Monday, March 26, 2012

Comments Sought on Proposed Changes to Civil Rules 5, 54, 55

The Supreme Judicial Court is soliciting comments on proposed changes to Mass. Rules of Civil Procedure 5, 54, and 55. The proposed amendments are a response to the SJC's decision in Hermanson v. Szafarowicz, 457 Mass. 39 (2010).

"The Hermanson case dealt with G.L. c. 231, § 13B, which prohibits a demand for a specific monetary amount in a complaint (unless the damages "are liquidated or ascertainable by calculation and a statement under oath" accompanies the complaint) and the first sentence of Mass. R. Civ. P. 54(c), which provides that a default judgment may not exceed the amount requested in the demand for judgment.
"The Court ruled that there was an "irreconcilable conflict" between the statute and the court rule, and accordingly, the statute prevailed over the rule. As a result, the language of Rule 54( c) that provided for a ceiling on the amount of a default judgment that may enter against a defendant was rendered ineffective. The Court noted, however, that the ineffective first sentence of Rule 54( c) served the "sound" policy of allowing a defendant, served with a complaint, to make a reasoned decision whether it might be financially worth a default rather than defending the case."
 After review, the Standing Advisory Committee on the Rules of Civil and Appellate Procedure
"recommended to the Court, and the Court adopted, an approach that requires the party seeking a default judgment to provide advance notice to the defendant of the nature and type of damages sought that are not a sum certain. This approach required amendments to three rules: Rules 5(a), 54(c), and 55(b)(2)."
Comments on the proposed amendments should be sent to Christine Burak, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston 02108 or to on or before April 27, 2012.