Massachusetts Motion for Continuance

Introduction

Key Things to Know

1. 1

   Massachusetts uses the term continuance in Mass. R. Civ. P. 40(b) and (c). Superior Court Rule 4 calls it a postponement, and Superior Court Rule 33 covers continuances of trial.

2. 2

   The hearing or trial date stands until the court grants the continuance. Attend unless the court tells you in writing or in open court that the date has been moved.

3. 3

   Rule 40(b) says continuances shall be granted only for good cause. Rule 40(c) lists two grounds: absence of a material witness, and want of a material document, thing or other evidence. The judge decides each request.

4. 4

   A motion based on an absent material witness need not be entertained unless supported by an affidavit stating the witness's name, the testimony, the efforts to procure the witness, and the expectation of procuring the witness later (Rule 40(c)).

5. 5

   In the Superior Court, the court will not ordinarily grant a postponement for an absent witness you could have summoned, unless you had the witness regularly summoned and tendered fees (Superior Court Rule 4).

6. 6

   A written motion and notice of hearing must be served not later than 7 days before the hearing, unless the rules or a court order provide otherwise (Mass. R. Civ. P. 6(c)). Motions must be written and state their grounds with particularity (Rule 7(b)(1)).

7. 7

   No Superior Court trial continuance is allowed without the specific approval of the session Justice (or the Regional Administrative Justice), and the motion must state prior continuances and the reasons (Superior Court Rule 33). Even an agreed continuance needs that approval.

Massachusetts Requirements for Motion for Continuance

• Rule 40 Governs Continuances

  Mass. R. Civ. P. 40(b) and (c) govern civil continuances, and Superior Court Rules 4 and 33 add requirements there. Continuances are granted only for good cause.

• Listed Grounds in Rule 40(c)

  Rule 40(c) lists the absence of a material witness and want of a material document, thing or other evidence. The judge decides whether good cause is shown.

• Affidavit for Absent Witness

  The court need not entertain an absent-witness motion unless an affidavit states the witness's name, the testimony, the efforts to procure the witness, and the expectation of procuring the witness later (Rule 40(c)).

• Witness Summoned and Fees Tendered

  In the Superior Court, a postponement for an absent witness you could have summoned is not ordinarily granted unless the witness was regularly summoned and fees tendered (Superior Court Rule 4).

• Serve Motion 7 Days Before Hearing

  A written motion and notice of hearing must be served not later than 7 days before the hearing, unless the rules or an order provide otherwise (Mass. R. Civ. P. 6(c)).

• Superior Court Trial Continuances

  No trial continuance without the specific approval of the session Justice (or the Regional Administrative Justice). The motion must state prior continuances and their number and reasons (Superior Court Rule 33).

• Small Claims Standard 6:03

  Small claims continuances require good cause unless both parties voluntarily agree. Late requests are for exceptional circumstances, and parties need not appear in person to request an agreed continuance.

• Form TC0049 Motion and Affidavit

  Form TC0049, Motion to the Court and Affidavit, used in the Boston Municipal Court and District Court, has a Continuance box and an assent line for the other party. The hearing date stands until the court rules.