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Massachusetts Uniform Summary Process Rule 10: Entry of Default; Entry of Dismissal; Entry of Judgment After Trial, Default or Dismissal; Notice

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(a) Entry of Default. If a defendant fails to answer and also fails to appear for trial, said defendant shall be defaulted at the call of the trial list on the day set for hearing, provided that the plaintiff appears at the call of the list. If a defendant has filed an answer but fails to appear for trial, said defendant shall also be defaulted provided that the plaintiff appears. If the plaintiff also fails to appear, the case shall be dismissed seven days after the trial date unless either party requests a new trial date within the seven day period. If the defendant appears but has failed to file a timely answer, no default shall enter and the court shall postpone the trial date one week from the original trial date, unless the plaintiff consents in writing to an immediate trial. If the defendant appears but has failed to file a timely answer and the plaintiff fails to appear, the court shall postpone the trial date one week from the original trial date and notice shall be sent to the plaintiff. If the plaintiff fails to appear after being notified of the new trial date, the case shall be dismissed.

(b) Entry of Dismissal. Dismissal shall be entered when a plaintiff fails to appear for trial, provided that the defendant has filed a timely answer and appears for trial. If the defendant files a timely answer but neither party appears for trial, the case shall be dismissed seven days after the trial date unless either party requests a new trial date within the seven day period.

(c) Removal of Dismissal or Default. A default or a dismissal may be removed at the court's discretion, on its own initiative or on motion of either party in writing, at any time prior to the entry of judgment on such default or dismissal.

(d) Entry of Judgment. All judgments shall be entered at 10:00 a.m. on the next business day following the court's decision after hearing or trial, or following the entry of default or dismissal, as the case may be, provided that (1) in the case of a default, said default is not removed prior thereto, (2) in the case of a finding pursuant to G.L. c. 239, § 8A that the tenant owes rent, judgment shall be entered in accordance with that statute, and (3) where a default is pending no judgment shall be entered unless the following prerequisites are met:

(i) The plaintiff shall file an affidavit made by a competent person, on the affiant's own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in Article I of the "Soldiers' and Sailors' Civil Relief Act" of 1940, as amended, except upon order of the court in accordance with the Act.

(ii) Where the complaint sets forth a claim for rent and/or use and occupation, the plaintiff shall file an affidavit stating the aggregate amount of payments, if any, which have been made subsequent to the date of the commencement of the action on account of such amount claimed.

(iii) The clerk shall review the documents filed with the court. No judgment by default shall enter against any defendant where it appears from such review that the summons was not properly completed, served or returned, that the complaint was not properly completed or served, or that the other documents required to be filed with the court pursuant to Rule 2(d) have not been filed.

(e) Notice. Notice of judgment shall be sent to all parties forthwith upon entry of judgment.

As amended effective February 1, 1982 and March 1, 2004.

COMMENTARY: This rule deals with two related but distinct subjects: (1) the entry of defaults and dismissals and (2) the entry of judgment after entry of default or dismissal, and after trial.

Entry of default or dismissal can depend on two considerations, namely, whether defendant has filed a timely answer and appeared for trial, and whether plaintiff appears for trial. Paragraphs (a) and (b) cover all situations involving failure of the parties to fulfill either one of these requirements.

Note, for example, that upon failure of the defendant to file a timely answer and appear, entry of default is in order if the plaintiff or his attorney appears. Under section (a), if a defendant who has not answered appears, plaintiff has the option of obtaining an automatic one week postponement or proceeding to trial forthwith. The plaintiff, therefore, could have an attorney present to answer the list and obtain defaults while avoiding unnecessary personal appearances. If default ultimately is entered and not removed prior to entry of judgment under paragraph (d), the defendant is left to his rights to relief from judgment under Rule 11 and to appeal under Rule 12.

The provisions of G.L. c. 239, §§ 9 and 10, whereby a tenant can apply for a stay of judgment and execution, are relevant here.