Ticchi v. Ambassador Cab, Inc.

Judgment was entered for the plaintiff because the defendants failed to file answers to interrogatories of the plaintiff within the prescribed time. See Mass.R.Civ.P. 33(a), as amended, 368 Mass. 906 (1975). The judge denied their motion to vacate judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).

The complaint was filed on January 25, 1980, in a District Court and then removed to the Superior Court. On the failure of the defendants to file answers within forty-five days, the plaintiff filed an application for a conditional judgment which became a final judgment because the answers had not been filed by the expiration of thirty days from the notice of application. Mass.R.Civ.P. 33(a), as amended, 368 Mass. 906 (1976). Twelve days after expiration of the thirty-day period and less than five months after the entry of the action, the defendants filed their answers in connection with their motion under rule 60(b). In denying this motion, the judge, in effect, imposed the most severe sanction open to him — judgment against the defendants. There has been no showing of prejudice by the plaintiff. See and compare Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430-431 (1979). We think that such a sanction is too severe under these circumstances, though the defendants “should be subjected to appropriate sanctions short of being deprived of a trial on the merits of the plaintiff s claim.” Henshaw v. Travelers Ins. Co., 377 Mass. 910, 911 (1979). See Teuscher v. Teuscher, 9 Mass. App. Ct. 914 (1980). We order the judgment reversed and the motion under rule 60(b) allowed. We direct the imposition of whatever sanctions, including attorney’s fees incurred as a result of the defendants’ failure to file timely answers (see Mass.R.Civ.P. 37(b), 365 Mass. 798 [1974], the judge deems appropriate. See 8 Wright & Miller, Federal Practice & Procedure § 2284 (1970).

So ordered.