MOTION FOR CONTINUANCE

Massachusetts Superior Court

COURT INFORMATION

COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
[________________________________] COUNTY

☐ Suffolk County Superior Court
☐ Middlesex County Superior Court
☐ Norfolk County Superior Court
☐ Essex County Superior Court
☐ Worcester County Superior Court
☐ Plymouth County Superior Court
☐ Bristol County Superior Court
☐ Hampden County Superior Court
☐ Hampshire County Superior Court
☐ Berkshire County Superior Court
☐ Franklin County Superior Court
☐ Barnstable County Superior Court
☐ Dukes County Superior Court
☐ Nantucket County Superior Court

CASE CAPTION

[________________________________],
Plaintiff(s),

v.

[________________________________],
Defendant(s).

Civil Action No.: [________________________________]
Session: [________________________________]
Assigned Justice: The Honorable [________________________________]

MOTION FOR CONTINUANCE OF [TRIAL / HEARING / CONFERENCE]

Current Date of Proceeding: [__/__/____]
Time: [________________________________]
Requested New Date: [__/__/____] (or such other date as the Court may set)
Number of Prior Continuances Granted to Moving Party: [____]
Number of Prior Continuances Granted to All Parties: [____]

I. INTRODUCTION

[________________________________] ("Moving Party"), by and through undersigned counsel, respectfully moves this Honorable Court, pursuant to Mass. R. Civ. P. 40(b) and Superior Court Rule 33, for an order continuing the [________________________________] (trial / hearing / conference) currently scheduled for [__/__/____] to [__/__/____] or to such other date as the Court deems appropriate.

This Motion is filed in compliance with Superior Court Rule 9A, and undersigned counsel certifies that all parties have been served as required.

II. RULE 9A COMPLIANCE CERTIFICATION

Pursuant to Superior Court Rule 9A, the undersigned certifies as follows:

1. This Motion, together with the accompanying memorandum and all supporting papers, was served on all other parties on [__/__/____].

2. ☐ An opposition was received from [________________________________] on [__/__/____]. The opposition is filed herewith.
   ☐ No opposition was received within the time permitted by Rule 9A. This affidavit of compliance is filed herewith.
   ☐ This Motion is filed on an emergency basis with leave of the Court due to [________________________________].

3. A hearing ☐ is / ☐ is not requested.

III. PROCEDURAL BACKGROUND

1. This action was commenced on [__/__/____].

2. The case is currently assigned to the [________________________________] session.

3. The current scheduling order (if any) was entered on [__/__/____] and provides the following relevant dates:

4. The [trial / hearing / conference] that is the subject of this Motion is scheduled for [__/__/____].

5. This is the [____] request for continuance by Moving Party. [State whether any prior requests were made and their disposition.]

IV. GROUNDS FOR CONTINUANCE

Moving Party seeks a continuance for the following reason(s):

☐ Counsel scheduling conflict. Undersigned counsel is scheduled to [________________________________] in [________________________________] (court / tribunal) on [__/__/____], which conflicts with the scheduled date. [Provide details of the conflicting engagement and any efforts to resolve the conflict.]

☐ Unavailability of material witness. [________________________________] (witness name), a material witness, is unavailable on the scheduled date because [________________________________]. See Affidavit in Support, Section VI below.

☐ Incomplete discovery. Despite the exercise of due diligence, discovery remains incomplete because [________________________________]. A brief extension is needed to [________________________________].

☐ Recently retained counsel. Undersigned counsel was retained on [__/__/____] and requires additional time to review the file, prepare the case, and [________________________________].

☐ Settlement negotiations. The parties are actively engaged in settlement discussions and a brief continuance would facilitate resolution without the need for trial.

☐ Medical or personal emergency. [________________________________] (describe without disclosing privileged details, or file sealed medical certification).

☐ Expert witness unavailability. [________________________________] (expert name), whose testimony is essential, is unavailable because [________________________________].

☐ Pending related proceeding. A related proceeding in [________________________________] (court / agency) is pending and may affect this matter.

☐ Agreed / stipulated continuance. All parties have agreed to continue this proceeding. [Attach written stipulation.]

☐ Other: [________________________________]

V. MEMORANDUM OF LAW

A. Legal Standard

Mass. R. Civ. P. 40(b) provides that a "motion for the continuance of a trial, evidentiary hearing, or other proceeding will be granted only for good cause." The granting or denial of a continuance rests within the sound discretion of the trial court. Commonwealth v. Miles, 420 Mass. 67, 85 (1995); Henley v. Prince George's County, 60 Mass. App. Ct. 24 (2003).

Superior Court Rule 33 establishes that "[n]o trial continuance shall be granted without the specific approval of the Justice in the session in which the case is pending or, in the event the session Justice is not available, of the Regional Administrative Justice (or designee thereof) in the County in which the case is pending."

B. Absent Witness Standard

Mass. R. Civ. P. 40(c) provides that "the court need not entertain any motion for a continuance based on the absence of a material witness unless such motion be supported by an affidavit" that states:

1. The name and, if known, address of the witness;
2. The facts to which the witness is expected to testify and the basis for such expectation;
3. The efforts which have been made to procure the witness's attendance or deposition; and
4. The expectation of procuring the witness's testimony or deposition at a future time.

Under Rule 40(c), the opposing party may stipulate that the absent witness would testify as stated in the affidavit, which may defeat the motion for continuance.

C. Time Standards

Massachusetts Superior Court operates under time standards established by Mass. G.L. c. 231, § 59C and applicable standing orders. Courts are mindful of the goal of resolving cases within prescribed time frames and will consider the impact of any continuance on compliance with those standards.

D. Application to This Case

[________________________________]

[Provide detailed argument explaining how the facts satisfy the "good cause" standard. Address the specific grounds checked above. Explain the movant's diligence, the lack of prejudice to the opposing party, and any impact on the court's calendar.]

[________________________________]

[________________________________]

VI. AFFIDAVIT IN SUPPORT OF MOTION FOR CONTINUANCE

I, [________________________________], state under the penalties of perjury:

1. I am counsel of record for [________________________________] ("Moving Party") in the above-captioned action.

2. The [trial / hearing / conference] is currently scheduled for [__/__/____].

3. Good cause exists for a continuance because:
   [________________________________]
   [________________________________]
   [________________________________]

4. ☐ If based on absent witness (Rule 40(c)):
   a. The absent witness is [________________________________], whose address is [________________________________].
   b. This witness is expected to testify that [________________________________].
   c. I expect this testimony based on [________________________________].
   d. The following efforts have been made to procure this witness's attendance or deposition: [________________________________].
   e. I believe the witness's testimony or deposition can be obtained by [__/__/____] because [________________________________].

5. This request was made promptly upon learning of the circumstances necessitating the continuance. I first became aware of the need on [__/__/____].

6. ☐ This is the first continuance request by Moving Party.
   ☐ Moving Party has previously been granted [____] continuance(s).

7. Conferral with Opposing Counsel:
   On [__/__/____], I conferred with [________________________________], counsel for [________________________________]:
   ☐ Opposing counsel does not oppose this Motion.
   ☐ Opposing counsel opposes this Motion.
   ☐ Opposing counsel takes no position.
   ☐ I was unable to confer despite good-faith efforts because [________________________________].

8. This Motion is made in good faith and not for the purpose of delay.

Signed under the penalties of perjury this [____] day of [________________________________], 20[____], at [________________________________], Massachusetts.

________________________________________
[________________________________]
BBO No. [________________________________]
[________________________________] (Firm Name)
[________________________________] (Address)
[________________________________], MA [____]
Telephone: [________________________________]
Email: [________________________________]

VII. CERTIFICATE OF CONFERRAL

The undersigned certifies compliance with Superior Court Rule 9A and the Court's standing orders as follows:

☐ On [__/__/____], undersigned counsel conferred with [________________________________], counsel for [________________________________]. Counsel [________________________________] (does not oppose / opposes / takes no position on) this Motion.

☐ On [__/__/____], undersigned counsel conferred with [________________________________], counsel for [________________________________]. Counsel [________________________________] (does not oppose / opposes / takes no position on) this Motion.

☐ Undersigned counsel made good-faith efforts to confer with opposing counsel but was unable to do so because [________________________________].

☐ All parties have been served with this Motion and supporting papers pursuant to Rule 9A.

________________________________________
[________________________________]
Date: [__/__/____]

VIII. PROPOSED ORDER

COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
[________________________________] COUNTY

[________________________________], Plaintiff(s),
v.
[________________________________], Defendant(s).

Civil Action No.: [________________________________]

ORDER ON MOTION FOR CONTINUANCE

Upon consideration of [________________________________]'s Motion for Continuance, any opposition thereto, and the provisions of Mass. R. Civ. P. 40(b) and Superior Court Rule 33, and for good cause shown,

IT IS ORDERED that:

☐ The Motion for Continuance is ALLOWED.

1. The [trial / hearing / conference] previously scheduled for [__/__/____] is hereby continued to [__/__/____] at [____] a.m./p.m.

2. The following revised deadlines are established:

3. The parties shall promptly notify all witnesses and comply with the revised schedule.

4. No further continuances will be allowed absent extraordinary circumstances.

☐ The Motion for Continuance is DENIED.

ENTERED: [__/__/____]

________________________________________
Justice of the Superior Court

IX. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing MOTION FOR CONTINUANCE, MEMORANDUM OF LAW, AFFIDAVIT IN SUPPORT, and [PROPOSED] ORDER was served upon the following parties via the method(s) indicated:

☐ Massachusetts eFiling system (eFileMA)
☐ First-Class United States Mail, postage prepaid
☐ Hand Delivery
☐ Electronic Mail
☐ Facsimile

________________________________________
[________________________________]
BBO No. [________________________________]
Date: [__/__/____]

PRACTICE NOTES AND FILING GUIDANCE

1. Rule 9A Procedure. Massachusetts Superior Court Rule 9A requires a specific motion practice procedure. The moving party serves all parties with the motion and supporting papers first, without filing with the court. The opposing party then has 10 days to serve opposition papers. After the opposition period, the moving party files the motion, supporting papers, opposition (if any), and a Rule 9A compliance affidavit with the court. Failure to follow this procedure may result in the motion being struck.

2. Superior Court Rule 33. Trial continuances require the specific approval of the session Justice, or, if unavailable, the Regional Administrative Justice. This is a higher standard than for other hearing continuances.

3. Absent Witness Affidavit. Under Rule 40(c), if the opposing party stipulates that the absent witness would testify as stated in the affidavit, the court may deny the motion. Draft the affidavit with specificity about what the witness will say.

4. Time Standards. Massachusetts has statutory time standards for case disposition under G.L. c. 231, § 59C. Courts will consider whether the continuance will cause the case to exceed applicable time standards.

5. Standing Orders. Many Superior Court sessions have standing orders regarding motion practice and continuances. Check the specific county's standing orders before filing.

6. eFiling. Massachusetts courts use eFileMA for electronic filing. Ensure the motion is filed with the correct case number and document type. Some counties may still accept paper filings in certain circumstances.

7. Emergency Motions. If the need for a continuance arises on an emergency basis (e.g., the hearing is imminent), counsel should contact the session clerk immediately and file the motion on an expedited basis, explaining the emergency circumstances.

8. Opposing Party's Option. Under Rule 40(c), the opposing party may defeat a continuance based on an absent witness by agreeing to a stipulation regarding the witness's expected testimony. Be prepared for this possibility.

SOURCES AND REFERENCES

• Mass. R. Civ. P. 40 – Assignment of Cases for Trial; Continuances: https://www.mass.gov/rules-of-civil-procedure/civil-procedure-rule-40-assignment-of-cases-for-trial-continuances
• Superior Court Rule 33 – Continuances of Trial: https://www.mass.gov/superior-court-rules/superior-court-rule-33-continuances-of-trial
• Superior Court Rule 9A – Civil Motions: https://www.mass.gov/superior-court-rules/superior-court-rule-9a-civil-motions
• Commonwealth v. Miles, 420 Mass. 67 (1995)
• Mass. G.L. c. 231, § 59C – Time Standards
• Suffolk University – Motion for a Continuance Practice Guide: https://www.suffolk.edu/-/media/suffolk/documents/law/faculty/mcp/ch27continuances_pdftxt.pdf