(dissenting). Assertion of a new legal theory that counsel failed to raise during the litigation of a case, with no explanation for counsel’s failure to raise it, is not, without more, a sufficient reason for granting relief under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), from a final judgment. Because that is all that is at issue here, I respectfully dissent.
The defendants’ rule 60(b) motion to vacate put forward a new legal theory — that the 1989 judgment was res judicata to the 2005 action — without any explanation or excuse for counsel’s failure to raise that defense before final judgment entered against the defendants on May 8, 2007 (May 8, 2007, judgment). See Mass.R.Civ.P. 60, 365 Mass. 828 (1974).
The defendants claim that they filed a motion to dismiss. Although it was served on Haffey, the docket does not reflect its having been filed. See ante at 688 & note 5. In any event, neither the motion nor the memorandum in siipport thereof put forward a res judicata defense, arguing instead only that the 2005 action was barred by the statute of limitations. The defendants then were defaulted, after their counsel failed to appear for a pretrial hearing that had been rescheduled to a date the defendants themselves had requested.1
The defendants subsequently had two opportunities before final judgment entered against them to raise their res judicata *693defense. They first filed a motion to remove default, which was denied because it was unaccompanied by an affidavit of counsel. They then filed a motion for reconsideration. The second judge granted reconsideration, but ultimately denied the requested relief, removal of the default, because he concluded that the defendants had failed to show a meritorious defense; the judge then allowed Haffey’s motion for entry of default judgment. At each of these opportunities, the defendants argued only (and incorrectly, see ante at note 6) that the action was barred by the statute of limitations.
The motion to vacate does not specify under what subsection of rule 60(b) it was brought. Rule 60(b)(1) provides for relief from judgment in cases of “mistake, inadvertence, surprise, or excusable neglect.” Rule 60(b)(6) provides for relief from judgment for “any other reason justifying relief from the operation of the judgment,” Mass.R.Civ.P. 60(b)(6), “other than those stated in subdivisions (1) through (5)” of rule 60(b), Chavoor v. Lewis, 383 Mass. 801, 806 (1981).
The defendants argue that their motion to vacate was properly considered under rule 60(b)(6). They urge that an examination of the motion and the memorandum in support thereof demonstrates that theirs was not a motion pursuant to rule 60(b)(1). They argue that they did not mention either rule 60(b)(1) or any excusable neglect. They say that “[t]he existence of a prior adjudicated case was the heart of defendants’ case.”
This argument does not help the defendants: it demonstrates that the motion to vacate was designed solely to excuse counsel’s failure — in the words of rule 60(b)(1), counsel’s “neglect” — to raise the res judicata defense before the May 8, 2007, judgment entered against the defendants. A claim for relief from judgment based solely on counsel’s failure to assert a legal theory during the litigation of a case is squarely covered by rule 60(b)(1), which permits relief from judgment where the neglect is “excusable.” In order for rule 60(b)(6) to apply, as the majority recognizes, ante at 690, a motion for relief from judgment must put forward “something more” than a claim of mere neglect. See Owens v. Mukendi, 448 Mass. 66, 73 (2006).
Because the motion to vacate was based solely on counsel’s failure prior to final judgment, despite repeated opportunities, to raise what the defendants assert is a meritorious defense, it *694could have been considered only under rule 60(b)(1). The defendants’ failure to provide any explanation in the memorandum accompanying the motion for not asserting their res judicata defense at any timely juncture during the litigation of this case does not demonstrate that the motion was a proper rule 60(b)(6) motion. Rather, it amounts to a failure to put forward any meritorious excuse for counsel’s neglect that might justify relief from judgment under rule 60(b)(1).
Some jurisdictions have allowed rule 60(b)(6) motions in such circumstances, but our court has said, “If a motion timely brought under rule 60(b)(1) may succeed only for ‘excusable neglect,’ it defeats the rule to permit it to be circumvented in clause (6) in cases of altogether inexcusable neglect.” Tibbitts v. Wisniewski, 27 Mass. App. Ct. 729, 732 (1989). The Tibbitts rule applies at least where a new legal theory put forward by a party is not jurisdictional, and a claim of res judicata is not jurisdictional. Even assuming the “order for entry of dismissal nisi” in the 1989 action has preclusive effect, a question I would not reach, its entry did not deprive the Superior Court of jurisdiction to hear the instant action. See, e.g., Bordonaro v. Vandenkerckhaven, 322 Mass. 278, 282 (1948); Brash v. Brash, 407 Mass. 101, 104 n.4 (1990).2
What the majority describes as “something more” than a claim of mere neglect — the existence of a prior judgment on identical claims — simply restates the legal theory that the defendants neglected to put forward prior to the entry of final judgment. Given the defendants’ utter failure to explain their poor litigation of this case prior to the entry of the May 8, 2007, judgment, the interest to which the majority adverts in the finality of judgments cuts in favor of reversal here, not affirmance.
The case might be different if the defendants were claiming that there would be double recovery if the May 8, 2007, judgment were not vacated, or if the defendants were claiming that they already had complied with whatever the settlement agree*695ment provided. The injustice of allowing that judgment to stand in such circumstances might well provide “ ‘something more’ than one of the grounds [for relief] stated in rule 60(b)(1),” such that rule 60(b)(6) relief would be appropriate. Owens v. Mukendi, 448 Mass. at 73.
But the defendants do not assert they complied with the settlement agreement. In their motion to vacate, they said only, “[I]f it is the position of the plaintiff that the terms of the settlement were never consummated, then his proper course of action was to file an action to enforce the settlement, not a new action based on the old allegations.” Because the defendants thus have put forward in support of their rule 60(b) motion only a legal argument that they could have raised, but did not, prior to the entry of the May 8, 2007, judgment, and because they have provided no explanation for their failure, I would reverse the order granting the defendants’ motion to vacate. Consequently, I respectfully dissent.
The defendants do not dispute that the hearing was rescheduled to the date they requested, but claim they did not receive notice of the hearing.
To the extent the majority holds that the date of final judgment in the 1989 action was March 3, 2008, ante at notes 12, 14, rather than thirty days from the date of the 1991 order of dismissal nisi, the judgment in the 1989 action could of course have no preclusive effect in the 2005 action, in which judgment entered on May 8, 2007, because the subsequently entered March 3, 2008, judgment was not a “prior judgment.” Cf. ante at 691.