Reporter’s Notes:

(2009): Amendments to Rule 55(b) effective March 1, 2008 eliminated differing default provisions for the Superior Court and the District Court and resulted in changes to the numbering of some of the subparagraphs of Rule 55(b). The March 2008 amendments were part of a group of amendments to the Massachusetts Rules of Civil Procedure in light of the adoption of the statewide one-trial system for civil cases. The 2009 amendment to Rule 33(a)(6) corrects an oversight in the March 2008 amendments by correcting the cross-references to Rule 55(b) that are found in Rule 33(a)(6).

(2002): In 2002, Rule 5(d) was amended to provide that interrogatories under Rule 33 and answers and objections to interrogatories no longer were to be filed in court, unless otherwise ordered by the court. The non-filing requirement of amended Rule 5(d) necessitated changes in the Rule 33 procedure by which a party who has served interrogatories seeks to have judgment entered against another party for failure to respond to the interrogatories.

Prior to the 2002 amendment, Rule 33(a) provided that a party upon whom interrogatories had been served must serve answers (and any objections) within 45 days of service and must file the original answers in court. If answers were not served within the 45-day period, the interrogating party had the option of filing with the court an application requesting final judgment for relief or dismissal. The filing of the application then triggered a 30-day period for filing of the answers. If answers were not filed within the 30-day period, the interrogating party could then file a reapplication for final judgment for relief or dismissal. After a reapplication had been filed and upon determination by the clerk that the answers had not been filed, the clerk would then enter a final judgment.

The 2002 amendment adopts a procedure, taken in part from Superior Court Administrative Directive No. 91-1, for obtaining judgment for failure to answer interrogatories that takes into account that the clerk of court will now be unable to determine whether the interrogatories have been answered (because answers are no longer to be filed with the court).

The 2002 amendment also added subdivisions and headings to Rule 33(a).

Rule 33(a)(1), entitled “In General.” There has been no change to the first paragraph of former Rule 33(a), other than the addition of the number (1) and the title.

Rule 33(a)(2), entitled “Number.” Likewise, there has been no change to the second paragraph of former Rule 33(a), other than the addition of the number (2) and the title.

The third and fourth paragraphs of Rule 33(a) are rewritten as follows.

Rule 33(a)(3), entitled “Answers; Final Request for Answers.” The revised rule provides that if answers or objections are not served within 45 days, the interrogating party may serve (but not file) a final request for answers. (The former language requiring a written application for final judgment has been changed to take into account that under the revised procedure, there is no filing made in the clerk’s office at this point.) The final request must also contain a notice that the interrogating party intends to apply for final judgment, thereby putting the latter on notice of the serious consequences of a failure to answer the interrogatories. The act of serving the request on the interrogated party will trigger an additional 30-day period f or the interrogated party to answer or object.

Rule 33(a)(4), entitled “Application for Final Judgment; Affidavit.” Rule 33(a)(4) provides that if answers or objections to the interrogatories still have not been received and 40 days have expired from the date of service of the final request for answers, the interrogating party may file a written application (under the former procedure, referred to as a reapplication) for final judgment for relief or dismissal. A copy of the application must also be served on each party to the case (see Rule 5(a) ). In calculating the 40-day period set forth in Rule 33(a)(4), the additional three days that otherwise would be granted under Rule 6(d) after service by mail are not to be included. The application must be accompanied by a copy of the final request that had been earlier served on the interrogated party and an affidavit containing specified information setting forth the chronology leading up to the application. As long as a copy of the final request for answers and the requisite affidavit have been filed, the clerk shall then enter judgment for relief or dismissal (see Rule 33(a)(6) ).

The 2002 amendments also eliminated the provision that an agreement to extend the time for answering be filed in court. Given the non-filing requirements for interrogatories and answers, this provision is now unnecessary.

Rule 33(a)(5), entitled “Motion to Extend.” There has been no change to the text of this paragraph (formerly, the last paragraph of Rule 33(a) ), other than the addition of the number (5) and the title.

Rule 33(a)(6), entitled “Entry of Judgment.” Rule 33(a)(6) is drawn from the final sentence of the former fourth paragraph of Rule 33(a), with some housekeeping changes designed to correct an omission made in 1996 when the District Court rules were merged into the Massachusetts Rules of Civil Procedure. In connection with the merger in 1996, certain paragraph numbers in Rule 55(b) were changed, but corresponding changes were not made to the references to Rule 55(b) that were contained in Rule 33(a).

(1975): In order to simplify the policing of interrogatory practice, Rule 33(a) has been amended to establish a more rational procedure. The basic period for answering original interrogatories will now be 45 days after service, although the court may order a longer or shorter time. If the court has ordered further answers to interrogatories, they must be filed within 30 days of the entry of the order, unless the court specifies otherwise. (The original Rule 33(a) provided no deadline for filing further answers to interrogatories after court order.) If at the expiration of allowed time the original answers or further answers have not been filed, the interrogating party may, at his option, move for an order under Rule 37. In most cases, however, the party will take advantage of the simplified procedure established by Rule 33(a). He will file a written application with the clerk asking (if he is plaintiff) for the relief sought in the complaint, or (if he is defendant) for dismissal of the action. The clerk, upon receipt, notifies all parties; within 30 days from the date of the notice, the interrogating party may again apply in writing, and the appropriate final judgment will be entered. The judgment will be treated as a default judgment; if the plaintiff is the prevailing party, judgment will be entered in the amount prayed for, provided it can be ascertained by inspection of the complaint or by a ready computation. In other cases, the court will hold a hearing to establish the amount of damages.

Rule 33(a) thus gives a party, in the case of original interrogatories, 75 days, and in the case of further answers, 60 days, to file answers before the guillotine can fall. And even then, the dilatory party may file a motion to extend his time to answer. So long as that motion is heard within 30 days of filing, it too can stave off the judgment. On the other hand, the mere filing of a motion to extend time does not, as in the past, of itself stay the entry of any judgment. However, even after a judgment has been entered, Rule 33(a), by specific reference to Rule 55(c), allows a party to seek to have the judgment vacated, provided he can fit through one of the limited openings afforded by Rule 60(b).

In originally answering interrogatories, the responding party has 45 days, and in which to serve a copy of the answers and objections; because service is complete upon mailing, Mass. R. Civ. P. 5(b), this means that he need only place the answers in the mail before the deadline. In furnishing further answers to interrogatories, however, he is obligated not merely to serve them within 30 days after the entry of the order for further answers, but actually to file them in the clerk’s office by that time. This means that he must ensure that the further answers are in the clerk’s hands on or before the deadline date. This same requirement applies to the 30-day grace period after the original 45-day (or in the case of further answers to interrogatories 30-day) period has expired. To avoid the entry of the appropriate final judgment, the delinquent party must cause his answers to be filed the clerk’s office; mere mailing by that time does not suffice. Indeed, in each of these situations, even early mailing may not be enough if, through any inadvertence (including an error by the postal service), see Pierce v. Board of Appeals of Carver, 3 Mass.App.Ct. 352, 329 N.E.2d 774, 777 (1975), the paper is not at the clerk’s office, indeed actually filed there, Hackney v. Butler, 339 Mass. 605, 609, 162 N.E.2d 68, 71 (1959).

The revision changes Rule 33(a) in three other minor ways:

(1) As before, a party must answer each interrogatory or precisely state his reasons for objecting to it. Now, however, when preparing the response, the responding party must place each respective interrogatory on the paper, so that it immediately precedes the answer or objection to which it responds.

(2) The revision makes explicit that after serving a copy of the answers (or objections) on the interrogating party within the appropriate period, the responding party must file the original (i.e. ribbon copy) with the court.

(3) Unlike original Rule 33(a), the revision establishes a definite initial period (30 days) for furnishing court-ordered further answers. In all other respects, the obligation to supply further answers must conform to the same procedural requirements which govern original answers.

(1973): Rule 33 governs interrogatory practice. It changes Massachusetts practice slightly. Interrogatories may be served, as of right, by the defendant at any time after commencement of the action (i.e., after filing of the complaint; see Rule 3 ); by the plaintiff simultaneously with, or after, service of summons and complaint upon the defendant to whom the interrogatories are addressed.

The Massachusetts thirty-interrogatory limit, GL c. 231, § 61, has been adopted, with one important modification: the permitted thirty interrogatories may be divided into “sets”, provided that the total number of interrogatories served may never exceed thirty. This modification changes the rule that a “party shall not interrogate an adverse party more than once unless the court otherwise orders.” GL c. 231, § 63. The following examples illustrate what is permitted and what is forbidden:

Case #1: Three sets, each with 10 interrogatories. Permissible.

Case #2: Four sets, three of six interrogatories, one of 12. Permissible.

Case #3: Two sets, one of 16 interrogatories, one of 15. Impermissible without court order. In the absence of such order, the clerk will, upon the application of the party being interrogated, strike the second set; the interrogating party may then prepare, serve, and file a set of 14 interrogatories or less (i. e., so that his total is reduced to thirty or less).

Rule 33 also liberalizes the Massachusetts practice concerning failure to answer interrogatories. Super. Ct. Rule 36; see also Super. Ct. Rule 27. Under Rule 33, a party has thirty days as of right to answer interrogatories. Upon his failure to answer, the interrogating party may file a verified application, which in turn causes the clerk to notify all parties that unless answers are filed within an additional 30 days, a dismissal or judgment shall be entered. If the answers are not on file by the end of thirty days, the dismissal or judgment shall be entered, subject to vacation as of course by the clerk if answers are filed within 20 additional days. (The parties, by agreement, or the court, on motion with notice, may enlarge or shorten any of these times, or may vacate the dismissal or judgment.).

It should be observed that under Rule 33 the guillotine for refusal to answer interrogatories does not fall until:

30 days originally to answer,
plus 30 days after first notice,
plus 20 days after notice of conditional dismissal or judgment.
total 80 days.

Further, entry of judgment is governed by Rule 55, which requires a hearing on the issue of damages, of which hearing the defendant is entitled to an additional 7 days’ notice.

Dismissal, which is the equivalent under these rules of the old nonsuit, does not entail the same consequences as judgment (the equivalent of the old default), hence no additional hearing need be held.

One final aspect of Rule 33 is notable. Under Rule 33(c) a party whose answer depends on an examination of business records may, in lieu of answering, offer the interrogating party the right to inspect the records and derive his own answer. This privilege is conditioned upon an equality of bother. Only if the bother of deriving the information would be substantially the same for both parties may the party interrogated shift the burden to his opponent; otherwise, he may not. This procedure is taken verbatim from amended Federal Rule 33(c).