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Massachusetts Civil Procedure Rule 81: Applicability of Rules

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(a) Applicability in General.

(1) Courts Other Than District Court. These rules apply to all civil proceedings in courts whose proceedings they govern except:

1. proceedings pertaining to the writ of habeas corpus;

2. proceedings pertaining to naturalization;

3. proceedings pertaining to the disciplining of an attorney;

4. proceedings pertaining to juvenile delinquency;

5. proceedings pertaining to contested elections;

6. proceedings pertaining to dissolution of corporations and distribution of their assets;

7. proceedings pertaining to summary process, small claims, and supplementary process;

8. proceedings pertaining to the adjudication, commitment and release of sexually dangerous persons;

9. proceedings for divorce or for the annulment or affirmation of marriage; and

10. proceedings to foreclose any mortgage on real estate brought in compliance with the "Servicemembers Civil Relief Act," as set forth in 50 U.S.C. App. 501 et seq.

(2) District Court. These rules apply to all civil proceedings involved in cases traditionally considered tort, contract, replevin, or equity actions, except small claims actions.

(3) In respects not governed by statute, or in the case of the District Court not governed by other District Court rules, the practice in civil proceedings to which these rules do not apply shall follow the course of the common law, as near to these rules as may be, except that depositions shall not be taken, nor interrogatories served, save by order of the court on motion, with notice, for good cause shown.

(b) Writs Abolished. The following writs are abolished: audita querela; certiorari; entry; error; mandamus; prohibition; quo warranto; review; and scire facias. In any action seeking relief formerly obtainable under any such writ, procedure shall follow these rules.

(c) Superior Court: Trial of Framed Jury Issues. These rules govern the trial of any issues framed in another court for trial in the Superior Court; but nothing herein contained shall authorize the use of discovery procedures contained in these rules, except as a justice of the Superior Court, on motion with notice, may allow for good cause shown.

(d) Terminology in Statutes. In applying these rules to any proceedings to which they apply, the terminology of any statute which also applies shall, if inconsistent with these rules, be taken to mean the analogous device or procedure proper under these rules.

(e) Procedure Not Specifically Prescribed. When no procedure is specifically prescribed, the court shall proceed in any lawful manner not inconsistent with the Constitution of this Commonwealth, these rules, or any applicable statute.

(f) Superior Court: Actions Removed, Transferred or Appealed from Another Court. Except as otherwise provided in subdivision (a) of this rule, these rules apply to civil actions removed, transferred or appealed to the Superior Court from any other court. Repleading is not necessary unless a justice of the Superior Court so orders. If the defendant has not answered prior to removal or transfer, he shall answer or present the other defenses or objections available to him under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleadings, then filed, or within 5 days after the filing of the removal or transfer papers, whichever period is longest.

(g) Actions Transferred or Remanded to District Court. In any action commenced in the Superior Court and transferred to a district court or the Boston Municipal Court, or in any action remanded to either such court after removal to the Superior Court, the rules for the time being in force in the district court or the Boston Municipal Court shall control all proceedings subsequent to the filing of the order for transfer or remand; but all proceedings in the Superior Court shall be governed by these rules.

Amended June 27, 1974, effective July 1, 1974; amended effective Feb. 24, 1975; amended Jan. 6, 1995, effective Feb. 1, 1995; May 3, 1996, effective July 1, 1996; November 28, 2007, effective March 1, 2008.

Reporter's Notes

(2008) Unrelated to the statewide one-trial system, the reference in item 10 of Rule 81(a)(1) is amended to delete the reference to the "Soldiers' and Sailors' Civil Relief Act," which was renamed as the "Servicemembers Civil Relief Act" and updated by Congress in 2003.

(1996) A number of technical changes to Rule 81 have been made as result of the merger of the Dist./Mun.Cts.R.Civ.P. into the Mass.R.Civ.P. in 1996. These changes essentially retain the respective versions of Rule 81 that had existed in the two sets of rules prior to the merger.

Rule 81(a) has been subdivided into new subsections (1), (2), and (3).

Subsection (1) of Rule 81(a) is applicable to all courts other than the District Court, and is identical to the pre-1996 version of Rule 81(a) of the Mass.R.Civ.P., with the exception of the last paragraph of Mass.R.Civ.P. 81(a) as it existed prior to the merger. Thus, in all courts governed by the rules other than the District Court, the Mass.R.Civ.P. apply in all civil proceedings except for the ten types of proceedings specifically listed.

Subsection (2) of Rule 81(a) is applicable to the District Court and the Boston Municipal Court, and is identical to the premerger language that had been contained in the first paragraph of Rule 81(a) of the Dist./Mun.Cts.R.Civ.P. Thus, the "merged" set of rules "apply to all civil proceedings involved in [District Court] cases traditionally considered tort, contract, replevin, or equity actions, except small claims actions." Small claims actions are specifically mentioned because they otherwise could be deemed to come within the language of "cases traditionally considered" as tort or contract. The number of District Court proceedings to which the rules are inapplicable is sufficiently large such that a comprehensive listing of such exceptions (as occurs in Rule 81(a)(1) for courts other than the District Court) would be difficult, and in all likelihood, incomplete. The difference in approach between Rule 81(a)(1) and (2), therefore, should not be taken to signify that there has been any change in applicability of the civil rules in District Court proceedings as result of the merger of the two sets of rules in 1996. The following rationale for the different approach to setting forth the applicability of the rules in District Court proceedings, as explained in the "Comments" to now-repealed Rule 81 of the Dist./Mun.Cts.R.Civ.P., is still apt:

Several significant changes from Rule 81 of the MRCP have been made in this rule. First, it is stated that these rules apply to proceedings in cases traditionally considered tort, contract, replevin, or equity actions. Small claims actions, expressly excluded from coverage under these rules, are governed by Rules 170-185 of the District/Municipal Courts Supplemental Rules of Civil Procedure. The reference to "tradition" is in deference to the fact that under these rules there are no longer any separate "causes of action." (See Rule 2 and accompanying comments.) No attempt is made to list the many other District Court civil proceedings to which these rules do not apply, such as those involving compensation to victims of violent crime, repossession hearings, summary process, supplementary procedure, hearings on denials of gun permits, civil commitments, etc. It should be noted that this rule does not enlarge District Court jurisdiction; the only equity actions covered by these rules are the few which the District Courts have the statutory power to hear and decide.

Some of the proceedings mentioned in the "Comments" quoted above are now governed by other rules. Some examples follow. Summary process actions are governed by the Uniform Summary Process Rules (Trial Court Rule I). Small claims actions are no longer governed by the District/Municipal Courts Supplemental Rules of Civil Procedure, but rather by the Uniform Small Claims Rules, Trial Court Rule III. Proceedings regarding compensation to victims of violent crime are governed by Rules 150 and 151 of the District/Municipal Courts Supplemental Rules of Civil Procedure.

Subsection (3) of Rule 81(a) contains the guidelines concerning procedure in cases where the rules are inapplicable and combines into one paragraph the essential aspects of what had been contained in the last paragraph of Mass.R.Civ.P. 81(a) and Dist./Mun.Cts.R.Civ.P. 81(a).

The only change to Rule 81(c) is contained in the title to the section. The addition of the reference to the Superior Court in the title is intended to make clear that Rule 81(c) is applicable only in the Superior Court.

Likewise, the title to Rule 81(f) has been changed to make clear that Rule 81(f) is applicable only in the Superior Court.

(1995) The amendment to Rule 81(f) makes clear that the Rules of Civil Procedure are not intended to apply to actions removed, transferred or appealed to the Superior Court and involving the types of proceedings listed in Rule 81(a). For example, where a petition for dissolution of a corporation is filed directly in the Supreme Judicial Court (see G.L. c. 156B, § 99) and thereafter transferred by the Court to the Superior Court (pursuant to G.L. c. 211, § 4A), proceedings in the Superior Court would not be governed by the Massachusetts Rules of Civil Procedure.

(1988) Rule 81(a)(7) excepts, inter alia, "proceedings pertaining to summary process" from the application of the Massachusetts Rules of Civil Procedure. However, the bar should be aware that Uniform Summary Process Rule 1 states, in part, that "[p]rocedures in such actions that are not prescribed by these rules shall be governed by the Massachusetts Rules of Civil Procedure insofar as the latter are not inconsistent with . . ." the Uniform Summary Process Rules. Stated another way, the Uniform Summary Process Rules have incorporated by reference the Massachusetts Rules of Civil Procedure to be used in a residuary capacity when they are not "inconsistent" with the Uniform Summary Process Rules or "with applicable statutory law or with the jurisdiction of the particular court in which they would be applied." Uniform Summary Process Rule 1 should be applied as written. It is not unusual in law for one set of rules (in this instance, the Massachusetts Rules of Civil Procedure) that do not by their own provisions apply in a situation to be incorporated by reference by another set of rules (in this instance, the Uniform Summary Process Rules). For example, federal law often incorporates aspects of state law, and contracts often incorporate a body of law from elsewhere.

(1975) Real estate mortgage foreclosures brought in compliance with the Soldiers and Sailors Civil Relief Act, Acts 1943, c. 57, §§ 1-3, as amended by Acts, c. 120, § 1 (not a part of the codified General Laws, but printed following M.G.L.A., c. 244, § 14) have presented a problem. The Act prescribes a distinct procedure, well-suited for the purpose, governing foreclosures. Attempts to fit this integrated arrangement into the Rules format since July 1, 1974, caused considerable difficulty to bench, bar, and clerks. Rather than press the Procrustean effort, the entire matter of real estate mortgage foreclosures complaint to the Act has been removed from the Rules, by addition of Rule 81(a)(10). Because the difficulty proceeds from the language of the Act, no other mortgage foreclosures have been similarly treated. Thus whenever a real estate mortgage foreclosure does not fall within the Act, the Rules will continue to govern.

(1973) Rule 81, based partly on the analogous Federal Rule, treats various questions of applicability.

Rule 81(a) exempts seven types of proceedings, none of which would be appropriately governed by the general civil rules. By proviso, however, Rule 81(a) commands adherence to these rules, unless statutorily contradicted. Even so, no depositions may be had nor interrogatories served unless the court approves.

Rule 81(b) abolishes a series of venerable, and in many instances, arcane, writs. Burial of these antiques, however, does not mean elimination of the relief they afforded. It does mean that an application for such relief will henceforth be commenced like any other civil action under these rules, viz., by complaint and summons, with the former containing a prayer for the appropriate relief.

Rule 81(c) makes clear that if the Probate Court, for example, frames jury issues for trial in the Superior Court, G.L. c. 215, § 16, trial in the Superior Court will accord with these rules; but unlimited discovery will not automatically ensue, unless, of course, these rules controlled the initial Probate Court proceedings (see Rule 1).

Rule 81(d) covers cases in which an applicable statute uses terminology which, although analogous to appropriate language of these rules, departs from it somewhat. The rule makes clear that the intent of the statutory wording should be effectuated through the comparable language of the rules.

Rule 81(e) provides a safety valve for those rare instances in which no procedure seems authorized by statute, common law, or these rules. It is not calculated to permit wholesale judicial procedural innovation; rather, it is designed to guide bench and bar through unforeseeable future thickets.

Rule 81(f), based on Federal Rule 81(c), deals with cases which have been brought from a district court to the Superior Court for trial (removed cases), or re-trial (appealed cases). It makes clear that any pleadings previously filed in the court below need not be redrafted to accord with these rules. In removed cases, G.L. c. 231, § 104, the papers, including bond, must be filed in such a short time after commencement of the action that the defendant may not have previously filed his answer. If he has not, then he must do so in accordance with a fairly liberal timetable set out in Rule 81(f). The rule also requires the defendant promptly to exercise his right to demand a jury trial; because that right is usually the reason for the removal anyway, this requirement should not cause much difficulty. It should be noted that in a removed case, the plaintiff, too, has the right to demand a jury trial, G.L. c. 231, § 103; Rule 81(f) also governs his exercise of the right.

Rule 81(g) deals with the converse of the Rule 81(f) situation. Here, the case has either been commenced in the Superior Court or removed there, but has, for lack of sufficient amount in controversy, been transferred to the appropriate district court (if it was commenced in the Superior Court) or remanded there (if it had originally been commenced in the district court and then removed to the Superior Court), G.L. c. 231, § 102C. In either event, Rule 81(g) makes clear that when the case goes to the district court, that court's rules apply; but while it is in the Superior Court, the instant rules control the proceedings.