Eloise C. Kalker v. G. Joseph Binder, March 2, 2010
2010 Mass. App. Div. 23
Motion to set aside default, Service of process on out-of-state party, Certified mail
The plaintiff (Kalker) alleged that the defendant (Binder) sold her Steinway grand piano on consignment, but failed to pay her in full pursuant to their agreement. Binder was a resident of New York and the plaintiff had attempted to serve the complaint on the defendant by mailing it to him via certified mail, return receipt requested. A default judgment was entered against the defendant and the defendant appealed. At issue on this appeal are the requirements of G.L.c. 223A, §4 and Mass. r. Civ. P., Rule 4(e)(3), and the proper use of certified mail to effect service upon an out-of-state defendant. The Appellate Division reversed the denial of the defendant's motion to set aside default and returned the case to trial court for the defendant's filing of an answer to the plaintiff's complaint within 20 days.
Facts
The plaintiff's counsel sent the complaint to the defendant by certified mail, return receipt requested. The record doesn't state when this was done. Despite a May 16, 2008 docket entry to the contrary, no return receipt signed by the defendant was ever filed in the trial court. The defendant admitted to having actually received the complaint in a July 22, 2008 affidavit.
Service of complaint and due process
G.L.c. 223A and Rule 4(f) require the filing of a receipt signed by the addressee or such other evidence of personal delivery to the addressee as may be satisfactory to the court. The Massachusetts statute and Rule 4 do not limit proof of service by mail only to a signed return receipt or acknowledgment. To determine whether a defendant has failed to file an answer within the time allowed under the Massachusetts Rules of Civil Procedure, there must be evidence that is satisfactory to the court establishing when the defendant was served.
The defendant had admitted to receiving the complaint, so the trial court ruled that the Rule 4(f) requirements had been met. The defendant argued on appeal that while the plaintiff demonstrated that service was made, she failed to establish when service was made. The defendant's affidavit vaguely stated that he did not receive the documents “until many weeks after they were sent,” and the record contained no information about the date he received the documents. There was no way to determine whether the defendant had an opportunity to appear before he was defaulted, and whether the basic requirements of due process were satisfied.
The Appellate Division noted that the defendant took steps to vacate the default within a reasonable time after he received notice of the default. The defendant also filed an affidavit setting forth facts that could establish a meritorious defense, one “worthy of judicial investigation.”
The denial of the defendant's Mass. R. Civ. P., Rule 55(c), motion to set aside the default was reversed, and the default judgment and default were vacated. The case was returned to the trial court for the defendant‟s filing of an answer to the plaintiff's complaint within 20 days.
- Prepared by AYK
