By Hon. Jackie A. Cowin
Several changes to the Superior Court Rules governing civil motion practice took effect on September 1, 2023. These changes were jointly drafted by the Superior Court’s Civil and Rules Committees, which include a combined 16 judges; adopted by a vote of the entire Superior Court (“Court”); sent for public comment; and approved by the Supreme Judicial Court.
Some of the changes are meant to end practices that, in the Superior Court’s view, impede the efficient disposition of motions. While such practices were not universal, they occurred frequently enough to merit response. All of the changes are designed to inform the bar as to the Court’s expectations for how motions should be filed, and promote the Court’s ability to act on motions in a timely and effective manner.
For each substantive rule amendment, the relevant portion of the rule is reprinted in italics below, with the amendment in bold, followed by a brief explanation of the amendment’s purpose.
AMENDMENTS TO RULE 9A: CIVIL MOTIONS
Rule 9A(b): Procedure for serving and filing motions
Rule 9A(b)(2)(iii): Notice of Filing
The moving party must give prompt notice of the filing of a Rule 9A Package by serving all parties with a copy of a notice of filing in a separate document that lists the title of each document included in the Rule 9A Package, and by filing the notice with the Rule 9A Package. No other list of documents need be included in the Rule 9A Package.
This change is meant to end the practice of filing both a Notice of Filing and a List of Documents, in order to eliminate the latter, duplicative filing.
Rule 9A(b)(2)(iv): Exhibits
Exhibits, attached to a motion, memorandum or affidavit, or contained in a separate appendix, must be separated from one another by off-set tab dividers, or page markers if filed electronically, and the pages of the exhibits must be consecutively numbered. If more than one exhibit is included, a Table of Contents or Exhibit Index shall precede the exhibits.
This new rule is meant to end the practice of filing exhibits without dividers, an index, and/or pagination, which led to significant frustration on the part of judges trying to locate material cited and relied upon by the parties. These changes will enable judges to reference cited exhibits easily, leading to more efficient review of the motion.
Rule 9A(b)(5)(v)(A): Contents, format, citation, and service (of Joint Appendix)
… All pages of the Joint Appendix must be consecutively numbered by page, and each exhibit must be separated by an off-set tab divider, or page marker if filed electronically. The exhibits served by the moving party with its Motion Papers must include the consecutive numbering and offset tabs. …
As with the new Rule 9A(b)(2)(iv), the above change is meant to end the practice of filing exhibits without dividers and/or pagination, so that the judge can reference exhibits easily when reviewing a motion.
Amendments to Rule 9A(d): Exceptions
Rule 9A(d)(1): Ex parte, emergency, and other motions
… Emergency motions, other than ex parte motions, must be served on all parties forthwith upon filing…. The nature of the emergency must be clearly specified in the motion.
This addition is meant to assist judges in evaluating whether the relief being sought is truly emergency in nature, thus permitting Rule 9A procedures to be bypassed.
Rule 9A(d)(2): Motions involving incarcerated parties
… Upon release, a previously incarcerated party shall promptly file and serve notice of change of address. All provisions of Rule 9A shall take effect (a) for the previously incarcerated party, the day of release; and (b) for the non-incarcerated party, the day of notification of the other party’s release.
This change makes explicit the previously incarcerated party’s obligation to notify the Court and the other party of release; both parties’ obligation to follow Rule 9A procedures upon release; and the date when Rule 9A takes effect.
Amendment to Rule 9B: Certificates of Service
The last page of every paper served in accordance with Mass. R. Civ. P. 5(a) shall contain a brief statement showing the date and manner of service of the paper; the names and addresses (mailing or email) of all counsel (or parties) served; and the party represented by each counsel served. The statement may be in the following form:
I hereby certify that on [date] a true copy of the above document was served by [hand/mail/email] upon:
Attorney name [or pro se party’s name]
Address [mailing or email]
Attorney for ________ [or pro se party]
Under the prior version of this rule, certificates were sometimes unclear as to whether all necessary parties had been served, such as when a Motion to Amend to add a new party was filed, or the case involved numerous separately represented parties. Also, the prior rule did not require identifying the address used for service, which occasionally led to disputes about whether service was made at the correct address. The changes are meant to eliminate these areas of potential confusion.
Amendment to Rule 9C: Counsel to Confer Prior to Filing Motions
Rule 9C(c): Discovery Disputes
… With respect to each interrogatory or request at issue, the brief shall set forth separately and in the following order (1) the text of the interrogatory or request, (2) the opponent’s response and (3) an argument. Alternatively, the text of the interrogatory or request and the opponent’s response may be provided in an appendix to the brief, as long as the brief includes an argument addressed to each interrogatory or request. No argument may be included in the appendix.
This change is meant to clarify that a party must explain the alleged deficiencies in each discovery response it challenges, rather than simply arguing that the discovery responses as a whole are deficient. Parsing out the deficiency in each response at issue (and specifically defending each such response) is more helpful to the Court’s analysis than generalized argument.
Amendment to Rule 9D: Motions for Reconsideration
A Motion for Reconsideration shall be based on (1) newly discovered evidence that could not be discovered through the exercise of due diligence before the original motion was filed; (2) a change of relevant law; or (3) a particular and demonstrable error in the original ruling or decision. A Motion for Reconsideration shall otherwise raise no new grounds for relief not raised in the original motion or opposition and shall not reiterate previously advanced arguments.
Motions for Reconsideration shall be served and processed consistent with Rules 9A and 9C. A Motion for Reconsideration shall identify, in the first paragraph, the newly discovered evidence, change of relevant law, or particular and demonstrable error in the original decision on which the motion is based. A Motion for Reconsideration based on a particular and demonstrable error in the original ruling or decision must be served pursuant to Rule 9A within 21 days of entry of the original ruling or decision.
A Motion for Reconsideration and supporting memorandum shall be contained in a single document and shall not exceed 10 pages in length. The words “MOTION FOR RECONSIDERATION” shall appear clearly in the title of the motion. Any opposition shall not exceed 10 pages in length. …
This change, which codifies the proper bases for reconsideration set forth in Audubon Hill S. Condominium Ass’n v. Community Ass’n Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012), acknowledges the undue burden imposed on opposing parties and the Court by motions for reconsideration which merely rehash arguments made in the original motion, or which raise new arguments that could have been, but were not, raised in the original motion. The new rule is also meant to end the practice of filing motions for reconsideration that allege errors in the original ruling long after the original ruling is issued, as was permissible under the prior version of the rule.
New Rule 9F: Requests To AMEND TRACKING ORDER
All motions seeking to amend the Tracking Order to permit additional discovery must identify the following: (1) the number of times the Tracking Order has previously been enlarged in the case; (2) a brief summary of the discovery that has been conducted to date; (3) the discovery remaining to be conducted; (4) a brief summary of the nature of the claims in the case; and (5) any other information deemed relevant by the movant(s).
This new rule is meant to provide judges with information about the progress of a case that will assist them in deciding how to act on motions to enlarge in a way that will best promote the efficient resolution of cases.
Hon. Jackie A. Cowin is an Associate Justice of the Massachusetts Superior Court. She is a member of the Superior Court’s Committees on Rules and Civil Practice, and a member of the Flaschner Judicial Institute Board of Trustees.