1.
Rules for All Civil Motions in Superior Court
According to Superior Court Rule 9, Superior Court Rules 9A-9E govern all civil motions except motions found in Superior Court Rule 9A(e).
Rule
9A(a)(1)-(6) dictates the form of motions and oppositions to
motions, including supporting memoranda, affidavits and other documents
which provide facts supporting the party’s position. It also sets the procedure
for obtaining leave to file further replies after the initial filings by each
side. Facts are presented by affidavit, or are agreed in writing signed by the
parties, or are apparent on the record.
Rule
9A(b)(1)-(6) governs the procedure for serving and filing motions and
oppositions. The moving party serves copies of the motion, memorandum and all supporting
papers on all other parties, without
filing with the Court. The opposing parties serve the moving party with original opposing memorandum and papers (to
be filed by the moving party with the Court), and serve copies of all opposing memoranda and papers on all parties,
including the moving party. Oppositions to motions are served 10 days after
service of a motion (except a summary judgment motion), and 21 days after
service of a motion for summary judgment, or “such additional time as is
allowed by statute or order of the Court. If the motion is served by mail,
these time periods shall be increased by 3 business days pursuant to Mass. R.
Civ. P. 6(d).”
The Rule 9A Package
After time for a response has passed, the
moving party assembles a “Rule 9A package” for filing with the Superior Court, which includes its motion and
supporting papers and timely opposition memoranda and supporting papers. “A
separate document accompanying the filing shall list the title of each document
in the Rule 9A package”. If the moving
party doesn’t receive an opposition in the time permitted, it files its motion
and supporting papers along with an affidavit “reciting compliance with this
rule and receipt of no opposition in timely fashion, unless the moving party
has notified all parties that the motion has been withdrawn.”
Upon
filing the Rule 9A package, the moving party gives “prompt notice of the filing
of the Rule 9A package to all other parties by serving… a copy of a certificate
of notice of filing on a separate document.” (See Rule 9A(b)(2), Rule 9A(b)(3)
and Rule 9A(b)(4) for exceptions to this procedure.)
2. Additional procedures for Summary Judgment motions are governed by
Rule 9A(b)(5)(i)-(vii). In addition to the steps above, it requires “a
statement of the material facts as to which the moving party contends there is
no genuine issue to be tried, set forth in consecutively numbered paragraphs,
with page or paragraph references to supporting pleadings, depositions, answers
to interrogatories, responses to requests for admission, affidavits, or other
evidentiary documents.” Failure to include
this document is grounds for denial of the motion. Rule 9A(b)(5)(1) also
sets out requirements for electronic transmission of this document to all
parties against whom summary judgment is sought at the time of serving the
motion.
The
opposing party reprints the moving party’s statement of material facts and
“set[s] forth a response to each directly below the appropriate numbered
paragraph, including, if the response relies on opposing evidence, page or
paragraph references to supporting pleadings, depositions, answers to
interrogatories, responses to requests for admission, affidavits, or other
evidentiary documents.” Failure to oppose
a statement of material fact results in the fact being deemed admitted. The
opposing party may also assert additional material facts with
supporting references, as a continuation of moving party's statement “with an appropriate
heading” not in a separate document, but in the same continuous document. The
requirements for electronic mailing of this document and moving party’s
response are in Rule 9A(b)(5)(iv).
Rule
9A(b)(5)(vi) sets the format and procedural requirements for the joint
appendix of exhibits supporting each sides’ position. “The initial moving
party with the cooperation of each opposing party, shall be responsible for
assembling the joint appendix and index.”
Regarding all civil motions:
Rule
9A(c) covers requests for hearings and Rule 9A(e) covers motions that are
exceptions to Rule 9A requirements, such as emergency motions.
3.
Checklist of Steps in filing a motion:
Most
non-summary judgment motions:
1. Moving party serves
motion, memorandum and supporting papers on all parties, including any request for a hearing and supporting statute or rule.
2. Opposing party
responds serving opposition and supporting papers on all parties, including any request for a hearing and supporting statute or rule.
a.
10
days (+ 3 days if motion was served by mail-all motions except summary judgment
motions);
b.
21
days (+ 3 days if summary judgment motion was served by mail).
3. Moving party files Rule
9A Package:
a.
Motion,
memorandum and supporting papers;
b.
Timely
opposing memoranda and papers (if any);
c.
Rule
9A list of documents composing the package;
d.
If
no opposition was received, moving party’s affidavit that no timely opposition
was received;
e.
Certificate
of notice of filing package.
Additional
steps for summary judgment motions:
4. Moving party’s
initial service of motion also includes:
a.
A
statement of material facts as to which there is no genuine issue to be tried (also
emailed to all parties), as well as
b.
A
joint appendix of exhibits and
certificate that all exhibits have been served with the motion on all parties.
5. Opposing party’s
service also includes:
a.
A
consolidated statement of material facts with opposing party’s paragraph by
paragraph response to moving party’s facts plus any additional material facts opposing
party wishes to present. If opposing party asserts additional facts, this
document is emailed to all parties as well as served.
b.
If
opposing party’s opposition includes new exhibits, it serves the new exhibits
along with an index of new exhibits.
6. Moving party files
Rule 9A Package with the court which also includes:
a.
Consolidated
statement of material facts as set out in Rule 9A(b)(5)(i)-(iv);
b.
Joint
appendix of exhibits, index and certificates regarding service of exhibits on
parties as set out in Rule 9A(b)(vi); and
7. Moving party also:
a.
emails
the consolidated statement of material facts on all parties as filed and
b.
serves
joint appendix of exhibits including index of exhibits, unless parties agree
otherwise. If the joint appendix is in electronic form an electronic copy is
also emailed, unless otherwise agreed.
This is a “road map” to important requirements in Superior
Court Rule 9A. However, a party bringing or opposing a Superior Court civil motion
must read Superior Court Rules 9A-9E to be sure of compliance with all
requirements and to maximize the opportunity for a good result.
Samples
Superior Court Rule 9A Letter (to opponent with your motion):
MCLE Massachusetts Superior Court Civil Practice Forms, Form 1.6
Rule 9A Package to be Filed with the Court:
MCLE Massachusetts Superior Court Civil Practice Forms, Form 1.7
Samples
Superior Court Rule 9A Letter (to opponent with your motion):
MCLE Massachusetts Superior Court Civil Practice Forms, Form 1.6
Rule 9A Package to be Filed with the Court:
MCLE Massachusetts Superior Court Civil Practice Forms, Form 1.7
Selected Secondary
Sources
MCLE
Massachusetts Superior Court Civil Practice Manual,
vol. 1, chapter 6 (esp. section 6.2.1) and chapter 7
vol. 1, chapter 6 (esp. section 6.2.1) and chapter 7
Good reading!
