JEFFREY T. SCUTERI, JR. v. MARIA-PIA SHUMAN & 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

23-P-1015

JEFFREY T. SCUTERI, JR.

vs.

MARIA-PIA SHUMAN & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this appeal from a Superior Court default judgment, the

defendants challenge a judge's orders defaulting them, and later

declining to set aside the defaults, as a discovery sanction for

their failure to appear at their depositions. They also argue

that a different judge (second judge) erred by assessing damages

on a claim that was time barred. Because we see no error of law

or other abuse of discretion in the default orders, and because

the time-bar argument is both waived and unpersuasive, we

affirm.

Background. We recount the pertinent allegations of the

complaint, which upon default are treated as true for purposes

1 Mischa Haider.
of establishing liability. See Danca Corp. v. Raytheon Co., 28

Mass. App. Ct. 942, 943 (1990). In March 2015, defendant Maria-

Pia Shuman approached the plaintiff, Jeffrey T. Scuteri, Jr.,

claiming that she was from Paris, but temporarily living in New

York and visiting Boston on business; she told him she found him

attractive and asked to get together. The next day, Shuman and

codefendant Mischa Haider met Scuteri at a hotel bar and

"barrage[d]" him with questions about his career and education,

as if "interviewing" him. That night Shuman and Scuteri had

sexual intercourse. Two months later, Shuman texted Scuteri

that she was visiting Boston again and wanted to see him. The

two met at an apartment in Cambridge and again had sexual

intercourse.

In June 2015, Shuman called Scuteri to say she was

pregnant. She told Scuteri that she was married to a woman,

that she knew he was the father because she had never had sex

with any other man, and that he would have to give up his

parental rights. Scuteri refused, and Shuman cut off further

contact with him.

Scuteri hired a private investigator, who learned that

Shuman and Haider were married and lived together in the

Cambridge apartment where Scuteri had visited Shuman. When

Scuteri contacted Shuman to confront her, he learned that she

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had given birth to a child. Shuman agreed to a paternity test,

which was performed in April 2016 and showed that Scuteri was

not the father.

Scuteri then threatened to sue Shuman and Haider

(defendants). In response, the defendants, through counsel,

sent Scuteri a video recording of him having sex with Shuman in

the Cambridge apartment; the defendants claimed to have received

the video in the mail along with a warning not to share

"[Shuman's] version" of the story. Scuteri believed that the

defendants had conspired to secretly create the video in order

to blackmail him. Scuteri learned that they had used similar

schemes against other men.

Scuteri filed this action in July 2018, alleging

intentional infliction of emotional distress (IIED), negligent

infliction of emotional distress, and violations of State

privacy and wiretapping statutes. In July 2019, the defendants

filed their answer and counterclaims; they stated that they now

lived in Paris. In December 2019, the judge defaulted them for

failing to attend their depositions. She also found them in

contempt of her prior order requiring them to appear at the

depositions.2 In 2022, after an assessment of damages hearing, a

2 In this appeal the defendants make no separate argument
that the judge erred in finding them in contempt.

3
second judge ordered a default judgment totaling $87,063.35.

The defendants appealed.

Discussion. 1. Default as discovery sanction. The

defendants argue that they were prevented from attending their

depositions by circumstances beyond their control, so that the

judge should not have defaulted them or denied their motion to

set aside the defaults. We review the entry of a default as a

discovery sanction for abuse of discretion. Greenleaf v.

Massachusetts Bay Transp. Auth., 22 Mass. App. Ct. 426, 429

(1986). See Ceruolo v. Garcia, 92 Mass. App. Ct. 185, 188

(2017) (denial of motion to set aside default reviewed for abuse

of discretion). Here, after reviewing in detail how the

defendants stymied Scuteri's efforts to depose them, we see no

abuse of discretion.

a. Discovery delays. Scuteri first noticed the

defendants' depositions for September 2018. Because the

defendants disputed service of process, those depositions were

not held. Once the dispute was resolved against the defendants,

Scuteri noticed Haider's deposition for early January 2019.

That deposition was postponed due to defense counsel's

unavailability. Scuteri then noticed Haider's deposition for

late January 2019 and Shuman's for February 2019. The

defendants responded with a motion to stay discovery and for a

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protective order and a motion to dismiss for failure to state a

claim.

After both motions were denied, Scuteri noticed Shuman's

deposition for June 2019. Defense counsel responded that Shuman

could not travel from France on short notice and asked to

reschedule the deposition for July or August.3 Scuteri asked

defense counsel to suggest dates in mid-August for Shuman's

deposition. After some days passed without a response on that

issue, in mid-July Scuteri noticed Shuman's deposition for early

August 2019. Defense counsel responded that Shuman was

unavailable on the August date but would schedule the deposition

if Scuteri agreed not to seek discovery of the defendants'

sexual encounters and relationships with third parties. Scuteri

declined to agree and asked for a deposition date in advance of

the noticed August date. The defendants suggested none, and

Shuman failed to appear for her deposition on the noticed date.

On August 14, 2019, Scuteri moved to compel the defendants

to attend their depositions. At an August 21 hearing on the

motion, defense counsel opposed it, asserting that default

warrants for the defendants' arrest had been issued in criminal

3 Defense counsel also stated her willingness to try to
arrange an audiovisual deposition from France, if Scuteri
agreed. This was before the start of the COVID-19 pandemic made
remote audiovisual communication commonplace.

5
cases pending against them,4 that they feared arrest and physical

harm if they returned to the United States, and that they could

not come until the warrants were recalled. Defense counsel

represented that the defendants had another attorney who was

"working on" getting the warrants recalled, and had prepared a

motion for that purpose, but had not yet filed it because he was

just returning from vacation. On August 22, 2019, a judge

issued an order (August 22 order) allowing the motion to compel

and ordering the defendants to make themselves available for

deposition at Scuteri's counsel's office by October 22, 2019.5

Scuteri then noticed Shuman's and Haider's depositions for

October 11 and 22, 2019, respectively. Defense counsel

responded that the arrest warrants had not yet been recalled;

the separate attorney handling that issue had been unable to

timely file a motion, and so the defendants "ha[d] retained" an

experienced criminal defense attorney, who was "working on it."

Defense counsel said this meant that Shuman could not appear on

October 11 and her deposition should be held instead on October

4 The cases apparently concerned the defendants' alleged
theft or misuse of funds from the bank account of Shuman's
former boyfriend.

5 The order by its terms set a deadline of sixty days after
its issuance, which would have been October 21, 2019. Because
the parties' e-mail correspondence at the time referred to the
deadline as October 22, however, as does the defendants' brief,
we use that date herein.

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22. A week later, defense counsel stated that the criminal

defense attorney had been retained to have the arrest warrants

recalled but needed until the end of November 2019 to do so.

Counsel attached an affidavit from the criminal defense

attorney, which stated that the defendants had contacted her in

late September and had agreed to pay her requested retainer;

once she received the money, which had not yet occurred, she

would act expeditiously to have the warrants recalled.

On October 28, Scuteri moved for contempt sanctions and for

a default judgment against the defendants. Scuteri's motion

asserted that the criminal defense attorney had not yet been

retained and that the criminal dockets reflected no efforts to

have the warrants recalled. The defendants moved to extend the

time to appear for their depositions.

At a hearing on November 14, 2019, defense counsel reported

that the defendants had not yet been able to pay the criminal

defense attorney's retainer, because of uncertainty over how

much of the retainer was for work on the criminal matters and

how much was for separate civil matters involving another

person. The judge stated from the bench that the defendants had

not complied with the August 22 order, and that the essential

question before her was whether the noncompliance was due to an

inability to comply, or instead was the defendants' fault, in

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which case they should be defaulted. The judge asked defense

counsel whether she (the judge) could rely on counsel's written

representation that, if no default entered, the depositions

would go forward by November 30. Defense counsel replied,

"Yes." Accordingly, the judge, while finding the defendants in

contempt for failure to appear at their depositions within the

time set by the August 22 order (or failing to seek modification

of the order within the time stated for compliance), denied the

motion for a default judgment and ordered the defendants to

appear for their depositions by November 30, 2019, at the office

of Scuteri's counsel.

Scuteri then noticed the depositions for November 22 and

26, 2019. Defense counsel asked to reschedule the first

deposition to November 25, to which Scuteri's counsel agreed.

On November 20, defense counsel reported that "the criminal

matters [had] not yet been resolved" and sought to reschedule

the depositions to the Wednesday before or the Friday or

Saturday after Thanksgiving, Saturday being November 30.

Scuteri's counsel declined, stating that his office was closed

on those days and that Scuteri intended to seek a default

judgment.

Defense counsel herself then filed motions in the criminal

cases to recall the arrest warrants, but the motions were denied

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that same day. The defendants then moved to extend the time for

their depositions beyond November 30, in response to which

Scuteri cross-moved for contempt sanctions and for the entry of

default judgments. At a December 2019 hearing on the motions,

the judge noted that she remembered the earlier representations

made to her, but that the criminal defense attorney still had

not been retained, and that despite defense counsel's assertions

that the defendants wanted to return to the United States and

litigate the case, "actions speak louder than words at this

point." The judge found the defendants in contempt for failure

to appear at their depositions in violation of her November 2019

order, and she ordered that defaults enter.6 In late June 2021

the defendants served, and in July they filed, a motion to set

aside the defaults, which the judge denied in October 2021.7

6 The judge's order directed that "default judgments" enter,
perhaps because the rule governing discovery sanctions provides
for "rendering a judgment by default against the disobedient
party." Mass. R. Civ. P. 37 (b) (2) (C), as amended, 390 Mass.
1208 (1984). Here, however, no judgment entered until after the
second judge held an assessment of damages hearing, and the
standard for setting aside a default judgment would be more
difficult for the defendants to meet than the standard for
setting aside a default. See Institution for Sav. in
Newburyport & Its Vicinity v. Langis, 92 Mass. App. Ct. 815,
819-822 (2018). We therefore refer to the judge's order as
having directed the entry of defaults, and we assume in the
defendants' favor that the standard for removing a default
governs here.

7 The motion had first been referred to a different judge,
who denied it in August 2021 on the ground that he was not the

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b. Entry of defaults. A judge may default a party for

failure to attend the party's deposition. See Mass. R. Civ. P.

37 (b) (2) (C), as amended, 390 Mass. 1208 (1984); Mass.

R. Civ. P. 37 (d), 365 Mass. 797 (1974). Although "[t]he law

strongly favors a trial on the merits of a claim," Monahan v.

Washburn, 400 Mass. 126, 129 (1987), we must balance "on one

hand, a concern about giving parties their day in court, and, on

the other, not so blunting the rules that they may be ignored

with impunity" (quotation omitted). Greenleaf, 22 Mass. App.

Ct. at 429-430. A default may be entered where, among other

things, "there ha[s] been a clear violation of a court order

with no . . . showing of inability to comply." Gos v.

Brownstein, 403 Mass. 252, 257 (1988). "Rule 37 (b) (2)

requires that the sanction imposed must be 'just'; the due

process clause also mandates such a standard." Keene v. Brigham

& Women's Hosp., Inc., 56 Mass. App. Ct. 10, 20 (2002), S.C.,

439 Mass. 223 (2003).

The defendants assert that they could not be defaulted

"[u]nless the inability to comply with a discovery order [was]

the result of wilfulness, bad faith, or fault." Keene, 56 Mass.

judge who originally ordered the default. Because that original
judge ruled on the motion in October 2021 without giving any
deference to the August 2021 ruling, the correctness of the
August 2021 ruling is moot and need not be discussed further.

10
App. Ct. at 18. They then argue that we should consider the

five factors identified in Keene as bearing on the propriety of

sanctions for failure to comply with a discovery order.8 Keene,

supra at 21.

Their reliance on Keene is misplaced, however, for two

reasons. First, the judge here found that the "defendants

failed to show in 2019 that their [noncompliance] . . . [was]

due to any inability to comply." Second, the judge made an

"implicit and warranted" finding of "wilfulness, bad faith, or

fault." Gos, 403 Mass. at 257. Specifically, she found that

"[t]heir failure to appear by the November 30, 2019 deadline,

which their attorney last proposed and to which they had agreed,

was one of several incidents that demonstrated their disregard

of the court's orders and lack of respect for the judicial

process," as well as constituting contempt of court. This

sufficed to show willfulness as the term is used in the civil

context. See Millis Pub. Sch. v. M.P., 478 Mass. 767, 775-776

(2018). Thus, we need not consider the Keene factors, because

they "are not relevant to sanctions imposed for wilful conduct

8 The Keene factors are "[1] the degree of culpability of
the [offending] party; [2] the degree of actual prejudice to the
[opposing] party; [3] whether less drastic sanctions could be
imposed; [4] the public policy favoring disposition of the case
on the merits; and [5] the deterrent effect of the sanction."
Keene, 56 Mass. App. Ct. at 21.

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or bad faith." Short v. Marinas USA Ltd. Partnership, 78 Mass.

App. Ct. 848, 853 n.7 (2011).

Even if we considered those factors, we would see no abuse

of discretion. First, the judge had ample basis to find the

defendants culpable, particularly given their unjustified delay

in retaining an attorney to seek the removal of the arrest

warrants. The judge was not required to credit their litany of

excuses for the delay.

Second, the prejudice to the plaintiff was clear: he could

hardly proceed with his case, which involved highly disputed

facts, without deposing the defendants, and the case had already

been pending for seventeen months. Although the defendants

suggest he could have gone to Paris to depose them, the judge

could view that alternative as unduly burdensome. That is

particularly so where much of the conduct at issue occurred in

the Commonwealth.

Third, although the defendants suggest that a sanction less

drastic than default was available, their brief fails to propose

such a sanction, let alone one that would have been effective in

vindicating both Scuteri's interest in litigating his case and

the courts' interest in seeing their orders obeyed. Even if "a

lesser sanction could have been devised . . ., it is not our

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province to substitute our judgment for that of the judge."

Short, 78 Mass. App. Ct. at 853.

Fourth, although the public policy in favor of resolving

cases on the merits nearly always weighs against the entry of a

default, the policy is not so strong as to outweigh the other

factors that support the defaults here.

Finally, we are not persuaded by the defendants' argument

that the defaults had no deterrent effect. The defendants claim

that returning to the United States to be deposed would lead to

their arrest and to physical violence against them while

detained, and that the prospect of being defaulted would not

deter any reasonable person from noncompliance with the judge's

order to appear. Put differently, they argue that no one would

risk physical harm merely to avoid being defaulted. But the

judge could reasonably view this as a false dilemma. She could

reasonably conclude that the defendants could have avoided both

the defaults and any risk of arrest and consequent physical harm

had they acted more expeditiously to seek the removal of the

arrest warrants. In sum, she did not abuse her discretion in

ordering the defendants defaulted.

c. Denial of motion to set aside defaults. We turn to the

judge's order denying the defendants' late June 2021 motion to

set aside the defaults. "For good cause shown the court may set

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aside an entry of default." Mass. R. Civ. P. 55 (c), 365 Mass.

822 (1974). Good cause requires "a good reason for failing to

. . . defend in a timely manner and . . . meritorious defenses."

Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012).

"Other factors typically considered are whether the default was

wilful, whether setting it aside would prejudice the adversary,

and the defaulted party's promptness in seeking relief."

Institution for Sav. in Newburyport & Its Vicinity v. Langis, 92

Mass. App. Ct. 815, 822 (2018). "[C]ourts may [also] consider

other relevant factors, including . . . the nature of the

defendant's explanation for the default . . . [and] the good

faith of the parties" (quotation and citation omitted).

Ceruolo, 92 Mass. App. Ct. at 189. "[A]ny doubt should be

resolved in favor of setting aside defaults so that cases may be

decided on their merits" (citations omitted). Id. Good cause

determinations are reviewed for abuse of discretion. Johnny's

Oil Co., supra.

The good cause asserted in the defendants' motion was that,

after the defaults entered in this case, the complaining witness

in the criminal cases against them recanted his allegations, and

the cases were dismissed in June 2020. The defendants thus

argued that there was no longer any legal impediment to their

returning to the United States for their depositions.

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In denying the motion, however, the judge concluded that

the relevant facts had not changed. The documents forming the

basis for the recantation were furnished to the complaining

witness by the defendants themselves in February 2020. Those

documents thus were presumably already known to the defendants

when they failed to appear in the criminal cases, failed to

address the default warrants, and failed to comply with the

judge's discovery orders in this case. The judge referenced the

defendants' "disregard of the court's orders and lack of respect

for the judicial process" and the fact that more than one and

one-half years had passed between the time the defaults entered

and the time they moved to set the defaults aside.9 She

concluded that the prejudice to Scuteri outweighed the potential

harm to them if the defaults remained in place.

The defendants have shown no abuse of discretion in these

determinations. In particular, the judge could reasonably have

given little weight to why the charges were allegedly filed, or

what led to arrest warrants being issued, and more weight to the

9 The dismissal of the criminal charges occurred in June
2020, during the early days of the pandemic. Although that
circumstance no doubt made it difficult for the defendants to
travel immediately to the United States had they wished to do
so, the judge could conclude that the pandemic did not explain
the additional delay of one year before the defendants served
their motion to set aside the defaults in late June 2021.

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defendants' failure, despite their representations to her at the

time, to take prompt and effective steps to have the warrants

recalled so that they could be deposed.10

2. Statute of limitations. The defendants argue that

Scuteri's IIED claim was time barred, and so the second judge

erred by awarding damages on that claim. They assert that the

claim accrued when Shuman told Scuteri he was the father of her

child in June 2015, yet the complaint was not filed until July

2018, more than three years later, and thus outside the

limitations period established by G. L. c. 260, § 2A. For three

reasons, we reject this argument.

First, the argument was not made to the second judge,

either in the defendants' pre-damages-hearing bench memorandum,

or at the hearing itself, or in their posthearing bench

10She could also have considered internal contradictions in
the affidavit of the complaining witness filed in support of the
defendants' motion. That witness claimed that Scuteri's counsel
in this case had told him in August 2018 that counsel's strategy
"was to exploit the [defendants'] inability to be easily deposed
in person in order to secure a default judgment against them.
He said [they] would steer clear of depositions . . . to avoid
the possibility of being arrested." Yet the witness also stated
that it was not until November 2018 that he noticed the
defendants' withdrawals from his bank account, and only after
that did he call the police, triggering the criminal charges
against the defendants and the issuance of warrants for their
arrest in March 2019. The witness did not explain how Scuteri's
counsel could have known in August 2018 that arrest warrants for
the defendants would issue seven months later.

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memorandum.11 Although the defendants made the argument in their

2019 motion to dismiss the complaint, the argument was not

addressed in the order denying that motion, and it was never

renewed in connection with the June 2022 damages hearing. The

defendants "did not sufficiently raise the issue below and [are]

therefore barred from raising it on appeal." Boss v. Leverett,

484 Mass. 553, 562 (2020).

Second, even if they had attempted to raise it, the

defaults would have made the argument moot at the damages phase

of the case. The defendants attempt to raise it now under the

principle that, although a default means the factual allegations

of a complaint are accepted as true for purposes of establishing

liability, "even after default it remains for the court to

consider whether the unchallenged facts constitute a legitimate

cause of action, since a party in default does not admit mere

conclusions of law" (citation omitted). Productora e

Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826,

834–835 (1978). Yet a complaint need not affirmatively allege

facts showing that the claims it asserts are timely in order to

state a claim for relief. See Cannonball Fund, Ltd. v. Dutchess

Capital Mgt., LLC, 84 Mass. App. Ct. 75, 90 (2013). Rather, a

11We take notice of those memoranda notwithstanding their
absence from the defendants' record appendix. See Mass.
R. A. P. 18 (a) (1) (D), as appearing in 491 Mass. 1603 (2023).

17
statute of limitations creates an affirmative defense, to be

pleaded in a defendant's answer. See Mass. R. Civ. P. 8 (c),

365 Mass. 749 (1974). Failure to do so waives the defense. See

Halstrom v. Dube, 481 Mass. 480, 486 (2019). Even if the

defendants' answer here had asserted the defense -- which it did

not -- the complaint itself was not deficient for failure to

allege facts showing the IIED claim was timely. The defaults

rendered any time-bar defense unavailable.

Finally, the defense fails on the merits. Under the

discovery rule, a claim generally accrues "when a plaintiff

discovers, or any earlier date when she should reasonably have

discovered, that she has been harmed or may have been harmed by

the defendant's conduct." Bowen v. Eli Lilly & Co., 408 Mass.

204, 205-206 (1990). The type of harm required for an IIED

claim is harm that is "severe and of a nature that no reasonable

[person] could be expected to endure it" (quotations and

citation omitted). Agis v. Howard Johnson Co., 371 Mass. 140,

145 (1976). Here, as the second judge recognized when assessing

damages, "some degree of anxiety is normal, and therefore not

recoverable, when pregnancy results from a sexual encounter with

a stranger or near-stranger." It was only when Scuteri learned

that the defendants' claim of his paternity was knowingly false,

and when they threatened him with a video of him having sex with

18
Shuman, that he suffered harm of the type sufficient to support

an IIED claim. The complaint alleged that those events occurred

in or after April 2016, which was less than three years before

the complaint was filed. The IIED claim was therefore timely.

Judgment affirmed.

By the Court (Henry, Sacks &
Singh, JJ.12),

Clerk

Entered: February 28, 2025.

12 The panelists are listed in order of seniority.

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