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revision and are superseded by the advance sheets and bound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

17-P-4                                               Appeals Court

  INSTITUTION FOR SAVINGS IN NEWBURYPORT AND ITS VICINITY        vs.
                   MATTHEW LANGIS & another.1


                              No. 17-P-4.

          Essex.     November 6, 2017. - February 27, 2018.

               Present:   Kinder, Desmond, & Sacks, JJ.


Judgment, Default, Relief from judgment.     Practice, Civil,
     Default, Relief from judgment.



     Civil action commenced in the Superior Court Department on
December 19, 2014.

     A motion for relief from judgment, filed on February 26,
2016, was heard by Elizabeth M. Fahey.


     Eric P. Magnuson (Joseph T. Toomey also present) for the
plaintiff.
     Kevin J. O'Connor for Infinex Investments, Inc.


    SACKS, J.      This appeal raises a question regarding the

procedure to be followed when a plaintiff files a properly

supported application for default judgment for failure to serve

interrogatory answers under Mass.R.Civ.P. 33(a)(4), as appearing

    1
         Infinex Investments, Inc.
                                                                   2


in 436 Mass. 1401 (2002), but no final judgment can enter

because damages have not yet been determined.    The question is

whether a defendant seeking relief from the initial action on

such an application must satisfy the "excusable neglect"

standard under Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974),

requiring "unique or extraordinary" circumstances, Feltch v.

General Rental Co., 383 Mass. 603, 614 (1981) (quotation

omitted), or merely the less demanding "good cause" standard for

removal of a default under Mass.R.Civ.P. 55(c), 365 Mass. 822

(1974), i.e., "a good reason for failing to . . . defend in a

timely manner and . . . meritorious defenses."   Johnny's Oil Co.

v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012).   Our prior

decisions strongly suggest, and we now determine, that rule

55(c)'s good cause standard governs.

    Background.   The case arises out of a complaint filed in

the Superior Court involving a commercial dispute.   On December

18, 2015, after the defendant Infinex Investments, Inc.

(Infinex), missed a previously extended deadline for serving

interrogatory answers on the plaintiff, Institution for Savings

in Newburyport and its Vicinity (IFS), IFS served a final

request for answers pursuant to rule 33(a)(3).   On January 28,

2016 -- the day after Infinex's final rule 33(a)(4) deadline for

serving such answers expired -- IFS filed a properly supported

"application for default judgment," pursuant to Mass.R.Civ.P.
                                                                   3


33(a)(6), as appearing in 454 Mass. 1404 (2009), which included

a request for a hearing on damages, pursuant to Mass.R.Civ.P.

55(b)(2), as amended, 463 Mass. 1401 (2012).   IFS's application

and accompanying affidavit stated that, under "governing case

law,"2 it initially sought only the "entry of default," with no

actual judgment to enter until after the requested hearing on

damages.

     Simultaneously with its application for default judgment,

IFS filed a separate "application for entry of default" pursuant

to rules 33(a)(4), 33(a)(6), and Mass.R.Civ.P. 55(a), 365 Mass.

822 (1974).   Attached to this latter application was a proposed

form of "notice of entry of default under rule 55(a)," which

included the statement that a default was entered and that

"[j]udgment for the amount and costs due will be entered . . .

by the [c]ourt after assessment under [r]ule 55(b)(2), unless

the default is earlier set aside by the [c]ourt for cause shown

under [r]ule 55(c)."

     Nevertheless, on January 28, 2016 (the same day IFS filed

both applications), the clerk proceeded to enter a "judgment"3

"on liability only," stating that IFS was required to move for

     2
       The application cited Buffum v. Rockport, 36 Mass. App.
Ct. 377 (1994), a case we discuss infra.
     3
       "As is suggested by the quotation marks, this 'judgment'
was not a true judgment," because damages had not yet been
determined. Buffum, 36 Mass. App. Ct. at 379 n.2. See Kenney
v. Rust, 17 Mass. App. Ct. 699, 701-702 & n.5 (1984).
                                                                   4


an assessment of damages.    On February 1, Infinex served its

interrogatory answers.    For reasons not shown in the record,

IFS's separate application for entry of default was not docketed

until February 2.    On February 9, Infinex filed a notice of

intent to file a motion for relief from judgment.   On February

10, a judge allowed IFS's separate application for entry of

default and ordered "default to enter."4

     On February 26, Infinex filed its motion for relief from

judgment, pursuant to rule 60(b)(1), asserting that the failure

to answer the interrogatories was due to excusable neglect.

After extensive briefing supported by multiple affidavits, a

second judge (the judge)5 determined that Infinex had shown

excusable neglect.   The judge relied primarily on the

combination of Infinex counsel's particularly intense workload

(he had spent most of the month before the interrogatory

answers' final due date traveling, in order to complete

discovery in another document-intensive case in which he had

recently been hired as lead counsel); counsel's illness during

part of the time the interrogatories were outstanding; and

counsel's calendaring mistake (he had calculated the final day

for serving the interrogatory answers as February 1, rather than

     4
       The record reflects no further action by the parties or
the court explicitly addressing this default.
     5
       A different judge had earlier allowed IFS's application
for entry of a default.
                                                                   5


January 27).6   The judge also ruled that all six factors listed

in Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426,

430-431 (1979), weighed in favor of granting relief for

excusable neglect.7   She therefore allowed Infinex's motion for

relief from judgment.

     IFS filed a petition under G. L. c. 231, § 118, first par.,

seeking relief from the judge's decision, or in the alternative,

leave to pursue an interlocutory appeal; the petition was denied

by a single justice of this court.   The parties then filed a

stipulation of dismissal with prejudice of IFS's action against




     6
       Counsel's affidavit averred that he not only miscalculated
by several days the deadline for serving interrogatory answers
under IFS's application for final judgment, but -- due primarily
to spending most of the month before that deadline traveling to
work on the other case -- he did not "revisit [his] calculation
of [the] interrogatory answer deadline, as is normally [his]
practice."
     7
       The factors detailed in Berube, 7 Mass. App. Ct. at 430-
431, are:

     "(1) whether the offending party has acted promptly after
     entry of judgment to assert his claim for relief therefrom;
     (2) whether there is a showing either by way of affidavit,
     or otherwise apparent on the record, that the claim sought
     to be revived has merit; (3) whether the neglectful conduct
     occurs before trial, as opposed to during, or after the
     trial; (4) whether the neglect was the product of a
     consciously chosen course of conduct on the part of
     counsel; (5) whether prejudice has resulted to the other
     party; and (6) whether the error is chargeable to the
     party's legal representative, rather than to the party
     himself."
                                                                       6


both defendants,8 subject only to IFS's right to appeal the

judge's decision on the motion (and the defendants' right to

seek attorney's fees).    IFS then filed this appeal.

     Discussion.   1.    Propriety of the appeal.    An order

allowing a motion for relief from judgment or to vacate a

default judgment is an interlocutory order from which there is

no appeal as of right.    See Chavoor v. Lewis, 383 Mass. 801, 807

(1981).   Ordinarily, review of such an order may be had only as

permitted by a single justice of this court, see Tai v. Boston,

45 Mass. App. Ct. 220, 220 (1998), as was attempted here, or by

report by the trial court judge, pursuant to Mass.R.Civ.P.

64(a), as amended, 423 Mass. 1403 (1996).     Those procedures

incorporate a judicial gatekeeping role that is essential in

light of "the principle that piecemeal appellate review is

strongly disfavored."    McMenimen v. Passatempo, 452 Mass. 178,

193 (2008).

     Here, it appears that IFS has attempted to obtain review of

the interlocutory order, in the absence of judicial approval, by

stipulating to the dismissal of the underlying action, but

reserving its right to appeal from the order.       Accepting such a

     8
       During briefing on the motion, IFS acknowledged that
liability had been established only as to Infinex, not the
defendant Matthew Langis. IFS's stipulation of dismissal
nevertheless encompassed its claims against Langis as well as
Infinex, presumably to ensure that no claims remained pending
that would preclude IFS from attempting to take an immediate
appeal as of right. Langis has not participated in this appeal.
                                                                      7


stipulation as a means of obtaining temporary "finality" to

permit an interlocutory appeal would effectively undermine the

judicial gatekeeper function intended to limit such appeals.9        We

caution against any future attempts to obtain review in this

fashion.    However, because the matter has been fully briefed, we

put aside our doubts and exercise our discretion to address the

merits in order to clarify a recurring question arising out of

rule 33(a) applications.

     2.    Merits.   a.   Rules 55(c) and 60(b)(1).   Based on our

precedents, we determine that Infinex's motion should not have

been considered under the "more stringent" rule 60(b)(1)

excusable neglect standard in the first place, but instead as a

motion under rule 55(c) to remove a default for good cause.10


     9
       We also note that the effect of the stipulation of
dismissal with prejudice of the underlying action,
notwithstanding the attempt to preserve IFS's appellate rights,
may well have been to render this appeal moot. However, neither
party has raised this issue, and we are reluctant, in the
absence of argument, to dismiss the appeal on this basis.
     10
       In fairness to the judge, we note that Infinex was
steered in the rule 60(b) direction by the clerk's use of a
Superior Court form entitled "Judgment on Liability Only [under]
Mass.R.Civ.P. 33(a)." Although IFS's application for default
judgment made clear that it sought no entry of judgment until
after its requested hearing on damages, and IFS simultaneously
filed an application for a simple default under rule 55(a),
which was later allowed, the clerk's use of the "Judgment on
Liability Only" form doubtless influenced Infinex's decision to
seek relief under rule 60(b)(1) rather than rule 55(c). IFS did
not help matters any when, in opposing Infinex's motion, it
failed to cite the adverse decision in Buffum, 36 Mass. App. Ct.
377 -- which it had previously described as "governing case
                                                                     8


     We observed in Kenney v. Rust, 17 Mass. App. Ct. 699, 701-

702 & n.5 (1984), that, despite the entry of "judgments" on

liability under rule 33(a) for the defendants' failure to answer

interrogatories, "there is of course a distinction between the

entry of a default and a default judgment."    We interpreted rule

33(a) as "explicit that such a disregard of [its] procedures

'shall' result in a default, and Mass.R.Civ.P. 55(c) requires

that 'good cause' be shown before a party may be relieved of the

default."   Id. at 703-704.   The defendants in Kenney had moved

to vacate the defaults under rule 55(c); we reviewed the denial

of that motion for abuse of discretion and determined that there

was no such abuse.11   Id. at 702-704.

     As subsequently explained in Buffum v. Rockport, 36 Mass.

App. Ct. 377, 379 n.2 (1994), when a plaintiff properly files an

application for entry of "final judgment for relief" under what

is now Mass.R.Civ.P. 33(a)(4),12 but damages cannot be determined



law," see note 2, supra -- and instead only obliquely mentioned
rule 55(c) in a footnote citing two decisions under our rule
1:28. Similarly, IFS's opening and reply briefs on appeal made
no mention of Buffum or rule 55(c).
     11
        IFS cites Roberson v. Boston, 19 Mass. App. Ct. 595
(1985), decided a year after Kenney, as authority for its
argument that rule 60(b), not rule 55(c), governs. But in
Roberson, the court did not discuss the applicability of rule
55(c), see id. at 596-598, and the case was decided before
Buffum.
     12
       At the time Buffum was decided, the procedure for
applying for judgment based on failure to answer interrogatories
                                                                   9


without a further hearing, no "true judgment" can enter before

that determination is made.   "It is therefore anomalous to read

rules 33(a) and 55 to call for the entry of an interlocutory

'judgment' of liability such as the one entered in this case:

the rules should be read to provide for entry of judgment only

after damages have been determined."   Ibid.   Until that time,

rule 60(b), by its terms applicable to final judgments,13 does

not provide an avenue for a defendant to seek relief.

     In such a situation, a defendant is effectively in

default.14   See Buffum, 36 Mass. App. Ct. at 379 n.2.   Therefore,

as stated in Buffum:

     "[J]udges presented with default situations should apply
     the correct standard in deciding whether to set aside the
     default under Mass.R.Civ.P. 55(c), . . . which provides


was set forth in the third unnumbered paragraph of rule 33(a),
as amended, 368 Mass. 906 (1976). See Buffum, 36 Mass. App. Ct.
at 378-379. A 2002 amendment to the rule revised the procedure
and moved it to a fourth, numbered paragraph, rule 33(a)(4).
See 436 Mass. 1401 (2002).
     13
       "Interlocutory judgments thus do not fall within Rule
60(b)." Reporter's Notes to Rule 60, Massachusetts Rules of
Court, Rules of Civil Procedure, at 90 (Thomson Reuters 2017).
     14
       Upon receipt of the application for final judgment and
required accompanying documents, the clerk is not required to
enter an immediate judgment; rather, rule 33(a)(6) provides that
"the clerk shall enter an appropriate judgment, subject to the
provisions of Rules 54(b), 54(c), 55(b)(1), 55(b)(2) (final
sentence), 55(b)(4) and 55(c)" (emphasis added). Rule 55(b)(2),
final sentence, provides for a hearing where necessary to
determine damages before entering judgment, and rule 55(c), as
discussed, allows a default prior to judgment to be set aside
for good cause. See Ceruolo v. Garcia, 92 Mass. App. Ct. 185,
188 (2017).
                                                                  10


     that '[f]or good cause shown the court may set aside an
     entry of default and, if a judgment has entered, may
     likewise set it aside in accordance with Rule 60(b).'
     Prior to ascertaining damages, 'the more stringent
     standards' of rule 60(b) for setting aside a default
     judgment are not applicable. See MPV[, Inc.] v. Department
     of Rev., 26 Mass. App. Ct. 932, 932-933 (1988)."

Ibid.   In Buffum, we stated the question presented as whether

the defendant's "motion to vacate the default 'judgment' (the

action that established liability [but not damages]) was

properly denied."    Id. at 380.   On the record before us, we

observed that defendant's counsel's unexplained laxity regarding

the interrogatory answers "justified discretionary denial of

relief under either rule 55(c) (the 'good cause' standard) or

rule 60(b)."   Id. at 381.    But, although what was originally

entered in the trial court had been labeled a "judgment," id. at

379, we ultimately reviewed the judge's ruling as one under rule

55(c), rather than rule 60(b), and held that "the judge did not

abuse his discretion in refusing to set aside the default"

(emphasis added).    Id. at 381.

     We acknowledge that the subsequent decision in Broome v.

Broome, 40 Mass. App. Ct. 148 (1996), was less definitive about

the matter.    In Broome, a plaintiff obtained a "default

judgment[] . . . on liability" pursuant to rule 33(a), the

defendant's rule 60(b)(1) motion for relief from that judgment

was denied, damages were determined, a "final judgment" entered,

and the defendant appealed.    Id. at 150-151.   Our decision,
                                                                  11


citing Buffum, observed that the characterization of the rule

33(a) liability determination as a "final judgment" "may not be

correct," and that the defendant's motion for relief "may have

implicated the 'good cause' standard of Mass.R.Civ.P. 55(c)."

Id. at 152.   The decision did not resolve that issue,15 the court

instead concluding, on the particular facts of that case, that

"the entry of a final judgment of default constitute[d] an abuse

of discretion, whether reviewed under the rule 55(c) or the rule

60(b) standard."   Ibid.   But the court in Broome did not

disapprove the approach taken in Buffum, which reviewed the

action on a motion under rule 60(b) as if taken under rule

55(c)'s provision for setting aside a default.

     In the case now before us, the parties briefed and argued

the matter as if governed by rule 60(b); we raised the

applicability of rule 55(c) at oral argument and invited

postargument briefs.   Although IFS's response argues that

applying rule 55(c) in these circumstances would create

asymmetries between the procedures applicable to plaintiffs and

defendants,16 we believe that such asymmetries, if deemed


     15
       The record of that case indicates that the parties did
not brief the applicability of rule 55(c); evidently, the issue
was raised sua sponte by the court.
     16
       IFS observes that when a plaintiff has failed to respond
to interrogatories, and a defendant then files a properly
supported rule 33(a) application for final judgment, the rule
envisions the entry of a "final judgment . . . [of] dismissal"
                                                                     12


problematic, are better addressed in future cases involving the

situations posited by IFS, or by amending the rules of civil

procedure, than by stretching the current language of rule 60(b)

to govern relief from orders that plainly are not final

judgments.    We hold that rule 55(c)'s good cause standard

governs.

    b.     Allowance of relief in this case.   Although the judge

here allowed relief under rule 60(b)(1), we see no need for a

remand, as it is obvious that she would also have allowed relief

under rule 55(c)'s good cause standard, which is "less

stringent."    Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 188

(2017).    See Broome, 40 Mass. App. Ct. at 152.   Such a decision

would have been within her discretion.    See Johnny's Oil Co., 82

Mass. App. Ct. at 708 (rule 55[c] good cause determinations are

reviewed for abuse of discretion).



without any need to await a hearing on damages. See
Mass.R.Civ.P. 33(a)(3), (4). The plaintiff's only avenue of
relief from such a judgment of dismissal would be under rule
60(b), whereas a defendant in Infinex's situation would, under
Buffum, have only been defaulted and would thus be able to seek
relief under the less stringent good cause standard of rule
55(c), at least until such time as damages were determined under
rule 55(b)(2) and a final judgment entered. Similarly, IFS
notes, when a plaintiff files a proper rule 33(a) application
against a defendant and the plaintiff's damages are for a sum
certain or ascertainable under rule 55(b)(1), rule 33(a) appears
to require the entry of a default judgment for that amount,
leaving rule 60(b) as the defendant's only avenue of relief --
again in contrast to a defendant, like Infinex here, against
which damages must be, but have not yet been, determined under
rule 55(b)(2).
                                                                   13


     "'Good cause' requires a showing by affidavit that the

defendant had a good reason for failing to plead or defend in a

timely manner and had meritorious defenses."   Ibid.   Other

factors typically considered are whether the default was wilful,

whether setting it aside would prejudice the adversary, and the

defaulted party's promptness in seeking relief.   See Ceruolo, 92

Mass. App. Ct. at 189.

     The judge here addressed all of these factors, albeit under

the Berube rubric, see note 7, supra, and found that they all

weighed in favor of granting relief.17   And her decision to use

her discretion to "resolve the underlying case on its merits

rather than procedure" accords with the established principle

that, under rule 55(c), "any doubt should be resolved in favor

of setting aside defaults so that cases may be decided on their

merits."   Ceruolo, 92 Mass. App. Ct. at 189, quoting from

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

of Civil Procedure, at 84 (Thomson Reuters 2017).   In light of


     17
       With respect to prejudice, we note that before filing its
rule 60(b)(1) motion, Infinex asked IFS to assent to such
relief, offering in return to pay IFS's costs and fees incurred
in preparing the application for default judgment, but IFS
declined the offer. We also observe that IFS, prior to filing
the application, did not move for an order compelling Infinex to
serve responses. Noncompliance with such an order would have
authorized a range of sanctions (including costs and attorney's
fees) under Mass.R.Civ.P. 37(b), as amended, 423 Mass. 1406
(1996), more tailored to any actual prejudice to IFS, and thus
more likely than default to be both imposed and ultimately
enforced.
                                                                14


the foregoing, we cannot say that the judge abused her

discretion in granting relief.   That is, she made no "clear

error of judgment in weighing the factors relevant to the

decision . . . such that the decision falls outside the range of

reasonable alternatives."   L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014) (quotation omitted).

    Conclusion.   The order allowing Infinex's "motion for

relief from judgment" is affirmed.

                                     So ordered.
