Future Effective Date
Rules of Appellate Procedure

Effective March 1, 2019

Rules of Appellate Procedure Appellate Procedure Rule 13: Filing and service

Effective Date: 03/01/2019
Updates: Amended October 23, 1989, effective January 1, 1990 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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Table of Contents

(a) Filing

Documents required or permitted to be filed in the appellate court shall be filed with the clerk.

(1) Filing generally

Except as provided in Rule 13(a)(2), filing may be accomplished in hand, through any electronic means provided by the clerk or by first class mail or its equivalent, addressed to the clerk, but filing shall not be timely unless the documents are received by the clerk within the time fixed for filing, except that briefs and appendices
shall be docketed on the date of receipt and shall be deemed timely filed if

(A) received within the time fixed for filing, or

(B) when filed by first class mail or its equivalent, they are accompanied by a certificate attesting that the day of mailing was within the time fixed for filing.

If a motion requests relief which may be granted by a single justice, the justice may permit the motion to be filed, in which event the justice shall note thereon the date of filing and shall thereafter transmit it to the clerk.

(2) Documents filed by a self-represented party confined in an institution 

If an institution has a system designed for legal mail, a self-represented party confined in an institution must use that system to receive the benefit of this rule. A document other than a notice of appeal filed by such party is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and is accompanied by a signed certificate in compliance with Rule 13(a)(1)(B) setting out the date of deposit. If the document is not received by the last day for filing, the certificate shall give rise to a presumption of timely filing provided it shows compliance with this rule. Failure to attach the certificate shall not of itself render the document invalid or untimely, and the appellate court may permit the later filing of a certificate. The time period for the opposing party to file any response to the document runs from the date when the appellate court dockets the document.

(b) Service of all documents required

Copies of all documents filed by any party shall, at or before the time of filing, be served by a party on all other parties to the appeal or review.

(c) Manner of service

Service may be personal or by first class mail or its equivalent. Personal service includes delivery of the copy to the party’s mailing address. Service by first class mail or its equivalent is complete on mailing. Service may also be completed electronically with the consent of the party being served.

(d) Certificate of service of all documents other than briefs and appendices

(1) Requirement 

Documents presented for filing, other than a brief or appendix, shall contain a certificate of service. A certificate of service may appear on or be affixed to the document filed. The clerk may permit documents to be filed without a certificate of service but shall require such certificate to be filed promptly thereafter.

(2) Contents 

A certificate of service shall be in the form of a statement certifying 

(A) the date and manner of service;

(B) the name, mailing address, and, if known, electronic address of the person(s) served; and

(C) the printed and signed name, Board of Bar Overseers (BBO) number, if any, mailing and electronic addresses, and telephone number of the person who made service, and if that person is affiliated with a firm or office, the office name.

(e) Certificate of service of briefs and appendices

(1) Requirement.

Briefs and appendices presented for filing shall be accompanied by a certificate of service. The certificate of service shall appear as a part of the brief being filed as required in Rule 16(a)(15).

(2) Contents.

The certificate of service shall be in the form of a certification that includes

(A) the name of the court and the number of the case;

(B) the title of the case;

(C) the title of the brief;

(D) the party on whose behalf service was made;

(E) the printed and signed name, Board of Bar Overseers (BBO) number, if any, mailing and electronic addresses, and telephone number of the person who made service, and, if that person is affiliated with a firm or office, the office name;

(F) the name and mailing address and, if known, electronic address of the person(s) served; and

(G) the date and manner of service.

Reporter's notes

(2019)

Rule 13(a)(1), prior Rule 13(a), was amended to incorporate modern means of service. A party may file either in hand, through any electronic means provided by the clerk, or by first class mail or its equivalent. The phrase “any electronic means provided by the clerk” includes any electronic filing system offered by the clerk. The phrase “first class mail or its equivalent” is new and defined in Rule 1(c). Rule 13(a)(1) was also amended to simplify the provision allowing a party to mail a brief to the appellate court on the day it is due and have the clerk deem it timely filed even when received after the due date. Instead of the past requirement of an affidavit attesting that the day of mailing of a brief was within the time fixed for filing, the new provision permits a certificate attesting the date is within the time. This certificate will provide the appellate court clerk with sufficient information to determine the date of mailing.

Rule 13(a)(2) is a new paragraph that incorporates the so-called “inmate mailbox rule” into the appellate rules and governs an incarcerated or civilly committed person’s filing of briefs, motions, and other documents, except a notice of appeal, which is governed by Rule 4(d). Rule 13(a)(2) is intended to address the concerns highlighted by the Supreme Judicial Court in Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), as to the limitations of a person confined in an institution to effectuate the “mailing” of a document on a certain day. This provision is consistent with Rule 4(d) and Fed. R. App. P. 25(a)(2)(C). However, unlike the Federal rule, a party’s certificate need not state that first-class postage has been prepaid because some Massachusetts institutions affix postage after the item leaves the inmate or civilly committed person’s hands. Importantly, the rule is written to encompass filings by any self-represented person confined in an institution. This includes persons confined on criminal or civil grounds, such as a sexually dangerous person commitment or a court-ordered involuntary civil commitment for mental illness or for alcohol and substance abuse disorders. See Reporter’s Note to Rule 4(d).

Rule 13(b) was revised to remove reference to service by the clerk. This amendment clarifies that it is the party’s obligation to serve documents on all parties to the appeal. The clerk will still serve notice of the filing of a notice of appeal pursuant to Rule 3(d), but the filer always has the obligation to serve a copy of a document upon the parties to an appeal unless specifically provided otherwise.

Rule 13(c) was revised to explicitly allow electronic service where a party consents to such service.

Rules 13(d) and 13(e) are substantially revised subdivisions that detail the requirement for, and contents of, a certificate of service. Rule 13(d) governs all documents other than briefs and appendices, which are governed by Rule 13(e). Under both subdivisions, a party must include in the certificate of service the electronic and mailing addresses of the person served. The inclusion of this information promotes consistency with the electronic-filing procedures implemented in the appellate courts. Prior Rule 13(d)’s provisions allowing acknowledgment by the person served as an alternative to proof of service and requiring a statement under the penalties of perjury were struck. The revised subdivisions are consistent with Mass. R. Civ. P. 5(d)(1) and Mass. R. Crim. P. 32(b), which do not require the certificate of service to be made under the penalties of perjury.

Rule 13(e)(1) is a new subdivision that requires the certificate of service of a brief and appendix be contained within the brief itself. This requirement is intended to simplify the process of filing a brief. This language departs from the Appeals Court’s prior practice of requesting parties to file a separate certificate of service. Finally, Rule 13(e)(2) specifies the contents of a certificate of service of a brief and appendix, and contains additional requirements than a Rule 13(d) certificate of service for other documents.

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.

(1989) 

Mass.R.A.P. 31(b) requires that “[a]ll papers filed with the clerk ... shall be entered chronologically in the docket ...” But prior to this amendment, Mass.R.A.P. 13(a) stated that “briefs and appendices shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excepting special delivery, is used.” This clash in language has caused some problems for clerks, including additional clerical time spent modifying computerized dockets. The amended rule requires briefs and appendices be docketed on the date of receipt, but by utilizing affidavits by counsel, continues to permit counsel to mail within the time fixed for filing, even if receipt at the clerk’s office is subsequent thereto. Consequently, there will no longer be a need for asterisks or other special notations on the dockets.

(1973) 

Appellate Rule 13 governs filing and service requirements. Papers may be filed by mail; they must be actually received by the clerk within the filing deadline, except that briefs and appendices are regarded as having been filed upon mailing so long as the most expeditious form of mailing is utilized; special delivery need not be used. Service as between parties is, if accomplished by first class mail, complete upon mailing. Personal service may be made to a responsible person in the office of counsel for the recipient.

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Updates: Amended October 23, 1989, effective January 1, 1990 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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