In this сase, which we transferred here on our own motion, we must decide whether the jurisdictional limits outlined in St. 1996, c. 358, apply to summary process actions.
1. Facts and procedural history. In March, 1996, the plaintiff, ROPT Limited Partnership, entered into a lease of commercial property with the defendant and others. On October 1, 1997, the plаintiff sent a notice to quit for nonpayment of rent, and on October 17, 1997, it filed a complaint for summary process in the Brookline Division of the District Court Department, seeking rent for $32,900. The defendant filed a counterclaim but the plaintiff’s motion to dismiss it was allowed.
2. Statute 1996, c. 358.
In interpreting statutes we use the plain languagе of the statute where the language is unambiguous. See Commissioner of Revenue v. Cargill, Inc.,
The plain language of St. 1996, c. 358, is clear. In summary, § 4 grants exclusive original jurisdiction to the District Courts in Norfolk and Middlesex counties, for all civil actions otherwise subject to G. L. c. 231, §§ 97-107, if there is a reasonable likelihood that the plaintiff’s recovery will not exceed $25,000; it grants exclusive original jurisdiction to the Superior Court for all civil actions otherwise subject to G. L. c. 231, §§ 97-107, if there is a reasonable likelihood that the plaintiff’s recоvery will exceed $25,000.
The plaintiff’s argument depends on its assertion that summary process is not subject to G. L. c. 231, § 97.
The plaintiff further argues, in essence, that the purpose of St. 1996, c. 358, § 10, is to carve out an exception for summary process and, to read it otherwise, would be to treat § 10 as “mere surplusage.” However, the plaintiff’s reading of § 10 relies on the premise that St. 1996, c. 358, §§ 2 & 4, do not apply to summary process.
Section 10 states: “Notwithstanding the provisions of sections three and five of chaрter two hundred and thirty-nine of
There is nothing in the plain language of § 10 that suggests that summary process actions are to be tried exclusively in the District Courts. A less contrived meaning of this section is that it is a clarification that there is a new procedure for summary process actions that are brought in the District Court. The Legislature may enact statutory provisions for clarification. See Commonwealth v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., supra at 619-620.
Our intеrpretation gives full meaning to the plain language of St. 1996, c. 358, § 4, and the cross references to G. L. c. 231, § 97, contained in G. L. c. 239, § 3.
3. Dismissal for lack of subject matter jurisdiction and issue of waiver. As discussed above, the plain language of St. 1996, c. 358, reveals a legislative scheme concеrning subject matter jurisdiction based on the amount the plaintiff is reasonably likely to recover.
“Subject matter jurisdiction cannot be conferred by consent, conduct or waiver.” Harker v. Holyoke,
However, under Rule 11 (a) of the Uniform Summary Process Rules, a defendant cannot raise subject matter jurisdiction pursuant to rule 60 (b) (4), once there is a final judgment on the merits. The plaintiff argues that there was a final judgment in this case and urges us to hold that rule 11 (a) aрplies. This argument does not avail because, first, the District Court did not issue a final judgment on the defendant’s counterclaim. The indorsement the judge made on the plaintiff’s motion to dismiss and the subsequent entry on the docket sheet are not sufficient to satisfy the requirements for final judgment under Mass. R. Civ. P. 54 (b),
Second, even if there were finаl judgment, we conclude that Rule 11 (a) of the Uniform Summary Process Rules would not apply. As both the plaintiff and the defendant point out, the Uniform Summary Process Rules and the Massachusetts Rules of Civil Procedure were written before the new statute and thus need to be read harmoniously with the new scheme. Spence v. Reeder,
The plaintiff also argues that, even if the District Court had power to dismiss cases for lack of subject matter jurisdiction, in this case, the defendant waived his right to raise the issue because it was untimely. It cites Harker v. Holyoke,
4. Stay and remand. The plaintiff requests that, if we decide that the District Court did not have subject matter jurisdiction over this case pursuant to St. 1996, c. 358, that we stay the order of dismissal and allow the plaintiff time to request that the CJAM appoint the District Court judge to sit as a Superior Court judge for the purрoses of this case. In a number of cases, this court has recommended that, when faced with a jurisdictional issue, in order to avoid waste of judicial resources, the judge should not dismiss the case, but rather ask the CJAM, pursuant to G. L. c. 21 IB, § 9, to transfer the case, the judge, or both, to the aрpropriate court. In Konstantopoulos v. Whately,
Because the defendant chose not to raise jurisdiction until after the judgment entered on the plaintiff’s claims, in the interest of the orderly administration of justice, we grant the plaintiff’s request. Konstantopoulos v. Whately, supra. See St. 1996, c. 358, § l.
The dismissal is stayed pending the plaintiff’s application to the CJAM to appoint the District Court judge to sit as a Superior Court judge for the purposes of this case, and the case is remanded to the District Court for such further proceedings as the judge deems appropriate and are consistent with this opinion.
So ordered.
Notes
The plaintiff argued, in the alternative, that the counterclaim either was not permitted by summary process actions or that it did not state a claim on which relief could be granted. The judge’s indorsement on the plaintiff’s motion is simply “counterclaim is dismissed.”
The defendant vacated the premises on November 1, 1997.
We note that, despite being admonished at oral argument for failing to provide copies of the statutes and rules at issue in this case, in violation of Mass. R. A. R 16 (f),
Section 13 of St. 1996, c. 358, states in pertinent part: “The provisions of this act. . . shall be effective in Norfolk and Middlesex Counties for a period of two years commencing on July first, nineteen hundred and ninety-six and shall apply only to civil actions commenced on or after July first, nineteen hundred and ninety six . . . .” In 1998, it was “amended by striking out the words ‘two years’ and inserting in place thereof ... 49 months.” St. 1998, c. 157, § 2.
The exact text of St. 1996, c. 358, § 4 is as follows:
“Notwithstanding the provisions of any generаl or special law to the contrary, including section four of chapter two hundred and twelve of the General Laws and section nineteen of chapter two hundred and eighteen of the General Laws, district courts in Norfolk and Middlesex counties shall have exclusive original jurisdiction of civil actions, otherwise subject to transfer, retransfer, removal and appeal, pursuant to sections ninety-seven to
“In Norfolk and Middlesex counties, civil actions, otherwise subject to transfer, retransfer, removal and appeal, pursuant to seсtions ninety-seven to one hundred and seven, inclusive, of chapter two hundred and thirty-one of the General Laws, in which there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to twenty-five thousand dollars or such other amount as is ordered from time tо time by the supreme judicial court shall be heard exclusively in the superior court.”
The plaintiff also includes St. 1996, c. 358, §§ 1 & 2, in its discussion, but that does not change our analysis.
Under G. L. c. 231, § 97, the appeal is heard in the Superior Court de novo.
The plaintiff also argues that it was anomalous for the Legislature to have omitted any reference to G. L. c. 239, § 3, in St. 1996, c. 358, § 2. We do not agree. Given that G. L. c. 239, § 3, expressly refers to G. L. c. 231, § 97, it was unnecessary for St. 1996, c. 358, § 2, to refer to G. L. c. 239, § 3. Furthermore, despite the plaintiff’s contention to the contrary, G. L. c. 239, § 5, simply creates additional terms of appeal in summary proсess actions, including a bond.
Because St. 1996, c. 358, § 4, expressly uses the word “jurisdiction,” we reject the plaintiff’s suggestion that it should be read as a venue statute rather than as a jurisdictional statute.
The cases the plaintiff cites in support of its argument that there was a final judgment, do not advance its cause. For example, in Hodge v. Klug,
For the same reason, Mass. R. Civ. P. 81 (a) (1) (7), as appearing in
Rule 1 of the Uniform Summary Process Rules (2000) states: “Procedures . . . that are not prescribed by these rules shall be governed by the Massachusetts Rules of Civil Procedure insofar as the latter are not inconsistent with these rules, with applicable statutory law or with the jurisdiction of the рarticular court in which they would be applied.”
Our affirmance of the judgment of dismissal does not make it inappropriate for the CJAM to appoint the District Court judge to sit as a Superior Court judge. The defendant has pointed to nothing in our case law or in G. L. c. 21 IB, § 9, that creates such a rule. See Isakson v. Vincequere,