MARK BRAY v. ORCESTER POLYTECHNIC INSTITUTE & Another.

── MARK BRAY v. ORCESTER POLYTECHNIC INSTITUTE & Another. ── Court: Massachusetts Appeals Court Date: May 19, 2026 Category: General NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 25-P-70 MARK BRAY vs. WORCESTER POLYTECHNIC INSTITUTE & another.1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 On December 18, 2023, the plaintiff, Mark Bray, filed a complaint in the Superior Court against the defendants, Worcester Polytechnic Institute and its president and corporate officer, Laurie Leshin. In March 2024, the plaintiff served the defendants with the complaint, but did not "make proof of service . . . in writing to the court" as required by Mass. R. Civ. P. 4 (f), 365 Mass. 733 (1974). The plaintiff's counsel informed the defendants' counsel that he intended to file an amended complaint, and the defendants' counsel agreed that he would accept service on behalf of both defendants. 1 Laurie Leshin.  On March 25, 2024, the plaintiff filed an amended complaint, but did not serve it on the defendants. Almost seven weeks later, on May 10, the defendants' counsel wrote to the plaintiff's counsel, "Based on our March 25 email exchange, I had expected that by now, you would have served the Amended Complaint . . . . Please serve Complaint and Summonses at your earliest convenience." The plaintiff did not serve the defendants with the amended complaint within ninety days as required by Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), and did not file proof of service of either the original or the amended complaint as required by Mass. R. Civ. P. 4 (f). As a result, on July 10, 2024, a judgment of dismissal entered pursuant to Superior Court Standing Order 1-88 (2023). The plaintiff's counsel filed a motion to remove the default judgment, supported by his own affidavit averring that personal and medical issues in April 2024 had resulted in his being "unable to attend to [his] professional responsibilities," including making "timely return of service" of the original complaint. The defendants opposed the motion, supported by an affidavit demonstrating that between mid-December 2023 and late June 2024, the plaintiff's counsel had filed dozens of pleadings and attended court dates in multiple other cases. Shortly before a hearing on the motion, the plaintiff's counsel filed an 2 affidavit of his employee averring that the employee had mailed proof of service of the original complaint to the Superior Court on March 8, 2024. However, the court never received those documents. Construing the plaintiff's motion as a motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974) (rule 60 [b] [1]), a Superior Court judge found that the plaintiff had not met the "considerable burden" of demonstrating good cause for failure to file timely return of service of the original and amended complaints, and denied the motion to remove the default judgment. The plaintiff appeals, arguing that the judge abused his discretion by denying relief from the judgment.