# Motta v. Schmidt Manufacturing Corp.

> Massachusetts Appeals Court · December 12, 1996 · 41 Mass. App. Ct. 785

URL: https://www.frixlaw.com/law-library/cases/6459801

## Case

- **Full name:** Joseph C. Motta v. Schmidt Manufacturing Corporation & another
- **Court:** Massachusetts Appeals Court
- **Decided:** December 12, 1996
- **Citations:** 41 Mass. App. Ct. 785; 673 N.E.2d 874; 1996 Mass. App. LEXIS 873
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Ireland
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6459801

## Opinion text

Brown, J.
(dissenting). I think that on this record the judge was obliged to find “excusable neglect.” The defendants would have suffered no prejudice had a finding of excusable neglect been made on the administratrix’s behalf and her motion for late substitution been allowed. The defendants received notice of the plaintiffs death from the decedent plaintiffs attorney in early 1992. Afterwards, they either acquiesced in or moved for several trial postponements and also participated in a pre *792 trial conference. In short, the defendants were fully apprised of the plaintiffs death. In the vernacular, “no harm, no foul.”
The majority virtually ignore the generous directive for the Federal rule in Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993), that “the history of Rule 25(a) and Rule 6(b) makes it clear that the [Federal time period] was not intended to act as a bar to otherwise meritorious actions, and extensions of the period may be liberally granted.”
Moreover, in allowing the motion for substitution initially, the judge implicitly found excusable neglect, which had been the basis for the motion. Later, on remand, he mistakenly came to believe that excusable neglect was irrelevant. Had the judge followed the specific order of the single justice to make findings as to excusable neglect, the administratrix would likely have prevailed on the issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6459801. Public record. Not legal advice.