Rules of Appellate Procedure  Appellate Procedure Rule 10: Docketing the appeal

(1) Civil cases

(A) Within 14 days after receiving from the clerk of the lower court the notice of assembly of the record, each appellant, including each cross-appellant and each appellant in a joint appeal, shall pay to the clerk of the appellate court the docket fee required by law or request waiver of the fee, and the clerk shall thereupon enter the appeal of such appellant or cross-appellant upon the docket. If an appellant is authorized to prosecute the appeal without payment of fees, the clerk shall enter the appeal upon the docket at the written request of a party.

(B) When payment or request for waiver is made by first class mail or its equivalent, it shall be deemed timely if accompanied by a certificate attesting that the day of mailing was within 14 days of receipt of the notice of assembly.

(2) Criminal cases

Upon receipt of the notice of assembly of the record, pursuant to Rule 9(e), the clerk of the appellate court shall enter the appeal upon the docket.

(3) In general 

Upon docketing of the appeal, the clerk shall serve written notice thereof upon each party and the clerk of the lower court. Upon motion, the lower court or a single justice of the appellate court may, for cause shown, enlarge the time for docketing the appeal or permit the appeal to be docketed out of time. An appeal shall be docketed under the title given to the action in the lower court, with the appellant identified as such, but if such title does not contain the name of the appellant, then the party’s name, unless permitted to proceed under a pseudonym, identified as appellant, shall be added to the title.

(4) Certain constitutional claims

Within 14 days after the docketing of any civil appeal that draws into question the constitutionality of an act of the legislature, if neither the Commonwealth nor an officer, agency, or employee thereof is a party to the appeal, the party asserting the unconstitutionality of the act shall notify the attorney general of such challenge. If such a question becomes apparent to a party after the 14-day period has expired, the party shall immediately notify the attorney general. Such notice shall be given either in writing or by use of any electronic method the attorney general may designate for this purpose.

(5) Consolidated appeals 

Appeals may be consolidated by order of the appellate court upon its own motion or upon motion of a party, on such terms as the court may order.

(6) Joint appeal

Upon entry of an appeal pursuant to Rule 10(a)(1) or 10(a)(2), parties who have filed a joint notice of appeal shall proceed on appeal as a single appellant, unless upon motion the appellate court grants leave to proceed separately.

(7) Cross appeals

If a cross appeal is filed, the party who files a notice of appeal first is the appellant for the purposes of these Rules. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by the parties’ agreement, filed with the appellate court, or by court order.

The clerk of the appellate court shall file upon receipt any part of the record or any document authorized to be filed in lieu of the record under any provision of Rule 9, following timely docketing of the appeal. The clerk shall immediately give notice to all parties of the date of each such filing.

If any appellant in a civil case shall fail to comply with Rule 9(d) or Rule 10(a)(1), the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant’s time for taking the required action. If, prior to the lower court’s hearing such motion for noncompliance with Rule 9(d), the appellant shall have cured the noncompliance, the appellant’s compliance shall be deemed timely.

In all cases, any counsel who does not intend to continue representing a client on appeal, for any reason, should file a motion to withdraw his or her appearance in the lower court as soon as is practicable. After an appeal has been docketed in an appellate court, any motion to withdraw appearance of counsel shall be filed with the appellate court. The motion shall include a certificate of service in compliance with Rule 13, which shows service upon all parties to the appeal, including those represented by counsel filing the motion, at the party’s or parties’ last known address.

(2019)

Rule 10(a)(1)(A) contains the entirety of prior Rule 10(a)(1) and was amended to expand the time period to docket the appeal from 10 to 14 days. The subparagraph was also amended to specify that when the lower court has authorized the appellant to proceed on appeal without payment of fees, the docketing of the appeal in the appellate court will proceed upon the “written request” of the appellant. This amendment clarifies that verbal requests to docket the appeal are not permitted.

Rule 10(a)(1)(B) is a new subparagraph which provides that the payment or request for waiver of the docket fee is timely if accompanied by a certificate attesting that the day of its mailing was within 14 days of the appealing party’s receipt of the lower court’s notice of assembly of the record.

Rule 10(a)(2), concerning the automatic docketing of criminal appeals in the appellate court, was revised to delete the clause in the prior rule authorizing docketing upon approval by the lower court of an agreed statement pursuant to Rule 8(d). This amendment is necessary because, even in Rule 8(d) situations, a notice of assembly should issue. Related revisions to Rule 9(e) also clarify that the notice of assembly should issue in this circumstance and provides a timeframe within which the notice should issue.

Rule 10(a)(3) contains new language to provide that an appellate court clerk should not add a party’s name to the title of an appeal if that party has been permitted to proceed under a pseudonym.

Rule 10(a)(4) is a new paragraph added to provide notice to the Office of the Attorney General of constitutional challenges to acts of the legislature. The paragraph is modelled after existing Mass. R. Civ. P. 24(d) and Fed. R. Civ. P. 44(b), with minor changes to specify the timing and manner of notice.

Rule 10(a)(5) is a new paragraph that addresses consolidated appeals. The substance of this paragraph was moved from prior Rule 3(b). Rule 3 prescribes how an appeal is taken, and relates to actions the appealing party must take in the lower court to initiate an appeal. In contrast, Rule 10 is concerned with docketing an appeal and consolidation happens at the time of, or after, the docketing of the appeal in the appellate court. Relocating the paragraph from Rule 3(b) to Rule 10(a) presents it in a more appropriate context.

Rule 10(a)(6) is a new paragraph that addresses joint appeals. Pursuant to prior Rule 3(b), parties with similar interests could file a joint notice of appeal in the lower court or could join in an appeal after filing separate notices of appeal and then proceed on appeal as a single
appellant, but still needed to enter their cases separately in the appellate court. This caused confusion for parties who sought to pay one docketing fee on behalf of all parties who have joined in an appeal. Rule 10(a)(6) clarifies that, when an appeal is docketed in the appellate court and the parties file a joint notice of appeal, they shall automatically proceed as a single appellant without leave of court. If the parties’ interests are aligned, judicial economy and efficiency are advanced by having them proceed in the appellate court as a single appellant.

Rule 10(a)(7) is a new paragraph that encompasses the content of the first sentence in prior Rule 16(j), which concerned the designation of parties to a cross-appeal. Moving this provision to Rule 10(a)(7) clarifies for the parties at the outset of the appeal which party is the appellant and which is the appellee. In addition to relocating the provision, the designation of the parties was revised to deem the party filing the first notice of appeal as the appellant, absent agreement or court order otherwise, consistent with Fed. R. App. P. 28.1(b).

Rule 10(c) applies to an appellant’s compliance with Rules 9(d) and 10(a). The reference to Rule 10(a)(3) was removed from the first sentence of this subdivision because Rule 10(a)(3) applies to clerks, not appellants.

Rule 10(d) is a new subdivision added to resolve confusion on the part of attorneys who have appeared in the lower court but seek to withdraw from representation for purposes of an appeal. Adding this subdivision clarifies that, after an appeal is docketed in the appellate court, a motion to withdraw must be filed in the appellate court, not the lower court. This will reduce confusion as to which court the motion should be filed in after an appellate court has jurisdiction of a case.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(2001)

[To Appellate Rule 10(A)(1)] Prior to amendment in 2001, the first sentence of Appellate Rule 10(a)(1) provided that “the appellant” was to pay the docket fee to the clerk of the appellate court within ten days after receipt of notice of the assembly of the record or approval of an agreed statement. Where there have been multiple appellants or cross-appeals, the appellate clerks have required each appellant or cross-appellant to pay a separate docket fee. The 2001 amendment makes clear that separate docket fees are required.

(1999) 

The 1999 amendments to Appellate Rule 10(a) were part of a comprehensive set of amendments to the Appellate Rules (Rules 1, 3, 4, 8, and 10) that had been proposed by the Supreme Judicial Court Committee on Appeals of Child Welfare Cases. The purpose of the 1999 amendments is described in the 1999 Reporter’s Notes to Appellate Rule 1(c).

(1994)

[To MASS.R.A.P. 10(C)] This amendment eliminates noncompliance with Mass.R.A.P. 10(a)(1) (the appellant’s obligation to pay the docket fee within the ten day period described in Mass.R.A.P. 10(a)(1)) from the instances of noncompliance that can be cured prior to a hearing on a motion to dismiss for noncompliance. Noncompliance with Rule 9(c) (appellant’s obligations re: assembly of the record and transmission of the transcript) can still be cured prior to a hearing for dismissal based on such noncompliance.

Many lawyers and pro se litigants relied on the previous version of the last sentence of Mass.R.A.P. 10(c) as their rationale for paying the filing fee only after there had been a motion to dismiss and before the lower court’s hearing of such a motion, even though Mass.R.A.P. 10(a)(1) specifically required the payment “[w]ithin ten days after receiving from the clerk of the lower court notice of assembly of the record, or of approval by the lower court of an agreed statement ...” Although the last sentence of Rule 10(c) seemed to permit such late payment as a matter of right, the practice in the Appeals Court was to refuse to accept a docket fee sent by the appellant subsequent to the ten day period described in Rule 10(a)(1) even if it was paid before a hearing described in Rule 10(c). The appellant who attempted to file the fee late was told that he or she must be successful on a motion to docket late in order for the Appeals Court to accept the payment, and that this motion would not ordinarily be entertained by the single justice while a motion to dismiss was pending in the trial court.

The prior wording of the last sentence of Rule 10(c) was therefore misleading to appellants who thought they had a right to pay the fee after the ten day period but before the hearing on a motion to dismiss; moreover, the practice of the Appeals Court may have been in disregard of the clear language of the same sentence. It does not make sense to have a ten day period in which to pay a filing fee which is widely ignored. Consequently, this amendment removes the excuse and automatic permission to pay the fee late and also makes the Rule in accord with the practice of the Appeals Court. This amendment in no way eliminates or alters the right of an indigent pro se litigant to obtain a waiver of the obligation to pay the filing fee.

Prior to the 1999 amendment, Appellate Rule 10(a)(3) required that upon the docketing of the appeal in the appellate court, the clerk serve written notice of the docketing upon each party. The 1999 amendment requires that the clerk of the appellate court also serve written notice on the clerk of the lower court whose decision is subject to the appeal.

It is significant to note that although the 1999 amendments were part of a package of amendments that related to child welfare appeals, the amendment to Appellate Rule 10(a)(3) applies not only to child welfare appeals, but all other appeals as well.

(1979) 

The substance of former subdivision (a) has been divided into subdivisions (a)(1), applicable to civil cases, and (a)(3), applicable to both civil and criminal cases.

Subdivision (a)(2), which provides for the automatic docketing of an appeal in a criminal case upon receipt by the clerk of the appellate court of notice of assembly of the record or approval of an agreed statement, is added.

The provision of a subdivision (a)(3) for notice to the parties of the docketing of a criminal appeal conforms to prior practice under former Appeals Court Rule 1:11 (1975: 3 Mass.App.Ct. 803) and Supreme Judicial Court Rule 1:11 (1975: 366 Mass. 860).

Since in a criminal appeal the appellant is responsible neither for initiating assembly of the record (see Rules 8[b][2], 9[c] ) nor for taking any step to docket the appeal ( [a][2], supra), subdivision (c) is limited in application to civil cases.

(1975) 

The amendment requires the clerk to give written notice of the docketing to counsel for each party (or to each unrepresented party directly). This ensures that all parties receive notice of the docketing date, which is the starting point for various periods under the Rules; see, e.g. Appellate Rules 11, 11.1, and 19.

In Appellate Rule 10(c) substitution of “Rule 9(c)” for “Rule 9(b)” merely corrects a previous typographical error.

(1973) 

Appellate Rule 10 covers the mechanics of docketing the appeal in the appellate court.