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Are you bringing a motion in a Superior Court Civil case? If so, in addition to the particular Massachusetts Rules of Civil Procedure governing your motion, you’ll want to be familiar with the requirements of the Superior Court Rules 9 Motions and Interlocutory Matters, 9A Civil Motions, 9B Certificates of Service, 9C Settlement of Discovery Disputes, 9D Motions for Reconsideration, and 9E Motions to Dismiss and Post-Trial Motions, especially Superior Court Rule 9A.

1.   Rules for All Civil Motions in Superior Court
According to Superior Court Rule 9, Superior Court Rules 9A-9E govern all civil motions except motions found in Superior Court Rule 9A(e).

Rule 9A(a)(1)-(6) dictates the form of motions and oppositions to motions, including supporting memoranda, affidavits and other documents which provide facts supporting the party’s position. It also sets the procedure for obtaining leave to file further replies after the initial filings by each side. Facts are presented by affidavit, or are agreed in writing signed by the parties, or are apparent on the record.

Rule 9A(b)(1)-(6) governs the procedure for serving and filing motions and oppositions. The moving party serves copies of the motion, memorandum and all supporting papers on all other parties, without filing with the Court. The opposing parties serve the moving party with original opposing memorandum and papers (to be filed by the moving party with the Court), and serve copies of all opposing memoranda and papers on all parties, including the moving party. Oppositions to motions are served 10 days after service of a motion (except a summary judgment motion), and 21 days after service of a motion for summary judgment, or “such additional time as is allowed by statute or order of the Court. If the motion is served by mail, these time periods shall be increased by 3 business days pursuant to Mass. R. Civ. P. 6(d).”

The Rule 9A Package

After time for a response has passed, the moving party assembles a “Rule 9A package” for filing with the Superior Court, which includes its motion and supporting papers and timely opposition memoranda and supporting papers. “A separate document accompanying the filing shall list the title of each document in the Rule 9A package”.  If the moving party doesn’t receive an opposition in the time permitted, it files its motion and supporting papers along with an affidavit “reciting compliance with this rule and receipt of no opposition in timely fashion, unless the moving party has notified all parties that the motion has been withdrawn.”

Upon filing the Rule 9A package, the moving party gives “prompt notice of the filing of the Rule 9A package to all other parties by serving… a copy of a certificate of notice of filing on a separate document.” (See Rule 9A(b)(2), Rule 9A(b)(3) and Rule 9A(b)(4) for exceptions to this procedure.)

2. Additional procedures for Summary Judgment motions are governed by Rule 9A(b)(5)(i)-(vii). In addition to the steps above, it requires “a statement of the material facts as to which the moving party contends there is no genuine issue to be tried, set forth in consecutively numbered paragraphs, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.” Failure to include this document is grounds for denial of the motion. Rule 9A(b)(5)(1) also sets out requirements for electronic transmission of this document to all parties against whom summary judgment is sought at the time of serving the motion.

The opposing party reprints the moving party’s statement of material facts and “set[s] forth a response to each directly below the appropriate numbered paragraph, including, if the response relies on opposing evidence, page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents.” Failure to oppose a statement of material fact results in the fact being deemed admitted. The opposing party may also assert additional  material facts with supporting references, as a continuation of moving party’s statement “with an appropriate heading” not in a separate document, but in the same continuous document. The requirements for electronic mailing of this document and moving party’s response are in Rule 9A(b)(5)(iv).

Rule 9A(b)(5)(vi) sets the format and procedural requirements for the joint appendix of exhibits supporting each sides’ position. “The initial moving party with the cooperation of each opposing party, shall be responsible for assembling the joint appendix and index.”

Regarding all civil motions:

Rule 9A(c) covers requests for hearings and Rule 9A(e) covers motions that are exceptions to Rule 9A requirements, such as emergency motions.

3.   Checklist of Steps in filing a motion:

Most non-summary judgment motions:
1.   Moving party serves motion, memorandum and supporting papers on all parties, including any request for a hearing and supporting statute or rule.
2.   Opposing party responds serving opposition and supporting papers on all parties, including any request for a hearing and supporting statute or rule.
a.   10 days (+ 3 days if motion was served by mail-all motions except summary judgment motions);
b.   21 days (+ 3 days if summary judgment motion was served by mail).
3.   Moving party files Rule 9A Package:
a.   Motion, memorandum and supporting papers;
b.   Timely opposing memoranda and papers (if any);
c.   Rule 9A list of documents composing the package;
d.   If no opposition was received, moving party’s affidavit that no timely opposition was received;
e.   Certificate of notice of filing package.
Additional steps for summary judgment motions:
4.   Moving party’s initial service of motion also includes:
a.   A statement of material facts as to which there is no genuine issue to be tried (also emailed to all parties), as well as
b.   A  joint appendix of exhibits and certificate that all exhibits have been served with the motion on all parties.
5.   Opposing party’s service also includes:
a.   A consolidated statement of material facts with opposing party’s paragraph by paragraph response to moving party’s facts plus any additional material facts opposing party wishes to present. If opposing party asserts additional facts, this document is emailed to all parties as well as served.  
b.   If opposing party’s opposition includes new exhibits, it serves the new exhibits along with an index of new exhibits.
6.   Moving party files Rule 9A Package with the court which also includes:
a.   Consolidated statement of material facts as set out in Rule 9A(b)(5)(i)-(iv);
b.   Joint appendix of exhibits, index and certificates regarding service of exhibits on parties as set out in Rule 9A(b)(vi); and

7.   Moving party also:

            a.   emails the consolidated statement of material facts on all parties as filed and

 

b.   serves joint appendix of exhibits including index of exhibits, unless parties agree otherwise. If the joint appendix is in electronic form an electronic copy is also emailed, unless otherwise agreed.

 

This is a “road map” to important requirements in Superior Court Rule 9A. However, a party bringing or opposing a Superior Court civil motion must read Superior Court Rules 9A-9E to be sure of compliance with all requirements and to maximize the opportunity for a good result.

Samples
Superior Court Rule 9A Letter (to opponent with your motion):
MCLE Massachusetts Superior Court Civil Practice Forms, Form 1.6

Rule 9A Package to be Filed with the Court:
MCLE Massachusetts Superior Court Civil Practice Forms, Form 1.7

 

Selected Secondary  Sources
MCLE Massachusetts Superior Court Civil Practice Manual,
         vol. 1, chapter 6 (esp. section 6.2.1) and chapter 7
MCLE Massachusetts Superior Court Civil Practice Forms,
         chapters 1, 6 and 7
Massachusetts Litigation Forms and Analysis, 
          vol. 1
Massachusetts Practice Series, Procedural Forms Annotated,
         vols. 10-10C

 

Good reading!

 

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