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Massachusetts Uniform Summary Process Rule 2: Form of Summons and Complaint; Entry of Action; Scheduling of Trial Date; Service of Process

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(a) Form of Summons and Complaint. The form of Summary Process Summons and Complaint, as promulgated by the Chief Administrative Justice of the Trial Court, shall be the only form of summons and complaint used in summary process actions. This form of Summary Process Summons and Complaint shall be considered a writ in the form of an original summons as required by G.L. c. 239, § 2. This form shall be available in blank at each of the courts at which summary process actions may be commenced.

(b) Service of Process. Service of a copy of a properly completed Summary Process Summons and Complaint shall be made on the defendant no later than the seventh day nor earlier than the thirtieth day before the entry day, provided, however, that service shall not be made prior to the expiration of the tenancy by notice of termination or otherwise except as permitted by statute. Service shall be made in accordance with Rule 4(d) of the Massachusetts Rules of Civil Procedure, provided that if service is not made in hand, the person making such service shall mail, first-class, to the defendant, at the address indicated on the Summary Process Summons and Complaint, a copy of the Summary Process Summons and Complaint; and provided further that return of service, including a statement of mailing where the latter was required, shall be made to the plaintiff only and shall be made in the appropriate space provided on the Summary Process Summons and Complaint. The date of service pursuant to this paragraph shall be deemed the date of commencement of the action subject to proper entry in accordance with the provisions of Rule 2(d).

Service shall be made by those authorized to make service by Rule 4(c) of the Massachusetts Rules of Civil Procedure, provided that such service shall be made as required by this section.

(c) Entry Date; Scheduling of Trial Date. Entry dates for summary process actions shall be each Monday and cases shall be placed on the list for hearing on the second Thursday following the entry date without any further notice to the parties. Subject to the prior approval of the Administrative Justice of his or her Department, the First Justice of any Division may designate Friday, Monday, Tuesday, and Wednesday as summary process trial days either as alternatives to Thursday or in addition to Thursday. The cases shall be placed on the list for hearing on the second Friday, the second Monday, the third Tuesday, or the third Wednesday after the Monday entry day without any further notice to the parties when such day is designated as a summary process trial day. Summary process actions originally commenced in the Superior Court Department shall be added to the next non-jury list for assignment for trial.

(d) Entry of Action. Summary process actions shall be entered by filing with the clerk of the court in which the action is to be heard the following documents:

(1) The original of the properly completed form of Summary Process Complaint and Summons, a copy of which has been served on the defendant, with return of service recorded thereon;

(2) a copy of any applicable notice(s) of termination of the defendant's tenancy of the premises upon which the plaintiff(s) relies where such notice is required by law and any proof of delivery of such notice upon which the plaintiff(s) plans to rely at trial;

(3) in jurisdictions wherein rent control is in effect a copy of a certificate of eviction granted by the appropriate rent control agency, or an affidavit of exemption;

(4) in jurisdictions wherein local laws governing condominium conversion evictions are in effect, a copy of any applicable affidavit of compliance with such local laws;

(5) any entry fee prescribed by law unless waived.

On the appropriate portion of the Summary Process Summons and Complaint the reason(s) for eviction shall be indicated by the plaintiff(s) in concise, untechnical form and with sufficient particularity and completeness to enable a defendant to understand the reasons for the requested eviction and the facts underlying those reasons.

(e) Method and Time for Filing. Filing of the Summary Process Summons and Complaint and necessary accompanying documents, if any, shall be by delivery in hand or by first-class mail to the clerk. Filing by mail is complete upon receipt by the clerk. Papers and documents required in accordance with the preceding paragraph shall be filed together no later than the close of business on the scheduled Monday entry day. Late filing of the summons and complaint shall not be permitted without the written assent of the defendant or the defendant's attorney.

As amended, effective February 1, 1982, January 28, 1986, and February 1, 1993.

COMMENTARY: The procedure for commencing a summary process action under this rule can be summarized in the following three steps:

First a plaintiff wishing to institute an action must secure and complete the required form. One item he must indicate on the form is the date of the hearing. In order to determine this, the plaintiff must choose an entry day (any Monday, prior to which he can get effective service on the defendant and return of service. The hearing date will be on the second Thursday following the Monday entry day selected (unless Friday, Monday, Tuesday, or Wednesday, as a day other than or in addition to Thursday, is approved for that court). Although cases originally commenced in the Superior Court Department are at first scheduled for a hearing on the second Thursday after the entry day, it is likely that such Superior Court cases would have to be rescheduled as provided in section (c).

Second, the plaintiff must have a copy of the completed Summary Process Summons and Complaint properly served on the defendant and get the original of this form back from the process server showing a return of service. Service must be made not later than the seventh day nor earlier than the thirtieth day before Monday entry day chosen. Therefore, service could be made on the Monday of the week prior to a Monday entry day. Note that Rule 2(b) provides that service is not to be made prior to the expiration of the tenancy except as permitted by law. See G.L. c. 186, §§ 11, 12; G.L. c. 239, § 1; see also, Hodgkins v. Price, 137 Mass. 13.

Third, the plaintiff must file with the court the original of the completed Summary Process Summons and Complaint (showing return of service), the entry fee and possible certain other documents. This Filing constitutes entry of the action. Filing must be made no later than the close of business on the Monday entry day. Note that if filing is by mail, the documents must arrive in court by the Monday entry day. The hearing will be on the second Thursday (or second Friday, second Monday, third Tuesday, or third Wednesday, if so designated) following the Monday entry day.

This three-step procedure is required to allow flexibility in the time for commencing these actions yet at the same time to provide an automatic hearing date that can be predetermined and communicated to the defendant with the summons and complaint. Commencement of the summary process action under these rules occurs when proper service of the Summary Process Summons and Complaint is completed, subject, however, to the proper entry of the action.

It should be noted that the clerk should not refuse to accept a summons and complaint for failure to file documents which may be required by Rules 2(d)(2), (3) or (4). It is a matter for the determination of the court as to whether such documents are required. It should be noted further that the requirement in Rule 2(d)(3) that a certificate of eviction, if any is necessary, be filed and served with the Summary Process Summons and Complaint satisfies the requirement of District Court Administrative Regulation No. 3-73 and the statutory law it reflects. That regulation requires that a certificate of eviction, issued before the commencement of the action, be filed with the court before any judgment will be entered.

Rule 2(d) requires that the plaintiff state the reason(s) for eviction on the summons and complaint. While the substantive law of the Commonwealth may not always require a reason for termination of a tenancy, it does require a reason for eviction. That reason might be simply that a tenant is holding against the right of the landlord after the tenancy has been terminated. When the termination of the tenancy itself requires some reason -- e.g. breach of lease, termination in a rent control jurisdiction, nonpayment of rent -- the reason for the termination must be provided. See. G.L. c. 239, §§ 1, 1A.

It should be noted that the provisions of Mass. R. Civ. P. 6(a), concerning holidays, are applicable to summary process actions. Therefore, if the entry day or the day for filing answers is a holiday, the entry or filing day would be the next day on which the court is open for business. However, if the plaintiff selects a hearing date which is a holiday, the hearing would be scheduled either the next business day after the holiday or one week later on the following Thursday (or Friday or Monday, if applicable). In rent control jurisdictions, a certificate of eviction is a prerequisite to the commencement of a summary process action. The granting of a certificate of eviction by a rent control board is subject to judicial review. In Gentile v. Rent Control Board of Somerville, 365 Mass. 343, 350 f.n. 7, the Supreme Judicial Court stated that, if a complaint is filed challenging the issuance of the certificate of eviction, in many instances that complaint and any related summary process action may be consolidated for trial. Therefore, the court should consider the possibility of consolidation in such cases in order to avoid piecemeal litigation.