Massachusetts Civil Procedure Rule 77: Courts and Clerks
(a) Courts Always Open. Unless otherwise provided by law, the courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning process, and of making and directing all interlocutory motions, orders, and rules.
(b) Clerk's Office and Orders by Clerk. The clerk's office with a clerk or assistant clerk in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays. All motions and applications in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but his action may be suspended or altered or rescinded by the court upon cause shown.
(c) Filing Date of All Papers Received by Clerk. The clerk shall date-stamp all papers whatsoever received by him, whether by hand or by mail. Any paper so received, whether stamped or not, shall be deemed to have been filed as of the date of receipt. If at any subsequent time, any party disputes the fact of such filing, the court shall determine the question, taking whatever evidence it deems appropriate. Proof of mailing shall constitute prima facie proof of receipt.
(d) Notice of Orders or Judgments. (Effective August 1, 2009). Unless an order or judgment is entered in open court in the presence of the parties or their counsel, the clerk shall immediately upon the entry of an order or judgment serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4 of the Massachusetts Rules of Appellate Procedure or Rule 4 of the District/Municipal Courts Rules for Appellate Division Appeal, and except as relevant to a motion for relief from judgment under Rule 60(b)(6) of the Massachusetts Rules of Civil Procedure.
(e) Transmittal of Papers. In courts other than the District Court, at the direction of any judge of the court, the clerks for the several counties shall transmit the papers in any action from one county to another when a matter has been duly set down for hearing in a county other than that in which the action is pending. Pleadings, motions, and papers to be filed in such case shall be filed in the office of the clerk for the county in which the case is pending. The clerk for the county in which the case is heard shall certify the proceedings had in his county to the clerk for the county in which the case is pending and, at the direction of any judge of the court, shall return to such clerk all the papers, to be kept there on file.
When the court orders a change of venue, such order shall include a direction to the clerk to transmit all papers to the clerk for the county to which the action is transferred and thereafter all the papers shall be filed and all proceedings taken as if the action had been commenced in the county to which it is transferred.
Amended Dec. 2, 1983, effective Jan. 1, 1984; May 3, 1996, effective July 1, 1996; June 24, 2009, effective August 1, 2009.
(2009) Amendments to Rule 52(c) effective March 1, 2008 require findings of fact and rulings of law in jury-waived cases in the District Court if a party timely submits proposed findings and rulings. The March 2008 amendments were part of a group of amendments to the Massachusetts Rules of Civil Procedure in light of the adoption of the statewide one-trial system for civil cases. These amendments also deleted Rule 64A, which provided that a party seeking rulings of law in jury-waived cases in the District Court must submit to the court Requests for Rulings of Law.
In light of the elimination of the procedure involving Requests for Rulings of Law, the 2009 amendment deleted the following sentence from Rule 77(d): “In the District Court, such notice shall indicate the court's ruling on any requests for rulings which may have been made.” The deletion of this sentence is not intended to change the existing practice by which the clerk sends to the parties or counsel a copy of the court’s findings and rulings.
(1996) The merger of the District/Municipal Courts Rules of Civil Procedure into the Massachusetts Rules of Civil Procedure necessitated minor changes to Rule 77. The language "for each county" previously appearing in the first sentence of Rule 77(b) has been deleted to take into account the fact that a county may contain a number of District Court divisions. A new second sentence has been added to Rule 77(d), drawn from now-repealed Rule 77(d) of the Dist./Mun.Cts.R.Civ.P., requiring that notice of entry of judgment in District Court civil actions must indicate "the court's ruling on any requests for ruling which may have been made." The last sentence of Rule 77(d) has also been amended to refer to the relevant rule governing appeal from the District Court to the Appellate Division of the District Court, namely Rule 4 of the District/Municipal Courts Rules for Appellate Division Appeal.
Some changes to now-repealed Rule 77 of the Dist./Mun.Cts.R.Civ.P. as result of the merger should also be noted. Previously, Rule 77(b) of the Dist./Mun.Cts.R.Civ.P. provided that the clerk's office was to be open on all days "except Sundays and legal holidays." This has been eliminated in favor of the Mass.R.Civ.P. version, excepting Saturdays, Sundays, and legal holidays. This should effect no change in existing District Court practice. The occasion of the merger of the two sets of rules also provided the opportunity to eliminate now-outdated references appearing in Rule 77(d) of the Dist./Mun.Cts.R.Civ.P. to a request for report and to a draft report, both of which were eliminated in 1994 with the adoption of the District/Municipal Courts Rules for Appellate Division Appeal.
(1984) The purpose of this amendment is to remind lawyers that although Mass.R.Civ.P. 77(d) provides that "[l]ack of notice of the entry [of a judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed . . .", the lack of notice may be relevant to a motion for relief from judgment under Mass.R.Civ.P. 60(b)(6). See, for example, Chavoor v. Lewis, 383 Mass. 801, 422 N.E.2d 1353 (1981), in which a plaintiff, whose counsel averred that he had never received notification of a call of the list nor of entry of judgment, had the judgment vacated almost two years after judgment pursuant to Mass.R.Civ.P. 60(b)(6). See also 8A Smith and Zobel, Massachusetts Practice--Rules Practice, § 77.5, and citations therein.
(1973) Rule 77(a) is taken substantially from Federal Rule 77(a). It does not require the clerk's office to be physically open at all times for the filing of pleadings or other papers. (G.L. c. 220, § 6 provides that "Courts shall not be open on Sunday or a legal holiday, and courts, other than district courts, shall not be open on Saturday. . . .") Nor does this rule mean that "filing" may be accomplished by slipping the paper under the door of the clerk's office. It permits the filing of papers with the clerk, or with the judge if he so permits (see Rule 5(e)) at other than business hours and outside the courthouse.
Rule 77(b) requires the clerk's office to be open during business hours except Saturdays, Sundays and legal holidays. Business hours refers to normal business hours as observed by the community. Rule 77(b) also authorizes the clerk to issue process and make entries which do not require allowance or order of the court. This confirms the authority conferred upon the clerk by Rule 55 (default), Rule 58 (entry of judgment) and Rule 68 (offer of judgment).
Rule 77(c) remedies the difficulties occasionally arising where a clerk returns for correction without endorsement of receipt, a paper received by him for filing.
Rule 77(d) requires the clerk, immediately upon entry of an order or judgment to serve a notice of entry by mail upon each party not in default, except where the order or judgment is entered in open court in the presence of the parties or their counsel. Such notice by mail is sufficient for all purposes under the rules. A party may, however, to ensure notice, serve notice of entry of a judgment or order in the manner provided in Rule 5.
Although under Rule 77(d) lack of notice does not authorize the court to relieve a party for failure to appeal within the time allowed, Appellate Rule 4 provides that upon a showing of excusable neglect the court may extend the time for appeal. A failure to learn of the entry of judgment could, in appropriate circumstances, so qualify. Denial of a motion to extend the time for appeal, where failure to appeal in a timely manner was due to a clerk's failure to give notice, has been held to constitute an abuse of discretion. See Commercial Credit Corp. v. United States, 175 F.2d 905 (8th Cir.1949).
Rule 77(e) does not appear in the federal rules. If a case is to be heard in a county other than the county where the case was properly commenced (e.g., because of consolidation) the case remains on the docket of the original county and all papers are filed there. After the hearing, the papers in the case are returned to the county where the action was commenced. However if a case is transferred in response to a court order for change of venue, all the papers in the case are transferred to the transferee county and all further papers are filed there.