#19, Drano Series
Opposition to Eli Newberger's Motion to Remove
Entry of Default
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF MASSACHUSETTS---------------------------------------------------
Theodore S. Brown
James Linnehan
Jane & John Does
Plaintiffs
v.
CIVIL ACTION: 00-CV-11048-REK
Eli Newberger
Children's Hospital
Amy C. Tishelman
Barbara Cohen
Brockton Division of the
District Court Department
of the Trial Court of Massachusetts
Mass. Dept. of Social Services
Eileen Kern
Sandra Fyfe
Christopher Salt
Jack McCarthy, Jr.
John and Jane Smiths
Defendants
------------------------------------------------------
Opposition to Eli Newberger's Motion to Remove Entry of Default
Now come Plaintiffs Theodore Brown and James Linnehan and oppose Eli Newberger's Motion to Remove Entry of Default. As grounds, Brown and Linnehan state that Newberger presented no reasonable excuse sufficient to conclude that he had good cause for failing to respond timely to the Amended Complaint.
STANDARD
"Good cause" is the standard for setting aside a simple default under Mass.R.Civ.P. 55(c) [Cicchese v. Tape Time Corp., 28 Mass.App.Ct. 72, 74, 74 n. 3 (1989)], but the standard is a "mutable" one [Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989)], involving a case-specific determination not amenable to any "mechanical formula." General Contracting & Trading Co. v. Interpole, Inc., 899 F.2d 109, 112 (1st Cir. 1990). And while the "`good cause' is a mutable standard, varying from situation to situation, it is `not so elastic as to be devoid of substance.'" McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 502, 503 (1st Cir. (Maine) 1996), quoting Coon, 867 F.2d at 76. See alsoConetta v. National Hair Care Centers, Inc., 186 F.R.D. 262, 268-269 (D.R.I. 1999).
"In determining whether to set aside a default decree, the district court should consider [1] whether the default was willful, [2] whether setting it aside would prejudice the adversary, and [3] whether a meritorious defense is presented." . . . That compendium is by no means exclusive; a court may also examine into such things as [4] the proffered explanation for the default, [5] the good faith of the parties, [6] the amount of money involved, and [7] the timing of the motion.Coon v. Grenier, 867 F.2d 73, 76 (C.A.1 (R.I.), 1989) (cites omitted) (numbering of elements added). McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 502, 503 (1st Cir. (Maine) 1996) (same). See also Cicchese v. Tape Time Corp., 28 Mass.App.Ct. 72, 74-75, 76 (1989); Burger Chef Systems, Inc. v. Servfast of Brockton, Inc., 393 Mass . 287, 289, 289 n. 4 (1984); and Smith & Zobel, Rules Practice, sec. 55.8 (to set aside a default, a defendant must include in his affidavit "the nature of his defense on the merits" ).While the court in Coon discusses affidavits, it leaves it to other courts to state that an affidavit is mandatory.
DETERMINATION OF WILLFULNESS
[A]n inference of willfulness on Grenier's part seems unsupportable. He asserts that he did not learn of the pendency of this action until after the clerk entered the default (and shortly before filing his motion). This assertion is not contradicted either directly or circumstantially.Coon v. Grenier, 867 F.2d 73, 76 (C.A.1 (R.I.), 1989). Here, Newberger states that it was by "mistake" that he did not learn of the action and that he did not learn of it until his attorney accidentally learned two months after Newberger was served that Newberger had been defaulted. The fascinating but unpersuasive convoluted excuse is discussed in detail below.Brown and Linnehan contend that the lack of truth of a fact which is capable of ascertainment is willful. Cf. Golber v. BayBank Valley Trust Co., 46 Mass.App. Ct. 256, 261 (1999) ("negligent misrepresentation of fact the truth of which is reasonably capable of ascertainment is an unfair and deceptive act or practice within the meaning of c. 93A, s 2(a)"), quoting Glickman v. Brown, 21 Mass. App.Ct. 229, 235 (1985).
Newberger, a doctor associated with Children's Hospital and Harvard Medical School, and a medico-legal expert charging from $450 and upwards per hour in hundreds if not thousands of cases across the U.S. and abroad, has provided us with several excuses.
His first excuse is that he received a photocopy of a summons. That is untrue. He received one of many original summonses, identical to those received by the other noncomplaining defendants.
His second excuse is that he was "deeply involved in related state court action with the same plaintiff and attorney that was currently pending." That also is untrue. He was duly subpoenaed to deposition twice1 in a case entitled Linnehan v. Sylvia, between a father (one of the plaintiffs here) and a mother. Newberger did not show up either time.
1 The first time on or around 6 March 2000, the second, on or around 16 June 2000.The first deposition was scheduled to take place on 16 March 2000. Linnehan moved in April 2000 to enforce the subpoena on nonparty witness Newberger. Newberger's counsel filed a frivolous Motion to Intervene. Linnehan opposed and his opposition dated 28 April 2000 is in the margin.2 Because of a procedural dispute raised by counsel for the defense and the child in that case, the court never heard or decided any motion before it.2 As grounds, James Linnehan states that Eli Newberger absolutely has no interest in the action between James Linnehan and Robyn Gerry Sylvia.
The word "interest" in Mass.R.Civ.P. 24(a) has an entirely different meaning than that given by Newberger's counsel.1. The word "interest" in Rule 24 is equivalent to property or aClearly Newberger's motion is frivolous, and has been brought in bad faith as an effort to repair an error made by the insurance lawyer and his associate.
transaction which Eli Newberger would not be able to protect if
he did not appear in the case. The "interest" must be
something in which Newberger's ability to protect would be
impaired or impeded. Reporter's Notes -- 1973.2. Prior to 1966, an applicant such as Newberger would have had
to show that he could have been bound by a judgment in the
action or that he would have been adversely affected by a
distribution or other disposition of property in the custody or
subject to the central of disposition of the court. Reporter's
Notes -- 1973.3. The amended version more closely resembles "joinder" (Rule
19) and class actions (Rule 23).
The second deposition was scheduled for 7 July 2000. After Newberger failed to appear, Linnehan filed a motion dated 11 July 2000 for contempt and for an order to compel Newberger's appearance. Newberger filed a motion for a protective order and an opposition to Linnehan motion for contempt. On 11 August 2000, Linnehan opposed Newberger's motion and replied to his opposition. Before a judge who belonged and might still belong to the same professional organization (APSAC, American Professional Society on Abuse of Children)3 as Newberger, the pleadings were not acted upon.3APSAC is the home of the "children don't lie" school of thought, which, in the aftermath of the many overturned nursery school cases, has changed somewhat. Experts for the prosecution generally hail from APSAC. Many of the leaders of the group are at MGH Children & the Law program, which now employs a recently early-retired Massachusetts Probate & Family Court judge.Linnehan and Brown contend that the above-described exchange does not constitute "deep involvement"; it describes a man who does not want to be questioned regarding his conduct, an evasive man, a man with something to hide. His conduct was like that of Riffle in Conetta, supra, where the court found sufficient evidence to support a finding that "the defendants lacked good
faith because they had known of the pending legal problem but hoped that it `would all go away.'" Conetta, 186 F.R.D. at 270, quoting McKinnon, 83 F.3d at 504.His third excuse is that he mistook the summons and complaint as being related to the state case and "believed . . . his counsel was already aware of the documents." Such weak mistaken beliefs have been found not to constitute good cause. In Conetta, supra, for instance, the defendant made an identical mistake: Riffle "said that he did not notice that the amended complaint that he received in January 1997 referred to the United States District Court rather than the RIHRC." Id. at 269. The Court "believe[d] that Riffle willfully ignored the lawsuit filed in this Court." Id. "Riffle was not negligent or careless. He did not lose the paperwork or forget to speak to a lawyer. He chose to ignore this lawsuit. . . . That choice was an intentional, willful act." Conetta, 186 F.R.D. at 270, citing McKinnon, 83 F.3d at 504 (choice not to respond was willful).
In Bissanti, infra, the Massachusetts Appeals Court, too, found that a mistaken belief that an answer had been filed was insufficient to constitute `good cause' under rule 55(c). Bissanti Design/Build Group v. McClay, 32 Mass.App.Ct. 469, 470 (1992).
His fourth excuse was that his counsel did not become aware of the service of the Complaint until late November. That is not credible, inasmuch as his counsel had already filed an appearance and a pleading on behalf of two of the other defendants, to wit, Children's Hospital and Amy Tishelman. The same caption is on Newberger's copy of the complaint as is on theirs, and Newberger's name heads the list of the defendants.
Given also that Newberger is represented by the same counsel who represented him in the state case to which Newberger referred, one could expect that counsel would have called Newberger when the insurer assigned counsel the task of representing the hospital and Tishelman and, at the very least, when he received a copy of the complaint. Given Newberger's other excuses, it is more likely that Newberger was unwilling to cooperate with his counsel.
This fourth excuse, too, "doesn't pass the sniff test."
Brown and Linnehan's counsel's best guess is that Newberger believed if he put his head in the sand, the storm would blow over him as it has done thus far in the state case. So born was the "ostrich defense." Brown and Linnehan contend that the "lack-of-awareness excuse" does not constitute good cause to remove the default.
The fifth excuse is that defense counsel had previously filed a motion to extend time to respond until 15 December 2000. This is also untrue vis-à-vis Newberger. Newberger's counsel had filed such an extension only on behalf of the hospital and Tishelman.
The sixth excuse is a conundrum. It appears in the second paragraph of page 3 of Newberger's motion: "the sole reason for the entry of default was due to a miscommunication as a result of the pending state court action involving the same plaintiff and plaintiff's attorney." Between whom, about what, and when was the alleged miscommunication? With the exception of the service of copies of the state pleadings to Newberger's counsel because he entered an appearance in the state case between the child's parents -- and, of course, with the exception of the service to counsel for the other defendants of pleadings in the instant federal case -- there has been no communication whatsoever regarding Newberger between Newberger's counsel and plaintiffs' counsel.
Surely, whatever Reardon's response is, it will not constitute "good cause" as defined under rule 55(c).
DETERMINATION OF PREJUDICE
Given that Newberger has made a habit (if the state action is considered) of inserting dilatory motions in bad faith, Plaintiffs assert no prejudice other than an exacerbation of their concern that he will further flout the rules of court as he has done in the past. "Rules of court are indispensable to the orderly and efficient conduct of a court's business. They are not to be set aside . . . or dictated by the caprice or design of counsel." Com. v. Cooper, 356 Mass. 74, 79 (1969). "Caprice would then be substituted for law." Clabburn v. Phillips, 245 Mass. 47, 52 (1923) (cite omitted). "Litigants must act punctually and not casually or indifferently if a judicial system is to function effectively." McKinnon, 83 F.3d at 504.
Like the plaintiff in Reynolds v. Bar Harbor Whale Watch Co., 2001 WL 26205 *3 (D.Me., Jan. 9, 2001), Brown and Linnehan have not yet shown that they would suffer any real prejudice if the default were set aside. Their expenses and the passage of time without the loss of witnesses or evidence do not amount to prejudice in any legal sense. In fact, in Reynolds, the court found the issue of prejudice "relatively neutral on these facts." Yet, as the court in Reynolds also wrote,
If great weight were given to this consideration, a Defendant could always ignore a court summons until he got around to answering it without consequence unless something dire happened to Plaintiff's case in the interim.Id.NO MERITORIOUS DEFENSE PRESENTED
A Rule 55(c) request for such discretionary relief must be based not only on a showing of "good cause," but must also demonstrate that the defendant has a meritorious defense to the plaintiff's claims. Smith & Zobel, Massachusetts Rules Practice, sec. 55.8 (1977) (to set aside a default, a defendant must include in his affidavit "the nature of his defense on the merits").
In the instant case, Newberger cannot meet that burden, for he failed to file, as required, with his motion "an affidavit setting forth the facts and circumstances, including the nature of [his] defenses, upon which [he] relied." Bissanti Design/ Build Group v. McClay, 32 Mass.App.Ct. 469, 470 (1992) (cite omitted).
In the motion itself, he made only one statement and it was conclusory: "Moreover, defendant has a meritorious defense to the allegations contained in the Complaint." A court is not, however, obliged to accept for a rule 55(c) determination defendants' "conclusory statement that they had valid defenses." Bissanti at 470.
Note
If you are going to use this pleading as a sample,
note how I distinguished each case from the other:
one was remanded and I wrote why;
the other, I wrote that the affidavits were insufficient;
still another, I wrote the court discussed affidavits
but didn't say they were necesssary --
probably because affidavits were.submitted.
That's what you must do, say how each case differs fro one aother.According to the Massachusetts Supreme Judicial Court in Burger Chef Systems, Inc. v. Servfast of Brockton, Inc., 393 Mass. 287 (1984), the affidavit accompanying an application for removal of default must "`clearly show possible merit' in the proposed defense." Id. at 291 n. 7 (cite omitted). That Court in Burger, although denying the defendant's motion on other grounds, went on to state that the affidavit produced by defense counsel, alleging
that there was a viable and substantial defense to the action, was insufficient to set aside the default. Id. at 289 n. 4.In Key Bank of Maine v. Tablecloth Textile Company Corporation, No.94-2044. slip op. at 9 (1st Cir. (Maine) 1996), the Court of Appeals remanded the case in order that the trial court determine whether there was a "potentially meritorious claim or defense which, if proven, will bring success in its wake."
In Buffum v. Town of Rockport, 36 Mass.App. Ct. 377, 380-381 (1994), too, the affidavits were insufficient: essentially the failure to state why the town failed to do what it had to do. "That failure alone justified discretionary denial of relief under either rule 55(c) (the "good cause" standard) or rule 60(b)." Id.
And in Coon, the standard was lower than in the other cases: "a party's averments [in his affidavit] need only plausibly suggest the existence of facts which, if proven at trial, would constitute a cognizable defense." Coon, supra, at 77. "Grenier's affidavit clears this squatty hurdle." Id.
But here, case, with no affidavit whatsoever, Newberger cannot contemplate making it as far as the "squatty hurdle"; in fact, he cannot not make it past the starting line.
NATURE OF NEWBERGER'S EXPLANATION FOR DEFAULT
Newberger's explanations were so intertwined with the first element, Willfulness, that they are fully described above. With that said, their nature is akin to a schoolboy's excuse as to why he does not have a note from home explaining his absence. Like those children, Newberger forgot to produce a writing called "an affidavit."
Given that Newberger is a man who has great familiarity with the courts, a man who makes more money prejudging people and testifying against them as a medico-legal expert than judges themselves make, a man who is affiliated with a prestigious hospital and Harvard Medical School, a man who has authored a book in which he tells everyone how to raise their sons although he has none, a man who is a "survivor," he is a man sufficiently sophisticated to be held responsible for his acts.
Therefore Newberger knew what he saw when he held the federal summons and complaint in his hands. And if he did not, he should have . . . or would have, had he not willfully ignored it.
Failing to supply in an affidavit an explanation for not answering alone justifies discretionary denial of relief under the Rule 55(c) good-cause standard, which applies in this case. Buffum v. Town of Rockport, 36 Mass.App.Ct. 377, 380-381 (1994). "A party cannot expect that because the default sanction is cautiously imposed no adverse consequences will flow." Id. at 381, citing 10 Wright, Miller, & Kane, Federal Practice & Procedure, sec. 2694 (2d ed. 1983).
While defaults are disfavored and the entry of judgment after a full trial on the merits is generally preferred, such judicial policy did not entitle the defendant to ignore court orders and procedural requirements with impunity or to expect that his disregard of the plaintiff's action would be free of consequences.Coady v. Stack, 1995 Mass.App.Div. 135, 1995 WL 646371 *2, citing Buffum v. Rockport, 36 Mass.App.Ct. 377, 381 (1994); Cicchese v. Tape Time Corp., 28 Mass.App.Ct. 72, 74; Kenney v. Rust, 17 Mass.App.Ct. 699, 703.44 "The interpretation given to a Federal rule is to be applied to its Massachu- setts counterpart, `absent compelling reasons to the contrary or significant differences in content.' . . . Here the wording of the rules is identical." Burger Chef Systems, Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 289 n. 3 (1984), quoting Rollins Envtl. Servs. v. Superior Court, 368 Mass. 174, 180 (1975).
LACK OF GOOD FAITHLike the defendants in McKinnon, Newberger was served with the complaint; he was capable of hiring counsel; and the two attempts at getting him to deposition in the state case to which he refers in his motion put on notice of a pending legal problem. See McKinnon, 83 F.3d at 503-04. "That evidence was sufficient to support the district court's finding that the defendants lacked good faith because they had known of the pending legal problem but hoped that it "would all go away." Conetta, at 270, quoting McKinnon, at 504.
On the other hand, Newberger's lawyer must resemble the more aggressive predecessor of the ostrich -- one who still took flight with neck and beak stretched forward -- for his lawyer, knowing Newberger's Answer and Motion to Dismiss are the subject of Plaintiffs' Motions to Strike, on the grounds that Newberger does not have standing to file his two pleadings and that he will not have standing unless the default is set aside.
So Brown and Linnehan contend that to attach those two pleadings -- which the court is not yet to see, if ever -- to his motion to remove entry of default is the ultimate in bad faith, that type of bad faith that is slick. "Judges do not like slick." Britt v. Rosenberg, 40 Mass.App.Ct. 552, 554 (1996), quoting Commonwealth v. McMiller, 29 Mass.App.Ct. 392, 410 (1990). Commonwealth v. Mayne, 38 Mass.App.Ct. 282 (1995) (same).
THE AMOUNT OF MONEY INVOLVED
This is a case with unliquidated damages and the claims are somewhat unique, making the amount of money involved incalculable at this juncture.
DETERMINATION OF NEWBERGER'S TIMING
Brown and Linnehan filed and served the Amended Complaint on 26 September 2000. A responsive pleading was due on 16 October 2000. Plaintiffs assented to all requested extensions. Newberger was silent.
Not until six weeks after the responsive pleading was due did Brown and Linnehan file their Motion for Entry of Default: That motion was filed on 28 November, allowed on 15 December 2000, and entered into the docket on 18 December 2000.
Newberger's motion to remove the entry of default was not filed until 8 January 2001, almost three months after his Answer or Motion to Dismiss was due, they having been filed improperly.
In Conetta, where the court found that NHCC willfully defaulted, in bad faith, provided no reasonable explanation, and "waited more than four months after the default to even hire a lawyer to deal with the matter." Conetta, at 269. The only difference between Conetta and the instant case is that Newberger never bothered find a lawyer: his former lawyer appears to have "stumbled" over the fact that Newberger was in default, and then contacted Newberger.
"Rules of court are indispensable to the orderly and efficient conduct of a court's business. They are not to be set aside . . . or dictated by the caprice or design of counsel." Com. v. Cooper, 356 Mass. 74, 79 (1969). "Caprice would then be substituted for law." Clabburn v. Phillips, 245 Mass. 47, 52 (1923) (cite omitted).
See also McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 502, 503 (1st Cir. (Maine) 1996) (motion to lift default for not meeting their burden of showing "good cause" and to file their answer late was properly denied ); General Contracting & Trading Co. v. Interpole, Inc., 899 F.2d 109, 112 (1st Cir. 1990) ("no reasonable excuse presented for the default").
CONCLUSION
For the above reasons, Newberger's failure to respond was willful; he failed to present a meritorious defense either in his motion or by affidavit (which was non-existent); none of his excuses appeared to be based in reality and even were they, they did not constitute "good cause" as defined by rule 55(c); he acted in bad faith, and equally as important, if his motion were to be allows, it would send a signal to defendants that they "could always ignore a court summons until [they] got around to answering it without consequence unless something dire happened to Plaintiff's case in the interim." Reynolds v. Bar Harbor Whale Watch Co., 2001 WL 26205 *3 (D.Me., Jan. 9, 2001).
WHEREFORE Linnehan and Brown pray that Eli Newberger's Motion to Remove Entry of Default be DENIED.
Respectfully submitted,
PLAINTIFFS,
By their attorney,
22 January 2001 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE