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

22-P-883

WEBSTER BANK, NATIONAL ASSOCIATION, N.A.

vs.

MARK E. ROBINSON & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Webster Bank, National Association, N.A. 

(bank), appeals from a Superior Court judgment dismissing its 

legal malpractice complaint for failure to prosecute.2 After the 

parties agreed to a stay pending an appeal, the bank took no 

action on this lawsuit between when the stay expired in October 

2014 (or, at the latest, January 2016) and October 21, 2021, 

despite repeatedly asserting in communications to the defendants 

that the case was ready to proceed, as early as December 2015. 

Concluding that the motion judge acted within his discretion in 

dismissing the action for failure to prosecute and that there 

was no evidence of judicial bias, we affirm.

1 David H. Farrag. 2 The plaintiff alleged several causes of action against each 

defendant. The precise claims are not relevant to this appeal.
2

1. Involuntary dismissal. "On motion of the defendant, 

with notice, the court may, in its discretion, dismiss any 

action for failure of the plaintiff to prosecute or to comply 

with these rules or any order of court." Mass. R. Civ. P. 

41 (b) (2), 365 Mass. 803 (1974). "The power to invoke [the 

sanction of dismissal for want of prosecution] is necessary in 

order to prevent undue delays in the disposition of pending 

cases and to avoid congestion in the calendars." Bucchiere v. 

New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986), quoting 

Link v. Wabash R.R., 370 U.S. 626, 629-630 (1962). Nonetheless, 

"[i]nvoluntary dismissal is a drastic sanction which should be 

utilized only in extreme situations." Dewing v. J.B. Driscoll 

Ins. Agency, 30 Mass. App. Ct. 467, 471 (1991), quoting Monahan

v. Washburn, 400 Mass. 126, 128 (1987). "As a minimal 

requirement, there must be convincing evidence of unreasonable 

conduct or delay. A judge should also give sufficient 

consideration to the prejudice that the movant [for dismissal] 

would incur if the motion were denied, and whether there are 

more suitable, alternative penalties." Monahan, supra at 128-

129. We review a dismissal for want of prosecution for an abuse 

of discretion. See Anderson v. Sport Lounge, Inc., 27 Mass. 

App. Ct. 1208, 1209 (1989). There was none.

The bank argues that its delay was justified because it 

needed to obtain possession of the property that was the focus 
3

of its legal malpractice claim before it could assess its 

losses. See Foley v. Walsh, 33 Mass. App. Ct. 937, 938 (1992)

(improper to dismiss for failure to prosecute where "the record 

shows that the plaintiff made numerous attempts, at intervals of 

no more than one year, to obtain [defendant's] residential 

address in order to effect service"). It is not usually the 

case, however, that tort actions are stayed until all future 

damages have been incurred, and the parties' contemporaneous 

actions do not support the bank's position now.

The parties' November 2009 joint motion to stay stated that 

a stay was necessary pending the foreclosure, and the bank's 

demand for damages is based on the amount obtained at the 

foreclosure sale.3 Even before the June 2018 foreclosure, on 

December 7, 2015, the bank wrote to the defendants, "I believe 

that it is time that our case proceed." Again, on January 29, 

2016, the bank wrote to the defendants, "It is time for us to 

litigate the legal malpractice/fraud case or settle." On July 

13, 2018, after the foreclosure, the bank wrote to the 

defendants, "now that Webster has foreclosed, its loss can be 

3 The motion read in part, "in order to fully determine the 

amount of damages claimed by the plaintiff, the plaintiff must 

take actions to mitigate its loss by means of foreclosing on 

[the] property and that said mitigation inures to the benefit of 

all of the moving parties." We do not suggest that pending 

foreclosure proceedings would have excused the bank's delay 

absent an agreement by the parties.
4

established and this case either settled or litigated." The 

bank, however, took no action until October 21, 2021, a few 

months after the bank obtained possession of the property on 

June 30, 2021. The motion judge was entitled to credit the 

bank's contemporaneous statements over its later litigation

position.

In light of this, the motion judge acted within his 

discretion in dismissing the action where the bank did nothing 

in the action for three years after foreclosing on the property 

and several years after the last formal stay expired.4 See Hoch

v. Gavan, 25 Mass. App. Ct. 550, 552-553 (1988) (holding 

dismissal proper after four years without proper service). 

Although "we are mindful that dismissal is a harsh result, rule 

41 (b) (2) would be ineffective if a judge were unable to 

exercise his discretion to dismiss a case for want of 

prosecution" when several years have "elapsed without any form 

of affirmative prosecutorial activity." Bucchiere, 396 Mass. at 

642 (affirming dismissal after six and one-half years had 

elapsed).5

4 The last stay expired either on October 7, 2014, when the 

judgment after rescript for the property owner's appeal issued 

or -- taking matters rather generously -- on January 14, 2016, 

when the United States Supreme Court denied certiorari. 5 We need not determine whether, as the motion judge found, the 

defendants were prejudiced by the delay. The motion judge's 

decision did not rely on the finding of prejudice, and such a

finding was not necessary to justify a dismissal. Similarly, we 
5

2. Judicial bias. The bank argues that the motion judge 

exhibited bias, but it made no objection or request for recusal 

in the trial court. "Substantial authority exists that recusal 

motions filed after [an adverse ruling] are presumptively 

untimely at least absent a showing of good cause for tardiness."

Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 547 

(1998). The plaintiff's "belated request suggests a tactical 

decision in the face of an adverse ruling." Matter of a Care & 

Protection Summons, 437 Mass. 224, 239 (2002). Moreover, we 

discern no evidence of judicial bias from the judge's comments 

that "Webster Bank is in the business of -- of giving out 

mortgages and foreclosing on them when they're not being paid," 

and that "it's a multibillion dollar corporation." A judge may 

consider a party's sophistication in weighing whether a delay 

was reasonable. See Cabot Corp. v. AVX Corp., 448 Mass. 629, 

644 (2007) (considering sophistication of plaintiff in weighing 

need not imagine whether some lesser sanction would have 

sufficed. The motion judge considered that possibility but

found that lesser sanctions "would only reward Webster's 

dilatory conduct." We note that the bank first identified a 

lesser sanction at oral argument before us. We need not address 

issues that were not raised in the trial court. See Jacobs v. 

Massachusetts Div. of Med. Assistance, 97 Mass. App. Ct. 306, 

311 n.7 (2020).
6

reasonableness of delay in bringing suit).

Judgment affirmed.

By the Court (Wolohojian, 

Shin & Ditkoff, JJ.6),

Clerk

Entered: October 13, 2023.

6 The panelists are listed in order of seniority.