# Kennedy v. Beth Israel Deaconess Medical Center, Inc.

> Massachusetts Appeals Court · January 7, 2009 · 73 Mass. App. Ct. 459

URL: https://www.frixlaw.com/law-library/cases/6463412

## Case

- **Full name:** Michael Dana Kennedy v. Beth Israel Deaconess Medical Center, Inc., & others
- **Court:** Massachusetts Appeals Court
- **Decided:** January 7, 2009
- **Citations:** 73 Mass. App. Ct. 459; 898 N.E.2d 529; 2009 Mass. App. LEXIS 12
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Fecteau
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Brown, J.
(dissenting). The defendants’ central argument is that the judge erred in concluding that the plaintiff’s motion to vacate under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), properly fell under rule 60(b)(6), rather than rule 60(b)(1) or (b)(3), and that the judge abused his discretion in concluding that the plaintiffs motion was filed within a reasonable time under rule 60(b)(6). 1 I agree with the motion judge that “[tjhere is a substantial reason to warrant relief from dismissal since to allow the defendants to dismiss this complaint based on their own failure to accept service would be a substantial injustice.” The judge also correctly determined that no “particular” prejudice had accrued to the defendants.
“Resolution of a rule 60(b) motion rests in the discretion of the trial judge, and [an appellate court] ‘will show marked deference to the lower court’s resolution of such a motion.’ ” Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 894 (1987), quoting from Chu-Kun Woon v. Moy, 17 Mass. App. Ct. 949, 949 (1983). I think *470 the judge’s decision reflects a careful and thoughtful review of the facts and circumstances, 2 and I am satisfied that the judge did not abuse his discretion in concluding that the plaintiff’s motion presented extraordinary circumstances that “did not fit neatly or completely within rule 60(b)(1) or (3), and justified relief under rule 60(b)(6).” Owens v. Mukendi, 448 Mass. 66, 74 (2006). In so ruling the judge found that the parties had an agreement to accept service and found that the plaintiff attempted to serve the defendants on March 4, 2005 (one day before the deadline), but that the agreement was breached when hospital security personnel escorted the deputy sheriff off the premises due to a de minimis misnomer of a party name. 3
The instant circumstances do not fit neatly or completely into rule 60(b)(1) because it was plaintiff’s counsel’s belief in the representations of the hospital’s risk management coordinator, rather than mistake, inadvertence, surprise, or excusable neglect, that was the primary reason for the entry of judgment. Compare id. at 73 . Similarly, the circumstances do not fit into rale 60(b)(3) because there is no indication that the coordinator’s representation that service would be accepted constituted fraud, misrepresentation, or other misconduct. The coordinator was unable to follow through on his agreement because he was on leave of absence. 4 Lastly, as the plaintiff’s rale 60(b)(6) motion was brought only a little more than one year after the judgment entered and given the underlying circumstances detailed in the judge’s findings, I cannot say with assurance that the judge abused his discretion in concluding that the motion was brought within a reasonable time.
rThe defendants also argue that the judge failed to apply the correct legal standard because he did not assess or find good cause for the plaintiff’s untimely service of the underlying complaint. See Mass.R.Civ.P. 4(j), as appearing in 402 Mass. 1401 (1988). This argument must be rejected for the reason, if no other, that such an assessment and finding is implicit in the judge’s findings and conclusions.
I disagree with the defendants’ assertion that the judge’s findings are not sufficiently supported by the record.
The judge also observed that notice of the plaintiff’s claims had been provided to the hospital’s risk management attendant and the motion to vacate was brought only thirty days after the time that the plaintiff would have been allowed to file his motion pursuant to rule 60(b)(l)-(3).
In support of his opposition to the defendants’ motion for reconsideration, the plaintiff filed an affidavit of counsel in which counsel stated that the hospital’s risk management coordinator had agreed to accept service on behalf of all the defendants, that the coordinator subsequently took a leave of absence, and that when the deputy sheriff attempted to make service, it was refused, presumably due to a misnomer of the hospital’s name.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6463412. Public record. Not legal advice.