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Motion Practice in the Appeals Court

Requests for relief should be submitted in the form of a motion pursuant to Rule 15 of the Massachusetts Rules of Appellate Procedure.

Introduction

Any request to the Appeals Court for procedural relief (such as a motion for more time to file the brief, a motion to stay appellate proceedings, a status report, or a motion to file fewer copies of the brief) should be submitted to the court in the form of a motion. 

Every motion must state with particularity the grounds on which it is based, shall set forth the order or relief sought. If known, each motion should state whether the motion is assented to, or that no other party is in opposition, or if any party intends to file an opposition or other response.  Mass. R. A. P. 15.

Motions must comply with the formatting requirements found in Mass. R. A. P. 20(b)(2).  Importantly, motions are to include a caption setting forth the name of the court (Appeals Court), title of the case, and the Appeals Court docket number.  The motion should have a brief title that clearly indicates the purpose of the motion.  The text must be double-spaced and shall be in 12 point or larger font. All margins must be at least 1 inch.  

Every motion filed with the court must be accompanied by a certificate of service and a copy of the motion must be sent to all opposing parties in the case. Any supportive briefs, affidavits or other papers should be filed and served at the same time that the motion itself is filed and served. All motions and other papers must comply with the rules on personally identifying information.

In general, the Appeals Court does not hold hearings on motions. Motions are decided based on the papers that have been filed, usually within a week or so of filing the motion.

Any party to a case may file a response to any motion filed within 7 days of service of the motion. However, motions for procedural orders may be acted upon without awaiting a response, Rule 15(b). Any response received after the court or single justice has ruled upon the motion will be taken as a request for reconsideration, vacation, or modification of the court’s action.

Motion to Strike

If a motion, such as a motion to strike, is referred to the panel assigned to decide the appeal, there will not be action on that motion until the appeal is decided.

Stipulations or Motions for Voluntary Dismissal

Stipulations or motions for voluntary dismissal are governed by Rule 29, which is specific in its requirements. The dismissal must be with prejudice.  

For a civil case, the motion must specify the terms as to payment of any costs and attorney's fees. Mass. R. A. P. 29(b)(1).

For a criminal case, if the appellant is the defendant, the motion must be accompanied by either an affidavit by the defendant, or an attestation by counsel, that states the defendant assents to the dismissal of the appeal with prejudice. If the motion states that the appeal is moot, an affidavit by the defendant is not required.  Mass. R. A. P. 29(b)(2).

Motion for Leave to File a Supplemental Appendix

In civil cases, only the appellant has the right to file an appendix, Rule 18(a). If an appellee wishes to supplement the appendix on file, a motion for leave to file a supplemental appendix must be filed supported by an affidavit of counsel that the documents sought to be included are part of the record below.  Mass. R. A. P. 18(b)(5).

Motions for Attorney's Fees and Costs

Motions for attorney's fees and costs are governed by Rule 26.

Any request for appellate attorney’s fees and costs must be included in the brief, with a citation to the authority therefor.  Mass. R. A. P. 16(a)(10).  

Motions for Extension of Time (Motions to Enlarge)

If for some reason you cannot meet the prescribed deadline in which to serve and file your brief and appendix, or a status report, you may file a motion with the Appeals Court asking for more time. The motion must set forth the reasons for the requested extension, provide a date certain by which the brief will be filed, and must be accompanied by a certificate of service which lists the name of the document being served, the date of service, the manner of service (e.g., first class mail, in hand service, or e-service through eFileMA.com), and the names and addresses of all parties being served. A copy of the motion must be served on all other parties to the appeal.

It is the policy of the Court to grant no more than one motion for enlargement of time per side with an affidavit setting forth (a) good cause to warrant the requested enlargement, and (b) an explanation why the particular time period requested is reasonable, the enlargement sought not to exceed 120 days.  Further enlargements of time will ordinarily not be granted absent genuine emergency, such as a death, illness, or serious injury. Please note that neither need for review of brief by a CPCS mentor nor the mere assent by opposing counsel constitute good cause.

If you have not filed the docketing statement, the court can deny any motion to enlarge time to file a brief or a motion to stay (or pause) appellate proceedings, until the docketing statement is filed. If your motion to enlarge time to file a brief was denied without prejudice for refilling for failure to file the docketing statement, access the Docketing Statement (civil and criminal), fill it out and file it according to the instructions.

Once the court has received the docketing statement, you may refile your motion to enlarge.

In general, as with most motions, it can be expected that any motion to enlarge may be ruled upon within 7 days. If you have filed a motion to enlarge and your due date is coming up, the motion will likely be decided within that time frame. It will not be expedited simply because your due date is approaching. No penalty will be imposed for failure to file the brief until the motion to enlarge is ruled upon.

The clerk’s office suggests that all motions to enlarge be filed 7 days before any impending due date.

Motions Filed After Panel Assignment

Motions filed after panel assignment by counsel must be e-filed as a PDF through eFileMA.com. A case is considered assigned to a panel only after briefing is complete and a notice of oral argument or assignment to a panel has been sent to the parties. If a PDF is e-filed, there is no need to mail the court a paper copy.  

 

Motions to Order Additional or Corrected Transcripts in a Criminal Case

1. The Motion to Order Additional or Corrected Transcript(s) is available as a PDF form.  The instructions are included with the form.

2. The motion and certificate of service may be signed electronically.

3. Attorneys shall file the motion by saving all of the completed forms as a single PDF, and filing through eFileMA.com.  

4. After the motion is filed and reviewed by the Appeals Court, the court will enter an order, notify the parties, and notify the trial court when applicable.

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