The procedure for commencing a summary process action under this rule can be summarized in the following three steps:
First a plaintiff wishing to institute an action must secure and complete the required form. One item he must indicate on the form is the date of the hearing. In order to determine this, the plaintiff must choose an entry day (any Monday, prior to which he can get effective service on the defendant and return of service. The hearing date will be on the second Thursday following the Monday entry day selected (unless Friday, Monday, Tuesday, or Wednesday, as a day other than or in addition to Thursday, is approved for that court). Although cases originally commenced in the Superior Court Department are at first scheduled for a hearing on the second Thursday after the entry day, it is likely that such Superior Court cases would have to be rescheduled as provided in section (c).
Second, the plaintiff must have a copy of the completed Summary Process Summons and Complaint properly served on the defendant and get the original of this form back from the process server showing a return of service. Service must be made not later than the seventh day nor earlier than the thirtieth day before Monday entry day chosen. Therefore, service could be made on the Monday of the week prior to a Monday entry day. Note that Rule 2(b) provides that service is not to be made prior to the expiration of the tenancy except as permitted by law. See G.L. c. 186, §§ 11 , 12 ; G.L. c. 239, § 1 ; see also, Hodgkins v. Price, 137 Mass. 13 .
Third, the plaintiff must file with the court the original of the completed Summary Process Summons and Complaint (showing return of service), the entry fee and possible certain other documents. This Filing constitutes entry of the action. Filing must be made no later than the close of business on the Monday entry day. Note that if filing is by mail, the documents must arrive in court by the Monday entry day. The hearing will be on the second Thursday (or second Friday, second Monday, third Tuesday, or third Wednesday, if so designated) following the Monday entry day.
This three-step procedure is required to allow flexibility in the time for commencing these actions yet at the same time to provide an automatic hearing date that can be predetermined and communicated to the defendant with the summons and complaint. Commencement of the summary process action under these rules occurs when proper service of the Summary Process Summons and Complaint is completed, subject, however, to the proper entry of the action.
It should be noted that the clerk should not refuse to accept a summons and complaint for failure to file documents which may be required by Rules 2(d)(2), (3) or (4). It is a matter for the determination of the court as to whether such documents are required. It should be noted further that the requirement in Rule 2(d)(3) that a certificate of eviction, if any is necessary, be filed and served with the Summary Process Summons and Complaint satisfies the requirement of District Court Administrative Regulation No. 3-73 and the statutory law it reflects. That regulation requires that a certificate of eviction, issued before the commencement of the action, be filed with the court before any judgment will be entered.
Rule 2(d) requires that the plaintiff state the reason(s) for eviction on the summons and complaint. While the substantive law of the Commonwealth may not always require a reason for termination of a tenancy, it does require a reason for eviction. That reason might be simply that a tenant is holding against the right of the landlord after the tenancy has been terminated. When the termination of the tenancy itself requires some reason -- e.g. breach of lease, termination in a rent control jurisdiction, nonpayment of rent -- the reason for the termination must be provided. See G.L. c. 239, §§ 1 , 1A .
It should be noted that the provisions of Mass. R. Civ. P. 6(a), concerning holidays, are applicable to summary process actions. Therefore, if the entry day or the day for filing answers is a holiday, the entry or filing day would be the next day on which the court is open for business. However, if the plaintiff selects a hearing date which is a holiday, the hearing would be scheduled either the next business day after the holiday or one week later on the following Thursday (or Friday or Monday, if applicable). In rent control jurisdictions, a certificate of eviction is a prerequisite to the commencement of a summary process action. The granting of a certificate of eviction by a rent control board is subject to judicial review. In Gentile v. Rent Control Board of Somerville, 365 Mass. 343 , 350 f.n. 7, the Supreme Judicial Court stated that, if a complaint is filed challenging the issuance of the certificate of eviction, in many instances that complaint and any related summary process action may be consolidated for trial. Therefore, the court should consider the possibility of consolidation in such cases in order to avoid piecemeal litigation.