Final Request for Answers to Interrogatories
(MA)

Summary

This template is a final request for answers to interrogatories pursuant to Mass. R. Civ. P. 33(a)(3) in a Massachusetts civil court case. A party that has propounded interrogatories may use it to elicit answers from a party that has failed to respond or object to them in a timely manner. It contains practical guidance, drafting notes, and alternate clauses. A party has 45 days from the service of interrogatories to respond. Mass. R. Civ. P. 33(a)(3). A court may enlarge or shorten that time upon motion. Mass. R. Civ. P. 33(a)(3). If a party fails to respond or object to interrogatories or answers them incompletely, you may compel answers by: • Filing a motion to compel pursuant to Mass. R. Civ. P. 37 –or– • Serving a final request for answers under Mass. R. Civ. P. 33(a)(3) Mass. R. Civ. P. 33(a)(3). Initial Considerations Discovery Conference When a party fails to serve timely answers or objections to interrogatories you propound, you should try to resolve the matter by initiating a Massachusetts Superior Court Rule 9C conference. Mass. Super. Ct. 9C(a) requires that any discovery motion be preceded by a conference between the parties. If you are filing a request for final answers without having first served a motion to compel, there is no requirement in Rule 9C for a discovery conference. Nevertheless, it is a good idea to initiate a conference to narrow the dispute. Courts look favorably upon efforts to resolve discovery matters without judicial intervention, and doing so will make you appear amenable to compromise and resolution. Business Records Note that a responding party may refer an interrogating party to business records to ascertain a sufficient response as long as the following requirements are satisfied: • The burden of deriving the answers from the records is the same for the party serving the interrogatory as it is for the party served. –and– • The responding party specifies the records from which the answer(s) may be derived, and provides the interrogating party a reasonable opportunity to examine and copy the records. Mass. R. Civ. P. 33(c). Rule 37 Motion to Compel If a party fails to serve a response or serves an inadequate response to interrogatories that have been properly served, the propounding party may move to compel further answers pursuant to Mass. R. Civ. P. 37. Mass. R. Civ. P. 33(a)(3). If the court orders further answers in response to a motion to compel, the party upon whom the interrogatories were served has 30 days from the entry (not service) of the order to respond. Mass. R. Civ. P. 33(a)(3). If the party does not respond within 30 days, the propounding party may serve a final request for answers. Mass. R. Civ. P. 33(a)(3). For more information on serving a motion to compel, see Motion to Compel Discovery: Making the Motion Checklist (MA). Final Request for Answers As an alternative to a motion to compel, the propounding party may file a final request for answers that specifically describes the failure to respond. Mass. R. Civ. P. 33(a)(3). A Rule 33(a)(3) final request for answers may be served if the opposing party has failed to respond or object to interrogatories after the expiration of 45 days from the date of service (or after 30 days from the date of entry of an order for further answers). A final request for answers or objections must state that the interrogating party may apply for final judgment for relief or dismissal pursuant to Mass. R. Civ. P. 33(a)(4) if answers or objections are not timely received. Mass. R. Civ. P. 33(a)(3). This requirement is intended to inform the party of the serious consequences for failure to answer the interrogatories. Mass. R. Civ. P. 33(a)(3) (2009 Reporters' Notes). The party upon whom the interrogatories were served must serve answers or objections in response to a final request for answers by the later of the following deadlines: • Within 30 days from the date of service of the final request for answers under Rule 33(a)(3) –or– • Prior to the application for final judgment for relief or dismissal pursuant to Rule 33(a)(4) Mass. R. Civ. P. 33(a)(3), (4). Filing the Application for Dismissal or Final Judgment If answers or objections have not been received after 40 days from the date of service of the final request for answers, the propounding party may file a written application for entry of final judgment or dismissal. Mass. R. Civ. P. 33(a)(4). The time period to file the written application includes the three-day period permissible under Mass. R. Civ. P. 6(d) and (e). For more information on computing time in Massachusetts, see Computing and Extending Time in Litigation (MA). A complete application for final judgment or dismissal for filing with the court must include: • A copy of the final request for answers –and– • An affidavit that contains the following information: o The date and manner in which the interrogatories were served on the party against whom relief is sought o The fact that the 45-day time period for service of answers or objections expired, and no answers were received o The date and manner in which the final request for answers was served o The fact that the 40-day time period for answers or objections after a final request for answers has expired, and that no answers or objections have been received –and– o That the movant is applying for final judgment for relief or dismissal Mass. R. Civ. P. 33(a)(4). If applicable, a Rule 33(a)(4) affidavit should also state that the interrogated party failed to respond in a timely manner to a Rule 37 order to compel further answers. See Mass. R. Civ. P. 37. Entry of Judgment Mass. R. Civ. P. 33(a)(6) states that the court shall enter the appropriate judgment if it receives a copy of the final requests for answers and an affidavit as set forth in Mass. R. Civ. P. 33(a)(4). If you represent the plaintiff the judgment is treated as a default and is subject to the provisions of Mass. R. Civ. P. 54(b)–(c), 55(b)(1), (2), (4), and 55(c). Mass. R. Civ. P. 33(a)(6) (1975 Reporters' Notes). A Massachusetts lower court has held that entry of final judgment under Mass. R. Civ. P. 33(a)(6) is discretionary, despite language in the rule that appears to make judgment a matter of right. See Cumberland Farms, Inc. v. Tenacity Constr., Inc., 2016 Mass. Super. LEXIS 55 (Mass. Super. Jun. 9, 2016) (denying application for final judgment because there was no showing that the plaintiff was prejudiced by the delay in receiving answers). Massachusetts law is somewhat unsettled on this point, and you should not assume an application for final judgment will be automatically granted. If the court enters a judgment and the plaintiff is the prevailing party, judgment is the amount asked for in the complaint. Mass. R. Civ. P. 54(b), 33(a)(6) (1975 Reporters Notes). If the amount is not a sum certain, the prevailing party should mark the matter for a hearing on the assessment of damages. Mass. R. Civ. P. 55(b)(2). If you represent the plaintiff and are requesting a default judgment, note that the court will not enter judgment until you file a military affidavit as required by Mass. R. Civ. P. 55(b)(4) and the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901 et. seq. For a sample military affidavit and instructions on completing it, see Instructions: Military Affidavit Court Form. Motion to Vacate A defaulting party may make a motion to vacate the judgment for any of the reasons provided in Mass. R. Civ. P. 60(b), including excusable neglect or inadvertence. Mass. R. Civ. P. 60(b). A Rule 60 motion tolls the time for an appeal. Mass. R. Civ. P. 60(b) (2013 Reporters Notes). For more information on interrogatories and discovery disputes, see Interrogatories: Drafting, Serving, and Responding to Interrogatories (MA), Motion for Protective Order: Making and Opposing the Motion Checklist (MA), Motion to Compel Discovery: Making the Motion Checklist (MA), and Motion for Discovery Sanctions: Making and Opposing the Motion Checklist (MA). For related templates, see Interrogatories (MA), Objections and Responses to Interrogatories (MA), Affidavit for Application for Final Judgment (Failure to Respond to Interrogatories) (MA), Application for Final Judgment or Dismissal (Failure to Respond to Interrogatories) (MA), and Discovery Deficiency Letter (MA). For a related checklist, see Interrogatories: Responding to Interrogatories Checklist (MA).