Massachusetts Civil Procedure Rule 65.3: Proceedings for Civil Contempt
(a) Applicability. Enforcement of compliance with the following court orders shall be sought by means of a separate civil proceeding denominated as a "civil contempt proceeding":
(1) temporary restraining orders, preliminary or permanent injunctions pursuant to Rule 65, or stipulations in lieu thereof;
(2) orders issued pursuant to Rule 70; and
(b) Commencement. A civil contempt proceeding shall be commenced by the filing of a complaint for contempt with the clerk of the court whose injunction, stipulation, order or judgment is claimed to have been violated. No entry fee shall be required in connection with the filing of the complaint for civil contempt. The proceeding shall be considered part of the civil action out of which the contempt arose.
(c) Contents of the Complaint. The complaint for civil contempt shall:
(1) contain a complete verbatim statement of the injunction, stipulation, order or judgment involved, or a copy thereof if available, and the name of the issuing judge where appropriate;
(2) identify the court that issued the injunction, order or judgment, or in which the stipulation was filed:
(3) contain the case caption and the docket number of the case in which the injunction, order or judgment was issued, or the stipulation was filed;
(4) include a short, concise statement of the facts on which the asserted contempt is based;
(5) include a prayer for the issuance of a summons as specified in subsection (d) below;
(6) be verified or supported by affidavits complying with the provisions of Rule 11(e); and
(d) Summons. The summons shall issue only on a judge's order and shall direct the parties to appear before the court not later than ten days thereafter for the purpose or purposes specifically stated therein of: scheduling a trial, considering whether the filing of an answer is necessary, holding a hearing on the merits of the complaint, or considering such other matters or performing such other acts as the court may deem appropriate.
(e) Service of the Summons and Complaint. A copy of the summons, the complaint for contempt, and any accompanying affidavits shall be served, in hand, upon the defendant in accordance with the provisions of Rule 4, unless the court orders some other method of service or notice.
(f) Answer. Unless the court otherwise orders, the defendant shall serve an answer within twenty days after service of the summons and complaint for contempt. The answer shall comply with the provisions of Rules 8, 9, 10 and 11.
(g) Discovery. A party, by motion, may seek an order permitting discovery. Such motion shall set forth the particular need for discovery, the type of discovery sought and the time required for obtaining the discovery. A motion for discovery in a civil contempt proceeding may be heard on three days' notice.
(h) Trial. The complaint for contempt shall be tried upon the facts in accordance with Rule 52. The court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58.
Adopted May 25, 1982, effective July 1, 1982.
Reporter's Notes (1996) With the merger of the District Court Rules into the Mass.R.Civ.P., Rule 65.3 is now applicable in the District Court. It had previously been held by the Supreme Judicial Court that Rule 65.3 was not applicable in the District Court, although the provisions thereof might have been applied by analogy in District Court civil contempt proceedings. Mahoney v. Commonwealth, 415 Mass. 278, 612 N.E.2d 1175 (1993).
(1982) Prior to the adoption of this rule, no provisions existed in the Rules of Civil Procedure to specifically govern civil contempt proceedings. See Nolan, Equitable Remedies, 81 Massachusetts Practice, § 193. There is no analogous federal rule.
Under Rule 65.3(a) the rule is made applicable to all proceedings to enforce compliance with temporary, preliminary or permanent injunctions; stipulations in lieu thereof, Rule 70 orders; and other similar orders "for the violation of which civil contempt is an appropriate remedy." It is not applicable to discovery sanctions, under Rules 26(b), 36(a) and 37, nor to small claims cases (Rule 81(a)(7)). This rule excludes discovery sanctions because when a discovery order is violated, the parties are usually already before the court and there are a wide range of available sanctions, other than contempt. A distinct civil contempt proceeding, with its own summons, pleadings, and potential evidentiary hearing, seems unnecessary in the context of most disputes over the violations of a discovery order.
Section (b) tells how to commence a civil contempt proceeding, and clarifies that such proceeding shall have the same docket number and be otherwise treated as part of "the civil action out of which the contempt arose." Consequently, no entry fee is required.
Rule 65.3(c)(1)-(7) prescribes what must be included in a civil contempt complaint, and, because of the serious nature of an allegation of civil contempt, requires verification or accompanying appropriate affidavits.
Rule 65.3(d) endows the summons with unusual significance. Because of the expedited and grave nature of a civil contempt proceeding, the summons (i) "issues only on a judge's order," (ii) must "direct the parties to appear before the court not later than ten days" after issuance of the order; and (iii) must specifically state what will happen when the parties appear. The rule places the responsibility on the party filing a complaint for contempt to obtain the summons.
Rule 65.3(d) is constructed to meet two different goals. The first is to permit flexibility with respect to what occurs when the parties first appear in answer to the summons. Depending on the nature of the alleged contempt, a case may or may not benefit from the filing of an answer, expedited discovery, or an immediate hearing. Consequently, the rule gives wide discretion to the judge to determine what should happen when the parties appear: a "hearing on the merits," if it makes sense to have that quickly; scheduling a trial; considering dispensing with an answer, expediting discovery, if discovery is necessary; requiring initial compliance by the defendant pending a hearing; considering other appropriate matters; or requiring other appropriate acts to be performed.
The second goal is to eliminate, to the extent reasonably possible, surprising the parties. The parties should know, for example, whether a trial will take place when they appear in response to the summons. The word "specifically" in "for the purpose or purposes specifically stated therein" is to emphasize the importance of informing the parties what to expect. To merely place in each summons a laundry list of everything which might happen or "whatever the court may deem appropriate' will not comply with either the language or spirit of this rule.
Rule 65.3(e) provides that service of the summons and complaint and "any accompanying affidavits" will normally be "in hand."
Rule 65.3(f) provides for an answer within 20 days, unless "the court otherwise orders" in the summons or when the parties appear. The judge may, for instance, decide an answer is unnecessary, or that it should be served in fewer than 20 days.
Under Rule 65.3(g) a party must seek an "order permitting discovery," unlike the normal discovery provisions which permit parties, on their own, to initiate discovery. The rule requires the parties seeking discovery to particularize the need for, type, and timing of the discovery, sought. The purpose is to constrict the more wide-open discovery which can occur in other proceedings. It is important to note that in an unusual case, the court can order discovery in the initial summons under Rule 65.3(d) or at the hearing which occurs when the parties respond to the summons.