Rule 65.1.Security: Proceedings Against Sureties

(2019)

Prior to amendment in 2019, the title of Rule 65.1 was "Security: Proceedings Against Sureties." The 2019 amendments changed the title and the text of the rule to provide for enforcement proceedings against any security provider, rather than against only a surety.

Rule 62(b) allows a court to stay proceedings to enforce a judgment in connection with a Rule 60 motion "on such conditions for the security of the adverse party as are proper ...." Rule 62(c) allows a court to suspend or modify an injunction during the pendency of an appeal "upon such terms as to bond or otherwise as it considers proper." Under these rules, a surety bond, cash, or other property may be used, yet the enforcement proceeding under Rule 65.1 had been limited to sureties. The amendment to Rule 65.1 allows enforcement proceedings to be brought against any security provider, whether a surety bond has been posted or not.

The last sentence of the rule was also amended to provide that the clerk shall "send" a copy of the motion for enforcement to the security provider rather than "mail" it. For example, this would allow notice to be sent by electronic means or by private delivery service.

These changes were modeled after similar changes to Rule 65.1 of the Federal Rules of Civil Procedure, effective in 2018.

(1973)

Rule 65.1 effects a substantial change in former Massachusetts practice. Formerly, a party who took a bond as security had to institute a separate action in contract to enforce the obligation of the sureties to the bond. Castaline v. Swardlick, 264 Mass. 481, 482, 163 N.E. 62 (1928). Rule 65.1, providing for enforcement on motion makes unnecessary the costly and lengthy process of a second civil suit. The rule provides for notice to those whose obligations are sought to be enforced. G.L. c. 214, § 9A clauses 2 and 3, requires that an undertaking be filed with the court when a preliminary injunction is issued in a labor dispute. A decree may be rendered upon such undertaking in the suit for the injunction; no second suit is necessary. The statute further states that the complainant and surety submit themselves to the jurisdiction of the court for the purpose of such undertaking. Both provisions accord with Rule 65.1.

That portion of Rule 65.1 providing that “each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom papers affecting his liability on the bond or undertaking may be served” does not substantially change former law. Apart from specific statutory provisions, one who undertakes to be a surety on a bond is subject to process (to enforce the obligation) by virtue of his being an inhabitant of the Commonwealth or by virtue of his minimal contact with the state under Massachusetts G.L. c. 223A, § 3(f), the “long-arm” statute.

G.L. c. 175, § 151 provides that foreign fidelity and corporate insurance companies must file a power of attorney appointing the commissioner of insurance lawful attorney upon whom legal process may be served. This statute will not affect Rule 65.1; the rule merely permits the party proceeding against the surety to “serve” the surety by filing the necessary papers with the clerk.

The Reporters take the position that the notice which must be mailed by the clerk of court to the surety under Rule 65.1 need not comply with the requirements of seal and teste prescribed by Part II, c. 6, art. 5 of the Massachusetts Constitution. The enforcement of liability against the surety is not a new action. While notice may be the means for bringing a defendant into court for all purposes connected with an already commenced action, an order of notice is not a writ within the meaning of Part II, c. 6, art. 5 of the Massachusetts Constitution. Taplin v. Atwater, 297 Mass. 302, 306, 8 N.E.2d 786, 788 (1937).