NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

16-P-1443                                              Appeals Court

            DAVID CERUOLO    vs.   MARTHA GARCIA & another.1


                              No. 16-P-1443.

            Essex.     June 5, 2017. - September 7, 2017.

               Present:     Sullivan, Henry, & Shin, JJ.


Practice, Civil,     Default, Motion to dismiss.    "Anti-SLAPP"
     Statute.


     Civil action commenced in the Superior Court Department on
September 16, 2014.

     A special motion to dismiss was heard by Robert A.
Cornetta, J., sitting by designation, and a motion to vacate
default was considered by him.


     Kevin C. Cain for the defendants.
     Donald J. Hubbard for the plaintiff.


     SULLIVAN, J.    The plaintiff, David Ceruolo (David) sued his

ex-wife Lyllian Ceruolo (Lyllian),2 and her mother, Martha Garcia

(Garcia) for defamation and negligent and intentional infliction


     1
         Lyllian Ceruolo.
     2
       Because these parties share the same last name, we refer
to them by their first names.
                                                                    2


of emotional distress following the conclusion of a contentious

divorce.   The defendants were defaulted in the civil action, and

moved unsuccessfully to remove the default.   Lyllian and Garcia

appeal from the entry of a final judgment after a hearing on

assessment of damages, contending that the default should have

been vacated.   David cross-appealed regarding damages.    We

reverse the judgment and remand the case for further

proceedings.

     Background.   During a contentious divorce action, Lyllian

and her mother made serious allegations regarding David's

conduct.   A Probate and Family Court judge found the allegations

unproven and untrue.

     Following the entry of final judgment in the divorce case,

David filed this suit against Lyllian and Garcia.    The

defendants, represented by counsel, filed a notice of appearance

and a notice of intent to file a special motion to dismiss

pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute.

Thereafter, various procedural anomalies occurred.   Because the

timing of subsequent events is of importance here, we set out

the timeline in some detail.

     On November 25, 2014,3 Lyllian and Garcia timely filed the

special motion to dismiss.   The judge considered both the


     3
       All dates refer to the docket in the Superior Court unless
otherwise noted.
                                                                      3


pleadings and the affidavit on file, as required by the statute.

See G. L. c. 231, § 59H ("the court shall consider the pleadings

and supporting and opposing affidavits stating the facts upon

which the liability or defense is based").   The pleadings

focused on conduct leading up to and during the divorce.     The

affidavit of damages filed by David made additional allegations

not found in the complaint, including a general statement that

there was an ongoing course of defamatory conduct after the

entry of the decree.   On February 6, 2015, the judge allowed the

motion as to those statements that occurred "during" the divorce

action and up to the date of the decree, November 22, 2013.     The

motion was denied to the extent that David could make a showing

that "the conduct complained of does not fall under petitioning

activity protected under the statute."   Thus, the judge left for

another day what conduct fell outside the scope of the anti-

SLAPP statute.

    Six days later, on February 12, 2015, the defendants served

a motion for more definite statement pursuant to Mass.R.Civ.P.

12(e), 365 Mass. 754 (1974), in accordance with Superior Court

Rule 9A (rule 9A).   David timely served his opposition on

February 24, 2015.   A reply brief and opposition to the filing

of the reply brief were exchanged, and the package was complete
                                                                     4


on or about March 8, 2015.4   For reasons not apparent on the

record, the defendants did not file the package within the ten-

day time period set forth in rule 9A(b)(2).     On March 24, 2015,

David served a request for default pursuant to Mass.R.Civ.P.

55(a), 365 Mass. 822 (1974), which was docketed on March 25 and

allowed by the clerk the following day.   The entry of default

was sent to David but not to the defendants.5

     Lyllian and Garcia, unaware that the default had entered,

but having been served with the rule 55(a) request, filed their

motion for a more definite statement (omitting the contested

reply brief), pursuant to Mass.R.Civ.P. 12(e), on March 27,

2015.    That motion was denied on April 3, 2015, "in light of"

the earlier ruling on the anti-SLAPP motion.    This ruling,

perhaps unintentionally, left unanswered how David was to make

the required showing that the complained of conduct "did not

fall under petitioning activity."

     The denial of the defendants' motion for a more definite

statement likewise was not received by defendants' counsel.

David then filed a motion for assessment of damages and a motion


     4
       The plaintiff's reply was served on March 5, 2015.
     5
       Despite the fact that counsel had entered an appearance
for the defendants, and had received a copy of the earlier order
on the anti-SLAPP motion, counsel's name was not entered
correctly on the docket. The docket reflects that the clerk's
office mailed the default order to David but not to defense
counsel. Defense counsel avers that she did not receive it.
                                                                    5


for default judgment on April 21, 2015, which was served on

defense counsel.   Notably, although the motion was served on the

defendants, it did not contain a representation that default had

entered.6

     On November 25, 2015, defense counsel called the clerk's

office to inquire about the status of the motion for a more

definite statement.   The attorney learned that default had

entered on March 26, that the defendants' motion for a more

definite statement had been decided on April 3 and that notice

of the orders had not been sent to counsel.   Counsel was not

correctly listed on the docket as counsel of record.   The entry

for counsel was adjusted.

     On December 9, 2015, Lyllian and Garcia filed a motion to

vacate the default, verifying the facts outlined above by

affidavit.   The same motion judge denied the motion "based upon

finding of no excusable neglect."   Lyllian and Garcia filed a

motion for reconsideration of the denial of the motion to vacate

the default, and a supplemental motion, but both were denied by

a second judge for the same reason.




     6
       There is a margin endorsement, entered on the motion for
assessment of damages after it was filed, setting a July 17,
2015, hearing date for assessment of damages, but there is no
indication on the docket that notice of that hearing was given,
or that a hearing was held until after the defendant moved to
vacate the default in December of 2015.
                                                                     6


     A hearing on assessment of damages was held before the

second judge.   Judgment entered in the amount of $100,000 plus

$21,483.70 in prejudgment interest pursuant to Mass.R.Civ.P.

55(b)(2), as amended by 463 Mass. 1401 (2012).      This appeal

followed.

     Discussion.   1.   Motion to vacate default.    We review the

denial of a motion for removal of default pursuant to rule

55(c), 365 Mass. 822 (1974), for an abuse of discretion.     See

Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass.

287, 289 (1984).   "An abuse of discretion occurs when the

judge’s decision rests upon a clear error of judgment in

weighing the factors relevant to the decision . . . such that

[it] falls outside the range of reasonable alternatives, or when

the judge’s decision constitutes a significant error of law."

Chambers v. RDI Logistics, Inc., 476 Mass. 95, 110 (2016)

(quotations and citations omitted).

     Here there was a significant error of law.     The standard

applicable to a rule 55(c) motion to remove the entry of default

is "good cause," not the "excusable neglect" standard applied

here.7   See Mass.R.Civ.P. 55(c) ("For good cause shown the court


     7
       The excusable neglect standard applies to motions to
vacate a default judgment under Mass.R.Civ.P. 60(b), 365 Mass.
828 (1974). Even under rule 60(b), however, a "liberal . . .
application" is warranted where, as here, "the mischief leading
to the judgment occurs at the pretrial stage." Berube v.
McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979).
                                                                      7


may set aside an entry of default").     The excusable neglect

standard is applied after judgment has entered.     The "good

cause" standard is applicable when default, but not judgment,

has entered.   This is a less stringent standard than excusable

neglect under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).        See

Broome v. Broome, 40 Mass. App. Ct. 148, 152 (1996).    We look to

the Federal counterpart to rule 55(a) for guidance.    See Burger

Chef, supra at 289 n.3.

    The grounds for relief from default in Massachusetts are

substantially similar to those recognized in the Federal system.

Reporter's Notes to Rule 55, Massachusetts Rules of Court, Rules

of Civil Procedure, at 84 (Thompson Reuters 2017).     An adequate

basis for allowing the motion "must be shown," but "any doubt

should be resolved in favor of setting aside defaults so that

cases may be decided on their merits."     Ibid.

    "Allowing an entry of default to be set aside on a showing
    of reasonable justification is in keeping both with the
    philosophy that actions should ordinarily be resolved on
    their merits, [United States v. One Parcel of Real
    Property, 763 F.2d 181, 183 (5th Cir. 1985)]; [Meehan v.
    Snow, 652 F.2d 274, 277 (2d Cir. 1981)]; American & Foreign
    Ins. Assn. v. Commercial Ins. Co., 575 F.2d 980, 982 (1st
    Cir. 1978); [United States v. 147 Division St., Located in
    Woonsocket, R.I., 682 F. Supp. 694, 697 (D.R.I. 1988)], and
    with the command of the [c]ivil [r]ules themselves. See
    Fed.R.Civ.P. 1 (rules "shall be construed to secure the
    just . . . determination of every action"). These policy
    considerations, we suggest, are at their zenith in the
    [r]ule 55(c) milieu. Early in the case, as when a default
    has been entered but no judgment proven, a liberal approach
    is least likely to cause unfair prejudice to the nonmovant
    or to discommode the court's calendar. Cf. Phillips [v.
                                                                    8


    Weiner, 103 F.R.D. 177, 179 (D. Me. 1984)] (liberality
    justified under [r]ule 55(c) because entry of default a
    clerical act and not a final judgment). In these
    circumstances, a [trial] court should resolve doubts in
    favor of a party seeking relief from the entry of a
    default. Gross v. Stereo Component Systems, 700 F.2d 120,
    122 (3d Cir. 1983); 147 Division St., 682 F. Supp. at 697."

Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989).    "There is no

mechanical formula for determining whether good cause exists and

courts may consider a host of relevant factors."    Indigo

America, Inc. v. Big Impressions, LLC, 597 F.3d 1, 3 (1st Cir.

2010).   "The three typically considered are (1) whether the

default was willful; (2) whether setting it aside would

prejudice the adversary; and (3) whether a meritorious defense

is presented."   Ibid.   "[C]ourts may [also] consider other

relevant factors, including '(4) the nature of the defendant's

explanation for the default; (5) the good faith of the parties;

(6) the amount of money involved; [and] (7) the timing of the

motion [to set aside the entry of default].'"   Id., quoting KPS

& Assocs. v. Designs by FMC, Inc., 318 F.3d 1, 12 (1st Cir.

2003).   See also 10A Wright, Miller, & Kane, Federal Practice

and Procedure §§ 2694-2695 (2016).

    This is not a case of willfulness or gross neglect.

Counsel for the defendants filed an appearance, litigated an

anti-SLAPP motion, and timely served a motion for a more

definite statement under rule 12(e) upon receipt of the ruling

on the anti-SLAPP motion.   At the time the motion for entry of
                                                                    9


default was filed, defendant's counsel was one week late in

filing the rule 9A package for the rule 12(e) motion, but it

cannot be said that this rose to the level of gross neglect or

willful noncompliance, rather than a mistake by counsel.     See

Debreceni v. Route USA Real Estate, Inc., 773 F. Supp. 498, 499

(D. Mass. 1990).    The failure to respond promptly to the motion

for entry of default is explained by the service and filing of

the rule 12(e) motion, which in the ordinary course would have

tolled the time period in which to answer.8    Thus, counsel was

under the "honest, but mistaken impression" that no answer was

required.   Kennerly v. Aro, Inc., 447 F. Supp. 1083, 1088-1089

(E.D. Tenn. 1977).

     This mistaken impression was occasioned by the failure to

notify defense counsel of either the entry of default or the

denial of the motion for more definite statement.     Although

defense counsel could have been more diligent in checking the

docket, the failure of notice favors setting aside the default.

Essroc Cement Corp. v. CTI/D.C. Inc., 740 F. Supp. 2d 131, 137

(D.D.C. 2010).     Finally, the defendants filed affidavits in

support of their motion to vacate in which they proffered a

     8
       A rule 12(e) motion would have tolled the time in which to
answer for so long as it was pending. See Mass.R.Civ.P.
12(a)(2), 365 Mass. 754 (1974); Mass.R.Civ.P. 12(e) ("If a
pleading to which a responsive pleading is permitted is so vague
or ambiguous that a party cannot reasonably be required to frame
a responsive pleading, he may move for a more definite statement
before interposing his responsive pleading").
                                                                   10


substantial defense -- i.e., that they have not made any remarks

since the divorce proceedings that could be considered

defamatory or injurious.

     David is not prejudiced in these circumstances, because

wholly apart from the default, the judgment and the entry of

judgment must be set aside for independent reasons.   While the

first motion judge properly considered matters outside the

pleadings on the anti-SLAPP motion, the motion for more definite

statement was denied, and the allegations contained in the

plaintiff's affidavit were never incorporated into an amended

complaint.

     This matters in the context of rule 55 proceedings.     The

complaint consists almost exclusively of allegations concerning

what happened during the divorce proceeding -- allegations

barred from further consideration by the first motion judge's

ruling on the anti-SLAPP motion.   Notably absent from the

complaint are any factual allegations concerning what the

defendants did after the divorce proceedings.9

     For purposes of an assessment of damages pursuant to

Mass.R.Civ.P. 55(b), it is "the factual allegations of a

complaint [that] are accepted as true for purposes of

     9
       Separate and apart from the issue of default, in order to
meet the conditions of the first motion judge's order on the
special motion to dismiss, additional allegations also were
necessary to show what the defendants were alleged to have done
that fell outside of the protection of the anti-SLAPP statute.
                                                                  11


establishing liability."   Marshall v. Stratus Pharmaceuticals,

Inc., 51 Mass. App. Ct. 667, 670-671 (2001).    Matters outside

the complaint, such as the affidavit here, may not be considered

as to liability because they have not been deemed admitted.

Further, "[w]hen . . . a defendant is defaulted, well-pleaded

facts are deemed to be admitted, but a plaintiff may recover

only to the extent the complaint states a claim for relief."

Jones v. Boykan, 464 Mass. 285, 295 (2013), quoting from Nancy

P. v. D'Amato, 401 Mass. 516, 519 (1988).    The sole allegations

in the complaint that might arguably address conduct after the

divorce decree are found in two places, paragraph 8, count I and

paragraph 11, count II of the of the complaint.     The first

states that "Garcia repeatedly and deliberately uttered false

allegations and accusations against Ceruolo to third parties."

The second is an identical allegation against Lyllian.     There is

no time frame regarding either allegation.

     These allegations fail to meet the notice pleading

requirements of Iannacchino v. Ford Motor Co., 451 Mass. 623,

636 (2008), because they fail to state what the defendants are

alleged to have done or said after the divorce.10    Even if deemed


     10
       Once the default entered, there was no longer any
opportunity for David to make the showing contemplated in the
original order that the "conduct complained of [did] not fall
under petitioning activity protected under the statute." The
complaint became the operative document. At the assessment of
damages hearing, the second judge limited the evidence to post-
                                                                     12


admitted, the allegations do not state a claim for defamation or

intentional or negligent infliction of emotional distress

against either defendant based on conduct occurring after the

entry of the divorce decree.    See Flagg v. AliMed, Inc., 466

Mass. 23, 37-38 (2013) (defamation); Polay v. McMahon, 468 Mass.

379, 388 (2014) (intentional infliction of emotional distress);

Conley v. Romeri, 60 Mass. App. Ct. 799, 801 (2004) (negligent

infliction of emotional distress).     The complaint did not state

"a legally valid claim on which relief can be granted," and the

defendant was not entitled to relief based on the complaint as

drafted.   For this reason, the plaintiff will not be prejudiced

by vacating the entry of default, because the judgment must be

vacated regardless.

    2.     The anti-SLAPP ruling.   Both parties appeal from the

judge's ruling on the anti-SLAPP motion.    The plaintiff claims

that he should have been permitted to introduce evidence at the

assessment of damages hearing of the defendants' conduct before

the divorce was initiated, as well as after.     However, in the

trial court the plaintiff took the position when opposing the

special motion to dismiss that false statements were made to


divorce damages. However, the lack of clarity as to the basis
of the liability also infected the damages award. David
testified to his losses, but there was no evidence that the
losses were sustained as a result of conduct occurring after the
decree (as opposed to the ongoing effects of conduct undertaken
during the divorce proceeding) that fell outside the protection
of the anti-SLAPP statute.
                                                                  13


third parties after the divorce trial.11   For their part, the

defendants claim that the judge created the post-divorce theory

of liability out of whole cloth.

     For the reasons stated above, the judge properly considered

the affidavits in ruling on the motion.    However, the failure to

require an amended pleading not only hampered the ability of the

defendants to defend the case, but also renders appellate review

of the sufficiency of the allegations impossible.   For this

reason, we leave for remand the question of the scope of the

amended complaint, the relationship between any amended

complaint and the anti-SLAPP statute, and consideration of the

application of Blanchard v. Carney Hospital, Inc., 477 Mass.

141, 153-156 (2017), to this case.   See Dever v. Ward,     Mass.

App. Ct.   (2017) (applying Blanchard retroactively to cases

pending on appeal).

     Conclusion.   The judgment is vacated, and the matter is

remanded for further proceedings consistent with this opinion.

                                     So ordered.




     11
       On appeal, the plaintiff does not fault the portion of
the judge's ruling that barred his claims based on conduct or
statements occurring during the divorce proceeding.
