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The court may, upon request of a party or upon its own motion, transfer a claim or counterclaim begun under the small claims procedure to the regular civil docket pursuant to G.L. c. 218, § 24. Any such request shall be made prior to the date when trial is scheduled before a magistrate with notice to the other party. If the court orders such a transfer: (i) the claim shall be entered on the court's regular docket for hearing and determination as though it had been begun under the Massachusetts Rules of Civil Procedure, but no entry fee shall be charged upon such transfer; (ii) the defendant shall serve and file an answer to the plaintiff's claim within twenty days of the date of such transfer, if the defendant has not already done so in the small claims action; (iii) in the order of transfer or thereafter the court may direct any party to file specific additional or substitute pleadings pursuant to the Massachusetts Rules of Civil Procedure; and, (iv) the court may impose any terms upon the transfer as the interests of justice may require.
Any small claims action within the jurisdiction of the Housing Court Department may be transferred to the Housing Court Department pursuant to G.L. c. 185C, § 20 by filing a notice of removal with the clerk of the division where such action is pending, and serving a copy thereof on the other parties. The clerk shall thereupon transfer such action to the Housing Court Department, where it shall be entered on the regular small claims docket. Thereafter, the court may, upon request of a party or upon its own motion, transfer a claim or counterclaim to the regular civil docket pursuant to G.L. c. 218, § 24, but no entry fee shall be charged upon such transfer.
Prior to trial by a magistrate, any small claims action for malpractice, error or mistake against a provider of health care shall be referred for the convening of a medical malpractice tribunal pursuant to G.L. c. 231, § 60B.
2009 Amendments. The change to paragraph (a) clarifies that any party seeking to transfer a small claim action must do so prior to the day of trial before the magistrate, thereby avoiding any undue inconvenience to the nonmoving party.
2004 Amendment. The addition to paragraph (a) clarifies that any request to transfer a small claim to the regular civil docket must be made prior to the initial trial and may not be made for the first time when an appeal is pending for trial before a judge or jury.
2001 Amendments. The change to paragraph (a) clarifies that when a small claim is transferred to the regular civil docket the defendant must file an answer within twenty days, if no answer was previously filed in the small claim. This eliminates the present uncertainty as to the next procedural step where no answer has been filed in such transferred cases. The court is also authorized to require additional or substitute pleadings where appropriate to clarify the issues in the transferred case — for example, requiring the plaintiff to file a formal complaint or an answer to a defendant’s counterclaim. The former generalized reference to the “civil rules of court applicable to the department in which the case is pending” is no longer necessary because of the July 1, 1996 merger of the District/Municipal Courts Rules of Civil Procedure into the Massachusetts Rules of Civil Procedure.
The change to paragraph (b) clarifies that removal of a small claims action to the Housing Court Department under G.L. c. 185C, § 20 is a matter of right, requiring only a notice of removal, and not a motion that involves any exercise of discretion by the court from which the small claim is being removed.
Paragraph (c) has been added as a reminder to litigants and court personnel that occasionally medical malpractice claims (usually in the form of billing disputes) are brought as small claims, and they remain subject to the statutory procedures in G.L. c. 231, § 60B. Administrative arrangements for such medical malpractice tribunals are currently made through the Superior Court’s administrative office.