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Rule 40 – Assignment of Cases for Trial: Continuances

May 13, 2021 | Civil Law, Massachusetts

(a) Assignment of Cases for Trial. Cases may be assigned to the appropriate calendar or list for trial or other disposition by order of the court including general rules and orders adopted for the purpose of assignment. Precedence shall be given to actions entitled thereto by statute.
(b) Continuances. Continuances shall be granted only for good cause, in accordance with general rules and orders which the court may from time to time adopt.
(c) Affidavit or Certificate in Support of Motion. The court need not entertain any motion for a continuance based on the absence of a material witness unless such motion be supported by an affidavit which shall state the name of the witness and, if known, his address, the facts to which he is expected to testify and the basis for such expectation, the efforts which have been made to procure his attendance or deposition, and the expectation which the party has of procuring his testimony or deposition at a future time. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit. The same rule shall apply, with the necessary changes in points of detail, when the motion is grounded on the want of any material document, thing, or other evidence.

Mass. R. Civ. P. 40

Effective July 1, 1974.

Reporter’s Notes:

(1973): Rule 40 governs in a general way the final progress of cases toward trial. Federal Rule 40, on the other hand, deals only with the assignment of cases for trial. It says nothing of continuances.

It should be emphasized that Rule 40 states general principles pertaining to assignment and continuances. It does not attempt to lay down detailed regulations. Thus the matters covered by Super. Ct. R. 57, 57 a, and 59-70 will still require the promulgation of standing court orders, and Rule 40(a) anticipates this. Rule 40(a) does not alter practice. In Massachusetts, courts have the inherent power to place cases on the trial list even without request of the parties, Sweeny v. Home Owners’ Loan Corporation, 307 Mass. 165, 166 (1940). Rule 40(a) makes no explicit provision for advancing an action for speedy trial. G.L. c. 231, § 59A allows the Court upon motion for cause shown to advance an action for speedy trial. The final sentence of Rule 40(a) embodies this practice. See also, G.L. c. 231, §§ 59B -E, for other examples of statutory special preferences. (Even without statute, the Court seems to have power to advance cases for speedy trial. See Merchants’ National Bank of Bangor v. Glendon Company, 120 Mass. 97, 99 (1876).)

Rule 40(b) and Rule 40(c) state general principles pertaining to continuances. By and large, they codify existing practice. The granting or denial of a continuance is discretionary with the court; the court’s exercise of discretion will not be disturbed on appeal, absent a showing of abuse. Mowat v. Deluca, 330 Mass. 711, 712 (1953). The Court may grant a discretionary continuance at any time prior to trial, indeed at any time prior to judgment. American Woodworking Machinery Co. v. Forbush, 193 Mass. 455, 457 (1907).