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Massachusetts District Court Standing Order 1-98: Civil Case Management in Courts Governed by the One-Trial System

(Superseded by Joint Standing Order 1-04 for Cases Filed On or After August 31, 2004)

[Disclaimer]

I. PURPOSE AND APPLICABILITY

The purpose of this Order is to implement "An Act Relative to the One — Trial System for Civil Cases in [Eleven] Counties" (St. 1996, c. 358, as amended by St. 1998, c. 157, St. 2000, c. 142 and St. 2002, c. 70) in Courts governed by that law by establishing case management procedures that reduce the expense and delay of civil litigation.

This Order applies to all tort and contract actions in which money damages are sought ("civil actions") and which have been commenced (1) in Norfolk and Middlesex counties on or after January 1, 1998; (2) in Berkshire and Essex Counties on or after September 1, 2000; or (3) in Barnstable, Bristol, Dukes, Franklin, Hampden, Hampshire and Nantucket Counties on or after April 1, 2002. Sections VI, VII and VIII of this Order also apply to all tort and contract actions pending in such counties, regardless of the date of commencement of such actions.

This Order supersedes Standing Order 1-88 with respect to all civil actions and all procedures to which this Order applies.

II. GENERAL PRETRIAL SCHEDULE

It shall be the responsibility of counsel to complete the preparation of his or her case by the date of the pretrial conference as scheduled in accordance with Section IV A, unless the court orders otherwise. Discovery and pretrial motions, including motions pursuant to Mass. R. Civ. P. 12, 15, 19, 20 and 56, and such other motions as may be prescribed by the court, shall be filed, marked and caused to be heard by such date unless the court permits otherwise for good cause shown.

III. CASE MANAGEMENT CONFERENCE

A. Scheduling. Upon the filing of an answer by any defendant, the court shall immediately give notice to all parties in the action of a case management conference pursuant to Mass. R. Civ. P. 16 to be held on a date certain within four months of the date of filing of such answer, or sooner if directed by the court or jointly requested by all parties. Counsel or pro se litigants shall appear in person at the case management conference. The court may impose sanctions, including dismissal, default and assessment of costs, for failure to attend the conference without good cause.

B. Purpose. The purpose of the case management conference shall be to: (1) assess the trial-readiness of cases; (2) assign a firm trial date for cases that are ready for trial; (3) discuss settlement progress and opportunities for settlement, and offer and conduct early intervention alternative dispute resolution; (4) consider case management orders proposed by any party, or by the court, regarding limitation or sequencing of discovery events, disclosure or limitation of expert witnesses, motion briefing, and other matters that would reduce expense and delay of litigation, and enter appropriate orders; (5) enter judgment for relief or dismissal, and schedule hearing for assessment of damages if necessary; and (6) assign a firm date for pretrial conference for all cases which are not yet ready for trial.

Notice of the date of trial or pretrial conference shall be given to the parties at the case management conference after consultation with counsel. In all cases scheduled for trial, the person conducting the case management Conference shall prepare a pretrial conference report.

C. Judicial officer. The case management conference shall be conducted by a Justice or, if a Justice is unavailable, by a Clerk-Magistrate or Assistant Clerk-Magistrate who has been designated by the Chief Justice of the District Court in accordance with G.L. § 221, § 62C and Trial Court Rule 11(3)(a) to conduct such conferences. Only a Justice may issue or approve any orders arising from the case management conference.

IV. PRETRIAL CONFERENCE

A. Scheduling and pretrial memorandum. All cases not disposed or assigned a trial date at the case management conference shall be assigned a firm date for pretrial conference when they are expected to be ready for trial, such date to be not later than the end of the tenth month after the month in which the action was filed, or such later date as the court may order for good cause shown. Upon scheduling an action for pretrial conference, the court shall issue a Notice of Pretrial Conference requiring the parties to prepare a joint pretrial memorandum for use at the pretrial conference. Failure of any party to attend the pre-trial conference or prepare a joint pretrial memorandum may result in sanctions, including dismissal, default and assessment of costs.

B. Agenda, Report and Trial Order. The purpose of the pretrial conference is settlement of the case or, for cases which do not settle, assignment of a firm trial date. The person conducting the pretrial conference shall thereafter prepare a pretrial conference report. For actions requiring a trial date, notice of such date shall be given to all parties at the pretrial conference after consultation with counsel. Upon scheduling a case for trial, the court shall issue a Trial Order requiring the parties to prepare for trial. Failure of any party to prepare for trial as required by such order may result in preclusion of evidence or other sanctions in the discretion of the trial judge.

C. Judicial officer. The pretrial conference shall be conducted by a Justice or, if a Justice is unavailable, by a Clerk-Magistrate or Assistant Clerk-Magistrate who has been designated by the Chief Justice of the District Court in accordance with G.L. c. 221, § 62C and Trial Court Rule II(3)(a) to conduct such conferences, or, in cases where all parties are represented by counsel, by a conciliator or mediator assigned by the court with the consent of the parties. Only a Justice may issue or approve any orders arising from the pretrial conference.

V. DISMISSAL FOR LACK OF SERVICE OR FAILURE TO ACT ON DEFAULT

All actions in which there is no timely service of the complaint or no timely action upon default shall be dismissed as follows:

A. Dismissal for lack of service. After commencement of each action, the Clerk-Magistrate shall review the docket to determine whether the plaintiff has complied with the time limits for service pursuant to Mass. R. Civ. P. 4(j), together with any extensions allowed by the court pursuant to Mass. R. Civ. P. 6. Upon determining noncompliance, the Clerk-Magistrate shall issue notice of dismissal of the action as provided by Rule 4(j).

B. Dismissal nisi for failure to act on default. Where an action has remained on the docket for eight months without an answer or defensive motion having been filed by any defendant, the Clerk-Magistrate shall enter an Order Nisi for Dismissal advising the plaintiff that a Judgment of Dismissal will be entered 30 days from the date of the Order unless the plaintiff either (1) requests entry of default and moves for default judgment in accordance with Mass. R. Civ. P. 55, or (2) reports in writing that the case is active and requests that it not be dismissed.

VI. MOTION PRACTICE

A. General. Pursuant to Mass. R. Civ. P. 6 and 78, all motions shall be accompanied by an affidavit of notice setting forth the date and time of hearing on the motion. All motions shall be scheduled by counsel for the moving party on the court's usual civil motion hearing day as published by the court, or on the date the case is scheduled for case management conference or pretrial conference, or as otherwise ordered by the court.

B. Discovery and summary judgment motions. All discovery motions filed pursuant to Mass. R. Civ. P. 26 or 37 shall include copies of the discovery requests and responses which are the subject of the motion. Motions for summary judgment which rely on any pleading or discovery shall include copies of such pleadings or discovery with the motion. Any discovery or summary judgment motions which do not include such copies may be denied without prejudice.

C. Opposition procedure. In actions where all parties are represented by counsel, motions may be allowed by the court without the attendance of counsel in the following manner.

1. Designation by moving party. The moving party shall state on the caption of the motion and on the affidavit of notice, "SUBJECT TO OPPOSITION PROCEDURE," and file and serve such motion at least 14 days before the motion hearing date. If no other party timely files and serves an "OPPOSITION TO MOTION" as described below, the motion will be considered by the court without a hearing or the attendance of any counsel.

2. Opposition by other party. If any other party opposes the motion or otherwise seeks to be heard, such party shall file and serve a document captioned "OPPOSITION TO MOTION" at least five days before the motion hearing date. If any party timely files and serves such an "OPPOSITION TO MOTION," all counsel shall be required to attend the scheduled hearing, unless in such "OPPOSITION TO MOTION" the party expressly waives the right to such hearing, in which case the motion will be considered by the court without a hearing or the attendance of any counsel.

3. Exempted motions. This opposition procedure shall not apply to the following motions: motions to continue case management conference, pre-trial conference or trial; ex parte motions; petitions for approval of settlement by a minor; motions seeking sanctions of any kind; motions for preliminary and permanent injunction; motions for a receiver; motions for relief from judgment; motions for a new trial; motions for reconsideration; and any motion ordered by a Justice to be decided after hearing.

4. Notice of decision. When a motion is considered under the opposition procedure, the court shall act upon, and send written notice of such action to all parties, within 14 days after the hearing date.

VII. NON-FILING OF DISCOVERY MATERIALS

Pursuant to Mass. R. Civ. P. 5(d)(2), parties shall serve, but not file, the following discovery materials: interrogatories and answers to interrogatories; notices and transcriptions of depositions; document requests and responses. Parties shall not file any discovery stipulation or agreement that does not affect the pretrial schedule set forth in Section II above.

VIII. CONTINUANCES

A. General. Continuances of case management conferences, pretrial conferences and trials shall be disfavored because of the advance notice to, and the participation of counsel in, the scheduling of these events. Continuance of these events will be allowed for good cause only, and any continuance shall be to a date and event certain. No action shall be "continued generally" or taken off the schedule for any reason.

B. Form of motions. Requests for continuances shall be made only by written motion, with an affidavit of counsel, and counsel shall send a copy of the continuance request to his or her client(s) by first-class mail. All motions for continuance shall include a list of any days within the next 30 days that counsel for any party is unavailable for the continued event.

C. Joint requests to continue case management conference or pretrial conference. The Clerk-Magistrate or an Assistant Clerk designated by the Clerk-Magistrate may allow a joint request to continue a case management conference or pretrial conference after review of the motion without hearing, provided that the event shall be continued not more than once and for not more than 30 days.

D. Trial continuances, opposed continuances and repeat continuances. Motions to continue a trial, whether or not agreed to by the parties, may be allowed only by a Justice assigned to the civil trial session or, in the absence or unavailability of such Justice, by the Presiding Justice or other Justice designated by the Presiding Justice. Motions to continue a case management conference or pretrial conference which are opposed by any party, as well as motions to continue an event previously continued pursuant to Section VIII(C) above, shall be marked and heard as motions before a Justice. Counsel and pro se litigants shall not be excused from attending the scheduled event unless notified by the court that the event has been continued. No employee or officer of the court shall be authorized to allow continuances of trials or conferences, except as provided in this section.

Adopted December 17, 1997, effective January 1, 1998. Amended August 28, 2000; April 1, 2002.