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Rule 77 – Courts and Clerks

May 13, 2021 | Civil Law, Massachusetts

(a) Courts Always Open. Unless otherwise provided by law, the courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning process, and of making and directing all interlocutory motions, orders, and rules.
(b) Clerk’s Office and Orders by Clerk. The clerk’s office with a clerk or assistant clerk in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays. All motions and applications in the clerk’s office for issuing mesne process, for issuing final process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but his action may be suspended or altered or rescinded by the court upon cause shown.
(c) Filing Date of All Papers Received by Clerk. The clerk shall date-stamp all papers whatsoever received by him, whether by hand or by mail. Any paper so received, whether stamped or not, shall be deemed to have been filed as of the date of receipt. If at any subsequent time, any party disputes the fact of such filing, the court shall determine the question, taking whatever evidence it deems appropriate. Proof of mailing shall constitute prima facie proof of receipt.
(d)Notice of Entry of Orders or Judgments. Unless an order or judgment is entered in open court in the presence of the parties or their counsel, the clerk shall immediately upon the entry of an order or judgment serve upon each party who is not in default for failure to appear a notice of the entry by at least one of the following means, at the option of the clerk:

(1) By Mail. By mail in the manner provided for in Rule 5 and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order or judgment is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers.
(2)By Electronic Means. By electronic means in the manner selected by the clerk, which may include: (a) e-mail to an attorney’s e-mail address on file with the Massachusetts Board of Bar Overseers; (b) e-mail to an e-mail address provided by an attorney or party pursuant to a court rule or order; or (c) electronic transmission to an address and in a form provided by the attorney or party and specifically accepted by the clerk for such purpose. Transmission of such electronic notice is sufficient notice for all purposes for which notice of the entry of an order or judgment is required by these rules, without need for mailing; provided that the clerk shall notify by mail, pursuant to subsection (d)(1), any self-represented litigant who does not provide an e-mail address voluntarily to the clerk for purposes of notice and any attorney who has not provided such an e-mail address and is not required to maintain an e-mail address with the Board of Bar Overseers. The clerk shall make a note in the docket of electronic notice. Where a self-represented litigant wishes to withdraw his or her voluntary agreement to electronic service under this rule, the litigant shall notify the court in writing of his or her withdrawal of voluntary agreement to receive electronic notices and shall confirm the mailing address to which subsequent notices may be mailed.

Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4 of the Massachusetts Rules of Appellate Procedure or Rule 4 of the District/Municipal Courts Rules for Appellate Division Appeal, and except as relevant to a motion for relief from judgment under Rule 60(b)(6) of these rules.

(e) Transmittal of Papers. In courts other than the District Court, at the direction of any judge of the court, the clerks for the several counties shall transmit the papers in any action from one county to another when a matter has been duly set down for hearing in a county other than that in which the action is pending. Pleadings, motions, and papers to be filed in such case shall be filed in the office of the clerk for the county in which the case is pending. The clerk for the county in which the case is heard shall certify the proceedings had in his county to the clerk for the county in which the case is pending and, at the direction of any judge of the court, shall return to such clerk all the papers, to be kept there on file.

When the court orders a change of venue, such order shall include a direction to the clerk to transmit all papers to the clerk for the county to which the action is transferred and thereafter all the papers shall be filed and all proceedings taken as if the action had been commenced in the county to which it is transferred.

Mass. R. Civ. P. 77

Amended Dec. 2, 1983, effective Jan. 1, 1984;May 3, 1996, effective July 1, 1996; June 24, 2009, effective August 1, 2009; January 25, 2017, effective March 1, 2017.

Reporter’s Notes

(2017) The 2017 amendment to Rule 77(d) adds electronic means as an option in addition to mail for the clerk to provide notice of an order or judgment to a party. The clerk may send notice to an attorney’s e-mail address on file with the Board of Bar Overseers; to an e-mail address that the attorney or party has provided pursuant to a court order or court rule; or to an email address that an attorney or party has provided to the clerk for that purpose. As in the case of mail notice, the clerk must make a note on the docket of the electronic notice. Where electronic notice is given, the clerk need not provide notice by mail.

The rule contains provisions to address the situation where a self-represented litigant has not provided an e-mail address or no longer desires to receive electronic notice or where an attorney is not required to provide an e-mail address with the Board of Bar Overseers.

(2009): Amendments to Rule 52(c) effective March 1, 2008 require findings of fact and rulings of law in jury-waived cases in the District Court if a party timely submits proposed findings and rulings. 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. These amendments also deleted Rule 64A, which provided that a party seeking rulings of law in jury-waived cases in the District Court must submit to the court Requests for Rulings of Law.

In light of the elimination of the procedure involving Requests for Rulings of Law, the 2009 amendment deleted the following sentence from Rule 77(d): “In the District Court, such notice shall indicate the court’s ruling on any requests for rulings which may have been made.” The deletion of this sentence is not intended to change the existing practice by which the clerk sends to the parties or counsel a copy of the court’s findings and rulings.