(a) Agreement for Judgment. The parties may at any time file with the court, in person or by mail, an agreement for judgment which may include an agreement for a payment order, on the Agreement for Judgment form promulgated by the court. The clerk shall not accept for filing, and the court shall not approve, any agreement for judgment or for a payment order that is not set out on such form.
If the Agreement for Judgment form is filed prior to the scheduled trial date, neither party need appear on the scheduled trial date unless directed otherwise by the court.
If the Agreement for Judgment form is proffered when the parties are present, the court shall review the agreement and, if it includes a payment order, inquire of the defendant to ascertain that he or she is able to pay the payment order and understands the consequences of not complying with the payment order.
Unless justice would not be served thereby, the court shall enter such agreement as the judgment and payment order of the court and notify the parties in writing that it has done so. The court shall not enter a payment order or otherwise approve any payment agreement that relies on exempt sources of income.
(b) Continuances. Where the defendant has been given notice as provided in these rules, trial shall not be continued to another date unless by agreement of the parties with the approval of the court, or unless there is a showing of good cause. Any motion for continuance shall be in writing unless the court permits an oral application. Except as provided in Rule 3(b) , the defendant’s appearing ready for trial and requiring the plaintiff to prove his or her case is not good cause for granting the plaintiff a continuance.
(c) Plaintiff’s Failure to Appear or Proceed to Trial. If the defendant appears for trial on the scheduled trial date and the plaintiff fails to appear or is not prepared to proceed to trial, judgment shall be entered for the defendant. If neither the plaintiff nor the defendant appears for trial, a judgment of dismissal shall be entered.
(d) Defendant’s Failure to Appear for Trial. If the plaintiff appears for trial and the defendant fails to appear, the court may render judgment for the plaintiff and make an order for payment to the plaintiff. Prior to entering such judgment the court shall review the Statement of Small Claim to determine whether further inquiry or an assessment of damages is required. Normally these should be done on the scheduled trial date. The court shall examine any of the following circumstances:
(1) Uncertain Jurisdiction. If the court’s subject matter jurisdiction or proper service of the Statement of Small Claim is uncertain, the court shall inquire into the matter.
(2) Uncertain Claim. If the facts alleged, taken as true, do not appear to constitute a claim on which relief may be granted, the court shall inquire into the matter.
(3) Uncertain Liability. If the facts alleged, taken as true, do not establish each essential element of a claim, the court shall inquire into the matter and may elicit additional facts to determine if such element or elements are established.
(4) Uncertain Damages. If the Statement of Small Claim requests damages that are not a sum certain or a sum which can by computation be made certain, the court shall conduct an assessment of damages. The court shall inquire into any amounts sought which do not appear to be supported by the facts as alleged.
(5) Discretionary Awards. If the law requires an exercise of discretion in awarding multiple damages, a statutory penalty, or discretionary attorney’s fees or court costs, the court shall inquire into the matter and exercise such discretion.
(6) When Review for Reasonableness Required. The court shall review any amounts that the law requires be examined for reasonableness, such as contractual attorney’s fees or collection costs. In such matters, the court’s function is not to substitute its own discretion for the parties’ agreement, but to avoid court enforcement of a clearly unjust result.
(7) Inconclusive Military Affidavit. If the plaintiff is unable to file the affidavit required by the Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq. , stating that the defaulting defendant is not in military service and showing necessary facts to support the affidavit, the court shall inquire into the matter. If it appears that the defendant is in military service, the court shall not enter any default judgment without first appointing an attorney for the defendant, and under certain circumstances staying the entry of any default judgment, as required by the Act. If the court cannot determine from the affidavit whether the defendant is in military service, the court may exercise the discretion granted by the Act to require an indemnity bond, to stay execution, or to make such other orders as the court deems necessary to protect the rights of the defendant, or the court may dismiss the claim without prejudice.
(8) Plaintiff in trade or commerce or pursuing assigned debt. Where the claim involves a plaintiff in trade or commerce or pursuing assigned debt and the plaintiff has not complied with Rule 2(b) , the court shall not enter a default judgment for the plaintiff, and shall dismiss the claim without prejudice.
(e) Appearance as Substitute Counsel. An attorney who is not current counsel of record for a party shall not appear in court to answer for that party until he or she has filed with the court a written notice of appearance. An attorney appearing as substitute counsel for another attorney must file a written appearance, which may indicate that the attorney is appearing as substitute counsel solely for that day’s proceedings. Any such notice of appearance shall be entered on the docket and filed with the case papers. The clerk need not notify counsel who has filed a time-limited appearance of any future events or proceedings in that case.
(f) Trial. A small claim action shall generally be tried, and pretrial and postjudgment motions relating to such trials shall generally be determined, by a magistrate. Judges may hear such matters when deemed necessary by the court, provided that the defendant has first acknowledged in writing that, by electing to proceed with an initial trial by a judge, the defendant will waive the right to appeal for a subsequent trial by a judge or before a jury. Magistrate hearings shall be conducted in a courtroom, if one is available, and if not, in an area of the courthouse which is open and available to the public. Whenever possible, a court officer shall be in attendance. A magistrate shall sit at the clerk-magistrate’s bench and not at the judge’s bench, and shall not wear a robe. At the beginning of the small claims session, a magistrate shall identify himself or herself as such to those present. A magistrate who has acted as a mediator pursuant to Uniform Magistrate Rule 4 shall not thereafter rule on any motion, nor preside over any trial or enforcement proceeding, in the same small claim.
(g) Conduct of Trials. All small claim proceedings shall be recorded in accordance with applicable rules of court. The parties and witnesses testifying shall be sworn. The court shall conduct the trial in such order and form and with such methods of proof as it deems best suited to discover the facts and do justice in the case. The participation by attorneys representing parties may be limited in a manner consistent with the simple and informal adjudication of the controversy. Non-attorneys shall be allowed to assist parties in the presentation or defense of their cases when, in the judgment of the court, such assistance would facilitate the presentation or defense. When an oral motion has been made, the clerk shall note in the docket any action taken on the motion.
(h) Judgments. Judgment shall be entered forthwith upon the decision of the court. The date of judgment shall be the date the judgment is entered in the docket. The clerk shall promptly complete and send to each party by first class mail the Notice of Judgment and Order form.
(i) Payment Hearing and Orders to Pay. If the decision of the court is for the plaintiff, the court shall, except where justice will not be served thereby, also order payment to the plaintiff, or to the court on behalf of the plaintiff, of the amount of the judgment and costs, as the case may be, on or by a date stated or in specified installments. If the defendant has appeared and is before the court at the time of decision and if the defendant does not pay the amount of the judgment and costs or agree to a payment schedule acceptable to the plaintiff, the court shall conduct a payment hearing, including requiring the defendant to complete a written financial statement signed under the penalties of perjury. The financial statement shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available to the court, to attorneys whose appearances are entered in the case and to the parties to the case. If the defendant is not before the court at the time of decision or the defendant has not appeared, the order shall be for the full amount of the judgment and costs, payable in full in thirty days, unless the court orders otherwise. The provisions of an order to pay shall be stated on the Notice of Judgment and Order form. Unless a payment hearing is waived by the plaintiff, the court shall also schedule the matter for a payment hearing thirty days from the date of judgment or shortly thereafter. The Notice of Judgment and Order form shall advise the parties that, unless the defendant timely appeals from the judgment or makes payment as ordered, the defendant is required to complete a written financial statement under the penalties of perjury, to provide the plaintiff with a copy of the statement prior to the payment hearing, and to appear in court on that date. The Notice shall further state that any such financial statement shall be kept separate from other papers in the case and shall not be available for public inspection, but shall be available to the court, to attorneys whose appearances are entered in the case and to the parties to the case. The Notice shall further state that if the defendant fails to appear on that date and the plaintiff does appear and states under oath or in writing under the penalties of perjury that payment has not been made as ordered, the court may immediately issue a capias to bring the defendant before the court without the need for prior service of an Order to Show Cause pursuant to Rule 9(a) . The Notice of Judgment and Order form shall also advise the parties that they are not required to appear in court on that date if payment has been made as ordered. Following the payment hearing the court may amend its previous order to pay or issue a new order.
(j) Costs. If the decision of the court is for the plaintiff, the plaintiff’s actual cash disbursements for the entry fee and surcharge shall be allowed as costs. Witness fees and other costs shall be allowed only by special order of court. The court may, in its discretion, award additional costs in a sum not exceeding one hundred dollars against any party who has set up a frivolous or misleading claim or answer, or has otherwise sought to hamper a speedy and fair determination of the claim. The court may at any time amend the judgment to add the cost of service of any post-judgment process that was necessary to enforce the judgment.
(k) Execution. Execution shall issue to the plaintiff upon written request after the payment hearing, or if no payment hearing is scheduled, thirty days after the entry of judgment. Execution shall be in accordance with the statutory requirements for execution on civil judgments generally; provided, however, that execution shall in no way affect the procedure for enforcement of judgments under Rule 9 of these rules, except that double satisfaction of judgments shall not be allowed.
As amended, effective January 1, 2002 and effective October 1, 2009.
2009 Amendments. New paragraph (a) requires use of the official Agreement for Judgment form, which includes the list of statutory exemptions. This insures that the court does not order or otherwise endorse any private payment agreement that relies on exempt sources of income. General Laws c. 224, § 16 (made applicable to small claims by G.L. c. 218, § 22 ) prohibits the court from ordering a defendant to make any payment from exempt income. Likewise it is not appropriate for the court to endorse any voluntary payment agreement that relies on exempt sources of income.
The amendment to paragraph (b) makes clear that a defendant’s appearance for trial does not automatically result in prejudice to the plaintiff sufficient to trigger grounds for a continuance pursuant to Rule 3(b) .
The amendment to paragraph (c) provides that judgment is to be entered for the defendant when a plaintiff is unable to proceed to trial and there is no good cause basis for a continuance.
Paragraph (d) now lists specific matters that must be considered by the court before a default judgment may be entered, in order to determine legal liability, correctly calculate an award, and avoid any misuse of the small claims court. These are obligations that are entirely consistent with the court’s obligation in an adversarial proceeding to maintain his or her neutrality and include the following:
(d)(1) Uncertain Jurisdiction. When the court’s jurisdiction is questionable (e.g., a claim that appears to fall under the Massachusetts Tort Claims Act), then the matter must be reviewed by the court for a determination as to whether jurisdiction exists.
(d)(2) Uncertain Claim. By defaulting, a defendant admits any facts alleged in the Statement of Small Claim, but does not admit legal liability. If there is uncertainty, the court must determine whether the Statement of Small Claim sets forth a cognizable cause of action on which relief may be granted. While Rule 2 does not require the allegations of facts, only facts alleged are admitted by a defendant’s default.
(d)(3) Uncertain Liability. If the facts alleged do not include all essential elements of the claim, then the court must elicit these additional facts before a default judgment may enter. Since a defaulting defendant is deemed to have admitted the facts set forth in the Statement of Small Claim, the court may not require the plaintiff to offer evidence of a prima facie case, except as to any element of the claim that is not covered by the facts set forth in the statement. A default judgment may enter only if the facts alleged in the Statement of Small Claim and any additional facts elicited and established by evidence provide a prima facie case on a recognized claim for which relief may be granted. This does not require the court to raise potential matters of defense not raised by the defendant. There are differing views as to the appropriateness of doing so, given the tension between the special nature of small claim proceedings and the court’s ethical obligations to maintain his or her neutrality.
(d)(4) Uncertain damages. The court must conduct an assessment of damages whenever the Statement of Small Claim requests damages that are not a sum certain or in instances where the amount claimed appears to be inflated or unrelated to the claim. No assessment of damages should be conducted except as indicated in this rule.
(d)(5) Discretionary awards. A small claim must be reviewed by the court whenever an exercise of discretion is required in awarding multiple damages (e.g., in G.L. c. 93A consumer protection claims), statutory damages (e.g., for bad checks and shoplifting claims), or discretionary attorney fees or court costs.
(d)(6) Review for reasonableness. Some items that are not considered discretionary must still be reviewed by the court for reasonableness (e.g., contractual attorney fees or collection costs).
(d)(7) Inconclusive military affidavit. W here the plaintiff is unable to file the required affidavit, the court cannot enter a default judgment without further inquiry and compliance with the requirements of the Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq.
(d)(8) Plaintiff in trade or commerce or pursuing assigned debt. Before entering a default judgment, the court must review the Statement of Small Claim to determine whether the plaintiff is required to comply with Rule 2(b) and if so whether the plaintiff has properly done so.
When the court must conduct such a review or assessment, normally it should be done on the scheduled trial date.
Paragraph (e) now requires that substitute or “covering” counsel file an appearance. The rule permits substitute counsel to file a time limited appearance, thereby acknowledging a common practice in small claim proceedings while permitting the court to maintain an accurate record of all attorneys who appear before the court. As the rule applies exclusively to litigants who are already represented by counsel, it does not implicate the terms of the Supreme Judicial Court order, effective May 1, 2009, regarding Limited Assistance Representation.
Paragraph (k) now delays the issuance of an execution until after the payment hearing or, if no payment hearing is scheduled, until the expiration of the usual 30-day payment order. This avoids any unfair surprise to the defendant by delaying any levy on the judgment until the defendant has had an opportunity to pay as ordered or to attend a payment hearing.
Please note that due to the insertion of new paragraphs d and e in Rule 7 of the 2009 Amendments, paragraphs f-k were formerly paragraphs d-i.
2001 Amendments. New paragraph (a) encourages the parties to file agreements for judgment or payment orders whenever they are able to reach such agreement.
New paragraph (d) is necessary to conform this Rule to the intent of the small claims amendments enacted by St. 1992, c. 379 that small claims matters generally be heard in the first instance by a magistrate. The new paragraph recognizes the authority of judges to adjudicate small claims cases in the first instance when needed in a particular court. The language of the paragraph responds to the Supreme Judicial Court’s decision in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, 430 Mass. 607 (January 20, 2000) which holds that, by proceeding with an initial hearing by a judge, a defendant, including a plaintiff or a third party with respect to any counterclaim or any third-party claim brought against him, waives his right to appeal for a subsequent trial by a judge or before a jury. The language also responds to the Supreme Judicial Court’s acknowledgment in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, supra at 610, that magistrates may determine contested motions in small claims actions, thereby in effect overruling the decision of the Appellate Division of the Boston Municipal Court in Acentech, Inc. v. Cecconi, 1994 Mass. App. Div. 44. (Note: On October 25, 2000, the Appeals Court decided Boat Maintenance & Repair Co. v. Lawton, 50 Mass. App. Ct. 329 , in which that court determined that a clerkmagistrate had no authority to hear and decide a contested motion in a small claim action. However, in so deciding, the Appeals Court did not acknowledge the Supreme Judicial Court’s earlier decision in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, supra ).
Paragraph (d) also states that magistrates who have mediated a small claim be disqualified from ruling on motions or presiding over any trial on the merits. It also requires recusal from any enforcement proceedings in the same small claim, because it seems inappropriate for one person to exercise both mediation and enforcement functions in the same case, even at different stages of the proceedings. The requirement that a court officer be in attendance whenever possible is strongly recommended by the Trial Court Committee on Small Claims Practices and Procedures. The remaining amendments in paragraphs (d) and (e) codify the procedural directives promulgated in the Policy Statement of Chief Justice for Administration and Management John E. Fenton, Jr., “Policies Regarding Hearing Small Claims under the Court Reorganization Act, Chapter 379 of the Acts of 1992" (February 19, 1993). Those involving the use of a courtroom and an appropriate bench, and involving the recording of proceedings, were also supported by the Trial Court Committee on Small Claims Practices and Procedures.
Paragraph (g) introduces an automatic payment hearing. The Trial Court Committee on Small Claims Practices and Procedures has found that frustration with the current system for collecting judgments is the principal source of citizen dissatisfaction with the small claims process. Presently the burden falls to the prevailing party to initiate collection proceedings and to get the defendant before the court. The new payment hearing mandates a more active role for the courts. As the Committee has noted:
“this streamlined approach to collections would be less costly for the prevailing party because an automatically scheduled hearing would eliminate the need, in the first instance, for service of a Notice to Show Cause. In addition, the parties would more clearly recognize that they have thirty days to work out payment in a non-adversarial manner.”
The provisions in Paragraph (g) for the filing of a financial statement also require that any such financial statement is to be protected from public inspection in terms similar to those of Rule 401(d) of the Supplemental Rules of the Probate Court .
The Committee secured the cooperation of three District Courts and one Housing Court and ran the payment hearing system as described in paragraph (g) on an experimental basis. The results not only supported the Committee’s belief that more judgments would be satisfied at an early date with less cost to the plaintiff, but court staff also found that the new procedure was less time consuming for them.
Since no appeal lies from the entry of a default judgment, a defendant against whom a default judgment has been entered must, upon receipt of a Notice of Judgment and Order form, complete a written financial statement, provide a copy of that statement to the plaintiff, and appear in court on the date specified in the Notice and Order form in accordance with the provisions of Rule 7(g) if payment has not been made as ordered.
The amendment to paragraph (h) provides authority for the longstanding practice of requiring the defendant to reimburse the plaintiff for the costs of service of any post-judgment Order to Show Cause or capias that is necessary to enforce the judgment.