FRANCES DEROSA v. MELROSE WAKEFIELD HOSPITAL & Another.

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

22-P-1231

FRANCES DEROSA1

vs.

MELROSE WAKEFIELD HOSPITAL & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this medical malpractice action, the plaintiff, Frances

A. DeRosa, alleged that the actions of defendant Dr. Juan

Mendieta and defendant Melrose Wakefield Hospital (hospital)

caused the death of her mother. The claim against the hospital

was dismissed for failure to state a claim, and the claim

against Mendieta was later dismissed for the plaintiff's

noncompliance with discovery orders. The plaintiff's motion for

reconsideration was denied. We affirm the denial of the motion

1Individually and as personal representative of the estate
of Rosalie DeRosa.

2 Juan Mendieta.
for reconsideration, which is the only matter properly before

us.

Background. Accepting the allegations in the plaintiff's

pleadings as true, her mother, Rosalie DeRosa, died on January

2, 2015, while receiving treatment from Mendieta at the

hospital. The plaintiff filed a complaint in the Superior Court

on December 22, 2017, followed by an amended complaint on

February 28, 2018. On October 25, 2018, a judge allowed the

hospital's motion to dismiss for failure to state a claim. See

Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The case

proceeded against Mendieta alone. Following lengthy pretrial

proceedings, the plaintiff's complaint against Mendieta was

dismissed on January 19, 2022, for her repeated noncompliance

with numerous judges' discovery orders. The plaintiff did not

file a timely notice of appeal from the judgment. Instead, on

February 17, 2022, she filed a motion for reconsideration, which

was denied on March 30, 2022. She filed a notice of appeal on

April 7, 2022, purporting to appeal from the judgment and from

the denial of reconsideration.

Discussion. 1. The appeal from the judgment is untimely.

"A timely notice of appeal is a jurisdictional prerequisite to

our authority to consider any matter on appeal," DeLucia v.

Kfoury, 93 Mass. App. Ct. 166, 170 (2018), and "we have the duty

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to consider sua sponte whether we have jurisdiction." Wells

Fargo Bank, N.A. v. Sutton, 103 Mass. App. Ct. 148, 153 (2023).

"While the appeal from the denial of the plaintiff's motion for

reconsideration was timely as to the order denying the motion,

the 'appeal does not necessarily bring up the underlying

judgment [for defendants] which was entered on [January 19,

2022].'" Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184,

186 (1995), quoting Muir v. Hall, 37 Mass. App. Ct. 38, 40

(1994). To appeal from the judgment, the plaintiff was required

to file a notice of appeal within thirty days of its entry on

the docket. See Piedra, supra at 186-187; Mass. R. A. P.

4 (a) (1), as appearing in 481 Mass. 1606 (2019).

Although the plaintiff filed a motion for reconsideration

within that thirty-day period, the motion did not stop the clock

for filing the notice of appeal from the judgment. Had the

plaintiff timely filed or served one of the motions listed in

Mass. R. A. P. 4 (a) (2) -- all of which must be filed or served

within ten days of the judgment -- then the thirty-day period

would have started anew after the denial of such a motion. See

Piedra, 39 Mass. App. Ct. at 187; Mass. R. A. P. 4 (a) (2). But

the plaintiff's motion for reconsideration, even if treated as a

motion to alter or amend the judgment under Mass. R. Civ. P.

59 (e), 365 Mass. 827 (1974), or a motion for relief from the

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judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),

was not filed within ten days and therefore did not suspend the

thirty-day deadline for filing the notice of appeal from the

judgment.3

Accordingly, the plaintiff's notice of appeal did not

"bring up" the January 19, 2022, judgment dismissing the

plaintiff's claims against the hospital and Mendieta. Piedra,

39 Mass. App. Ct. at 186. The only issue preserved for

appellate review is whether the motion for reconsideration was

properly denied.

2. Motion for reconsideration. During the discovery phase

of the case, Mendieta filed repeated motions to compel discovery

from the plaintiff. At least three judges entered orders

requiring the plaintiff to provide documents and answers to

interrogatories, to appear for a deposition, and to supply her

expert witness's report and curriculum vitae. In an order dated

November 24, 2021 (entered on November 29, 2021), following a

hearing in which the plaintiff participated by telephone, a

judge gave her a final warning:

"[The plaintiff] has consistently failed to comply with, or
been dilatory in complying with, discovery obligations of
this court. Accordingly, I ordered during the November 23

3 We further note that the plaintiff did not seek an
enlargement of time for filing the notice of appeal. See
Piedra, 39 Mass. App. Ct. at 187; Mass. R. A. P. 4 (c), as
appearing in 491 Mass. 1606 (2019).

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hearing, and now confirm, that she is ordered to supply a
written report from a medical expert to defense counsel on
or before December 22, 2021, with a copy to the court by
that date. She is also ordered to attend her deposition by
December 22, 2021. Failure to fulfill both of these
obligations will result in dismissal of this suit for lack
of prosecution without the need for further hearings."

Despite having received repeated chances and warnings, the

plaintiff did not supply or file the expert report and did not

appear for her deposition, which was scheduled for December 15,

2021.4 The judge accordingly ordered entry of a judgment of

dismissal based on the plaintiff's failure to comply with the

court order. Were the propriety of the order of dismissal

before us, we would discern no abuse of discretion. See Keene

v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 235-236 (2003);

Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass. App. Ct.

426, 429-430 (1986). The order of dismissal was "appropriately

punitive in relation to the objectionable behavior." Grassi

Design Group, Inc. v. Bank of Am., N.A., 74 Mass. App. Ct. 456,

460 (2009).

In the plaintiff's motion for reconsideration, for the

first time she provided a letter from a doctor providing his

observations regarding the plaintiff's mother's care at the

4 There is no doubt that the plaintiff had notice of the
deposition, as she called the office of Mendieta's counsel on
the morning of December 15 and was given information regarding
where to appear that same afternoon.

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hospital, which she characterized as "the expert letter that was

needed." The plaintiff argues that in denying the motion for

reconsideration, the judge "made errors of law by not accepting

evidence that proved [her] case and not giving [her] a trial."

We review the denial of a motion for reconsideration for

abuse of discretion. See Dacey v. Burgess, 491 Mass. 311, 317

(2023); Audubon Hill S. Condominium Ass'n v. Community Ass'n

Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 469-470

(2012). While changed circumstances, such as newly discovered

information, can serve as a proper basis for a judge to

reconsider a prior ruling, see id. at 470, we discern no abuse

of discretion in the judge's determination that reconsideration

was not warranted here.

The letter attached to the plaintiff's motion does not

qualify as "newly discovered." Through reasonable diligence,

the plaintiff could have obtained an expert report during the

discovery process and avoided dismissal in the first place. See

Wojcicki v. Caragher, 447 Mass. 200, 213 (2006) (evidence is

considered newly discovered only if unknown and unavailable

despite exercise of diligence). The judge was not required to

afford the plaintiff yet another chance to comply with the

court's multiple discovery orders. See Inman v. American Home

Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir. 1997)

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(refusing to set aside default judgment as defendants' delayed

compliance with discovery requests "does not excuse their

earlier inattention and comes too late" to warrant relief). Nor

did the late provision of the doctor's letter cure the

plaintiff's other violations of discovery orders, including her

multiple failures to attend her own deposition.

The plaintiff may perceive it as unfair that she will not

have her day in court. It was, however, within the plaintiff's

power to follow the applicable procedural rules and court

orders. She failed, repeatedly, to do so. "Although some

leniency is appropriate in determining whether pro se litigants

have complied with rules of procedure, the rules nevertheless

bind pro se litigants as all other litigants." Brown v.

Chicopee Fire Fighters Ass'n, Local 1710, IAFF, 408 Mass. 1003,

1004 n.4 (1990).

Order dated March 30, 2022,
denying motion for
reconsideration, affirmed.

By the Court (Massing, Hand &
Smyth, JJ.5),

Clerk

Entered: November 8, 2024.

5 The panelists are listed in order of seniority.

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