Tibbitts v. Wisniewski

Twenty months after a default judgment in favor of the defendant entered under Mass.R.Civ.P. 33(a), as amended 368 Mass. 906 (1976), for failure to make discovery, the plaintiff moved to vacate judgment under Mass.R.Civ.P. 60(b)(6), 365 Mass. 829 (1974). A Superior Court judge allowed the motion. We conclude that he lacked discretion so to do and vacate the allowance of the motion.

The pertinent facts are procedural. On May 7, 1986, Tibbitts, the plaintiff, filed a medical malpractice action against Wisniewski, a surgeon. Simultaneously with his answer, the defendant served on the plaintiff a…