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Rules of Appellate Procedure

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

Effective Date: 10/01/2001
Updates: Amended June 27, 1974, effective July 1, 1974 Amended effective February 24, 1975
Amended May 15, 1979, effective July 1, 1979 Amended effective May 1, 1994 Amended July 28, 1999, effective September 1, 1999 Amended effective October 1, 2001

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(a) Docketing the appeal

(1) Civil Cases

Within 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, each appellant, including each cross-appellant, shall pay to the clerk of the appellate court the docket fee fixed by law, and the clerk shall thereupon enter the appeal of such appellant or cross-appellant upon the docket.

(2) Criminal Cases

Upon receipt of notice of assembly of the record, pursuant to Rule 9(d), or of approval by the lower court of an agreed statement, pursuant to Rule 8(d) , 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, his name, identified as appellant, shall be added to the title.

(b) Filing

The clerk of the appellate court shall file upon receipt any part of the record or any paper authorized to be filed in lieu of the record under any provisions 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.

(c) Dismissal for failure of appellant in a civil case to comply with Rule 9(c) or Rule 10(a)

If any appellant in a civil case shall fail to comply with Rule 9(c) or Rule 10(a)(1) or (3), 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(c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely.

Reporter's notes

(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.

 

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Updates: Amended June 27, 1974, effective July 1, 1974 Amended effective February 24, 1975
Amended May 15, 1979, effective July 1, 1979 Amended effective May 1, 1994 Amended July 28, 1999, effective September 1, 1999 Amended effective October 1, 2001

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