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Nett v. Bellucci9/4/2002
. A motion to amend must adequately describe the contemplated amendment in order for a court to determine the merits of the motion. That requirement may be and commonly is met by submitting a copy of the proposed amended complaint along with the motion, but nothing precludes a plaintiff from describing the proposed amendment in the body of the motion, or in the memorandum submitted in support of the motion. Indeed, the motion to amend, which must articulate the relation between the new claim and the claims already made in the original complaint, and explain why that new claim was not raised in that original complaint, will likely contain more detail about the proposed claim than a draft version of the proposed amended complaint, which need only satisfy the minimal requirements of notice pleading. The motion to amend at issue here was allowed based on the description of the proposed action set forth in the text of the motion, without requiring the plaintiffs to submit any draft complaint. It would elevate form over substance to hold that a motion and memorandum describing a proposed claim would not "commence " an action against a new defendant but that the attachment of an exhibit bearing a caption and the word "complaint" would "commence " the action. Whether or not the proposed complaint is attached to the motion, filing the motion is still the first step required of a plaintiff, and service of the motion upon the new defendant alerts that defendant to the fact that the plaintiff has taken that first step in bringing whatever action is described in the motion. It is that fact -- not the caption or title placed on any exhibit to the motion to amend --that serves the purposes of the statute of repose.
We emphasize that our interpretation in no way derogates from our strict approach to statutes of repose. Notwithstanding compelling equitable considerations, statutes of repose are not tolled. Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n.19 (1997), citing Sullivan v. Iantosca, 409 Mass. 796, 798 (1991). Nor are they subject to the "relation back" provisions for amended complaints. Tindol v. Boston Hous. Auth., 396 Mass. 515, 519 (1986). All we do today is define a certain, definitive act that will, for purposes of a statute of repose, "commence " an action sought to be brought by way of an amended complaint. We recognize that statutes of repose are harsh, but we will not adopt a needlessly artificial definition of "commencement" of actions brought by way of amended complaints that would make a harsh rule even harsher.
3. Noncompliance with local rules. Having concluded that the filing of a motion to amend commences an action for purposes of a statute of repose, the next certified question asks whether the policies underlying the statutes of repose demand strict enforcement of local rules of court applicable to filing a motion for leave to amend, or whether those policies permit the court in its discretion to excuse noncompliance.
As discussed above, a statute of repose is satisfied as long as a motion for leave to amend a complaint, either describing the action being brought or attaching a proposed amended complaint, has been filed within the period provided by the statute of repose. In this case, the clerk apparently accepted the plaintiffs' motion for filing on March 10, 1999, notwithstanding the lack of a certificate of service in accordance with local rule 15.1 (b). While the failure to comply with that local rule would presumably constitute grounds for the clerk to reject the filing, or for the judge to strike the motion, the decision to excuse the noncompliance with local rules applicable to the filing of motions to amend does not implicate the policies underlying the st
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