Mass. R. Civ. P. 5
Mass. R. Civ. P. 5
Reporter's Notes-2023
Rule 5(b) has been amended to add e-mail as a permissible method of serving pleadings subsequent to the original complaint and other documents on other parties to the case. Previously, Rule 5(b) permitted service of such documents to be made upon attorneys and selfrepresented parties (1) by delivery, (2) by mail to their last known address, (3) by leaving them with the clerk of court if no address is known, (4) through the court's Electronic Filing Service Provider as set forth in the Massachusetts Rules of Electronic Filing (Mass. R. E. F.) for cases using the court's electronic filing system, or (5) by email if the parties so agreed in writing. The amendment authorizes the use of e-mail service, regardless of whether the parties are using the court's electronic filing system and without the need for a written agreement of the parties.
Service by e-mail was first authorized by virtue of a Supreme Judicial Court Order issued at the beginning of the COVID-19 pandemic. Order Concerning Email Service in Cases under Rule 5(b) of Mass. Rules of Civil Procedure, effective March 30, 2020.
A survey of the bar conducted during the pandemic by the Supreme Judicial Court regarding various emergency COVID-19 orders showed that 89.7% of participants favored the continuation of the COVID-19 Order authorizing email service and that 72.5% favored its adoption by rule. Although there was overwhelming support for e-mail service, a concern raised by attorneys in the survey noted the ease with which e-mails may be overlooked, in particular where they may end up in a spam or junk e-mail file and the possible negative consequences of overlooking e-mails (for example, defaults, dismissals, disciplinary proceedings, and malpractice claims). In light of this legitimate concern, the Standing Advisory Committee on the Rules of Civil Procedure, in recommending the adoption of e-mail service, reminds lawyers of the need to monitor their e-mail. As stated by the Supreme Judicial Court in its COVID-19 order authorizing e-mail service, "[a]ttorneys must periodically check their `spam,' `quarantine,' or equivalent folders to ensure that a party's email is not being blocked or diverted to those folders."
This amendment, modeled on the pandemic order, was intended to make permanent the temporary authorization of e-mail service under Rule 5(b). The Standing Advisory Committee on the Rules of Civil Procedure concurred with the sentiments expressed by some attorneys responding to publication for comment that the draft rule would reduce the need for printed copies and facilitate service of documents for attorneys working remotely.
In the course of amending Rule 5(b), non-substantive stylistic changes were also made.
Rule 5(b)(1), first paragraph.
E-mail service is authorized as a method of service under Rule 5(b) unless otherwise provided in the Massachusetts Rules of Civil Procedure or unless the court has ordered otherwise or the parties have agreed otherwise.
For cases using the court's electronic filing system, the Massachusetts Rules of Electronic Filing provide that where a user of the court's e-filing system "receives notice that electronic service [through the court's e-filing system] on any party was undeliverable, the filing User shall then serve the document on that party by conventional methods." Mass. R. E. F. 7(c). The term "conventional method" is defined as "court rules and procedures that would apply in the absence of electronic filing." Mass. R. E. F. 2. Rule 5(b) is the court rule applicable to service of documents on parties after the original complaint absent electronic filing. The addition of e-mail to the list of methods of service under Rule 5(b) therefore means that e-mail service directed to a party's primary business e-mail address (and secondary business e-mail address, if applicable; see below) is a "conventional" method of service. As such, e-mail service can be used when service is undeliverable through the court's e-filing system.
Rule 5(b)(1)(A).
Attorneys are required to include their business e-mail address on all pleadings (Rule 11(a)(1)) and all motions and other papers (Rule 7(b)(2)). Rule 7(b)(2) makes the provisions regarding signing and matters of form for pleadings set forth in Rule 11 applicable to motions and other papers. Rule 5(b)(1)(A) reiterates this requirement and provides for an attorney's "primary business e-mail address" to be used as the e-mail address for e-mail service. An attorney should use the same primary business e-mail address as set forth in the attorney's Board of Bar Overseers Registration statement. See Supreme Judicial Court Rule 4:02 and Rule 11(a), as amended in 2021, including 2021 Reporter's Notes. An attorney may provide a secondary business e-mail address as well; see Rule 5(b)(1)(B) below. Attorneys should take appropriate steps to update the court and other parties promptly upon a change in their e-mail address.
Rule 5(b)(1)(B).
This provision allows an attorney to designate up to two secondary business e-mail addresses by so informing all other attorneys and self-represented parties, in which case e-mail service must be made using the primary business e-mail address and any secondary business email addresses. Secondary e-mail addresses may be those of another attorney, a law firm's file management e-mail address, a paralegal, support staff, or anyone else. This may serve to reduce the chances of an attorney being unaware of service of a document because an e-mail was lost, blocked, labeled as spam, or otherwise overlooked in the all-too-frequent daily barrage of emails.
Rule 5(b)(1)(C).
This paragraph adopts the provision from the COVID-19 Order prohibiting e-mail service on a self-represented party unless the self-represented party has consented in writing to receiving e-mail service. A self-represented party may so consent by e-mail and may later withdraw consent in writing (including by e-mail) or by leave of court. The exclusion of self-represented parties likely is a recognition that attorneys are required by Supreme Judicial Court Rule 4:02(1) to have a business e-mail address, while self-represented parties are not required to have an email address. (See the language in Rule 11(a)(1) that self-represented parties shall state their -email address, "if any.") Service by e-mail may not be made on an incarcerated self-represented party.
Rule 5(b)(1)(D); Additional Time after E-mail Service.
This paragraph adopts the provision from the COVID-19 Order addressing the time when e-mail service is deemed to have been made. E-mail service is deemed complete upon hitting "send" or its equivalent on the sending device, "unless the person making service receives notice or otherwise reasonably should be aware that the e-mail was not successfully transmitted."
A simultaneous amendment to Rule 6(d) provides that if a party is served by e-mail, an additional 3 days shall be added to any time period where a party has the right to act or take some act after having been served. This additional 3-day period has in the past applied to service by mail and service through the court's Electronic Filing Service Provider, and e-mail service is now treated the same.
Rule 5(b)(1)(E).
Documents may be attached to the e-mail or may be accessed by a link within the text of the e-mail allowing a recipient to download them.
There are no provisions in the rule regarding mandatory language in the subject line or text of the e-mail nor regarding PDF format of documents or file size restrictions. The reasons for not including in the Massachusetts rule requirements such as PDF format and size restrictions were aptly stated in a Committee Comment to an Illinois rule allowing e-mail service:
In amending.[the Illinois rule] to provide for e-mail service, the Committee considered whether special additional rules should apply to documents served by e-mail, e.g., specified file formats, scan resolutions, electronic file size limitations, etc. The Committee rejected such requirements in favor of an approach which provides flexibility to adapt to evolving technology and developing practice. The Committee further anticipates good faith cooperation by practitioners. For example, if an attorney serves a motion in a format which cannot be read by the recipient, the Committee expects the recipient to contact the sender to request an alternative electronic format or a paper copy.
Ill. Sup. Ct. Rule 11, Committee Comment, 2015.
There are also no provisions in the rule regarding electronic security precautions, such as password-protected links or attachments. Parties are encouraged to consider security precautions in appropriate circumstances, particularly when the document being served contains information that calls for a higher degree of security.
Rule 5(b)(1)(F).
This provision allows a party claiming lack of receipt of emailed documents to seek relief from any court ruling or other action that may have resulted from lack of receipt.
Reporter's Notes--2021
In light of the adoption of the Massachusetts Rules of Electronic Filing (Mass. R. E. F.) (Supreme Judicial Court Rule 1:25, effective September 1, 2018), changes were made to Rule 5.
Rule 5(a). A sentence was added to Rule 5(a) to refer to Rule 7(a) of the Mass. R. E. F. regarding the requirements of service of electronically filed documents on all parties.
Rule 5(b). Language was added to Rule 5(b) to permit service of electronically filed documents on parties through the Electronic Filing Service Provider (Mass. R. E. F. 7(b)). In addition, a sentence was added to allow the parties to agree in writing to service of documents by e-mail. Such an agreement may provide for some, or all, documents to be served by e-mail.
Rule 5(f). The amendment to Rule 5(f) deals with untimely filings resulting from technological failures of the Electronic Filing Service Provider (Mass. R. E. F. 15).
Reporter's Notes:
(2017) The 2017 amendment, adding Rule 5(h), serves to alert attorneys, parties, and interested members of the public to the requirements of Supreme Judicial Court Rule 1:24, Protection of Personal Identifying Information in Publicly Accessible Court Documents (effective November 1, 2016). Under Supreme Judicial Court Rule 1:24, unless there is an exception, personal identifying information, such as social security numbers, parent's birth surnames, driver's license numbers, and financial account numbers, may not be included in documents filed in court unless redacted as set forth in the rule.
(2013): The amendment to Rule 5(a) in 2013 was part of a group of amendments to Rules 5(a), 54(c), and 55(b)(2) that responded to the Supreme Judicial Court's decision in Hermanson v. Szafarowicz, 457 Mass. 39 (2010). The Hermanson case dealt with the conflict between G.L. c. 231, § 13B, which limits a plaintiff's ability to demand a specific monetary amount in a complaint, and Rule 54(c), which provides that a default judgment may not exceed the amount requested in the demand for judgment.
Detailed analysis of the amendments to these three rules is set forth in the Reporter's Notes to the 2013 amendments to Rule 55(b)(2).
(2002): The 2002 amendment to Rule 5(d) added interrogatories under Rule 33 and answers and objections to interrogatories under Rule 33 to the listing of discovery materials that are not to be filed in court (unless leave of court is obtained). This amendment is intended to relieve the parties and court personnel of the burden of filing interrogatories and answers in court. Limitations on the filing of discovery documents were first added to Rule 5(d) in 1989, at which time the following documents were no longer to be filed: notices of taking and transcripts of depositions and requests and responses to requests under Rule 34.
In recent years, some courts have provided, by Standing Order or Administrative Directive, that interrogatories and answers to interrogatories not be filed, notwithstanding the express language of Rule 5(d). See Superior Court Administrative Directive No. 90- 2, Housing Court Standing Order No. 1-96, District Court Standing Order No. 1-98 (applicable in Berkshire, Essex, Middlesex and Norfolk Counties). The 2002 amendment to Rule 5(d) has eliminated the conflict between the Massachusetts Rules of Civil Procedure and any such Standing Orders or Directives.
It should be noted that this amendment to the Massachusetts Rules of Civil Procedure does not change the requirement of Rule 7(a) of the Uniform Summary Process Rules (Trial Court Rule I) that discovery demands be served and filed in court (which results in an automatic postponement of the trial date pursuant to Uniform Summary Process Rule 7(b)). The Massachusetts Rules of Civil Procedure are applicable in summary process actions only if they are not inconsistent with the Uniform Summary Process Rules (see Uniform Summary Process Rule 1), and the provisions of the latter set of rules regarding filing of discovery are now inconsistent with Mass. R. Civ. P. 5(d).
(1996): With the merger of the District Court Rules into the Massachusetts Rules of Civil Procedure, differences that had existed in the District Court rules have been eliminated in merged Rule 5. District Court Rule 5(d) had required that papers after the complaint that are required to be served upon a party must be filed with the court either before service or within five days thereafter (as opposed to a reasonable period of time thereafter as set forth in Rule 5 of the Mass. R. Civ. P.). Also, by merging the two sets of rules, the 1989 amendment to Mass. R. Civ. P. 5(d) regarding the non-filing of specified discovery materials is now clearly applicable in the District Court and Boston Municipal Court.
(1989): As a result of this amendment, which adds a subparagraph (2) to Rule 5(d), specified discovery documents shall ordinarily no longer "be presented or accepted for filing." The discovery documents that shall not be filed, except by leave of court, are: notices of taking and transcripts of depositions, and requests and responses to requests under Rule 34. However, in order to give the court access to relevant documents when a ruling is required, a party "pressing or opposing any motion or other application for relief may file any document pertinent thereto."
Interrogatories and answers thereto are not covered by this amendment, and must be filed in accordance with Rule 5(d)(1).
The reasons for this amendment are that some courthouses have insufficient storage space, and the filing of discovery documents requires valuable clerical time. This amendment is largely patterned after Superior Court Department Standing Order No. 3-87 (Applicable to the Middlesex Division) entitled "SUBJECT: PAPERS IN CIVIL ACTIONS WHICH WILL NOT BE ACCEPTED FOR FILING." The United States District Court for the District of Massachusetts has a similar local rule entitled "Nonfiling of Discovery Materials." Local Rule 16(g).
There may not be a need for the new non-filing requirement in some counties or specific courthouses. The amendment permits a court to require filing "generally," thus authorizing a court to order the filing of all discovery, or categories of discovery, in all cases or in categories of cases. There may be occasions when a party, the press, or other concerned citizen has a good reason to have more discovery filed than is normally permitted under the amendment. Consequently, the amendment permits the court, "on motion ex parte by any party or concerned citizen, or on its own motion," to make a different order as to the filing of discovery either "generally or in a specific case."
(1983): Rule 5(a) has been amended by adding discovery documents to those which must be served upon each of the parties. Absent this provision, one must repeatedly consult the docket to keep abreast of the case and to ascertain whether further discovery is necessary. The Standing Advisory Committee considered the potential for large reproduction and mailing costs in multiple-party litigation; this can be controlled, however, by the court's authority to "otherwise order" which is already present in Rule 5(a). This amendment draws the Massachusetts Rule closer to Federal Rule 5(a).
(1975): Rule 5(g) has been revised to accommodate the introduction of flat filing, see S.J.C. Rule 3:20. A paper will still carry the same data as previously; it will not, however, bear it on the reverse, but only at the head. The caption, Rule 10(a), and the attorney's (or party's) signature and statement of address and telephone number, Rule 11(a), will convey the information formerly placed upon the familiar "blue backer." The endorsement for costs, statutorily required if plaintiff is not an inhabitant of the Commonwealth, G.L. Ch. 231, Sec. 42, 43, need no longer appear on the back of the complaint; in this context, "endorsement" should not be read literally.
Because the revision of Rule 5(g) aims to simplify practice, its terms should be read liberally. Thus clerks should not reject, as violating the rule, a paper which contains writing or typing on its back. Nor should the attachment of a backer justify returning the paper. Finally, the mandate of flat filing does not purport to regulate the manner in which the papers arrive at the clerk's office. Thus papers which are folded for mailing do not violate either Rule 5(g) or S.J.C. Rule 3:20.
(1973): Rule 5 regulates the service and filing of virtually every court document connected with a pending matter. Essentially, it requires that every party affected by a document receive appropriate notice at every step of the action after the original service of process. Obviously, the opposing party or his attorney is entitled to receive a copy of the answer, and of any motion or other paper required to be served; the reference in Rule 5(a) to "similar paper" indicates that the list of other documents is not to be taken as exhaustive.
The phrase "except as otherwise provided" in Rule 5(a) refers to motions which may be made ex parte: (Rule 6(b) -request for enlargement of time made prior to expiration of the applicable period); (Rule 6(d) -application to hear a motion within 7 days); (Rule 65 -application for a temporary restraining order); and (Rule 77(d) -requiring the clerk to give notice of the entry of all orders).
Parties in default for failure to appear need not be served, unless the paper in question contains a new or additional claim for relief; in such case, Rule 4 applies. Another exception to the blanket service requirement is any case involving numerous defendants in which the court has ordered a partial abrogation of such service (see Rule 5(c)). Formerly in Massachusetts, although notice that a motion had been marked up for hearing had to be furnished to "all parties interested" a copy of the motion itself did not have to be supplied unless the opposing party demanded it. Of course, almost all attorneys routinely send copies of all papers to opposing counsel. Rule 5(a) will merely codify that salutary practice.
Rule 5(b) permits service to be made by delivering a copy to the attorney or party (if the party appears pro se), or by mailing one to him at his last known address; or if no such address is known, to the clerk of court. If a party has more than one attorney of record, service upon one of them suffices. Except for permitting service on the clerk in the rare case in which the address is unknown, this portion of Rule 5(b) works no substantial change in Massachusetts practice.
The concept of "delivery" is clearly set out in Rule 5(b). Prior Massachusetts practice did not precisely define this concept. The few cases which have considered the question suggest that the Massachusetts rule concerning delivery was more constrictive than Rule 5(b). For example, effective delivery under former Super. Ct. Rule 3 seemed to require personal receipt by the party or his attorney. Although the manner in which the paper reached the attorney or party was not essential, actual delivery was crucial. "The words 'delivering the same personally' as used in former Super. Ct. Rule 3 did not require the service in hand which is familiar in connection with a writ or process of the court. They were satisfied if the notice was caused to reach the party or his counsel in person." Checkoway v. Cashman Bros. Co., 305 Mass. 470, 472, 26 N.E.2d 374, 375 (1940). The individual giving the notice may use the post office for delivery, "if he is willing to take the chance that it will actually reach the opposing party or his counsel in person." Ibid.
Unlike Rule 5(b), which allows delivery by leaving the copy with a clerk or other person in charge of the recipient's office (or if the office is empty, by leaving the copy in a conspicuous place therein), Massachusetts strictly required personal delivery. In Foley v. Talbot, 162 Mass. 462, 463, 39 N.E. 40 (1894), the attorney had left notice of filing a bill of exceptions in the office of opposing counsel. The Court held that a notice thus left was not duly served unless it actually reached its addressee.
Under Rule 5(b), service may be made by mailing the paper to the party or attorney at his last known address; if no address is known, the paper may be left with the clerk of court. Prior Massachusetts practice made no provision in cases where the address was unknown.
Notice must be written. In the absence of a waiver of written notice, an oral notice is void. Chertok v. Dix, 222 Mass. 226, 227, 110 N.E. 272 (1915). On the other hand, under Rule 5(b), notice by mailing is complete upon depositing the correctly-addressed, postage-prepaid notice in the mailbox. This conforms to previous practice. Checkoway v. Cashman Bros. Co., 305 Mass. 470, 471, 26 N.E.2d 374, 375 (1940); Blair v. Laflin, 127 Mass. 518, 521 (1879).
Rule 5(c) is a kind of "housekeeping" measure designed to enable the court to relieve parties of unnecessary paperwork and postage. This provision, which has no counterpart in prior Massachusetts law, will doubtless be construed by the courts in such a way as to alleviate the problem of excessive service, and not to create the worse difficulty of insufficient service.
The Supreme Judicial Court has held that under prior rules and statutes, filing must precede notice. In Arlington Trust Co. v. LeVine, 289 Mass. 585, 586, 194 N.E. 725, 726 (1935), one attorney had prepared a bill of exceptions and sent them to his opponent with the following letter: "I am enclosing herewith copy of the Defendant's Bill of Exceptions in the above entitled matter, original of which I am this day filing with the Clerk of the Superior Court at Boston." The applicable statute, G.L. c. 231, § 113, and rule, Super. Ct. Rule 3, required that exceptions be reduced to writing and "notice thereof in writing shall be given to the adverse party." The Court held that the notice did not fulfill these requirements. (But see Curran v. Burkhardt, 310 Mass. 466, 468, 38 N.E.2d 622, 624 (1941); and note that S.J.C. Rule 2:28 requires only that copies be given "not later than the day of filing"). Rule 5(d) will relax the heretofore strict Massachusetts practice and will give the attorney the option of serving his opponent after filing, or a reasonable time before filing.
Federal Rule 5 makes no provision for proof of service of pleading and papers subsequent to the complaint (cf. Rule 4(d)); the matter is controlled by local rule in many Districts. Rule 5(d) has been expanded to eliminate all formalities as to proof of service of papers upon other parties. If an adverse party challenges the adequacy of notice, the serving party will of course have to prove service. In order to minimize frivolous challenges, Rule 5(d) provides that a simple statement signed under the penalties of perjury will suffice to establish prima facie proof of service: "I certify that on October 9, 1974, I served the within Answer on plaintiff by mailing a copy thereof, postage-prepaid, directed to his attorney, John Adams, Esq., at his office, 78 Court Street, Boston, Massachusetts. Signed under the penalties of perjury."
The last sentence of Rule 5(d) is designed to make explicit that the attorney's failure to supply proper proof of service does not invalidate the service if in fact it has been properly completed.
Rule 5(e) has no specific Massachusetts analogue, although various statutes and rules indicate strongly that filing must take place at the clerk's office. See, e.g., G.L. c. 231, §§ 13, 113; Super. Ct. Rule 73. The portion of Rule 5(e) permitting service with the judge is new to Massachusetts. It is designed to cover that rare circumstance in which a party's ability to obtain immediately necessary relief must be unjustly impeded were he required first to file his paper with the clerk.
Rule 5(f) makes clear that the court, either of its own motion, or on application from the adverse party, has power to compel filing of papers; such power necessarily requires an appropriate sanction, in this case, nullifying the service and the papers themselves.
The "backing" requirement of Rule 5(g) codifies familiar Massachusetts practice. The reference to endorsement for costs deals with the requirement of G.L. c. 231, §§ 42 and 43 that initial papers must, if the plaintiff is not an inhabitant of the Commonwealth, be endorsed before entry by a "responsible" inhabitant, who then becomes liable for costs if the plaintiff is unable or unwilling to pay them. This requirement does not affect the large majority of cases, in which the plaintiff is a resident. Shute v. Bills, 198 Mass. 544, 545, 84 N.E. 862, 863 (1908). An endorsement from the office of an attorney is a sufficient compliance with the statute; the attorney thus becomes liable for the costs. Johnson v. Sprague, 183 Mass. 102, 104, 66 N.E. 422, 423 (1903). Rule 5(g) merely clarifies existing law and clearly implies that if the attorney does not wish to be liable for costs, he may so indicate on the backer of the complaint. In that case, the plaintiff must find someone else to endorse the backer.