Preview
ENS.\
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. TRIAL COURT OF MASSACHUSETTS
SUPERIOR COURT DIVISION
CIVIL ACTION NO.: BRCV2013-00103-C
RICHARD DUDLEY, JR.,
Plaintiff,
BRISTOL, SS SUPERIOR COURT
V.
WILLIAM P. MONOPOLI and AUG 2 9 2018
MASSACHUSETTS STATE POLICE,
Defendants MARC J. SANTOS, ESQ.
PLAINTIFF'S OPPOSITION TO DEFENDANT, Wilt IAM 2"MIONOPOLI's
MOTION TO DISMISS OR IN THE ALTERNATIVE REMOVE DEFAULT AND
MOTION TO DISMISS PURSUANT TO MASS. R. CIV. P. 4{J)
The Plaintiff, Richard Dudley, Jr., hereby respectfully opposes Defendant, William
Monopoli’s Motign to Dismiss or in the Alternative Remove Default and Motion to Dismiss
Pursuant to Mass. R. Civ. P. 4(J). As grounds therefor, the Plaintiff states that he filed the
present lawsuit on February 1, 2013, and that he properly served Mr. Monopoli. Further, Mr.
Monopoli has not shown good cause for waiting over five years, until the eve of trial, to seek to
remove his default that was entered in July 2013. This incident occurred in May 2011, over
seven years aga} and the case has been in litigation for over five years. The Plaintiff has
waited a long time for his day in court, which is finally scheduled for September 2018. The
parties have spent significant time and effort preparing this case for trial and Massachusetts law
does not suppor Mr. Monopoli’s request that his default be vacated. As further grounds for the
present Opposition, the Plaintiff states:
1 This cas@ arises out of an incident that occurred on or about May 6, 2011, when the
Defendant, William P. Monopoli, fled from a traffic stop by the Boston Police
Department. After a 30-mile police chase, Mr. Monopoli crashed his pickup truck and
Tan through the Park and Ride in West Bridgewater, Massachusetts. The
Massachbisetts State Police (“MSP”), who had been involved in the motor vehicle chase,
continued their chase on foot. In an effort to apprehend Mr. Monopoli, the MSP
released fa police canine, Jager, to apprehend Mr. Monopoli. Jager lost sight of Mr.
Monopoliand instead bit Mr. Dudley three times. Mr. Monopoli was eventually
appreherjded and arrested on a variety of charges.
The Plairttiff filed suit against the MSP and Mr. Monopoli on February 1, 2013, alleging
negligenge.
On February 4, 2013, Plaintiff's counsel received a letter from the Commerce Insurance
Company, Mr. Monopoli’s automobile insurer, denying coverage for the incident. (See
correspondence, attached at Exhibit 1). In that letter, Commerce noted that it had
forwarded a copy of the complaint to Mr. Monopoli’s criminal attorney, John Healy.
Pursuant|to M.G.L. c. 90 §3D, the Plaintiff served Mr. Monopoli through the
Massach psetts Registry of Motor Vehicles at his last known address on April 8, 2013.
(See Affidavit, attached at Exhibit 2).
The servise of Mr. Monopoli was compliant with both Mass. R. Civ. P. 4(d)(1) for the
manner of service and Mass. R. Civ. P. 4(J) in that service was made 76 days after the
Complaint was filed with the Court.
On July f° 2013, having received no responsive pleading from Mr. Monopoli or MSP,
the Court defaulted both parties.
Following) its default, MSP acted promptly and filed its Assented-To Motion to Vacate the
Default on July 25, 2013, and that Motion was allowed on July 29, 2013 (Tierney, J.).
On August 14, 2013, The Plaintiff filed the Plaintiff's Emergency Motion to Extend the
Deadline |for Filing Plaintiff's Motion for Default Judgment and an Assessment of
Damages. That Motion was Allowed on the same date.
On September 30, 2013, Plaintiff's counsel called and left a voicemail message for
Attorney Healy. Also on September 30, 2013, Attorney Healy called Plaintiff's counsel
back andidiscussed the present litigation. During that conversation, Attorney Healy
informed Plaintiff's counsel that he was aware of the civil action and was attempting to
obtain a fetainer to represent Mr. Monopoli in the civil litigation. Attorney Healy further
informed |Plaintiff's counsel that Mr. Monopoli had pled guilty to all charges and was not
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incarcerated.
10 Plaintiff's) counsel's office thereafter called Attorney Healy to follow up on the civil case
on October 9, 2013; October 18, 2013; October 21, 2013; October 23, 2013; October
28, 2013] and October 29, 2013. Plaintiff's counsel never received a call back.
11 On November 14, 2013, during oral argument of another issue, this Court explicitly
deferred the assessment of damages against Mr. Monopoli until trial or disposition of
claims against MSP (Moses, J.). (See 11/14/13 entry on docket).
12 Since that time, the Plaintiff and the MSP have expended significant time and effort
engaging in discovery and preparing the case for trial.
13. The case is currently scheduled for trial in less than a month on September 17, 2018.
14. Mr. Mongpoli’s motion must be Denied for several reasons. As an initial matter, this
Court hag already Ordered that an assessment of damages hearing against Mr. Dudley
be deferred until after the trial. As such, his argument that the Plaintiff has failed to
request such an assessment of damages is incorrect.
15. In addition, service in this matter was compliant with Rule 4 of the Massachusetts Rules
of Civil Pgocedure at his last and usual address. Whether Mr. Monopoli had actual
notice of the claims at that time is not a proper question before this Court, but it is clear
that Mr. Dudley has been on actual notice, through counsel, for about five years.
16 Mr. Dudliay has alleged that he found out about the present case through a notice for
trial trom is Court. Upon information and belief, this Court has been mailing notices to
the same] address throughout the entirety of this case. As such, it is unclear how he
only received notice by this Court's most recent notice.
17. Furthermpre, as of this date, Mr. Monopoli has not-participated in any discovery.
Vacating his default and requiring the parties to renew discovery would cause a
significan delay in the trial of this action, despite the fact that the Plaintiff has been
waiting over five years for his day in court.
18. Under Massachusetts law, courts should consider at least the following factors in
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considering a motion such as Mr. Monopoli’s: “(1) whether the offending party has acted
promptlyjafter 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 df 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; for ‘the courts have been
reluctantito attribute to the parties the errors of their legal representatives.” Berube v.
McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979).
19, In the prqsent case, consideration of the Berube factors clearly require that Mr.
Monopolils Motion be denied.
a . Monopoli did not act promptly following the default.
b. There is no realistic argument that Mr. Monopoli’s defense has merit. To the
cgntrary, he pled guilty to all charges, including negligent operation of a motor
vehicle. It is clear from the facts of the case that his negligence directly put
members of the public in danger and contributed to Mr. Dudley's dog bites.
Severe prejudice would result if the default is vacated. The parties will have to
undergo significant additional effort and cost to begin discovery anew. Counsel
for the Plaintiff and the MSP, who have put in five years worth of time and effort,
whbuld be required to rush through discovery during the busy summer months in
oder to keep the case on track for trial in September. Even then it is unlikely
that the case would be ready for trial in September.
1 e error in question is not attributable to counsel. Upon information and belief,
Altorney Healy was never formally retained by Mr. Monopoli, who presumably
miade a conscious decision to ignore the case and the multiple notices he
received over the last five years. e
-4-
Wherefote, the Plaintiff, Richard Dudley, Jr., respectfully request this Court to DENY the
Defendant, William Monopoli’s Motion to Dismiss or in the Alternative Remove Default and
Motion to Dismiss Pursuant to Mass. R. Civ. P. 4(J).
Respectfully Submitted,
The Plaintiff,
(U,
\
rkle
é1 # 66: 5
Timothy A. Nolte
BBO # 699259
KECHES LAW GROUP, P.C.
122 Dean Street
Taunton, MA 02780
Tel. No.: (508) 822-2000
Email: imarkle@kecheslaw.com
Email: tnolte@kecheslaw.com
-5-
CERTIFICATE OF SERVICE
: Jesse
I, Jason . Markle, of the law firm of KECHES LA\ Ww OUP, F.C., attorney for the
plaintiff in this attion hereby certify that on theAo day of 2018, | forwarded a
copy of the following:
1 Plaintiff Opposition to Defendant William Monopoli's Motion to Dismiss or in the
Alternative Remove Default and Motion to Dismiss Pursuant to Mass. R. Civ. P. 4(J)
(one original and one copy)
by e-mail and mailing, postage pre-paid by first class mail to the following counsel:
Andrew Koster, Esquire
Assistant Attorney General
Government Bureau/Trial Division
One Ashburton Place
Boston, MA 02108
Stacey Klein Verde, Esquire
Reservitz McCluskey, PC
1325 Belmont Street
Brockton, MA 02301
Ch
A
‘01 in R. Markie”
BO # 6658X5
KECHES LAW GR
122 Dean Street
Taunton, Massachusetts 02780
(508) 822-2000
J markle@kecheslaw.com
Preview
ENS.\ COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. TRIAL COURT OF MASSACHUSETTS SUPERIOR COURT DIVISION CIVIL ACTION NO.: BRCV2013-00103-C RICHARD DUDLEY, JR., Plaintiff, BRISTOL, SS SUPERIOR COURT V. WILLIAM P. MONOPOLI and AUG 2 9 2018 MASSACHUSETTS STATE POLICE, Defendants MARC J. SANTOS, ESQ. PLAINTIFF'S OPPOSITION TO DEFENDANT, Wilt IAM 2"MIONOPOLI's MOTION TO DISMISS OR IN THE ALTERNATIVE REMOVE DEFAULT AND MOTION TO DISMISS PURSUANT TO MASS. R. CIV. P. 4{J) The Plaintiff, Richard Dudley, Jr., hereby respectfully opposes Defendant, William Monopoli’s Motign to Dismiss or in the Alternative Remove Default and Motion to Dismiss Pursuant to Mass. R. Civ. P. 4(J). As grounds therefor, the Plaintiff states that he filed the present lawsuit on February 1, 2013, and that he properly served Mr. Monopoli. Further, Mr. Monopoli has not shown good cause for waiting over five years, until the eve of trial, to seek to remove his default that was entered in July 2013. This incident occurred in May 2011, over seven years aga} and the case has been in litigation for over five years. The Plaintiff has waited a long time for his day in court, which is finally scheduled for September 2018. The parties have spent significant time and effort preparing this case for trial and Massachusetts law does not suppor Mr. Monopoli’s request that his default be vacated. As further grounds for the present Opposition, the Plaintiff states: 1 This cas@ arises out of an incident that occurred on or about May 6, 2011, when the Defendant, William P. Monopoli, fled from a traffic stop by the Boston Police Department. After a 30-mile police chase, Mr. Monopoli crashed his pickup truck and Tan through the Park and Ride in West Bridgewater, Massachusetts. The Massachbisetts State Police (“MSP”), who had been involved in the motor vehicle chase, continued their chase on foot. In an effort to apprehend Mr. Monopoli, the MSP released fa police canine, Jager, to apprehend Mr. Monopoli. Jager lost sight of Mr. Monopoliand instead bit Mr. Dudley three times. Mr. Monopoli was eventually appreherjded and arrested on a variety of charges. The Plairttiff filed suit against the MSP and Mr. Monopoli on February 1, 2013, alleging negligenge. On February 4, 2013, Plaintiff's counsel received a letter from the Commerce Insurance Company, Mr. Monopoli’s automobile insurer, denying coverage for the incident. (See correspondence, attached at Exhibit 1). In that letter, Commerce noted that it had forwarded a copy of the complaint to Mr. Monopoli’s criminal attorney, John Healy. Pursuant|to M.G.L. c. 90 §3D, the Plaintiff served Mr. Monopoli through the Massach psetts Registry of Motor Vehicles at his last known address on April 8, 2013. (See Affidavit, attached at Exhibit 2). The servise of Mr. Monopoli was compliant with both Mass. R. Civ. P. 4(d)(1) for the manner of service and Mass. R. Civ. P. 4(J) in that service was made 76 days after the Complaint was filed with the Court. On July f° 2013, having received no responsive pleading from Mr. Monopoli or MSP, the Court defaulted both parties. Following) its default, MSP acted promptly and filed its Assented-To Motion to Vacate the Default on July 25, 2013, and that Motion was allowed on July 29, 2013 (Tierney, J.). On August 14, 2013, The Plaintiff filed the Plaintiff's Emergency Motion to Extend the Deadline |for Filing Plaintiff's Motion for Default Judgment and an Assessment of Damages. That Motion was Allowed on the same date. On September 30, 2013, Plaintiff's counsel called and left a voicemail message for Attorney Healy. Also on September 30, 2013, Attorney Healy called Plaintiff's counsel back andidiscussed the present litigation. During that conversation, Attorney Healy informed Plaintiff's counsel that he was aware of the civil action and was attempting to obtain a fetainer to represent Mr. Monopoli in the civil litigation. Attorney Healy further informed |Plaintiff's counsel that Mr. Monopoli had pled guilty to all charges and was not -2- incarcerated. 10 Plaintiff's) counsel's office thereafter called Attorney Healy to follow up on the civil case on October 9, 2013; October 18, 2013; October 21, 2013; October 23, 2013; October 28, 2013] and October 29, 2013. Plaintiff's counsel never received a call back. 11 On November 14, 2013, during oral argument of another issue, this Court explicitly deferred the assessment of damages against Mr. Monopoli until trial or disposition of claims against MSP (Moses, J.). (See 11/14/13 entry on docket). 12 Since that time, the Plaintiff and the MSP have expended significant time and effort engaging in discovery and preparing the case for trial. 13. The case is currently scheduled for trial in less than a month on September 17, 2018. 14. Mr. Mongpoli’s motion must be Denied for several reasons. As an initial matter, this Court hag already Ordered that an assessment of damages hearing against Mr. Dudley be deferred until after the trial. As such, his argument that the Plaintiff has failed to request such an assessment of damages is incorrect. 15. In addition, service in this matter was compliant with Rule 4 of the Massachusetts Rules of Civil Pgocedure at his last and usual address. Whether Mr. Monopoli had actual notice of the claims at that time is not a proper question before this Court, but it is clear that Mr. Dudley has been on actual notice, through counsel, for about five years. 16 Mr. Dudliay has alleged that he found out about the present case through a notice for trial trom is Court. Upon information and belief, this Court has been mailing notices to the same] address throughout the entirety of this case. As such, it is unclear how he only received notice by this Court's most recent notice. 17. Furthermpre, as of this date, Mr. Monopoli has not-participated in any discovery. Vacating his default and requiring the parties to renew discovery would cause a significan delay in the trial of this action, despite the fact that the Plaintiff has been waiting over five years for his day in court. 18. Under Massachusetts law, courts should consider at least the following factors in -3- considering a motion such as Mr. Monopoli’s: “(1) whether the offending party has acted promptlyjafter 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 df 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; for ‘the courts have been reluctantito attribute to the parties the errors of their legal representatives.” Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979). 19, In the prqsent case, consideration of the Berube factors clearly require that Mr. Monopolils Motion be denied. a . Monopoli did not act promptly following the default. b. There is no realistic argument that Mr. Monopoli’s defense has merit. To the cgntrary, he pled guilty to all charges, including negligent operation of a motor vehicle. It is clear from the facts of the case that his negligence directly put members of the public in danger and contributed to Mr. Dudley's dog bites. Severe prejudice would result if the default is vacated. The parties will have to undergo significant additional effort and cost to begin discovery anew. Counsel for the Plaintiff and the MSP, who have put in five years worth of time and effort, whbuld be required to rush through discovery during the busy summer months in oder to keep the case on track for trial in September. Even then it is unlikely that the case would be ready for trial in September. 1 e error in question is not attributable to counsel. Upon information and belief, Altorney Healy was never formally retained by Mr. Monopoli, who presumably miade a conscious decision to ignore the case and the multiple notices he received over the last five years. e -4- Wherefote, the Plaintiff, Richard Dudley, Jr., respectfully request this Court to DENY the Defendant, William Monopoli’s Motion to Dismiss or in the Alternative Remove Default and Motion to Dismiss Pursuant to Mass. R. Civ. P. 4(J). Respectfully Submitted, The Plaintiff, (U, \ rkle é1 # 66: 5 Timothy A. Nolte BBO # 699259 KECHES LAW GROUP, P.C. 122 Dean Street Taunton, MA 02780 Tel. No.: (508) 822-2000 Email: imarkle@kecheslaw.com Email: tnolte@kecheslaw.com -5- CERTIFICATE OF SERVICE : Jesse I, Jason . Markle, of the law firm of KECHES LA\ Ww OUP, F.C., attorney for the plaintiff in this attion hereby certify that on theAo day of 2018, | forwarded a copy of the following: 1 Plaintiff Opposition to Defendant William Monopoli's Motion to Dismiss or in the Alternative Remove Default and Motion to Dismiss Pursuant to Mass. R. Civ. P. 4(J) (one original and one copy) by e-mail and mailing, postage pre-paid by first class mail to the following counsel: Andrew Koster, Esquire Assistant Attorney General Government Bureau/Trial Division One Ashburton Place Boston, MA 02108 Stacey Klein Verde, Esquire Reservitz McCluskey, PC 1325 Belmont Street Brockton, MA 02301 Ch A ‘01 in R. Markie” BO # 6658X5 KECHES LAW GR 122 Dean Street Taunton, Massachusetts 02780 (508) 822-2000 J markle@kecheslaw.com