Opinion
19-P-1427
10-21-2020
RUXIAO YE v. UHOUZZ BOSTON, INC., & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Ruxiao Ye, appeals from a Superior Court order denying his motion to vacate dismissal with prejudice pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) ( rule 60 [b] motion). Judgment entered dismissing, with prejudice, Ye's complaint against the defendants (collectively, Uhouzz) after their unopposed motion to dismiss was granted. On appeal, Ye claims that not only was his rule 60 (b) motion erroneously denied, but also that Uhouzz's motion to dismiss was improperly granted. Concluding that Ye waived his claims relating to the motion to dismiss and that his claims with respect to his rule 60 (b) motion are without merit, we affirm.
Background. In October 2018, Ye commenced this action to recover property rental and sales commissions purportedly owed to him as a former employee of Uhouzz. On February 20, 2019, Uhouzz served upon Ye a motion to dismiss on the grounds set forth in Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), and Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A few weeks later, on March 9, 2019, the parties' attorneys had a telephonic conference, pursuant to Rule 9C of the Rules of the Superior Court (2018), during which Ye's attorney indicated that Ye would file a stipulation of dismissal. The stipulation, however, was never filed. On May 10, 2019, Uhouzz filed their motion to dismiss, which was unopposed. A judge allowed the motion to dismiss, and judgment dismissing the complaint with prejudice entered on May 16, 2019.
On June 11, 2019, Ye served his rule 60 (b) motion, supporting memorandum of law, and exhibits on Uhouzz. The rule 60 (b) motion and related documents, as well as Uhouzz's opposition, were filed with the court on June 28, 2019. In his memorandum of law, Ye contended that he should be afforded relief from the judgment of dismissal because (1) Uhouzz's motion to dismiss did not comply with Rule 9A of the Rules of the Superior Court (2018); (2) Uhouzz did not request that the complaint be dismissed with prejudice; (3) the opportunity to file an amended complaint could cure whatever defect subjected the original complaint to dismissal; and (4) he demonstrated excusable neglect. A second judge denied Ye's motion on July 23, 2019, and this appeal followed.
Discussion. On appeal, Ye claims that both judges abused their discretion by (1) dismissing his complaint on the grounds set forth by Uhouzz in their motion to dismiss; (2) granting the motion to dismiss in spite of Uhouzz's alleged noncompliance with rule 9A; and (3) denying his rule 60 (b) motion. We conclude that Ye's first two claims were waived, and we disagree with his third claim.
At the outset, we explain why Ye's two claims relating to the dismissal of his complaint are not preserved for our review. It is uncontested that Ye did not appeal from the judgment dismissing his complaint with prejudice. Under our rules of appellate procedure, a party generally has "within [thirty] days of the date of the entry of the judgment" to file an appeal in a civil case. Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). A rule 60 (b) motion served within ten days after entry of the judgment tolls this appeal period. See Mass. R. A. P. 4 (a) (2) (C). When service of a rule 60 (b) motion occurs beyond that ten-day period, the thirty-day appeal period is not tolled. See Cohen v. Cohen, 470 Mass. 708, 717 (2015) ( rule 60 [b] motion "may not be used as a substitute for a timely appeal" [citation omitted] ); Friedman v. Board of Registration in Med., 414 Mass. 663, 665 (1993). Here, the judgment entered on May 16, 2019, and Ye served his rule 60 (b) motion on June 11, 2019 -- more than ten days later. Therefore, the thirty-day appeal period as to the judgment continued to run and ultimately expired. Because no appeal from the judgment was ever taken, and because the filing of the rule 60 (b) motion did not toll that appeal period, we decline to consider any of Ye's claims with respect to the motion to dismiss.
The sole issue before us, then, concerns the order denying Ye's rule 60 (b) motion. Ye claims that his motion was improperly denied because he was not given the opportunity to cure any defect in his complaint, and his complaint sufficiently stated a claim upon which relief could be granted. We disagree.
"A motion for relief under rule 60 (b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion." Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 775 (2006). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Ye has not shown that the judge abused his discretion in denying his rule 60 (b) motion on the ground of excusable neglect. See Mass. R. Civ. P. 60 (b) (1). In his rule 60 (b) motion, Ye cites no Massachusetts authority for the proposition that he had established excusable neglect. Ye's counsel, in his affidavit supporting his rule 60 (b) motion, explained that he essentially was having difficulty contacting his client after being served with the motion to dismiss, and that, in April 2019, he was waiting for Uhouzz to file that motion so he could oppose it. Ye has not explained why he did not file an amended complaint during this time, and his reason for failing to serve an opposition reflects a misunderstanding of rule 9A. See Rule 9A (b) (2) (i) of the Rules of the Superior Court (parties file with court joint rule 9A package, which is to include original motion papers and opposition). Nor has Ye explained his failure to seek reconsideration of the order allowing the motion to dismiss or his failure to appeal from the judgment. These circumstances do not constitute excusable neglect entitling him to relief from the judgment. See Gath v. M/A-Com, Inc., 440 Mass. 482, 497 (2003) (party seeking relief under rule 60 [b] "bears the considerable burden of showing that the mistake was indeed excusable, and not due simply to its own carelessness"); Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708-709 (2012) (excusable neglect may be found when unique or extraordinary circumstances are present). Here, after two months of unsuccessfully attempting to have Ye file the stipulation of dismissal, Uhouzz followed through on their ultimatum by filing a motion to dismiss. On this record, the judge was well within his discretion in denying Ye's rule 60 (b) motion.
To the extent we do not address other contentions made by Ye, they "have not been overlooked. We find nothing in them that requires discussion." Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Order denying motion to vacate dismissal with prejudice affirmed.