Opinion
No. 01-259-B
May 2, 2001
MEMORANDUM OF DECISION AND ORDER
On April 25, 2001, this civil action, initially filed and once disposed of in the Clinton Division of the District Court, was before the undersigned justice for hearing on the motion of the defendant to dismiss plaintiff's appeal to the Superior Court. In support of his motion, the defendant argues that plaintiff's removal of this action to the Superior Court should be dismissed because he failed to preserve that right consistent with the requirements of G.L.c. 231, § 103.
Where applicable, G.L.c. 231, § 103 provides as follows:
If a party elects to bring in any district court any action or other civil proceeding which he might have begun in the superior court, he shall be deemed to have waived a trial by jury and his right of appeal to the superior court unless within thirty days of commencement of the action or service of a responsive pleading . . . a plaintiff files a claim to a jury trial in the superior court with the district court . . . . (emphasis added).
In the present case, the complaint filed in the district court was accompanied by a statement of damages suggesting that plaintiff was seeking compensation in the amount of $30,000.00. For that reason, and, because the jurisdictional limit of civil matters in the Superior Court is $25,000.00, the plaintiff "might" have begun the action in the Superior Court.
There is no claim in the text of either the complaint, filed in the district court on December 7, 1999, nor in the text of an amended complaint filed in the district court on March 27, 2000, for a jury trial in the Superior Court. There is no evidence that such a claim was made within thirty days of commencement of the action. It appears, therefore, that plaintiff has failed to make a claim of jury trial in the Superior Court, as required by G.L.c. 231, § 103. See Islami v.Needham, 38 Mass. App. Ct. 442, 445-446 (1995).
The nature or character of a pleading or other paper filed in court is determined by its substance and not by the title, name or description attached to it. See E.S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110 (1928).
Finally, the plaintiff argues that the defendant revived the plaintiff's right to jury trial in Superior Court when he filed a counterclaim. See G.L.c. 231, § 103; Haddad v. Pulaski, 36 Mass. App. Ct. 964, 965 (1994). While the counterclaim of $700 was clearly less than the $25,000 required by the first paragraph of G.L.c. 231, § 104, which governs this removal procedure, the plaintiff relies on the provisions of the second paragraph of § 104. That states, in pertinent part, that "[a] party who would have been entitled to remove the case for trial in the [S]uperior [C]ourt as hereinabove provided but for the fact that the amount of the . . . counterclaim . . . does not exceed [$25,000] shall if he desires . . . file an entry fee of [$50] and bond [in the penal sum of $100] within thirty days after notice of the decision or finding." While the plaintiff complied with the fee and bond filing requirements of the section, that argument must also fail. Section 104 requires in any case that, when relying on a counterclaim for removal, "[s]uch claim of trial in the [S]uperior [C]ourt must be filed no later than twenty-five days after service of the pleading which asserts the . . . counterclaim . . . on which the right to removal is based." No such claim was made by the plaintiff in this case following the defendant's counterclaim.
In 1967, the Great and General Court enacted Chapter 549, § 1, codified in our General Laws as G.L.c. 218, § 19A. As noted inIslami v. Needham, that six person jury statute was intended to reduce the inefficiencies, both to the parties and the judicial system, inherent in a system of multiple trials of the same action. Id. at 446. In the present case, the matter has been tried to conclusion. It would be inefficient, to the defendant and to the judicial system, to allow a retrial of the issues in the Superior Court, particularly where, as in this case, the plaintiff has failed to preserve his right to do so.
For the reasons set forth above, defendant's motion will be allowed.
ORDER
Defendant's motion to dismiss is ALLOWED .
________________________________ Robert H. Bohn, Jr. Justice of the Superior Court
DATED: May 2, 2001