More Categories

Rule 81 – Applicability of Rules

May 13, 2021 | Civil Law, Massachusetts

(a)Applicability in General.

(1)Courts Other Than District Court. These rules apply to all civil proceedings in courts whose proceedings they govern except:

(1) proceedings pertaining to the writ of habeas corpus;
(2) proceedings pertaining to naturalization;
(3) proceedings pertaining to the disciplining of an attorney;
(4) proceedings pertaining to juvenile delinquency;
(5) proceedings pertaining to contested elections;
(6) proceedings pertaining to dissolution of corporations and distribution of their assets;
(7) proceedings pertaining to summary process, small claims, and supplementary process;
(8) proceedings pertaining to the adjudication, commitment and release of sexually dangerous persons;
(9) proceedings for divorce or for the annulment or affirmation of marriage; and
(10) proceedings to foreclose any mortgage on real estate brought in compliance with the “Servicemembers Civil Relief Act,” as set forth in 50 U.S.C. §§ 3901 et seq.
(2) District Court. These rules apply to all civil proceedings involved in cases traditionally considered tort, contract, replevin, or equity actions, except small claims actions.
(3) In respects not governed by statute, or in the case of the District Court not governed by other District Court rules, the practice in civil proceedings to which these rules do not apply shall follow the course of the common law, as near to these rules as may be, except that depositions shall not be taken, nor interrogatories served, save by order of the court on motion, with notice, for good cause shown.
(b) Writs Abolished. The following writs are abolished: audita querela; certiorari; entry; error; mandamus; prohibition; quo warranto; review; and scire facias. In any action seeking relief formerly obtainable under any such writ, procedure shall follow these rules.
(c) Superior Court: Trial of Framed Jury Issues. These rules govern the trial of any issues framed in another court for trial in the Superior Court; but nothing herein contained shall authorize the use of discovery procedures contained in these rules, except as a justice of the Superior Court, on motion with notice, may allow for good cause shown.
(d)Terminology in Statutes. In applying these rules to any proceedings to which they apply, the terminology of any statute which also applies shall, if inconsistent with these rules, be taken to mean the analogous device or procedure proper under these rules.
(e)Procedure Not Specifically Prescribed. When no procedure is specifically prescribed, the court shall proceed in any lawful manner not inconsistent with the Constitution of this Commonwealth, these rules, or any applicable statute.
(f)Superior Court: Actions Removed, Transferred or Appealed from Another Court. Except as otherwise provided in subdivision (a) of this rule, these rules apply to civil actions removed, transferred or appealed to the Superior Court from any other court. Repleading is not necessary unless a justice of the Superior Court so orders. If the defendant has not answered prior to removal or transfer, he shall answer or present the other defenses or objections available to him under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleadings, then filed, or within 5 days after the filing of the removal or transfer papers, whichever period is longest.
(g) Actions Transferred or Remanded to District Court. In any action commenced in the Superior Court and transferred to a district court or the Boston Municipal Court, or in any action remanded to either such court after removal to the Superior Court, the rules for the time being in force in the district court or the Boston Municipal Court shall control all proceedings subsequent to the filing of the order for transfer or remand; but all proceedings in the Superior Court shall be governed by these rules.

Mass. R. Civ. P. 81

Amended June 27, 1974, effective July 1, 1974; amended effective Feb. 24, 1975; amended Jan. 6, 1995, effective Feb. 1, 1995; May 3, 1996, effective July 1, 1996; November 28, 2007, effective March 1, 2008; amended Dec. 19, 2018, effective Jan. 1, 2019.

Reporter’s Notes–2019 Rule 81(a)(1) has been amended to reflect that the federal Servicemembers Civil Relief Act was relocated in the United States Code from 50 U.S.C. App. §§ 501 et seq. to 50 U.S.C. §§ 3901 et seq. in 2015. A similar amendment was made to Rule 55(b)(4) in 2017.

Reporter’s Notes (2008): Unrelated to the statewide one-trial system, the reference in item 10 of Rule 81(a)(1) is amended to delete the reference to the “Soldiers’ and Sailors’ Civil Relief Act,” which was renamed as the “Servicemembers Civil Relief Act” and updated by Congress in 2003.