24 Mass. App. Ct. 41 | Mass. App. Ct. | 1987
This appeal challenges the correctness of an order of a judge in the Superior Court allowing the plaintiffs’
The plaintiffs, Scott and Donna Bengar, initially sought recovery for injuries sustained on September 27, 1979, when a forklift operated by Scott toppled over, immediately after Scott had swerved in an attempt to avoid an automobile. The original complaint was brought in December, 1979, against the driver of the automobile and the driver’s employer. Upon the asserted discovery that such forklifts had a propensity to topple over, the plaintiffs moved on October 31, 1984, to add Clark, the alleged manufacturer and seller of the forklift, as a defendant based upon theories of negligence and breach of warranty. This pretrial motion was eventually denied without opinion.
Clark, on September 17, 1985, filed a petition for review under G. L. c. 231, § 118, on the ground that after entry of a judgment dismissing the action on the merits, the Superior Court lacked authority, absent an order vacating the judgment, to allow a postjudgment motion to amend. Clark also argued that the allowance of the motion was an abuse of discretion. A single justice of the Appeals Court granted leave to file an interlocutory appeal. We find no error.
Plaintiffs’ motion for leave to amend is a matter addressed to the discretion of the judge. Shaw v. Siegel, 13 Mass. App. Ct. 258, 263 (1982). See Mass.R.Civ.P. 15(a). Rule 15(a)
Clark urges the court to adopt the Federal construction that a party may not seek leave to amend a complaint after final judgment without first filing a motion to alter, set aside, or vacate the judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), or Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). Most of the Federal courts have held that the filing of a postjudgment amendment cannot be allowed until the judgment is set aside or vacated under Fed.R.Civ.P. 59 or 60. 6 Wright & Miller, Federal Practice and Procedure § 1489, at 445 (1971).
The adjudged construction given to the counterpart Federal rules is to be given to the Massachusetts rules absent compelling reasons to the contrary or significant differences in content. Rollins Environmental Serv., Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975). See also Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 236 (1985). The relevant provision of rule 15 (a) is essentially identical to its Federal counterpart.
The plaintiffs maintain that even if technically a rule 59 (e) or 60 (b) motion should have been brought, the filing of the
Massachusetts courts have not elevated form over substance. See Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 235-237 (1985) (postjudgment motion to vacate filed within ten days of judgment seeking correction of error of law treated as a rule 59 [e] motion). Cf. Ahern v. Warner, 16 Mass. App. Ct. 223, 225 (1983). A correct result should not be overturned simply because a party has committed a procedural error in failing to caption properly its motion. Spring v. Geriatric Authy. of Holyoke, 394 Mass. 274, 290 (1985) (judge properly treated motion for new trial filed within ten days of entry of judgment, citing jury’s unjustified contract award as one ground for relief, as a 59 [e] motion).
The trial judge properly could have treated the plaintiffs’ motion as a request to vacate the judgment in order to permit the filing of the amended complaint where the motion was filed within ten days of judgment. Chrysler Corp. v. Lakeside Commercial Fin. Corp., 66 F.R.D. 607 (E.D. Wis. 1975) (motion for leave to amend complaint filed within ten days of entry of judgment properly construed as essentially consisting of a motion to vacate judgment under rule 59 (e) “so as to do substantial justice” [at 608]). See Vreeken v. Davis, 718 F.2d 343, 345 (10th Cir. 1983) (motion to file a second amended complaint filed within ten days of the entry of judgment construed as motion to alter or amend the judgment pursuant to 59 [e]). Textor v. Board of Regents, 711 F.2d 1387, 1390 (7th
Furthermore, we think that the allowance of the motion to amend was within the judge’s broad discretion and consistent with the liberal trend which favors the allowance of amendments. See Fortin Constr., Inc. v. Massachusetts Housing Fin. Agency, 17 Mass. App. Ct. 911, 912 (1983). Cf. Jones v. Wayland, 380 Mass. 110, 115 (1980) (not abuse of discretion for trial judge to allow motion after rescript and remand). This was not a case of unexcused delay, as the plaintiffs had attempted, prior to trial, to add Clark and promptly moved, after final judgment, to amend when new evidence had come forth at trial. Cf. Bullock v. Zeiders, 12 Mass. App. Ct. 634, 637-638 (1981); Libby v. Commissioner of Correction, 385 Mass. 421, 428 (1982).
The defendant’s contention that, because the statute of limitations has run, the amendment is futile must also fail. To the contrary, the action relates back under rule 15 (c) to the date of the original complaint. The fact that a new action would be barred by the statute of limitations is a reason to permit the amendment. Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 627 (1977).
Rule 15(c) provides that an amendment will relate back whenever the claim asserted in the amended pleading “arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” Massachusetts has an unusually liberal relation-back policy which is considerably more so than the Federal practice. Ward v. Hercules, 75 F.R.D. 455, 457 (D. Mass. 1977). The Massachusetts rule is that an amendment relates back where “the cause of action for which the suit was brought was the injury, and the plaintiff intended to bring it against the party liable for the injury.” Covel v. Safetech, Inc., 90 F.R.D. 427, 429 (D. Mass. 1981), citing McLaughlin v. West End St. Ry., 186 Mass. 150 (1904). See also Wadsworth v. Boston Gas Co., 352 Mass. 86, 89 (1967).
Despite the difference between the theory of the amended complaint and that of the original complaint, it is clear that the plaintiffs intended to bring an action against the party or
Furthermore, the judge’s determination that the potential prejudice to Clark was of insufficient weight to prevent allowance of the motion was within the broad discretion afforded the judge who heard all the evidence.
Order allowing amendment of complaint affirmed.
‘The plaintiffs, of course, could have made the denial of that motion a ground in any appeal they might have taken.
A new action initiated by the plaintiffs against Clark would have been barred by the statute of limitations.
We are not asked to comment upon the plaintiffs’ decision to proceed in this manner, rather than appealing the denial of their earlier motion to add Clark as a party defendant.
“The better view is that after a judgment of dismissal plaintiff must move under Rules 59 (e) or 60 (b) to reopen the judgment.” 3 Moore’s Federal Practice par. 15.10, at 15-107 (2d ed. 1985).
A difference is that Mass.R.Civ.P. 15 (a) specifically limits the right of amendment “as a matter of course” to the situation where there has not been an order of dismissal. Smith & Zobel, Rules Practice § 15.13(1974).
The plaintiffs’ argument that the pre-rules definition of judgment should be applied is not persuasive, considering that the adoption of the rules brought a new and different definition of “judgment” and “final judgment” distinct from preexisting practice. Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974). See Peak v. Massachusetts Bay Transp. Authy., 20 Mass. App. Ct. 726, 729 (1985).
The judge noted that this was the second attempt to add Clark, speculating that the pretrial motion, brought on the eve of trial, was denied on the grounds of judicial economy.