Padmanabhan v. Executive Director of the Board of Registration in Medicine

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SJC-13358

BHARANI PADMANABHAN vs. EXECUTIVE DIRECTOR OF THE BOARD OF

REGISTRATION IN MEDICINE.

March 17, 2023.

Supreme Judicial Court, Superintendence of inferior courts.

Board of Registration in Medicine. Mandamus. Clerk of

Court. Practice, Civil, Default, Service of process.

Attorney General.

The petitioner, Bharani Padmanabhan, filed a petition in

the county court, pursuant to G. L. c. 249, § 5, seeking relief

in the nature of mandamus. The petition was denied by a single

justice of this court, and Padmanabhan appealed. We affirm.

Background. This matter stems from a civil action that the

petitioner commenced in the Superior Court against the executive

director of the Board of Registration in Medicine (board),

acting in his official capacity. The petitioner timely served

the complaint upon the board, but did not also serve the office

of the Attorney General, as required when the party served is a

State agency. See Mass. R. Civ. P. 4 (d) (3), as amended, 370

Mass. 918 (1976). No answer was filed within twenty days,

prompting the petitioner to file a motion requesting entry of

default by the clerk, pursuant to Mass. R. Civ. P. 55 (a), 365

Mass. 822 (1974).1 Thereafter, the office of the Attorney

General learned of the suit and filed an opposition to the

motion on behalf of the board. A judge in the Superior Court

subsequently denied the petitioner's motion based on the

1 The rule provides: "When a party against whom a judgment

for affirmative relief is sought has failed to plead or

otherwise defend as provided by these rules and that fact is

made to appear by affidavit or otherwise, the clerk shall enter

his default." Mass. R. Civ. P. 55 (a), 365 Mass. 822 (1974).

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petitioner's failure to timely serve the office of the Attorney

General.

The petitioner later filed a second request for entry of

default. That request was denied without prejudice, for failure

to certify compliance with Rule 9A of the Superior Court. The

petitioner then brought the instant petition for relief in the

nature of mandamus, requesting that the clerk for the Superior

Court in Suffolk County be compelled to enter a default against

the board. Upon denial of his petition by the single justice,

the petitioner appealed to the full court.2

Discussion. A request for relief in the nature of mandamus

is "a call to a government official to perform a clear cut duty,

and the remedy is limited to requiring action on the part of the

government official" (quotation and citation omitted). Ardon v.

Committee for Pub. Counsel Servs., 464 Mass. 1001, 1001 (2012),

cert. denied, 571 U.S. 872 (2013). Relief in the nature of

mandamus is not appropriate to compel an official to perform a

discretionary act, or to obtain review of an action already

taken. See id.; Boston Med. Ctr. Corp. v. Secretary of

Executive Office of Health & Human Servs., 463 Mass. 447, 470

(2012). "Further, even if the act sought to be compelled is

ministerial in nature, relief in the nature of mandamus is

extraordinary and may not be granted except to prevent a failure

of justice in instances where there is no other adequate remedy"

(quotation and citation omitted). Mederi, Inc. v. Salem, 488

Mass. 60, 65 (2021).

The petitioner is correct that entry of default under rule

55 (a) is a "formal, ministerial act of the clerk" that does not

require judicial authorization. Reporters' Notes to Rule 55

(1973), Mass. Ann. Laws Court Rules, Rules of Civil Procedure

(LexisNexis 2023). Here, the petitioner's requests were

apparently treated as motions and ruled upon by a judge in the

trial court, rather than acted upon by the clerk, as provided

2 After the appeal was entered in this court, the petitioner

filed a motion for judicial notice, requesting that the court

take notice of DiMasi v. Secretary of the Commonwealth, 491

Mass. 186 (2023), insofar as the case discusses statutory

interpretation. Although styled as a motion, the filing is

effectively a letter under Mass. R. A. P. 16 (l), as appearing

in 481 Mass. 1628 (2019), notifying the court of a supplemental

authority, and as such, no ruling is necessary.

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for under the rule.3 Nonetheless, in the circumstances of the

underlying case, the clerk did not have a "clear duty" to enter

a default.

Contrary to the petitioner's assertion, the board is an

agency of the Commonwealth, and the office of the Attorney

General must be served in order to perfect service of process,

pursuant to rule 4 (d) (3). See G. L. c. 12, § 3; Currier v.

National Bd. of Med. Examiners, 462 Mass. 1, 4 (2012)

(describing board as "the Commonwealth's licensing agency for

physicians"). See also Levy v. Board of Registration &

Discipline in Med., 378 Mass. 519, 523 (1979) (discussing

board's statutorily delegated authority as administrative

agency). Perfection of service "is a prerequisite" for entry of

default because such service triggers the deadline for filing an

answer. Curly Customs, Inc. v. Pioneer Fin., 62 Mass. App. Ct.

92, 99 (2004). See Mass. R. Civ. P. 12 (a) (1), 365 Mass. 754

(1974) (deadline for responsive pleading begins to run "[a]fter

service upon" responding party). Because service was not

perfected here, the board's twenty-day deadline to respond under

rule 12 (a) did not begin to run, the board had not "failed to

plead or otherwise defend" as required by rule 55 (a), and the

clerk had no clear cut duty to enter a default. See Curly

Customs, Inc., supra. Cf. Lally v. Dorchester Div. of the Dist.

Court Dep't, 26 Mass. App. Ct. 724, 727-728 (1988) (removal of

default required where plaintiff did not serve complaint upon

office of Attorney General, which was "essential to valid

service" under rule 4 [d] [3], and caused defendant's failure to

timely respond). Indeed, the failure to perfect service was

apparent from the docket as well as the petitioner's request for

default, each of which indicated that service was made and

returned for the board, but not for the office of the Attorney

General.4

3 The court's denial of the petitioner's second request

appears to reflect uncertainty about whether it was intended to

be ruled upon by the court. The endorsement states: "To the

extent this is a motion for consideration by the court, it is

denied without prejudice for failure to certify compliance with

Rule 9A of the Superior Court."

4 In light of our conclusion that the petitioner was not

entitled to entry of default, we need not consider his argument

that requests for entry of default under rule 55 (a) are not

subject to Rule 9A of the Superior Court.

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Moreover, even if the clerk had entered a default upon the

petitioner's initial request, the petitioner would not have

benefited from it, where the defect in service provided a basis

for removal of the default at the request of the Attorney

General. See Lally, 26 Mass. App. Ct. at 727-728 (although

relief from entry of default judgment is discretionary, such

relief "must" be granted "where a defect in service is itself

the cause of the failure to answer and of delay in removing a

default").

Accordingly, the single justice did not err or abuse her

discretion in denying relief under G. L. c. 249, § 5.

Judgment affirmed.

The case was submitted on briefs.

Bharani Padmanabhan, pro se.

Samuel Furgang, Assistant Attorney General, for the

respondent.