Data Conversion, Inc. v. MCS Associates, Inc.

Dolan, J. This is an action in contract in which the plaintiff seeks to recover $8,864 from the defendants for services rendered. The original action was against both the corporate defendant and the individual defendant. The court allowedarealestateattachmentagainst the individual defendant’s property. Subsequently, the plaintiff agreed to discharge the attachment in exchange for a personal check ($9,000) from the individual defendant, to be held as substitute surety. [104] Summary judgment for the individual defendant was then later allowed. However, the individual defendant’s motion for termination of the substitute security was denied. From that denial, the individual defendant requested a report and filed a draft report which was not acted upon. A petition to establish was then filed and forwarded to this division. The individual defendant is premature in his appeal to this division. Dist./Mun. Cts. R. Civ. P., Rule 54(b) states, inrelevantpart, that “...when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no justreason for delay, and upon an express direction for the entry of judgment.” In the absence of such determination and direction, an adjudication as to fewer than all of the parties does not end the action as to any of the parties. Until the entry of judgment adjudicating all claims, the partial judgment for one party remains open and subject to revision. Id. No determination was made by the judge in this case that there existed no just reason for delay. Accordingly, until a final adjudication is made as to the corporate defendant, both the motion for summary judgment for the individual defendant and the motion to terminate the substituted security are interlocutory in nature and not ripe for full review. See Caldwell v. Collier, 5 Mass. App. Ct. 903, 904 (1977). See also E. W. Foster Co., Inc. v. McLaughlin, 7 Mass. App. Ct. 865 (1979). The individual defendant’s petition to establish is denied.