Reporter’s Notes:

(1996): With the merger of the District Court Rules into the Mass. R. Civ. P., Rule 65.3 is now applicable in the District Court. It had previously been held by the Supreme Judicial Court that Rule 65.3 was not applicable in the District Court, although the provisions thereof might have been applied by analogy in District Court civil contempt proceedings. Mahoney v. Commonwealth, 415 Mass. 278, 612 N.E.2d 1175 (1993).

(1982): Prior to the adoption of this rule, no provisions existed in the Rules of Civil Procedure to specifically govern civil contempt proceedings. See Nolan, Equitable Remedies, 81 Massachusetts Practice, § 193. There is no analogous federal rule.

Under Rule 65.3(a) the rule is made applicable to all proceedings to enforce compliance with temporary, preliminary or permanent injunctions; stipulations in lieu thereof, Rule 70 orders; and other similar orders “for the violation of which civil contempt is an appropriate remedy.” It is not applicable to discovery sanctions, under Rules 26(b), 36(a) and 37, nor to small claims cases (Rule 81(a)(7) ). This rule excludes discovery sanctions because when a discovery order is violated, the parties are usually already before the court and there are a wide range of available sanctions, other than contempt. A distinct civil contempt proceeding, with its own summons, pleadings, and potential evidentiary hearing, seems unnecessary in the context of most disputes over the violations of a discovery order.

Section (b) tells how to commence a civil contempt proceeding, and clarifies that such proceeding shall have the same docket number and be otherwise treated as part of “the civil action out of which the contempt arose.” Consequently, no entry fee is required.

Rule 65.3(c)(1)-(7) prescribes what must be included in a civil contempt complaint, and, because of the serious nature of an allegation of civil contempt, requires verification or accompanying appropriate affidavits.

Rule 65.3(d) endows the summons with unusual significance. Because of the expedited and grave nature of a civil contempt proceeding, the summons (i) “issues only on a judge’s order,” (ii) must “direct the parties to appear before the court not later than ten days” after issuance of the order; and (iii) must specifically state what will happen when the parties appear. The rule places the responsibility on the party filing a complaint for contempt to obtain the summons.

Rule 65.3(d) is constructed to meet two different goals. The first is to permit flexibility with respect to what occurs when the parties first appear in answer to the summons. Depending on the nature of the alleged contempt, a case may or may not benefit from the filing of an answer, expedited discovery, or an immediate hearing. Consequently, the rule gives wide discretion to the judge to determine what should happen when the parties appear: a “hearing on the merits,” if it makes sense to have that quickly; scheduling a trial; considering dispensing with an answer, expediting discovery, if discovery is necessary; requiring initial compliance by the defendant pending a hearing; considering other appropriate matters; or requiring other appropriate acts to be performed.

The second goal is to eliminate, to the extent reasonably possible, surprising the parties. The parties should know, for example, whether a trial will take place when they appear in response to the summons. The word “specifically” in “for the purpose or purposes specifically stated therein” is to emphasize the importance of informing the parties what to expect. To merely place in each summons a laundry list of everything which might happen or “whatever the court may deem appropriate’ will not comply with either the language or spirit of this rule.

Rule 65.3(e) provides that service of the summons and complaint and “any accompanying affidavits” will normally be “in hand.”

Rule 65.3(f) provides for an answer within 20 days, unless “the court otherwise orders” in the summons or when the parties appear. The judge may, for instance, decide an answer is unnecessary, or that it should be served in fewer than 20 days.

Under Rule 65.3(g) a party must seek an “order permitting discovery,” unlike the normal discovery provisions which permit parties, on their own, to initiate discovery. The rule requires the parties seeking discovery to particularize the need for, type, and timing of the discovery, sought. The purpose is to constrict the more wide-open discovery which can occur in other proceedings. It is important to note that in an unusual case, the court can order discovery in the initial summons under Rule 65.3(d) or at the hearing which occurs when the parties respond to the summons.

Rule 65.3(h) makes Rules 52 (Findings by the Court) and 58 (Entry of Judgment) applicable to civil contempt proceedings.