Massachusetts Uniform Summary Process Rules
Massachusetts Uniform Summary Process Rule 1: Scope and Applicability of Rules
These rules govern procedure in all summary process actions in the Trial Court of the Commonwealth. Procedures in such actions 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 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 the effective date of these rules which conform to then-effective rules will be regarded as valid during the pendency of that action. All procedure after the effective date of these rules with respect to a pending summary process action will be governed by these rules.
Massachusetts Uniform Summary Process Rule 2: Form of Summons and Complaint; Entry of Action; Scheduling of Trial Date; Service of Process
(a) Form of Summons and Complaint. The form of Summary Process Summons and Complaint, as promulgated by the Chief Administrative Justice of the Trial Court, shall be the only form of summons and complaint used in summary process actions. This form of Summary Process Summons and Complaint shall be considered a writ in the form of an original summons as required by G.L. c. 239, § 2. This form shall be available in blank at each of the courts at which summary process actions may be commenced.
(b) Service of Process. Service of a copy of a properly completed Summary Process Summons and Complaint shall be made on the defendant no later than the seventh day nor earlier than the thirtieth day before the entry day, provided, however, that service shall not be made prior to the expiration of the tenancy by notice of termination or otherwise except as permitted by statute. Service shall be made in accordance with Rule 4(d) of the Massachusetts Rules of Civil Procedure, provided that if service is not made in hand, the person making such service shall mail, first-class, to the defendant, at the address indicated on the Summary Process Summons and Complaint, a copy of the Summary Process Summons and Complaint; and provided further that return of service, including a statement of mailing where the latter was required, shall be made to the plaintiff only and shall be made in the appropriate space provided on the Summary Process Summons and Complaint. The date of service pursuant to this paragraph shall be deemed the date of commencement of the action subject to proper entry in accordance with the provisions of Rule 2(d).
Service shall be made by those authorized to make service by Rule 4(c) of the Massachusetts Rules of Civil Procedure, provided that such service shall be made as required by this section.
(c) Entry Date; Scheduling of Trial Date. Entry dates for summary process actions shall be each Monday and cases shall be placed on the list for hearing on the second Thursday following the entry date without any further notice to the parties. Subject to the prior approval of the Administrative Justice of his or her Department, the First Justice of any Division may designate Friday, Monday, Tuesday, and Wednesday as summary process trial days either as alternatives to Thursday or in addition to Thursday. The cases shall be placed on the list for hearing on the second Friday, the second Monday, the third Tuesday, or the third Wednesday after the Monday entry day without any further notice to the parties when such day is designated as a summary process trial day. Summary process actions originally commenced in the Superior Court Department shall be added to the next non-jury list for assignment for trial.
(d) Entry of Action. Summary process actions shall be entered by filing with the clerk of the court in which the action is to be heard the following documents:
(1) The original of the properly completed form of Summary Process Complaint and Summons, a copy of which has been served on the defendant, with return of service recorded thereon;
(2) a copy of any applicable notice(s) of termination of the defendant's tenancy of the premises upon which the plaintiff(s) relies where such notice is required by law and any proof of delivery of such notice upon which the plaintiff(s) plans to rely at trial;
(3) in jurisdictions wherein rent control is in effect a copy of a certificate of eviction granted by the appropriate rent control agency, or an affidavit of exemption;
(4) in jurisdictions wherein local laws governing condominium conversion evictions are in effect, a copy of any applicable affidavit of compliance with such local laws;
(5) any entry fee prescribed by law unless waived.
On the appropriate portion of the Summary Process Summons and Complaint the reason(s) for eviction shall be indicated by the plaintiff(s) in concise, untechnical form and with sufficient particularity and completeness to enable a defendant to understand the reasons for the requested eviction and the facts underlying those reasons.
(e) Method and Time for Filing. Filing of the Summary Process Summons and Complaint and necessary accompanying documents, if any, shall be by delivery in hand or by first-class mail to the clerk. Filing by mail is complete upon receipt by the clerk. Papers and documents required in accordance with the preceding paragraph shall be filed together no later than the close of business on the scheduled Monday entry day. Late filing of the summons and complaint shall not be permitted without the written assent of the defendant or the defendant's attorney.
Massachusetts Uniform Summary Process Rule 3: Answer
The defendant shall prepare a written answer containing at the top of the page the caption "Summary Process Answer" with the trial date set forth below the caption. The answer shall deny every statement in the complaint which is in dispute. The defendant shall also state in the answer any affirmative defenses which may be asserted and may state any counterclaim permitted by Rule 5 of these rules. The answer shall be filed with the clerk and served on the plaintiff no later than the first Monday after the Monday entry day. The answer shall be filed by mailing first-class or by delivering a copy of it to the clerk. Service of the answer shall be made upon the plaintiff or plaintiff's 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 by mail also is complete upon receipt. Forms of answer, as promulgated by the Chief Administrative Justice of the Trial Court, shall be made available in each clerk-magistrate's office.
Massachusetts Uniform Summary Process Rule 4: Transfer of Action
A party wishing to transfer a summary process action pending in another department to a division of the Housing Court Department pursuant to law shall do so by filing in both departments a completed transfer form provided by the clerk of the court where the action was commenced. The form shall be filed in both courts no later than the day before the commencement of the trial. The clerk of the court from which the case is transferred shall forward to the clerk of the appropriate Housing Court division all relevant papers within four business days from the receipt of the transfer form. No entry fee shall be charged upon such transfer. Upon receipt of a copy of this form, the clerk of the Housing Court division shall insure that the case is scheduled 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, shall be made with the request for transfer.
Failure of a party to make a timely transfer as provided above shall not prohibit the court in which the action has been commenced from allowing such transfer on motion for cause shown at any time during the proceedings.
Massachusetts Uniform Summary Process Rule 5: Counterclaims
Counterclaims shall be permitted in accordance with the provisions of G.L. c. 239, § 8A. Counterclaims shall be set forth in the defendant's answer and shall be expressly designated as counterclaims. The right to counterclaim shall be deemed to be waived as to the pending action 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 shall not be considered waived for the purpose of a separate civil action or actions if not asserted in a summary process action. No responsive pleading to a counterclaim is necessary.
Massachusetts Uniform Summary Process Rule 6: Motions
All pretrial motions shall be made in writing containing the docket number of the case, shall state with particularity the grounds therefor, shall include a brief written statement of reasons in support, shall set forth the relief or order sought, and, except as otherwise provided in this rule, shall be filed with the court and served on the opposing party or that party's attorney, if any, no later than the first Monday after the Monday entry day. A pretrial motion shall be filed with the court by mailing first-class or by delivering a copy of it to the clerk. A pretrial motion shall be served on the opposing party by mailing first-class or by delivering a copy of it to that party or that party's attorney. Filing or service 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 is originally scheduled for trial. If, however, a motion to dismiss is filed and served on or before the entry date and if the defendant so requests after notice to the plaintiff, the motion shall be heard on the Thursday (or Friday or Monday or second Tuesday or second Wednesday) following the entry date. If the motion is denied, continued, or taken under advisement at the hearing, the defendant's answer shall continue to be due as provided in Rule 3 and the schedule for trial shall not be affected, 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 notice as the court may permit or direct.
Massachusetts Uniform Summary Process Rule 8: Jury Trial
The provisions of Mass. R. Civ. P. 38 shall apply insofar as jury trial is available in the court where the action is pending, provided that:
(1) in cases commenced in a court where jury trial is available, a demand for jury trial shall be filed with the court no later than the date on which the defendant's answer is due;
(2) in cases transferred from a court in which jury trial is not available to one in which jury trial is available, such demand shall be filed with the transfer form pursuant to Rule 4 of these rules; and
(3) in cases appealed to the Superior Court Department, such demand shall be filed within ten days of entry in the Superior Court.
Massachusetts Uniform Summary Process Rule 9: Equitable Relief
The appointment of receivers and the issuance of restraining orders and injunctions shall be governed by applicable statutes and by Rule 65 and 66, respectively, of the Massachusetts Rules of Civil Procedure; provided, however, that the court may modify the time periods and notice requirements of those rules and otherwise fashion the relief it orders as it deems appropriate.
Massachusetts Uniform Summary Process Rule 10: Entry of Default; Entry of Dismissal; Entry of Judgment After Trial, Default or Dismissal; Notice
(a) Entry of Default. If a defendant fails to answer and also fails to appear for trial, said defendant shall be defaulted at the call of the trial list on the day set for hearing, provided that the plaintiff appears at the call of the list. If a defendant has filed an answer but fails to appear for trial, said defendant shall also be defaulted provided that the plaintiff appears. If the plaintiff also fails to appear, the case shall be dismissed seven days after the trial date unless either party requests a new trial date within the seven day period. If the defendant appears but has failed to file a timely answer, no default shall enter and the court shall postpone the trial date one week from the original trial date, unless the plaintiff consents in writing to an immediate trial. If the defendant appears but has failed to file a timely answer and the plaintiff fails to appear, the court shall postpone the trial date one week from the original trial date and notice shall be sent to the plaintiff. If the plaintiff fails to appear after being notified of the new trial date, the case shall be dismissed.
(b) Entry of Dismissal. Dismissal shall be entered when a plaintiff fails to appear for trial, provided that the defendant has filed a timely answer and appears for trial. If the defendant files a timely answer but neither party appears for trial, the case shall be dismissed seven days after the trial date unless either party requests a new trial date within the seven day period.
(c) Removal of Dismissal or Default. A default or a dismissal may be removed at the court's discretion, on its own initiative or on motion of either party in writing, at any time prior to the entry of judgment on such default or dismissal.
(d) Entry of Judgment. All judgments shall be entered at 10:00 a.m. on the next business day following the court's decision after hearing or trial, or following the entry of default or dismissal, as the case may be, provided that (1) in the case of a default, said default is not removed 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 accordance with that statute, and (3) where a default is pending no judgment shall be entered unless the following prerequisites are met:
(i) The plaintiff shall file an affidavit made by a competent person, on the affiant's own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in Article I of the "Soldiers' and Sailors' Civil Relief Act" of 1940, as amended, except upon order of the court in accordance with the Act.
(ii) Where the complaint sets forth a claim for rent and/or use and occupation, the plaintiff shall file an affidavit stating the aggregate amount of payments, if any, which have been made subsequent to the date of the commencement of the action on account of such amount claimed.
(iii) The clerk shall review the documents filed with the court. No judgment by default shall enter against any defendant where it appears from such review that the summons was not properly completed, served or returned, that the complaint was not properly completed or served, or that the other documents required to be filed with the court pursuant to Rule 2(d) have not been filed.
(e) Notice. Notice of judgment shall be sent to all parties forthwith upon entry of judgment.
Massachusetts Uniform Summary Process Rule 11: Relief from Judgment
(a) District and Boston Municipal Court Departments. In the District Court and Boston Municipal Court Departments, Rules 60 and 62(b) and (d) of the Massachusetts Rules of Civil Procedure, which deal with relief from judgment and stay of execution, respectively, shall apply to summary process actions; provided that relief under Rule 60(b) shall be available only in cases where the judgment has been entered on default or dismissal. In cases that have been heard on the merits, relief under Rule 60(b) shall not be available.
(b) Superior and Housing Court Departments. In the Superior Court and Housing Court Departments, Rules 60 and 62 of the Massachusetts Rules of Civil Procedure shall apply to summary process actions.
Massachusetts Uniform Summary Process Rule 12: Appeals
Any judgment in a summary process action, except a default judgment, may be appealed by an aggrieved party in accordance with the provisions of law.
Upon receipt of notice of appeal and request for setting of bond within the time prescribed by G.L. c. 239, § 5, the clerk shall forthwith schedule a hearing before the court on whether an appeal bond shall be required and on the form and amount of such appeal bond. The hearing shall be held within three business days of said receipt.
Massachusetts Uniform Summary Process Rule 13: Execution
Execution shall issue upon application, but not prior to the termination of the time limits imposed by applicable law and by the relevant provisions of Rules 60 and 62 of the Massachusetts Rules of Civil Procedure.