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Massachusetts Civil Procedure Rule 11: Appearances and Pleadings

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(a). Signing. Every pleading of a party represented by an attorney shall be signed in his individual name by at least one attorney who is admitted to practice in this Commonwealth. The address of each attorney, telephone number, and e-mail address if any shall be stated. A party who is not represented by an attorney shall sign his pleadings and state his address, telephone number, and e-mail address if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay. If a pleading is not signed, or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading had not been filed. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.

(b) Appearances.

(1) The filing of any pleading, motion, or other paper shall constitute an appearance by the attorney who signs it, unless the paper states otherwise.

(2) An appearance in a case may be made by filing a notice of appearance, containing the name, address and telephone number of the attorney or person filing the notice.

(3) No appearance shall, of itself, constitute a general appearance.

(c) Withdrawals. An attorney may, without leave of court, withdraw from a case by filing written notice of withdrawal, together with proof of service on his client and all other parties, provided that (1) such notice is accompanied by the appearance of successor counsel; (2) no motions are then pending before the court; and (3) no trial date has been set. Under all other circumstances, leave of court, on motion and notice, must be obtained.

(d) Change of Appearance. In the event an attorney who has heretofore appeared, ceases to act, or a substitute attorney or additional attorney appears, or a party heretofore represented by attorney appears without attorney, or an attorney appears representing a heretofore unrepresented party, or a heretofore stated address or telephone number is changed, the party or attorney concerned shall notify the court and every other party (or his attorney, if the party is represented) in writing, and the clerk shall enter such cessation, appearance, or change on the docket forthwith. Until such notification the court, parties, and attorneys may rely on action by, and notice to, any attorney previously appearing (or party heretofore unrepresented), and on notice, at an address previously entered.

(e) Verification Generally. When a pleading is required to be verified, or when an affidavit is required or permitted to be filed, the pleading may be verified or the affidavit made by the party, or by a person having knowledge of the facts for and on behalf of such party.

Effective July 1, 1974; Amended March 5, 2010, effective May 1, 2010.

Reporter's Notes (2010). Rule 11(a) has been amended to require attorneys and unrepresented parties to include their e-mail addresses, if any, on pleadings. The requirement of e-mail addresses already exists in the Federal Rules of Civil Procedure (Rule 11(a), as amended in 2007) and in the Rules of the Superior Court (Rule 9A(6)), effective March 2, 2009).

The Advisory Committee Notes to the 2007 amendment to the Federal Rules of Civil Procedure state that "[p]roviding an e-mail address is useful, but does not of itself signify consent to filing or service by e-mail." Likewise, the 2010 amendment to Rule 11(a) "does not of itself signify consent to filing or service by e-mail" in civil actions in Massachusetts.

(1973) Rule 11(a) requires that papers be signed by an attorney admitted to practice in Massachusetts; this ensures that all litigation in courts of the Commonwealth will be the nominal responsibility of a member of the Bar here, even if the litigation is in fact being conducted by out-of-state counsel admitted pro hac vice. Far from multiplying costs to litigants, this requirement guarantees to other parties and the court that service and notice can be made on a local attorney, and that the court need not delay the progress of its docket to accommodate distant counsel.

The requirement of the telephone number is designed to accommodate the court and clerk's office.

The two-witness rule in Federal Rule 11(a) does not apply in Massachusetts, and hence is deleted. The words "sham and false" appearing in the Federal Rule do not seem to add to the force of the Rule. If a pleading is signed mala fide, the court's power to strike does not require an additional supporting reason.

Like Federal Rule 11, Rule 11(a) prescribes no specific sanctions against the offending attorney. Violation of the Rule would probably constitute a breach of DR 7-102(A) and (B), American Bar Association, Code of Professional Responsibility. It would also transgress the Massachusetts attorney's oath, G.L. c. 221, § 38: "I . . . solemnly swear that I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, nor give aid or consent to the same. . . ." The United States Court of Appeals for the First Circuit has indicated unmistakably that a defendant's attorney violates the Rule when counsel files "an answer creating issues that counsel does not affirmatively believe have a basis," Arena v. Luckenbach Steamship Co., 279 F.2d 186, 188-189 (1st Cir. 1960). Yet, so far as the Reporters have been able to discover, no attorney has ever been formally disciplined for violation of Federal Rule 11. The punitory limit seems to have been the Court's action in American Automobile Association, Inc. v. Rothman, 104 F. Supp. 655, 656 (S.D.N.Y. 1952): "This opinion should be filed separately in the office of the Clerk of this Court, and indexed against the name of the defendant's attorney, so that, in the event that his professional conduct in any other connection shall become a subject of inquiry, this case and this record can be referred to for such instruction as it may yield."

Rule 11(b), (c) and (d) express concisely and clearly how an attorney (or a party pro se) appears in or withdraws from a case. They reflect Massachusetts court policy.

Rule 11(b)(2) permits the entry of formal appearance prior to answer. Pre-answer appearance "will not prevent an entry of default by the clerk if the answer is not timely filed, but it will entitle the party to notice of an application for a judgment by default," 1 Field, McKusick & Wroth, Maine Civil Practice 242 (1970). See Rule 55(b).

Although under the Federal Rules, "the age-old distinction between general and special appearances" has been "abolished," Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F. 2d 871, 874 (3d Cir. 1944), no Federal Rule explicitly so states. Massachusetts has up to now retained the distinction. To ensure complete understanding, therefore, it seemed essential to include in the Rules a clear indication that the mere filing of an appearance no longer constitutes a general appearance. The Rules encourage the parties to raise as many simultaneous dispositive objections as possible. A defendant may therefore, prior to answer, move to dismiss for failure to state a claim upon which relief can be granted (the Rules' rough equivalent of a demurrer) and in the same paper move to dismiss for improper venue. The cases construing Federal Rule 12 have unanimously agreed that such a double-barreled motion does not entail a general appearance (2A Moore, Federal Practice ¶ 12.07). Rule 11(b) makes this learning explicit. Finally, under the Rules, a defendant may, during the 20- day grace period before the answer is due, pursue some of the discovery devices (e.g., depositions); it therefore seemed necessary to indicate that such pursuit does not constitute a general appearance. Admittedly, a defendant objecting on the grounds of, say, improper venue, will have little need for discovery. Cases, however, can be imagined where discovery would be necessary. A defendant in those circumstances does not appear generally simply because he seeks to bolster his defenses through discovery.

Rule 11(d) is based on prior Massachusetts practice. Its principle is simple: for the convenience of court, clerk, and other parties, any party undergoing change in representation bears the onus of bringing word of that change to all concerned; until such notification, anyone is entitled to rely on the previous record.