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Rule 1SCOPE AND APPLICABILITY OF RULES

These rules govern procedure in all summary process actions in theTrial Court of the Commonwealth. Procedures in such actions that arenot prescribed by these rules shall be governed by the MassachusettsRules of Civil Procedure insofar as the latter are not inconsistent withthese rules, with applicable statutory law or with the jurisdiction of the

particular court in which they would be applied.These rules and, where applicable, the Massachusetts Rules of Civil

Procedure, shall be construed and applied to secure the just, speedy,and inexpensive determination of every summary process action.

Any procedural steps taken in a summary process action before theeffective date of these rules which conform to then-effective rules willbe regarded as valid during the pendency of that action. All procedureafter the effective date of these rules with respect to a pending summaryprocess action will be governed by these rules.

CommentaryFour Departments of the Massachusetts Trial Court have juris-

diction over summary process actions (Superior Court, DistrictCourt, Boston Municipal Court and Housing Court). This set ofrules replaces the disparate sets of preexisting rules in order toestablish uniformity of procedure in the Trial Court.

These rules seek to reconcile two competing principles. The

first is that time is of the essence in eviction cases. This is basedon the notion that real estate constitutes unique property and thatbecause it generates income, time lost in regaining it from a partyin illegal possession can represent an irreplaceable loss to theowner. The Legislature clearly recognized these factors in creat-ing a special chapter of the General Laws establishing a sum-mary procedure. The other principle involved is the unique andfundamental need of tenants for dwellings that are habitable andsecure. Recognition of this need has resulted in extensive changesthrough case law in the legal relationship between tenants andlandlords and a host of legislative enactments providing tenantswith new rights and remedies. These changes have made thelegality of possession an often difficult and complex judicialquestion.

The need, then, is for rules that will ensure expeditious proceed-ings and yet comprehend all potential substantive and proceduralcomplexities. It is believed that these rules meet that need by

addressing specifically the basic procedural steps in summary pro-cess actions, by adopting by reference the Massachusetts Rules ofCivil Procedure to cover any unusual procedural questions that mayarise, and by stating in Rule 1 that the rules are to be construed andapplied so as to secure the just, speedy, and inexpensive determi-nation of summary process actions.

Rule 2FORM OF SUMMONS AND COMPLAINT; ENTRY OF

ACTION; SCHEDULING OF TRIAL DATE; SERVICE OFPROCESS

(a) Form of Summons and Complaint.

The form of Summary Pro-cess Summons and Complaint, as promulgated by the Chief Adminis-

trative Justice of the Trial Court, shall be the only form of summonsand complaint used in summary process actions. This form of Sum-mary Process Summons and Complaint shall be considered a writ inthe form of an original summons as required by G. L. c. 239, 2. Thisform shall be available in blank at each of the courts at which sum-mary process actions may be commenced.

(b) Service of Process. Service of a copy of a properly completedSummary Process Summons and Complaint shall be made on the de-fendant no later than the seventh day nor earlier than the thirtieth daybefore the entry day, provided, however, that service shall not be madeprior to the expiration of the tenancy by notice of termination or other-wise except as permitted by statute. Service shall be made in accor-dance with Rule 4(d) of the Massachusetts Rules of Civil Procedure,provided that if service is not made in hand, the person making suchservice shall mail, first-class, to the defendant, at the address indicatedon the Summary Process Summons and Complaint, a copy of the Sum-mary Process Summons and Complaint; and provided further that re-turn of service, including a statement of mailing where the latter wasrequired, shall be made to the plaintiff only and shall be made in the ap-propriate space provided on the Summary Process Summons and Com-plaint. The date of service pursuant to this paragraph shall be deemedthe date of commencement of the action subject to proper entry in ac-cordance with the provisions of Rule 2(d).

Service shall be made by those authorized to make service by Rule4(c) of the Massachusetts Rules of Civil Procedure, provided that suchservice shall be made as required by this section.

(c) Entry Date; Scheduling of Trial Date. Entry dates for summaryprocess actions shall be each Monday and cases shall be placed on thelist for hearing on the second Thursday following the entry date with-out any further notice to the parties. Subject to the prior approval of theAdministrative Justice of his or her department, the First Justice of anydivision may designate Friday, Monday, Tuesday, and Wednesday assummary process trial days either as alternatives to Thursday or in ad-dition to Thursday. The cases shall be placed on the list for hearing onthe second Friday, the second Monday, the third Tuesday, or the thirdWednesday after the Monday entry day without any further notice tothe parties when such day has been designated as a summary processtrial day. Summary process actions originally commenced in the Supe-rior Court Department shall be added to the next non-jury list for as-signment for trial.

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

(1) the original of the properly completed form of Summary ProcessComplaint and Summons, a copy of which has been served on the de-fendant, with return of service recorded thereon;

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

(3) in jurisdictions wherein rent control is in effect a copy of a certif-icate of eviction granted by the appropriate rent control agency, or anaffidavit of exemption;

(4) in jurisdictions wherein local laws governing condominium con-version evictions are in effect, a copy of any applicable affidavit ofcompliance with such local laws;

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

I. Uniform SummaryProcess Rules

LIST OF RULES

1. Scope and Applicability of Rules.2. Form of Summons and Complaint; Entry of Action; Scheduling of

Trial Date; Service of Process.3. Answer.4. Transfer of Action.5. Counterclaims.6. Motions.7. Discovery.

8. Jury Trial.9. Equitable Relief.

10. Entry of Default, Entry of Dismissal; Removal of Default or Dis-missal; Entry of Judgment After Trial, Default, or Dismissal;Notice.

11. Relief from Judgment.12. Appeals13. Execution.

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On the appropriate portion of the Summary Process Summons andComplaint the reason(s) for eviction shall be indicated by the plain-tiff(s) in concise, untechnical form and with sufficient particularity andcompleteness to enable a defendant to understand the reasons for therequested eviction and the facts underlying those reasons.

(e) Method and Time for Filing. Filing of the Summary ProcessSummons and Complaint and necessary accompanying documents, ifany, shall be by delivery in hand or by first-class mail to the clerk. Fil-ing by mail is complete upon receipt by the clerk. Papers and docu-ments required in accordance with the preceding paragraph shall be

filed together no later than the close of business on the scheduled Mon-day entry day. Late filing of the summons and complaint shall not bepermitted without the written assent of the defendant or the defendantsattorney.

Commentary (as Amended January 1986; February 1993)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 theform is the date of the hearing. In order to determine this, theplaintiff must choose an entry day (any Monday) prior to whichhe can get effective service on the defendant and return of service.The hearing date will be on the second Thursday following theMonday entry day selected (unless Friday, Monday, Tuesday, orWednesday, as a day other than or in addition to Thursday, isapproved for that court). Although cases originally commenced in

the Superior Court Department are at first scheduled for a hearingon the second Thursday after the entry day, it is likely that suchSuperior Court cases would have to be rescheduled as provided insection (c).

Second, the plaintiff must have a copy of the completed Sum-mary Process Summons and Complaint properly served on thedefendant and get the original of this form back from the processserver showing a return of service. Service must be made not laterthan the seventh day nor earlier than the thirtieth day before theMonday entry day chosen. Therefore, service could be made onthe Monday of the week prior to a Monday entry day. Note thatRule 2(b) provides that service is not to be made prior to the expi-ration 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,

137Mass. 13.

Third, the plaintiff must file with the court the original of thecompleted Summary Process Summons and Complaint (showing

return of service), the entry fee and possible certain other docu-ments. This filing constitutes entry of the action. Filing must bemade no later than the close of business on the Monday entry day.Note that if filing is by mail, the documents must arrive in courtby the Monday entry day. The hearing will be on the secondThursday (or second Friday, second Monday, third Tuesday, orthird Wednesday, if so designated) following the Monday entryday.

This three-step procedure is required to allow flexibility in thetime for commencing these actions yet at the same time to pro-vide an automatic hearing date that can be predetermined andcommunicated to the defendant with the summons and complaint.Commencement of the summary process action under these rulesoccurs when proper service of the Summary Process Summonsand Complaint is completed, subject, however, to the proper entryof the action.

It should be noted that the clerk should not refuse to accept a

summons and complaint for failure to file documents which maybe required by Rules 2(d)(2), (3) or (4). It is a matter for the deter-mination of the court as to whether such documents are required.It should be noted further that the requirement in Rule 2(d)(3) thata certificate of eviction, if any is necessary, be filed and servedwith the Summary Process Summons and Complaint satisfies therequirement of District Court Administrative Regulation No. 3-73and the statutory law it reflects. That regulation requires that acertificate of eviction, issued before the commencement of theaction, be filed with the court before any judgment will beentered.

Rule 2(d) requires that the plaintiff state the reason(s) for evic-tion on the summons and complaint. While the substantive law ofthe Commonwealth may not always require a reason for termina-tion of a tenancy, it does require a reason for eviction. That reason

might be simply that a tenant is holding against the right of thelandlord after the tenancy has been terminated. When the termina-tion of the tenancy itself requires some reasone.g. breach oflease, termination in a rent control jurisdiction, nonpayment ofrentthe 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 holi-day, the entry or filing day would be the next day on which the

court is open for business. However, if the plaintiff selects a hear-ing date which is a holiday, the hearing would be scheduled eitherthe next business day after the holiday or one week later on thefollowing Thursday (or Friday or Monday, if applicable).

In rent control jurisdictions, a certificate of eviction is a prereq-uisite to the commencement of a summary process action. Thegranting of a certificate of eviction by a rent control board is sub-ject to judicial review. In Gentile

v.Rent Control Board of Somer-ville,

365 Mass. 343, 350 f.n. 7, the Supreme Judicial Court statedthat, if a complaint is filed challenging the issuance of the certifi-cate of eviction, in many instances that complaint and any relatedsummary process action may be consolidated for trial. Therefore,the court should consider the possibility of consolidation in suchcases in order to avoid piecemeal litigation.

Rule 3

ANSWER

The defendant shall prepare a written answer containing at the top ofthe page the caption Summary Process Answer with the trial date setforth below the caption. The answer shall deny every statement in thecomplaint which is in dispute. The defendant shall also state in the an-swer any affirmative defense which may be asserted and may state anycounterclaim permitted by Rule 5 of these rules. The answer shall befiled with the clerk and served on the plaintiff no later than the firstMonday after the Monday entry day. The answer shall be filed by mail-ing first-class or by delivering a copy of it to the clerk. Service of theanswer shall be made upon the plaintiff or plaintiffs attorney by first-class mail or delivery pursuant to the provisions of Mass. R. Civ. P.5(b), except that service by mail is complete upon receipt. Filing bymail is also complete upon receipt. Forms of answer, as promulgatedby the Chief Administrative Justice of the Trial Court, shall be madeavailable in each clerk-magistrates office.

Commentary (as Amended January 1986; February 1993)Default for failure to answer properly is dealt with in Rule 10 ofthese rules.

By operation of Rule 1 of these rules, questions regarding ser-vice by delivery to the plaintiff, proof of service, the effect offailure to file, etc., are governed by the provisions of Mass. R. Civ.P. 5; however, service by mail is complete upon receipt rather thanupon mailing.

The requirement that answers be filed and served no later thanthe first Monday after the Monday entry day establishes that dayas the last day for filing and service of the answer.

An answer form, as promulgated by the Chief AdministrativeJustice of the Trial Court, may be obtained in the offices of theclerks of the Housing Court, District Court, Boston MunicipalCourt and Superior Court Departments.

The requirement of a caption and hearing date on the answerwas inserted to assist the clerks in identifying summary process

papers. Because of the commencement provisions in Rule 2, aclerk may choose not to assign docket numbers to answers untilafter the entry day. Except for the answer, however, all papersfiled with the clerk must contain the docket number. See Rules 6and 7; see also, Mass. R. Civ. P. 10(a).

Clerks should not refuse to accept answers filed before theentry date.

Rule 4TRANSFER OF ACTION

A party wishing to transfer a summary process action pending inanother department to a division of the Housing Court Departmentpursuant to law shall do so by filing in both departments a completedtransfer form provided by the clerk of the court where the action was

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commenced. The form shall be filed in both courts no later than theday before the commencement of the trial. The clerk of the court fromwhich the case is transferred shall forward to the clerk of the appropri-ate Housing Court division all relevant papers within four businessdays from the receipt of the transfer form. No entry fee shall becharged upon such transfer. Upon receipt of a copy of this form, theclerk of the Housing Court division shall insure that the case is sched-uled forthwith and shall notify the parties in any practical way thereof.A demand for jury trial, if any, pursuant to Rule 8 of these rules, shallbe made with the request for transfer.

Failure of a party to make a timely transfer as provided above shallnot prohibit the court in which the action has been commenced from al-lowing such transfer on motion for cause shown at any time during theproceedings.

Commentary (as Amended January 1986)This rule refers to transfer of summary process actions from the

Superior, District and Boston Municipal Court Departments to theHousing Court Department at the request of any party, as permit-ted by G. L. c. 185C, 20. The clerk of the Housing Court divi-sion should insure that the transferred case is scheduled for trialon a date that is convenient to the court and the parties and rea-sonably consistent with the time limitations in these rules; how-ever, the clerk is not required to choose a Thursday, Friday, orMonday hearing date.

A party may transfer an action even though an answer was nottimely filed.

Rule 5COUNTERCLAIMS

Counterclaims shall be permitted in accordance with the provisionsof G. L. c. 239, 8A. Counterclaims shall be set forth in the defen-dants answer and shall be expressly designated as counterclaims. Theright to counterclaim shall be deemed to be waived as to the pendingaction if such a claim is not filed with the answer pursuant to Rule 3,unless the court shall otherwise order on motion for cause shown.Counterclaims shall not be considered compulsory; that is, they shallnot be considered waived for the purpose of a separate civil action oractions if not asserted in a summary process action. No responsivepleading to a counterclaim is necessary.

CommentaryThis rule recognizes the statutory right of summary process

defendants to assert counterclaims. Counterclaims must beasserted with the defendants answer. A plaintiff against whom acounterclaim is asserted is not required to answer; but an answerto a counterclaim may be filed prior to or at the time of the trial.The court may, of course, in its discretion grant a motion for acontinuance in order to grant a party time to prepare a defense to acounterclaim. Because counterclaims are not compulsory, thecourt retains discretion to sever a counterclaim which cannotappropriately be heard as part of the summary process action. Itwould, however, appear to be contrary to the law to sever a coun-terclaim which is being relied upon as a defense under G. L. c.239, 8A.

It should be noted that the counterclaim provisions of G. L. c.239, 8A apply to premises rented or leased for dwelling pur-poses.

Rule 6MOTIONS

All pretrial motions shall be made in writing containing the docketnumber of the case, shall state with particularity the grounds therefor,shall include a brief written statement of reasons in support, shall setforth the relief or order sought, and, except as otherwise provided inthis rule, shall be filed with the court and served on the opposing partyor that partys attorney, if any, no later than the first Monday after theMonday entry day. A pretrial motion shall be filed with the court bymailing first-class or by delivering a copy of it to the clerk. A pretrialmotion shall be served on the opposing party by mailing first-class orby delivering a copy of it to that party or that partys attorney. Filing orservice by mail is complete upon receipt.

Unless the court otherwise orders, the hearing on pretrial motions

shall be without further notice at the time and on the date the case isoriginally scheduled for trial. If, however, a motion to dismiss is filedand served on or before the entry date and if the defendant so requestsafter notice to the plaintiff, the motion shall be heard on the Thursday(or Friday or Monday or second Tuesday or second Wednesday) fol-lowing the entry date. If the motion is denied, continued, or taken underadvisement at the hearing, the defendants answer shall continue to bedue as provided in Rule 3 and the schedule for trial shall not be affect-ed, unless the court otherwise orders.

All other motions, including motions to allow late filing of pretrial

motions, shall be made in such manner, at such time, and with such no-tice as the court may permit or direct.

Commentary (as Amended January 1986; February 1993)This rule establishes the general requirement that all previously

filed motions shall be heard by the court on the originally sched-uled trial day (i.e. the second Thursday, or the second Friday, thesecond Monday, the third Tuesday, or the third Wednesday insome courts, after the entry day) unless the court otherwiseorders. The rule also establishes an alternative procedure if thedefendant wishes to seek resolution of a motion to dismiss beforethe trial date. The motion to dismiss would be heard on the firstThursday (or first Friday or first Monday or second Tuesday orsecond Wednesday) after the entry day; and, unless the motion isallowed or the court otherwise orders, the regular schedule forsummary process cases (answer, trial date, etc.) would not bechanged.

Pretrial motions, other than motions to dismiss filed pursuant tothe alternative procedure (

supra

), must be filed by the first Mon-day after the Monday entry day. As to any other motions, thecourt has complete discretion concerning the manner of filing,notice, and hearing.

Service of pretrial motions is made in the same manner as ser-vice of answers pursuant to Rule 3.

Rule 7DISCOVERY

(a) General. Either party may obtain discovery by serving on theopposing party a demand therefor and filing a copy of such demandwith the court. Such service and filing shall be made no later than thefirst Monday after the Monday entry day. A discovery demand, in theform provided in this section, shall be served on the opposing party bymailing first-class or by delivering a copy of it to that party or that

partys attorney. A discovery demand shall be filed with the court bymailing first-class or by delivering a copy of it to the clerk. Filing orservice by mail is complete upon receipt.

Discovery may be demanded in any of the following forms:(1) written interrogatories;(2) request(s) for admission;(3) request(s) for the production of documents.Neither written interrogatories nor requests for admissions shall ex-

ceed 30 in number including any interrogatories or requests subsidiaryor incidental to other interrogatories or requests, however grouped orcombined.

Requests for discovery or further discovery not made in compliancewith the requirements of this rule shall not be allowed unless on motionand for good cause shown. A request for discovery in response to an an-swer or counterclaim shall be deemed to establish good cause.

All papers relating to discovery which are filed with the clerk shallcontain the docket number of the case.

(b) Postponement of Trial Date. Upon proper service and filing ofa demand for discovery as required in section (a) above, hearing of theaction shall be automatically postponed and rescheduled for the datetwo weeks from the original trial date. With the service of the discoverydemand, the party demanding discovery shall notify the opposing partyof the automatic two week postponement, the newly scheduled trialdate, and the requirement in Rule 7(c) as to filing and service of re-sponses no later than ten days after receipt of the request.

(c) Response to Demand for Discovery; Relief or Objection. Theparty of whom discovery is demanded shall respond by filing and servinganswers to the interrogatories and/or responses to the requests for admis-sion, and/or by producing the documents no later than ten days after re-ceipt of the requests. The response shall be completed upon its receipt.

Each interrogatory shall be answered separately and fully in writing

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under the penalties of perjury, unless it is objected to, in which eventthe reasons for objection shall be stated in lieu of an answer. The an-swers are to be signed by the person making them, and the objectionsby the attorney or person making them. The scope and procedure forrequests for production of documents and responses thereto shall bemade as permitted and as required by Mass. R. Civ. P. 34(a)(1) and (b);provided, however, that the time limits specified in this rule shall gov-ern. The scope and effect of and the procedure for requests for admis-sion and responses thereto shall be made as permitted and as requiredby Mass. R. Civ. P. 36; provided, however, that the time limitations

specified in this rule shall govern.A party or the partys attorney objecting to or seeking relief from a

discovery request may do so by a motion for protective orders or otherrelief which shall be filed within five days after receipt of such discov-ery request.

(d) Enforcement of Discovery Demand. The fact of a partys fail-ure to respond to a demand for discovery as required by this rule andwithin the time specified by this rule shall be brought to the attentionof the court by the party aggrieved thereby or the partys attorney with-in five days after such failure by a motion for an order compelling dis-covery as permitted by Mass. R. Civ. P. 37(a) or by an application forfinal judgment for relief or dismissal.

If a party willfully fails to respond to a discovery demand, on motionheard on the rescheduled trial date the court may make such orders inregard to the failure as are just, and among others the following:

(1) an order that matters regarding which discovery is sought shall betaken to be established for the purposes of the action in accordance with

the claim of the moving party;(2) an order refusing to allow the party failing to respond to support

or oppose designated claims or defenses or prohibiting the party fromintroducing designated matters in evidence;

(3) an order striking out pleadings or parts thereof or staying furtherproceedings until the discovery demand is satisfied or dismissing theaction or any part thereof, or rendering a judgment by default againstthe party failing to respond.

(e) Further Postponement of Trial Date. Upon proper service andfiling of a motion for a protective order against a demand for discovery,or upon proper service and filing of a motion to compel response to ademand for discovery or for final judgment for failure to respond, therescheduled trial date may be postponed and may be rescheduled, ifneeded, by the court following the hearing and ruling on such motion.

Commentary (as Amended February 1993)This rule establishes a limited right to discovery in summary

process actions.In keeping with the need for expeditious procedure, an auto-matic postponement of the trial date for two weeks from the orig-inally scheduled date results from the timely service and filing ofa discovery demand. This two-week postponement allows a rea-sonable time prior to the rescheduled trial date for a response tothe demand and for action permitted by the rule, should a timelyresponse not be made. The party demanding discovery mustnotify the opposing party of the automatic two-week postpone-ment and of the requirements of Rule 7(c).

It is noteworthy that demands for discovery must be filed andserved no later than the first Monday after the Monday entry day.Because the answer and discovery deadlines fall on the same day,a plaintiff will often not know in time whether discovery is desir-able because of the answer and any possible counterclaim. There-fore, section (a) provides that the plaintiffs request for discoveryin response to an answer or counterclaim should be allowed on

motion. In most cases, the defendant (tenant) will probably notobject to any additional delay caused by the plaintiffs request fordiscovery. See Rule 6 [hearing on pretrial motions on date case isoriginally scheduled for trial].

In section (d), the sanctions listed for failure to respond to a discov-ery demand are based on Mass. R. Civ. P. 37(b)(2)(A), (B), and (C).

For the requirements of service, see Rule 3 and Mass. R. Civ. P. 5.

Rule 8JURY TRIAL

The provisions of Mass. R. Civ. P. 38 shall apply insofar as jury trialis available in the court where the action is pending, provided that:

(1) in cases commenced in a court where jury trial is available, a de-

mand for jury trial shall be filed with the court no later than the date onwhich the defendants answer is due;

(2) in cases transferred from a court in which jury trial is not avail-able to one in which jury trial is available, such demand shall be filedwith the transfer form pursuant to Rule 4 of these rules; and

(3) in cases appealed to the Superior Court Department, such demandshall be filed within ten days of entry in the Superior Court.

CommentaryJury trials are available in summary process actions in the

Superior Court Department (whether the action was commencedthere or is there on an appeal from the District Court Departmentor the Boston Municipal Court Department) and in the HousingCourt Department (whether the action has been commenced thereor has been transferred there). This rule governs the time for filingthe demand for jury trial in each such situation.

Determination of the issues in which jury trial is available andthe procedures therefor are governed by Mass. R. Civ. P. 38,adopted by reference in this rule.

It should be noted that jury trials in summary process actionsare available in the Worcester Division and the Northern EssexDivision (Haverhill) of the District Court Department pursuant toG. L. c. 218, 19A and 19B, respectively.

Rule 9EQUITABLE RELIEF

The appointment of receivers and the issuance of restraining ordersand injunctions shall be governed by applicable statutes and by Rule65 and 66, respectively, of the Massachusetts Rules of Civil Proce-dure; provided, however, that the court may modify the time periodsand notice requirements of those rules and otherwise fashion the reliefit orders as it deems appropriate.

CommentaryThis rule, in effect, permits the court to analogize to the proce-

dures for equitable relief required in regular civil actions. Thusthe rules referred to can serve as a guide to the court in fashioningthe equitable relief it may order in a summary process action.

Rule 9 reflects the expanded scope of summary process. Forseveral years, the District Court Department has had equitablepower in housing cases under G. L. c. 186, 14 (injunctionsagainst interference with utilities, etc.) and G. L. c. 218, 19C(injunctive relief to order sanitary code compliance similar to the

powers given to the Superior Court Department in G. L. c. 111, 127H). Under G. L. c. 239, 8A, the court, in its discretion, mayorder that funds paid into court by a tenant be expended for repairof the premises at issue; the court may appoint a receiver to super-vise this procedure. Other forms of equitable relief appear to beavailable to a defendant by way of counterclaim. For example, acounterclaim under G. L. c. 186, 14 could involve equitablerelief. In short, all courts have the authority to issue injunctiverelief in appropriate cases.

Rule 10ENTRY OF DEFAULT, ENTRY OF DISMISSAL; REMOVAL

OF DEFAULT OR DISMISSAL; ENTRY OF JUDGMENTAFTER TRIAL, DEFAULT, OR DISMISSAL; NOTICE

(a) Entry of Default. If a defendant fails to answer and also fails toappear for trial, said defendant shall be defaulted at the call of the triallist on the day set for hearing, provided that the plaintiff appears at thecall of the list. If a defendant has filed an answer but fails to appear fortrial, said defendant shall also be defaulted provided that the plaintiffappears. If the plaintiff also fails to appear, the case shall be dismissedseven days after the trial date unless either party requests a new trialdate within the seven day period. If the defendant appears but hasfailed to file a timely answer, no default shall enter and the court shallpostpone the trial date one week from the original trial date, unless theplaintiff consents in writing to an immediate trial. If the defendantappears but has failed to file a timely answer and the plaintiff fails toappear, the court shall postpone the trial date one week from the origi-nal trial date and notice shall be sent to the plaintiff. If the plaintifffails to appear after being notified of the new trial date, the case shallbe dismissed.

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(b) Entry of Dismissal. Dismissal shall be entered when a plaintiff failsto appear for trial, provided that the defendant has filed a timely answer andappears for trial. If the defendant files a timely answer but neither party ap-pears for trial, the case shall be dismissed seven days after the trial date unlesseither party requests a new trial date within the seven day period.

(c) Removal of Dismissal or Default. A default or a dismissal maybe removed at the courts discretion, on its own initiative or on motionof either party in writing, at any time prior to the entry of judgment onsuch default or dismissal.

(d) Entry of Judgment. All judgments shall be entered at 10:00

a.m., on the next business day following the courts decision after hear-ing or trial, or following the entry of default or dismissal, as the casemay be, provided that (1) in the case of a default, said default is not re-moved prior thereto, (2) in the case of a finding pursuant to G. L. c. 239, 8A that the tenant owes rent, judgment shall be entered in accordancewith that statute, and (3) where a default is pending no judgment shallbe entered unless the following prerequisites are met:

(i) The plaintiff shall file an affidavit made by a competent person,on the affiants own knowledge, setting forth facts showing that the de-fendant is not a person in military service as defined in Article I of theSoldiers and Sailors Civil Relief Act of 1940, as amended, exceptupon order of the court in accordance with the Act.

(ii) Where the complaint sets forth a claim for rent and/or use and oc-cupation, the plaintiff shall file an affidavit stating the aggregateamount of payments, if any, which have been made subsequent to thedate of the commencement of the action on account of such amountclaimed.

(iii) The clerk shall review the documents filed with the court. Nojudgment by default shall enter against any defendant where it appearsfrom such review that the summons was not properly completed,served or returned, that the complaint was not properly completed orserved, or that the other documents required to be filed with the courtpursuant to Rule 2(d) have not been filed.

(e) Notice.Notice of judgment shall be sent to all parties forthwithupon entry of judgment.

CommentaryThis rule deals with two related but distinct subjects: (1) the

entry of defaults and dismissals and (2) the entry of judgmentafter entry of default or dismissal, and after trial.

Entry of default or dismissal can depend on two considerations,namely, whether defendant has filed a timely answer andappeared for trial, and whether plaintiff appears for trial. Para-graphs (a) and (b) cover all situations involving failure of the par-

ties to fulfill either one of these requirements.Note, for example, that upon failure of the defendant to file atimely answer and appear, entry of default is in order if the plain-tiff or his attorney appears. Under section (a), if a defendant whohas not answered appears, plaintiff has the option of obtaining anautomatic one week postponement or proceeding to trial forth-with. The plaintiff, therefore, could have an attorney present toanswer the list and obtain defaults while avoiding unnecessarypersonal appearances. If default ultimately is entered and notremoved prior to entry of judgment under paragraph (d), thedefendant is left to his rights to relief from judgment under Rule11 and to appeal under Rule 12.

The provisions of G. L. c. 239, 9 and 10, whereby a tenantcan apply for a stay of judgment and execution, are relevant here.

Rule 11

RELIEF FROM JUDGMENT(a) District and Boston Municipal Court Departments. In the

District Court and Boston Municipal Court Departments, Rules 60 and62(b) and (d) of the Massachusetts Rules of Civil Procedure, whichdeal with relief from judgment and stay of execution, respectively,shall apply to summary process actions; provided that relief underRule 60(b) shall be available only in cases where the judgment hasbeen entered on default or dismissal. In cases that have been heard onthe merits, relief under Rule 60(b) shall not be available.

(b) Superior and Housing Court Departments. In the SuperiorCourt and Housing Court Departments, Rules 60 and 62 of the Massachu-setts Rules of Civil Procedure shall apply to summary process actions.

CommentarySection (a) of Rule 11 applies only to the District Court and

Boston Municipal Court Departments. The right of an aggrievedparty to a new trial on appeal provides the rationale for limitingthe availability of relief under Rule 60 in those two Departments.See G. L. c. 231, 97.

Section (b) applies to the Superior Court and Housing CourtDepartments. An aggrieved party in those departments does nothave a right to a new trial; instead the appeal is heard in theAppeals Court. See G. L. c. 239, 5.

It must be noted that the running of time for appeal in summaryprocess actions is not affected by the filing of a motion under

Rule 60.Rule 62(b) allows the court to stay execution under certain con-

ditions upon filing of a motion under Rule 60. Stay of executionpending appeal is governed by G. L. c. 239, 5.

Rule 12APPEALS

Any judgment in a summary process action, except a default judg-ment, may be appealed by an aggrieved party in accordance with theprovisions of law. Upon receipt of notice of appeal and request for set-ting of bond within the time prescribed by G. L. c. 239, 5, the clerkshall forthwith schedule a hearing before the court on whether anappeal bond shall be required and on the form and amount of suchappeal bond. The hearing shall be held within three business days ofsaid receipt.

CommentaryThe subject of appeals in summary process actions is directly

governed by G. L. c. 239, 3 and 5. Section 3 requires thatappeals from cases heard in the District Court Department betaken to the Superior Court Department and that appeal may beon either or both of the issues of possession or rent claimed. Sec-tion 5 sets forth the procedural mechanism for claiming and pros-ecuting appeals. No direct reference is made in either statute to aright on the part of a plaintiff to claim an appeal in a summaryprocess action. However, the general terms of G. L. c. 231, 97do confer upon plaintiffs in the District Court Department theright to appeal summary process actions to the Superior Courtand, more specifically, to take such appeals within the timelimits specified in G. L. c. 239, 5.

Read together, the provisions of G. L. c. 231, 97 and G. L. c.239, 5 seem to require that just as a defendant, a plaintiff in theDistrict Court or Boston Municipal Court Departments aggrieved

by a judgment on the issue of possession or rent, or both, must filea notice of appeal with the court issuing the judgment within tendays of the judgment being entered.

Detailed provisions regarding the appeal in summary processcases including bond requirements for an appealing defendantand appeal of the bond decision, are set forth in G. L. c. 239, 5.This statute should be consulted directly on questions relating tothese procedures.

Relief from a default judgment is subject to the provisions ofRules 11 and 12.

It should be noted that the indigent court costs statute, G. L. c.261, 27A et seq.

places appeals bonds into the extra fees andcosts category. The court can waive the appeals bond upon adetermination of indigency pursuant to these sections of the Gen-eral Laws or for such other reasons as the court deems proper.

Rule 13EXECUTION

Execution shall issue upon application, but not prior to the termina-tion of the time limits imposed by applicable law and by the relevantprovisions of Rules 60 and 62 of the Massachusetts Rules of Civil Pro-cedure.

CommentarySection 5 of Chapter 239 of the General Laws prohibits the issuance

of execution in a summary process action prior to the expiration of tendays after the entry of judgment. If appeal is claimed, Mass. R. Civ. P.62(d) stays execution pending appeal.

When the defendant moves for a waiver of appeal bond, section 5 ofChapter 239 also prohibits the issuance of execution prior to the expi-

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TRIAL COURT RULES - SUMMARY PROCESS

ration of six days from the courts decision on the motion, or prior tothe expiration of the time specified for the taking of appeal, whicheveris later.

The statute also provides that where a defendant seeks review of thecourts ruling on the motion for waiver of appeal bond, no executionmay issue until the expiration of five days from the date defendant re-ceives notice of the decision of the reviewing court. Of course, if thedefendant posted bond after losing an appeal of the trial courts denialof waiver of that bond, execution would continue to be unavailablepending the completion of the appeal of the underlying judgment under

Rule 62(d), cited above.Note should also be made of the special provision regarding execu-

tion in G. L. c. 239, 1A (recovery of possession before termination ofa lease), and the provisions of G. L. c. 239, 9 and 10 regarding ap-plication for stay for judgment and execution.