Care One Management, LLC v. Brown

2020 | Cited 0 times | Massachusetts Appeals Court | October 7, 2020

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19-P-1165 Appeals Court


No. 19-P-1165.

Norfolk. May 4, 2020. - October 7, 2020.

Present: Neyman, Englander, & Hand, JJ.

Judgment, Default, Relief from judgment. Practice, Civil, Default, Relief from judgment, Waiver. Waiver. Words, "Excusable neglect."

Civil action commenced in the Superior Court Department on April 22, 2016.

A motion for relief from default judgment, filed on July 17, 2017, was heard by Brian A. Davis, J.

Andrew P. Cohen for Gloria Brown. Tory A. Weigand for the plaintiff. Richard M.W. Bauer & Matthew W. Brooks, for Massachusetts Advocates for Nursing Home Reform, amicus curiae, submitted a brief.

1 Doing business as Care One at Randolph. 2 George Brown. 2

NEYMAN, J. In this case we consider whether a Superior

Court judge abused his discretion in imposing an unusual

condition on the removal of a default judgment under Mass. R.

Civ. P. 60 (b) (1), 365 Mass. 828 (1974). Specifically, the

judge vacated a default judgment against the defendant, Gloria

Brown, 3 conditioned upon her agreement to waive her counterclaims

against the plaintiff nursing facility, Care One Management, LLC

(Care One), to the extent that her recovery, if any, exceeded

any amount she owed to Care One. Gloria refused to accept the

condition, and thus the default judgment remained in place. She

now challenges the judge's order on appeal. We conclude that

although a judge has substantial discretion to impose a range of

conditions on the removal of a default judgment, neither the

judge's findings nor the record before us justifies the

imposition of the specific condition in this case. We therefore

vacate the order on the motion for relief from judgment and

remand the case for a determination as to what condition, if

any, should be imposed on the removal of the default judgment. 4

3 George Brown, Gloria Brown's husband, was named as a codefendant, but he died during the pendency of this litigation. For clarity, we refer hereafter to the Browns by their first names. References to Gloria throughout this opinion stand for both Gloria individually and as the personal representative of the estate of George. 4 We acknowledge the amicus brief submitted by Massachusetts Advocates for Nursing Home Reform in support of Gloria. 3

Background. 1. Verified complaint. On or about April 22,

2016, Care One filed a verified complaint in the Superior Court

claiming breach of contract and "spousal duty to support"

pursuant to G. L. c. 209, § 1, 5 for "necessities provided" to

Gloria's now-deceased husband, George, while he resided at the

facility. The complaint alleged, among other things, that

George entered Care One's facility on July 24, 2015, and

remained there until December 24, 2015; 6 that George entered into

a written "Resident Admission Agreement" (agreement) with Care

One; that, pursuant to the agreement, "Care One agreed to

provide [George] with skilled nursing services in exchange for

. . . [George's] promise to pay for the services provided and to

apply for and cooperate in the Medicaid eligibility

determination process"; and that the agreement required George

to "apply for and seek to establish eligibility and entitlement

5 General Laws c. 209, § 1, provides, in relevant part:

"The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family." 6 George first resided at the Care One facility from February or March of 2015, to April of 2015. He reentered the facility on July 24, 2015. Payment for George's initial stay at the facility is not at issue. 4

to receive benefits under the [F]ederal Medicare" and

"diligently take all steps necessary . . . to submit, apply for,

and obtain any available benefits." The complaint further

alleged that Care One provided twenty-four hour skilled nursing

care to George throughout his stay, but George failed to submit

necessary information to obtain MassHealth benefits, 7 failed to

appeal the denial of MassHealth benefits, and abandoned all

responsibility to obtain the benefits he was obligated to seek

under the agreement. As a result, the complaint alleged, George

violated the agreement and owed Care One $67,200 plus interest

for the care provided to him. Care One timely served the

summons and complaint, and Gloria received timely notice of the

present action. 8

Concurrent with the filing of its complaint, Care One filed

a prejudgment motion for allowance of real estate attachment

(attachment motion) against Gloria. Gloria appeared at the May

9, 2016, initial hearing on the attachment motion, during which

she sought a continuance because George was hospitalized and in

critical condition, and she wanted time to speak with an

7 MassHealth is the State's Medicaid program. See Atlanticare Med. Ctr. v. Division of Med. Assistance, 485 Mass. 233, 234 (2020). 8 At the May 9, 2016, and June 8, 2016, hearings on Care One's motion for allowance of real estate attachment, discussed infra, Gloria acknowledged receipt of the complaint. 5

attorney. Gloria also attended the subsequent June 8, 2016,

hearing on the attachment motion, and she told the judge that

George had been home for four days, after having been on life

support and in intensive care. She also represented, among

other things, that George "[was] a dementia patient"; did not

knowingly sign the agreement as he "never sign[ed] anything

when" she was not present; was "sent back" to the Care One

facility against Gloria's wishes; and was neglected and

mistreated at the Care One facility resulting in bed sores and

sepsis. The judge advised Gloria that she or George needed to

file an answer to the complaint, and the judge told her that she

would "be very well served by having an attorney." That same

day, the judge issued an order denying the attachment motion

that stated, in part, "[T]here are potentially meritorious

defenses based on [George's] cognitive capacities (reported

dementia) and possible counterclaims relating to the quality of

care provided."

2. Default and default judgment. Neither George nor

Gloria filed an answer to the complaint, 9 and thus a default

9 Gloria maintains that she drafted an answer to the complaint and sent it to counsel for Care One in June, July, and August of 2016. The record appendix contains a copy of her answer, dated August 1, 2016. However, the record does not reflect whether counsel for Care One received the answer. We note that Care One's appellate counsel did not represent Care One in the Superior Court at that time. In any event, the record is undisputed that Gloria did not file an answer to the 6

entered pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822

(1974), on June 28, 2016. Care One subsequently filed a motion

for default judgment and assessment of damages. Notice of the

motion was sent to George and Gloria, but neither responded. On

October 25, 2016, a different Superior Court judge held a

hearing on the motion for default judgment and assessment of

damages, and the judge found that George and Gloria "were given

notice of the hearing, but did not appear." On or about October

27, 2016, the judge issued findings and an order allowing the

motion, and on October 31, 2016, judgment entered against George

and Gloria in the amount of $67,200 plus costs and statutory


3. Rule 60 (b) motion. The Browns took no action in

response to the notices and the default judgment for over eight

months. On July 17, 2017, Gloria filed a "Request to Re-Open

Civil Action . . . Remove Default Judgment & Attachment and

Dismiss Plaintiff's Claim with Prejudice for Fraud." The judge

treated Gloria's filing as a motion for relief from judgment

under Mass. R. Civ. 60 (b) (1) based on a claim of "excusable

neglect" (rule 60 [b] motion). 10 The rule 60(b) motion, which

complaint in the Superior Court as required by Mass. R. Civ. P. 12 (a) (1), 365 Mass. 754 (1974). 10 We agree with the judge's characterization of Gloria's filing as a motion for relief from judgment under Mass. R. Civ. P. 60 (b) (1). 7

Gloria signed "under pains and penalties of perjury," averred,

inter alia, that Gloria "was hospitalized with heart problems on

July 17, 2016 and medically, could not continue this case"; that

although Gloria did not file an answer to the complaint, she did

provide Care One with a copy of her answer; that George's

signatures on the agreement were "forgeries"; that George

suffered from dementia and therefore "would not have understood

what he was supposed to be signing"; that Care One "submitted

bills incorrectly coded" to Medicare; and that Care One was

attempting "to induce this court to accept as genuine, false

documents, incorrect billing amounts, statements and


As further discussed below, the judge weighed the relevant

factors for determining whether the specific circumstances here

constituted excusable neglect. See Berube v. McKesson Wine &

Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979). He concluded

that most of the Berube factors weighed in favor of allowing

Gloria's rule 60 (b) motion. 11 He also determined that although

11 Regarding the Berube factors, the judge wrote:

"[Gloria]'s sworn motion papers indicate that her husband is deceased and she has suffered (or is suffering) from serious health difficulties that have interfered (to an extent, at least) with her ability to litigate this matter in a timely fashion. The timing of [her] [r]equest, while hardly speedy, falls well before trial and within the one- year hard deadline for motions filed pursuant to [r]ule 60 (b) (1). . . . Moreover, this Court already has 8

"the question of whether relief under [r]ule 60 (b) (1) is

warranted is a close one," the present circumstances and

"interests of justice generally" warranted resolving the

parties' dispute on its merits. Accordingly, on November 7,

2017, the judge ordered that the defaults and ensuing judgment

entered against Gloria "are vacated." However, the judge

further ruled:

"[T]his Order is conditioned upon [Gloria]'s agreement to waive any and all claims she and/or her husband's estate may have against [Care One] to the extent that the claims result in a monetary recovery which exceeds the amount, if any, determined to be owed to [Care One] for the nursing and other services provided to George while he resided at [Care One]'s [f]acility."

Gloria refused to accept the condition. The default judgment

thus remained in effect, and she now appeals from the order. 12

Discussion. 1. Legal standards. Pursuant to Mass. R.

Civ. P. 60 (b), "[o]n motion and upon such terms as are just,

the court may relieve a party or his legal representative from a

recognized that [Gloria] has 'potentially meritorious defenses based on [George's] cognitive capacities (reported dementia) and possible counterclaims relating to the quality of care.' . . . While the question of whether relief under [r]ule 60 (b) (1) is warranted is a close one, the Court is persuaded that, in circumstances such as these, the interests of justice generally favor resolution of parties' disputes on their merits." 12 On January 10, 2018, Gloria filed a "Motion for Clarification Regarding Default Under Rule 55a." The judge "interpret[ed] this motion as a motion for reconsideration of [the] order of November 7, 2017," and denied the motion. 9

final judgment, order, or proceeding for . . . (1) mistake,

inadvertence, surprise, or excusable neglect." 13 Rule 60 (b)

"provides a procedure for removing the burdens of a judgment

where the interests of justice and fairness require relief."

Berube, 7 Mass. App. Ct. at 429. It "contemplate[s] an

equitable balancing of interests in determining the merits of a

motion brought under its provisions." Id. See Harris v.

Sannella, 400 Mass. 392, 395 (1987). Motions for relief from

final judgment brought under rule 60 (b) "are commended to the

judge's discretion, and a judge's decision will not be

overturned, except upon a showing of a clear abuse of

discretion" (quotations and citation omitted). Adoption of

Quan, 470 Mass. 1013, 1014 (2014). See Burger Chef Sys., Inc.

v. Servfast of Brockton, Inc., 393 Mass. 287, 289 (1984),

quoting Silkey v. New England Tel. & Tel. Co., 9 Mass. App. Ct.

816, 816 (1980) ("The removal of an entry of default under rule

13 Rule 60 (b) is sometimes analyzed in conjunction with Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974), which provides that "[f]or good cause shown the court may set aside an entry of default and, if a judgment has been entered, may likewise set it aside in accordance with Rule 60 (b)." See Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 290 n.6 (1984). However, it is important to note that the "good cause" standard of rule 55 (c) is less stringent than the "excusable neglect" standard under rule 60 (b) (1). See Institution for Savs. in Newburyport v. Langis, 92 Mass. App. Ct. 815, 822 (2018). See also Broome v. Broome, 40 Mass. App. Ct. 148, 152 (1996) ("In various situations a default entry [under rule 55] may be set aside for reasons that would not be enough to open a default judgment" [citation omitted]). 10

55 [c] is a matter 'addressed to the sound discretion of the

trial judge'").

In addition, where, as here, a party bases its rule 60 (b)

motion on a claim of excusable neglect, courts engage in "a case

by case assessment of the circumstances," Berube, 7 Mass. App.

Ct. at 430, and consider

"among other relevant circumstances . . . at least the following factors: (1) whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself . . . ."

Id. at 430-431.

Finally, "a judge may impose equitable conditions on the

allowance of a motion to vacate a judgment." Currier v. Malden

Redev. Auth., 16 Mass. App. Ct. 906, 907 (1983). The plain

language of rule 60 (b) authorizes judges to condition relief

"upon such terms as are just." Mass. R. Civ. P. 60 (b). See

Burger Chef Sys., Inc., 393 Mass. at 290 (discussing trial

judges' "power to condition relief upon appropriate conditions,

such as the posting of a bond"). We likewise review a judge's

decision to impose conditions on the allowance of a rule 60 (b)

motion for abuse of discretion. See Currier, supra. See also 11

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014); Burger

Chef Sys., Inc., supra (noting judge's discretion to impose

conditions on allowance of rule 55 [c] motion). Furthermore, we

review a decision to impose conditions on the allowance of a

rule 60(b) motion in conjunction with the judge's assessment of

the Berube factors. See Burger Chef Sys., Inc., supra at 291,

quoting Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 64

n.9 (1971) ("[A]ll aspects of the case and of the respective

interests of the parties, appropriate for the consideration of a

court of equity in granting or denying discretionary relief, may

be taken into account").

2. Analysis. The judge imposed the above-referenced

condition on the allowance of the rule 60 (b) motion "[i]n light

of the significant delay caused by [Gloria]'s extended failure

to respond to [Care One]'s complaint and her less-than-speedy

request for relief under [r]ule 60 (b) (1)." The judge reasoned

that "it would be unfair to permit [Gloria] to pursue her

relatively stale defenses and counterclaims against [Care One]

so as to obtain an affirmative recovery for her own benefit."

Gloria contends that the judge abused his discretion by

imposing what she characterizes as "an unlawful condition on the

removal of default." The condition, she claims, was

unreasonable, disproportionate to any prejudice to Care One,

punitive and excessive, and deprived her of her due process 12

right to access to the courts. She further maintains that the

judge's findings in support of the condition were "wholly

conclusory," and failed "to determine the value of the damages

[the judge] was requiring [her] to waive" vis-à-vis "the value

of any harm suffered by Care One." Finally, she argues that

insofar as Care One did not allege that it was prejudiced by the

delay, and the judge did not find that Care One suffered any

prejudice, the imposition of a "draconian condition" constituted

an inappropriate sanction.

Care One counters that the condition was well within the

judge's substantial discretion in view of the unreasonable delay

caused by Gloria, and the staleness and meritless nature of her

counterclaims and defenses. It further argues that the judge

applied the correct standards, conducted a careful balancing of

the parties' interests, and justified the condition with his

"reasonable findings of fact."

Care One's arguments carry more than a measure of

persuasiveness. The record confirms that the judge conducted an

attentive and assiduous assessment of the relevant

circumstances, and sought to strike a careful balance of the

parties' interests. The judge was familiar with the entire

history of the litigation. He held hearings on the motion for

default judgment and assessment of damages, and on the rule

60 (b) motion. He issued thoughtful written findings and 13

rulings on both motions, and analyzed each of the Berube factors

in allowing the rule 60 (b) motion based on excusable neglect.

In addition, he considered the prior judge's findings from the

denial of the attachment motion regarding Gloria's "potentially

meritorious defenses . . . and possible counterclaims."

As Care One further argues, Massachusetts appellate courts

have construed rules 60 (b) and 55 (c) to empower judges to

allow relief upon appropriate conditions such as posting of a

bond, and limiting or adjusting interest awards. See Burger

Chef Sys., Inc., 393 Mass. at 290; Currier, 16 Mass. App. Ct. at

907. See also Wokan v. Alladin Int'l, Inc., 485 F.2d 1232, 1234

(3d Cir. 1973) (condition most commonly imposed upon opening of

default judgment under Fed. R. Civ. P. 60 [b] is payment of

costs or attorney's fees); Thorpe v. Thorpe, 364 F.2d 692, 694

(D.C. Cir. 1966) (same). Courts have also recognized the

option, in suitable circumstances, of conditioning the removal

of a default judgment on an attachment of property. See Thorpe,

supra at 695. Moreover, our courts have not limited the types

of conditions that judges may impose in removing a default

judgment. To the contrary, our cases reference "equitable"

relief, and rule 60 (b) itself contemplates conditioning relief

"upon such terms as are just." Mass. R. Civ. P. 60 (b). See

Burger Chef Sys., Inc., 393 Mass. at 290, quoting 10 C.A. Wright

& A.R. Miller, Federal Practice and Procedure § 2700, at 539-540 14

(2d ed. 1983) ("Terms and conditions can be used to facilitate

discovery, compensate for obstructionist tactics, and protect

the ability of the nondefaulting party to obtain an appropriate

remedy"). Thus, Care One argues, insofar as the judge

considered the relevant facts, applied the appropriate legal

standards, and justified his findings and rulings in writing, he

did not abuse his discretion.

Care One further argues that we should not isolate the

judge's decision to vacate the default judgment from his

decision to impose the condition. We agree, and we review the

judge's decision to impose the unusual condition as part and

parcel of his decision to allow the rule 60 (b) motion. See,

e.g., Burger Chef Sys., Inc., 393 Mass. at 291, quoting

Damaskos, 359 Mass. at 64 n.9 ("[A]ll aspects of the case and of

the respective interests of the parties, appropriate for the

consideration of a court of equity in granting or denying

discretionary relief, may be taken into account").

Neither this court nor the parties are aware of any

reported cases in Massachusetts involving the imposition of a

condition like the one imposed here. Although the judge's

discretionary decision under rule 60 (b) requires "a case by

case assessment of the circumstances," Berube, 7 Mass. App. Ct.

at 430, we nonetheless look to Federal courts interpreting

similar conditions imposed under Fed. R. Civ. P. 60 (b) and Fed. 15

R. Civ. P. 55 (c) for guidance, see Hermanson v. Szafarowicz,

457 Mass. 39, 49 (2010) ("We generally follow the Federal

courts' interpretation of Federal rules of civil procedure in

construing our own identical rules"); Burger Chef Sys., Inc.,

393 Mass. at 289 n.3, quoting Rollins Envtl. Servs., Inc. v.

Superior Court, 368 Mass. 174, 180 (1975) ("The interpretation

given to a Federal rule is to be applied to its Massachusetts

counterpart, 'absent compelling reasons to the contrary or

significant differences in content'").

In Dimanche v. Massachusetts Bay Transp. Auth., 893 F.3d 1,

5 (1st Cir. 2018), the defendant failed to file a timely answer

to the complaint due to a clerical error. The United States

District Court for the District of Massachusetts entered a

default, and the defendant moved to set aside the default one

week later. Id. The judge denied the motion without prejudice

"to it being refiled within [thirty] days . . . supported by

detailed evidentiary affidavits setting forth the so-called

'meritorious' defenses." Id. The defendant refiled its motion

to set aside the default accompanied by several affidavits and

two exhibits. Id. The judge allowed the motion but stated that

the defendant "must understand . . . that its entire affirmative

case is set forth in the data submitted in support of this

motion." Id. Following a trial that resulted in a jury award

of damages to the plaintiff, the defendant appealed, claiming, 16

inter alia, that the condition imposed on the removal of the

default constituted an unreasonable, "draconian," and "punitive"

sanction. Id. at 10. The United States Court of Appeals for

the First Circuit agreed that "it was entirely unreasonable for

the district court to restrict the [defendant]'s proof at trial

to what was said in th[e] affidavits." Id. at 11. The court

noted that not only had it "found no case approving of such a

sanction," but also that the sanction was "calibrated not to

ameliorate any prejudice to [the plaintiff], but instead to

punish [the defendant]." Id. It further noted that in cases

where other Courts of Appeals did authorize the imposition of "a

reasonable condition" for a default removal, "the plaintiff was

actually prejudiced by the delay." Id. Moreover, in such

cases, the courts had imposed "financial penalties" as

conditions, such as the requirement to post a bond, which "in no

way limited the [defendant]'s ability to fully litigate the case

and to defend themselves at trial." Id.

In Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508, 514-516

(2d Cir. 2001), the United States Court of Appeals for the

Second Circuit upheld a decision by a judge of the United States

District Court to condition vacatur of the defendants' default

on their posting a $500,000 bond. The court noted that "a

district court has inherent power to impose a reasonable

condition on the vacatur in order to avoid undue prejudice to 17

the opposing party." Id. at 515. The court then held that the

bond condition was reasonable where (a) the judge expressed

concern about evidence of the "defendants' actual and potential

transfers of assets," and (b) the defendants offered no

explanation "to dispel the impression that [certain] transfers

and payments were collusive efforts to place their assets beyond

the reach of judgment creditors." Id. at 516. In other words,

the court recognized the judge's concern regarding potential

prejudice to the nondefaulting party.

In Hritz v. Woma Corp., 732 F.2d 1178 (3d Cir. 1984), the

United States Court of Appeals for the Third Circuit considered

whether a judge abused his discretion in refusing to vacate a

default judgment following the defendant's "repeated failure" to

respond to the proceedings. Id. at 1179. The court noted that

in exercising his discretion, the judge was obligated to

consider "whether the defendant ha[d] a meritorious defense,"

whether removing the default would cause prejudice to the

plaintiff, and "whether the default was the result of the

defendant's culpable misconduct." Id. at 1181. After

determining that the defendant had adequately pleaded a

meritorious defense, the court ruled that "the trial judge did

not fully address the prejudice issue because he found the

defendant's conduct to be so irresponsible as to preclude

opening the default judgment," rendering it "unnecessary for the 18

district judge to reach the question of prejudice." Id. The

court then noted that under Fed. R. Civ. P. 60 (b), "prejudice

suffered by a non-defaulting party can be rectified through the

trial court's power to impose terms and conditions upon the

opening of a judgment," and thus the judge could consider

requiring that the defendant "waive the statute of limitations

on behalf of its parent corporation" in view of the delays it

caused. Id. at 1182 n.3. Ultimately, "out of an abundance of

caution," the court remanded the case to the District Court to

"evaluate the questions of prejudice [to the plaintiff] and

culpable conduct" on the part of the defendant. Id. at 1185.

Finally, in Thorpe, 364 F.2d at 694-695, the United States

Court of Appeals for the D.C. Circuit held that the "unusual,"

"extraordinary," and "unprecedented" condition of requiring the

defendant to "place in a joint bank account, in escrow, not only

the amount of the default judgment, but the maximum amount

demanded by [the plaintiff] in her complaint" was not justified

by the District Court's findings. The court reasoned that the

plaintiff did not allege, "nor [wa]s there any indication," that

the plaintiff had "suffered prejudice from [the defendant]'s

default over and above costs customarily incident to pressing a

default judgment." Id. at 694. Thus, the court remanded the

case to the District Court to determine, with "supporting

findings," whether the extraordinary condition should be 19

retained, and "whether [a] less onerous" condition "may not be

more appropriate." Id. at 695. See Wokan, 485 F.2d at 1235

(stating that it was "perfectly proper for a district court in

an appropriate case to impose the condition to vacating a

default judgment that the judgment holder not be deprived of any

payment or security he has obtained as a result of the

judgment," but holding that the "unusual" condition of requiring

"that the now disputed claim be made more secure than it was

prior to the court's action on the [r]ule 60 (b) motion" could

not be imposed on the record before the court, and remanding for

reconsideration of motion to vacate default judgment).

Although the above-cited cases contemplate somewhat

different conditions than the one the judge imposed here, they

provide helpful guidance. First, the cases confirm that the

condition imposed by the judge in the present case is unusual

and extraordinary. See, e.g., Thorpe, 364 F.2d at 695. As

discussed, there are no reported cases in Massachusetts

addressing the type of condition imposed here. Second, the

above-cited cases evince a common feature. In each case, in

evaluating the exercise of discretion to impose an unusual,

extraordinary, or onerous condition, the reviewing court

considered whether the nondefaulting party suffered prejudice as

a result of the default or delay. See Federal Deposit Ins.

Corp. v. Francisco Inv. Corp., 873 F.2d 474, 479 (1st Cir. 1989) 20

("The issue [of prejudice] is not mere delay, but rather its

accompanying dangers: loss of evidence, increased difficulties

of discovery, or an enhanced opportunity for fraud or

collusion"); 10A C.A. Wright, A.R. Miller, & M.K. Kane, Federal

Practice and Procedure § 2699, at 206 (4th ed. 2016) ("courts

have recognized that opening a default may prejudice a litigant

in a number of ways. In some instances, delay itself may thwart

plaintiff's recovery or remedy. It also may result in the loss

of evidence, create increased difficulties of discovery, or

provide greater opportunity for fraud and collusion" [footnote

omitted]). See also Burger Chef Sys., Inc., 393 Mass. at 289-

291 (citing Federal cases and C.A. Wright & A.R. Miller, Federal

Practice and Procedure [2d ed. 1983] in interpreting Mass. R.

Civ. P. 55 [c]).

In the present case, although the judge made comprehensive

written findings, he did not find that Care One suffered any

prejudice from the default or the delays. Likewise, Care One

did not allege in its brief that it suffered any specific

prejudice. 14 Instead, Care One highlights the judge's reference

14 Care One did not contend -- through affidavits or otherwise -- that the eight-month delay in filing the rule 60 (b) motion affected its claim. It did not argue that certain witnesses may be unavailable or impracticable to produce because of the delay; that certain information is no longer available or more difficult to find or produce; or that the delay has caused them to endure unwarranted costs and legal fees. Compare Hritz, 732 F.2d at 1182 (discussing two years of total 21

to Gloria's "relatively stale defenses and counterclaims," and

contends that insofar as "a stale claim is one that is barred by

the defense of laches," the judge implicitly found that Gloria's

unreasonable delay in pursuing her rights or claims caused

prejudice to Care One. We disagree. The judge made no such

specific finding, and we are unwilling, on this record, to read

such a determination into the judge's findings and order.

Furthermore, insofar as Gloria's claims sound, at least in part,

in contract, it is difficult to see how laches or any other

time-related claim or defense would preclude her from bringing

her counterclaims in view of the six-year statute of

limitations. See G. L. c. 260, § 2. 15

nonresponsiveness by defaulting party and that "the failure to answer the complaint is part of a pattern that threatens plaintiffs with the gravest prejudice: having their claim barred completely by the statute of limitations"). 15 We note that on November 16, 2018, approximately one year after the judge issued his findings and order on the rule 60 (b) motion, Gloria brought a separate wrongful death and negligence action against Care One and other defendants in the Superior Court. That complaint was dismissed on October 21, 2019, for want of prosecution due to Gloria's failure to appear in that matter as well. Gloria did not appeal the dismissal of that separate action, and thus that action is not presently before this court. Nonetheless, Care One argues that in view of the dismissal of that complaint, Gloria's counterclaims are moot and therefore meritless under the Berube analysis. Whether and to what extent Care One's argument has any merit or affects Gloria's rule 60 (b) motion may be considered and addressed by the judge on remand. 22

As discussed, one of the factors that a judge must consider

in the context of deciding a rule 60 (b) motion predicated on

excusable neglect is "whether prejudice has resulted to the

other party." Berube, 7 Mass. App. Ct. at 431. We recognize

that the adjudication of a motion to vacate a default judgment,

including the decision whether to impose conditions on the

allowance of such a motion, involves "a case by case assessment

of the circumstances," rather than a formulaic approach. Id. at

430. Nevertheless, the Federal cases discussed supra

demonstrate that the prejudice factor may be of particular

relevance and importance when imposing an unusual or

extraordinary condition. This is just such a case. Here, the

judge determined that most of the Berube factors weighed in

favor of Gloria, and he accepted the prior judge's finding that

Gloria had "potentially meritorious defenses" and "possible

counterclaims relating to the quality of care." Although the

judge made passing reference to Gloria's "less-than-speedy" rule

60 (b) motion and "relatively stale defenses and counterclaims,"

he did not explain how or why such factors impacted Care One's

claim, and did not evaluate and explain whether and to what

extent Care One suffered any prejudice, before imposing the

unusual condition on the removal of the default judgment. The

judge's lone statement that "it would be unfair to permit"

Gloria to fully pursue her defenses and counterclaims is 23

insufficient in these circumstances. See Powerserve Int'l,

Inc., 239 F.3d at 515-516 ("it is incumbent on the district

court to make findings sufficient to permit appellate review of

the condition's reasonableness"); Thorpe, 364 F.2d at 695 ("When

. . . an extraordinary condition is approved it must be

accompanied by supporting findings to show that it represents a

reasonable exercise of discretion"). See also Dimanche, 893

F.3d at 11.

Accordingly, we conclude that the judge's findings do not

justify conditioning the removal of the default judgment on

Gloria's agreement to waive any and all claims she may have

against Care One to the extent that recovery would have exceeded

any amount Gloria owed to Care One. Thus, the judge abused his

discretion, 16 and we vacate the order on the rule 60 (b) motion

and remand the case for the judge to determine, with

supplemental written findings, whether Care One suffered

prejudice such that an unusual or extraordinary condition is

warranted, or whether "less onerous" conditions, if any, "may

not be more appropriate." Thorpe, 364 F.2d at 695. See

Powerserve Int'l, Inc., 239 F.3d at 515-516. 17

16 We note that no Massachusetts precedent addressing the specific issue discussed in this opinion was available to guide the judge in the exercise of his discretion. 17 At oral argument, counsel for Gloria contended that the judge would have abused his discretion by imposing any condition 24

To be clear, we do not hold that a judge may never impose a

condition similar to the one imposed in the present case.

Furthermore, we do not hold that a finding of prejudice must

invariably be found before a judge may impose an unusual or

extraordinary condition. In appropriate circumstances -- such

as default judgments that stem from inexcusable conduct, cause

substantial and unjustified delay, or prejudice the rights or

claims of the non-defaulting party -- the imposition of such a

condition might be warranted. See, e.g., Hritz, 732 F.2d at

1182 n.3 ("If the case before us were remanded, the district

court could consider requiring, as a condition of opening the

default judgment, that [the defaulting defendant] waive the

statute of limitations on behalf of its parent corporation in

Germany"); Bridoux v. Eastern Air Lines, Inc., 214 F.2d 207, 210

(D.C. Cir.), cert. denied, 348 U.S. 821 (1954) (dismissal of

defaulting defendant's counterclaim was "[j]ust term[]" for

relief under Fed. R. Civ. P. 60 [b]). Here, however, the

judge's written findings did not justify the imposition of the

unusual condition, and in view of what other courts have done in

on the removal of the default judgment, because all of the Berube factors weigh in favor of Gloria. We disagree, because this contention ignores the judge's findings regarding Gloria's "extended failure to respond" to the complaint, her "less-than- speedy request for relief under [r]ule 60 (b) (1)," and the delay that she caused. The judge retains discretion on remand to determine what condition, if any, to impose. 25

analyzing similar conditions, the more prudent (and here

necessary) course is for the judge to reconsider his

determination. 18

The order on the motion for relief from judgment is

vacated, and the case is remanded for further proceedings

consistent with this opinion. 19

So ordered.

18 Gloria has repeatedly claimed that her financial resources are extremely limited. On remand, the judge can hold hearings or take other measures to assess the veracity of this claim, and consider whether alternative conditions, if any, are appropriate. 19 Because we decide this appeal on the grounds discussed herein, we need not address the one constitutional argument mentioned by Gloria rule 60 (b) motion deprived her of a due process right to access to the courts. See Commonwealth v. Magraw, 426 Mass. 589, 600 (1998).

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