COMMONWEALTH OF MASSACHUSETTS

HAMPSHIRE, SS APPEALS COURT

CASE NO. 2020-P-0422

DIST. COURT DEPT.

DOCKET NO. 1945RO269

B.P.

V.

LF.S.

RESPONSE TO MOTION TO DISMISS

In response to this court's order dated May 26, 2020, the Plaintiff-

Appellant respectfully opposes the Defendant's motion to dismiss this appeal. The

Plaintiff's counsel inadvertently calendared the expiration of the COVID-19

tolling period for all filings in this case as July 3. Counsel should have filed the

docketing statement on or before June 15 and the motion for enlargement of time

to file the brief and appendix on or before June 19. Counsel regrets the error.

With respect to the docketing statement, the Plaintiff-Appellant

argues that dismissal is too drastic a remedy. For purposes of Rule 19, the

appeal was docketed on March 20, 2020. Per Administrative Order 20-2 The

docketing statement was therefore due on or before June 15, 2020. Neither party

has been prejudiced by the delay in filing the docketing statement. It contains no

information that was not already available to the Defendant. The Plaintiff

therefore respectfully argues that dismissal is too drastic a remedy for late filing

under the circumstances.

 With respect to the opening brief, the Plaintiff-Appellant requests an

enlargement of time for 42 days to file the opening brief, until July 31. As

reason therefor, the Plaintiff asserts that the enlargement of time is for good

cause, to produce a necessary transcript. (See below.)

With respect to the transcript, the Plaintiff provides the following

information: Plaintiff's counsel requested the audio recording from the District

Court in March. However, there was a difficulty with the third-party service, For

The Record ("FTR"), responsible for producing audio recordings.1 Counsel's

initial request was not processed or reflected on the website. Counsel re-ordered

the recording in June, and the recordings finally now appear in counsel's queue.

However, the recordings are behind a pay wall. Counsel cannot not access them

without payment, despite the fee waiver, which this court ordered on March 18.

The FTR notation indicates that the appellate waiver of costs for producing the

transcript is not being applied because the request is for a District Court case

where "private counsel" appeared. Staff at the Office of the Clerk Magistrate at

the Northampton District Court have indicated to counsel that they are

flummoxed.

According to staff in the clerk's office, there is a particular staff person in

charge of addressing problem with the production of records in civil appeals. She

has extremely reduced hours because of the court closure. She has not yet been

able to resolve the FTR block.

1
It is also possible that the difficulty was in counsel's use of the system. At any
rate, counsel thought she had requested the recording, but there was no such
request logged in the system.
 Counsel is still in touch with a transcriptionist who has agreed to prioritize

this project as soon as the audio becomes accessible. Because the hearing was

about five hours long, counsel anticipates a short and quickly produced record

once all problems related to payment are resolved.

Counsel is aware that the Plaintiff could pay the admittedly nominal FTR

fee. However, it is possible that such payment will, through a similar automated

process, void the fee waiver entirely, resulting in Plaintiff's being charged for the

whole transcript, causing further delay. Thus, it seems advisable to wait to resolve

this problem now, even where the initial fee is so small.

With request to the designation of the record, counsel respectfully

requests an enlargement of time to serve the record and the statement of

issues until July 15, 2020, by which time hopefully the transcript will be

available. Counsel for the Plaintiff and the Defendant have conferenced this

issue. At the Defendant's request, the Plaintiff has agreed to include the entire file

in the record appendix, including all exhibits introduced during the hearing.

However, it would be premature to make a statement of the issues before the

transcript is available. The Plaintiff, through counsel, proposed a stay of this

appeal until the transcript is produced. However, the Defendant, through counsel,

indicated that he would oppose a stay for this purpose.

In the absence of agreement, a limited extension of time to serve the

record appendix and statement of issues seems the best way to address this delay.

It is more flexible than a stay. It also provides the Defendant greater opportunity
to be heard about any potential prejudice to his interests, should such prejudice

become an issue.

In conclusion: the docketing statement is filed simultaneously with this

opposition. Instead of dismissing the appeal, the Plaintiff proposes (1) extending

to July 15 the deadline to serve the record and statement of issues, and (2)

extending to July 31 the deadline to file an opening brief and appendix. (Also if

this court has experience that might assist the District Court in eliminating the

FTR paywall in this case, the Plaintiff respectfully proposes that calling the

District Court and providing that information might be helpful to expedite the

production of the record.)

Respectfully submitted,
B.P.,
By Counsel,

/s/ Dana Goldblatt

Dana Goldblatt
BBO # 601022
Law Office of Dana Goldblatt
150 Main St., Ste 28
Northampton, MA 01060
(413) 570-4136
dana@danagoldblattlaw.com
Response to Motion to Dismiss