judicial economy and efficiency suffer if judges are called upon to review and decide motions unnecessarily or rule on issues that are no longer in actual dispute.
Consequences: Failure to comply with Rule 9C’s conferral obligation should result in a denial of the motion without prejudice or, as some judges prefer, an obligatory conferral session in the hallway outside of the courtroom. Either result costs clients more than compliance with the Rule would have.
- I served a cross-motion (or a motion to strike) together with my opposition. When I get the opposition to my cross motion, may I serve a reply brief and require the moving party to include it in the 9A package? No. Although Rule 9A was amended to permit the moving party to serve simultaneously an opposition to the cross-motion or motion to strike and a reply to the non-moving party’s opposition to the original motion, “[n]o other reply or surreply submission shall be filed without leave of court, which will be granted only in exceptional circumstances.” Counsel should recall that, prior to the 2018 amendments to Rule 9A, reply briefs were not permitted as a matter of right and permission-seeking letters to the judge were required. Further, a motion seeking leave to file an additional reply or a surreply memorandum is filed separately from the 9A package.
One important practice tip to keep in mind: do not submit the draft reply (to the cross-motion or motion to strike) or surreply with the motion seeking leave. Practitioners may think that securing leave is more likely if the reply submission has already been prepared and is staring the judge in the face. However, this sort of presumptuous practice and the cluttering of the case file it produces may put off many judges who may deny the request on that basis. Practitioners who do this risk diminishing the likelihood that their request will be granted, and finding themselves in the unhappy position of not being able to bill clients for work that their non-compliance with the Rule rendered nugatory.
- The defendant is representing herself. Must I comply with Rule 9A and Rule 9C? Rule 9A and Rule 9C apply to pro se parties. Among other exceptions, Rule 9A does not apply to ex parte or emergency motions, or motions involving a self-represented incarcerated party. But both rules do apply to self-represented litigants who are not incarcerated, and counsel have a duty to confer with pro se parties under Rule 9C just as they do with opposing counsel.
- I served my Motion to Amend the Complaint to add new claims and new parties on the original defendants. Have I complied with Rule 9A? This is a common error. Rule 9A requires service on specifically named non-parties if “(a) the Motion seeks to add the non-party as a party to the case; (b) the Motion seeks an order or other relief against the non-party; [or] (c) the issues affect the personal information or other interests of the non-party.” This requirement means that any amendment seeking to add a party must be served on the proposed new party; any motion that may affect a specific non-party, for example a motion for a preliminary injunction seeking an order that may affect the non-party, must be served on that non-party; and a motion seeking to attach property or assets in the possession of a non-party, whether pre- or post-judgment, must be served on the non-party.
- I sent documents and affidavits to the plaintiff with my opposition to the motion for summary judgment, but the plaintiff did not include them in the joint appendix. Should I file the material separately? The moving party is obligated to submit a single joint appendix with the Rule 9A summary judgment package. The moving party must append all material provided by the non-moving party, whether or not the moving party thinks the material is relevant, to the moving party’s material and include such material in the joint appendix. Please read Rule 9A(b)(5)(v) carefully, and comply with it. Whether you are seeking or opposing summary judgment, you want the court to read the material you submitted and not spend time organizing, tabbing, indexing or hunting for documents. A single, indexed, tabbed, and complete joint appendix greatly improves the court’s ability to locate and review the evidence. If the moving party does not comply, we recommend that you serve and file a motion to strike the motion for summary judgment for failure to comply with Rule 9A. Make sure, however, that you have conferred per Rule 9C and attempted to persuade the moving party to file an amended Rule 9A package with an accurate joint appendix.
- The defendant did not comply with Rule 9A and filed an “emergency” motion, which is not an emergency. What should I do? We see faux “emergency” motions all the time. A true emergency motion is one that requires resolution before the ten (or thirteen, if served by mail) days necessary to comply with Rule 9A. For example, a tracking order deadline is about to expire. Having waited until the 11th hour to seek an extension of this or that deadline may cause you anxiety; but your inattention is not the court’s emergency. A true emergency is one that arises beyond your ability to control. (Think pandemic.) If opposing counsel files a motion as an emergency motion and you do not agree, call the assistant clerk in the session to which your case is assigned. Inform him or her that you do not believe the motion is an emergency, and intend to oppose it. The clerk will then alert the judge to the opposing party’s intention to oppose and the disagreement as to whether the motion presents a true emergency. In that event, the judge will typically wait to act on the motion until receipt of the opposition.
Consequences: “The court need not consider any motion or opposition that fails to comply with Rule 9A.” The court “may return non-compliant submissions to counsel with instructions for re-filing, and may impose other sanctions for flagrant violations of the Rule.” The “other sanctions” may include denial of the motion with prejudice, and requiring the payment of costs and fees by the non-compliant party.
When followed, Rules 9A and 9C promote judicial efficiency and economy, and allow for the timely resolution of civil motions. When parties fail to comply with those rules, they waste their own and their clients’ time and money.
Hon. Robert B. Gordon has been an Associate Justice of the Massachusetts Superior Court since February, 2013. Prior to joining the bench, Judge Gordon was a partner of Ropes & Gray, LLP.
Hon. Debra Squires-Lee was appointed to the Superior Court in 2018. Prior to her appointment, Judge Squires-Lee was a partner at the Boston law firm of Sherin and Lodgen where she specialized in business litigation and legal malpractice defense.