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Massachusetts Civil Procedure Rule 71: Process in Behalf of and Against Persons Not Parties

[Disclaimer]

When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party.

Effective date July 1, 1974.

Reporter's Notes

(1973) Rule 71 is the same as Federal Rule 71. It permits a person, not a party to the action, in whose favor an order has been made, to enforce obedience to the order by the same process as if he were a party. See Woods v. O'Brien, 78 F.Supp. 221 (D. Mass. 1948). An example of the operation of this rule would be a foreclosure in which the court orders the property delivered to the purchaser. The purchaser is entitled to any process to enforce the order to which a party might be entitled. See 12 Wright & Miller, Federal Practice & Procedure 80 (1973). Rule 71 requires that the order sought to be enforced be made in favor of that person. It is not enough that the person seeking to enforce obedience be indirectly benefited by the decree. See United States v. American Society of Composers, Authors and Publishers, 341 F.2d 1003, 1007-1008 (2d Cir.1965), cert. denied, 382 U.S. 877, 86 S.Ct. 160, 15 L.Ed.2d 119 (1965). The court there held that a radio broadcaster not a party to the government's antitrust action against a music licensor lacked standing to move to punish the licensor for contempt for alleged failure to comply with the decree.

The final clause of Rule 71 does not purport to affect the general rule that ordinarily a judgment may be enforced only against a party. It merely provides that in those rare cases where such a right exists, the person in question is liable to the same process for enforcing obedience to the order as if he were a party. Suppose, for example, the person knowingly aids or abets the disobeying of the injunction. See Robert Findlay Mfg. Co. v. Hygrade Lighting Fixture Corp., 288 Fed. 80 (D.C.N.Y.1923). The latter portion of Rule 71 will also apply to those situations, as under the discovery rules, where a person not a party may be held liable for expenses and attorney's fees. An order against such a person may be enforced by the same methods as if the person were a party. See 12 Wright & Miller, Federal Practice & Procedure 82 (1973).