Civ Pro MI essay specific

Question 1

MCR 2.116(C)(7) claim

Answer 1

RES JUDICATA (“claim preclucion”)

When a party is bringing a second claim on the same action. Bring up for a summary disposition motion.

It is an affirmative defense

requires:
1. first action was decided on the merits
2. the matter contested could have been brought up on the first action
3. it involves the same parties as the first action

Question 2

MCR 2.116(C)(8) claim

Answer 2

Trial court must determine whether the opposing party has failed to state a claim which relief can be granted.

The trial court will only consider the pleadings.

Question 3

MCR 2.116(C)(10) claim

Answer 3

Test the factual sufficiency of the complaint by considering the affidavits, depositions, admissions, and other doc. evidence, in the light most favorable tot he nonmoving party.

If the evidence fails to establish a genuine issue of material fact, then the moving party is entitled to judgment as a matter of law. MCR 2.116(G) (4).

The evidence offered in support must be admissible to support a genuine issue of material fact in favor of the non-moving party. MCR 2.116(G) (6).

Question 4

Case evaluation

Answer 4

is intended to force parties to make a serious evaluation of the merits of their respective cases and parties are aided in this assessment by a panel of independent lawyers/evaluators.

Question 5

Case evaluation rule

Answer 5

The case evaluation rule imposes substantial sanctions for a party’s improvident rejection of a case evaluation award.

Question 6

What happens when the parties both accept the case evaluation

Answer 6

a judgment will enter in accordance with the evaluation and the judgment will be deemed to dispose of all claims in the action.

Question 7

What happens if one party accepts and the other party rejects the case evaluation?

Answer 7

the rejecting party may be required to pay the opposing party’s “actual costs.”

… the action proceeds to a verdict, that party must pay the opposing party’s actual costs “unless the verdict is more favorable to the rejecting party than the case evaluation.”

The verdict must be adjusted by adding assessable costs and interest on the amount of the verdict from the filing of the complaint to the date of the case evaluation, and, if applicable, by making an adjustment for future damages

Question 8

What are actual costs regarding case evaluation?

Answer 8

Actual costs are:

(1) costs taxable in any civil action
(2) a reasonable attorney fee
- based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation

Question 9

Define verdict for case evaluation purposes

Answer 9

The “verdict” is the jury verdict, the judgment of the court after a nonjury trial, or a judgment entered as a result of ruling on a motion after rejection of the case evaluation.

Question 10

A verdict is in favor of a defendant when

Answer 10

it is more than 10 percent below the evaluation, and it is more favorable to the plaintiff if it is more than 10 percent above the evaluation.

If the evaluation was zero, a verdict finding that a defendant is not liable to the plaintiff is deemed more favorable to the defendant.

Question 11

What happens if both parties reject a case evaluation?

Answer 11

The verdict must be more favorable to either rejecting party for that party to be entitled to actual costs.

That means that the verdict must be more than 10 percent

above the case evaluation for the P

OR

below the case evaluation for the D

for either to receive actual costs from the other party.

EX: if the case evaluation said $100,000 then the

P: verdict would have to be in excess of $110,000 for Plaintiff to receive actual costs.

D: the verdict would have to be less than $90,000 for D to receive actual costs.

If the verdict falls within those amounts-$90,000 to $110,000–neither party is entitled to actual costs.

Question 12

How does a party have to state an action for fraud or mistake in order to maintain the action?

Answer 12

a party alleging fraud or mistake must state the circumstances constituting fraud with particularity.

Question 13

When does a party have a basis for a class action

5 factors

Answer 13

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the members of the class that predominate over questions affected only individual members;
(3) the claims or defenses of the representatives parties are typical claims or defenses of the class
(4) the representative parties will fairly and adequately assert and protect the interest of the class; and
(5) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.

Question 14

factors to establish a class action simplified

(use this if running out of time)

Answer 14

numerosity, commonality, typicality, and superiority

Question 15

Factors a court uses to determine whether a class action is superior to other methods of adjudication

Answer 15

(a) whether the prosecution of separate actions by or against individual members of the class would create a risk of
(i) inconsistent or varying adjudications with respect to individual members of the class that would confront the party opposing the class with incompatible standards of conduct;

or

(ii) adjudication with respect to individual members of the class that would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
(b) whether finally equitable or declaratory relief might be appropriate with respect to the class;
(c) whether the action will be manageable as a class action;
(d) whether in view of the complexity of the issues or the expense of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
(e) whether it is probable that the amount which may be recovered by individual class members will be large enough in relation to the expense and effort of administering the action to justify a class action; and
(f) whether members of the class have a significant interest in controlling the prosecution or defense of separate actions.

Question 16

Can you have a commonality for claims over specific items?

(Class actions)

Answer 16

NO.

Question 17

Preliminary Injunction objective

Answer 17

The object of a preliminary injunction is to preserve the status quo.

Question 18

Explain burden for Preliminary Injunctive relief

Answer 18

the party seeking the injunction bears the burden of establishing that it will suffer irreparable injury if the injunction is not issued. Because a preliminary injunction is a form of equitable relief, it should not be issued where the party seeking it has an adequate remedy at law.

Question 19

If a preliminary injunction is granted by the court then when must the matter be tried on the merits?

Answer 19

within 6 months after the injunction is granted, unless the parties stipulate or good cause is shown

Question 20

General rule governing discovery

Answer 20

a party may obtain discovery on any matter as long as it is

(a) not privileged and
(b) relevant to the subject matter involved in the pending action.

Question 21

A doctor is a “custodian” of medical records, as such he must comply with authorized request for medical info within _____ days after the receipt of the request.”

Answer 21

28 days

Question 22

Are Personal medical malpractice insurance policies discoverable?

Answer 22

Yes,

specifically, a party may obtain discovery “of the existence and contents of an insurance agreement under which a person carrying on an insurance business may be liable to satisfy part or all of a judgment”.

Question 23

Are personal finances of a physician in a medical malpractice suit discoverable?

Answer 23

NO,

the financial status of a defendant physician (beyond insurance) is not relevant in a medical malpractice action.

Question 24

Is the existence of previous medical malpractice lawsuits discoverable for a medical malpractice suit?

Answer 24

Yes,

can show a habit of the defendant’s negligence in certain material ways (such as practicing medicine without contacts or glass).

Question 25

What type of information is covered by the physician patient privilege in MI?

Answer 25

The physician-patient privilege, applies only to “information that [a] person has acquired in attending a patient in a professional character”.

Does not cover the existence of other medical malpractice lawsuits.

Question 26

What is subject matter jurisdiction?

Answer 26

it is the authority of the court to exercise judicial power over the class if case… of the kind or character of the one pending.

Question 27

What is the MI circuit courts jurisdiction?

Answer 27

The MI Constitution provides that the circuit court has original jurisdiction in all matter s not prohibited by law.

Question 28

When can a party raise the assertion that a court lacks subject matter jurisdiction in MI?

Answer 28

anytime

Question 29

Statute of limitations for breach of contract

Answer 29

six years

Question 30

When must a Statute of Limitations assertion be raised?

Answer 30

“must be raised in a party’s responsive pleading.”

Question 31

Rule 2.116

Answer 31

Summary disposition

Question 32

Federal Question

Answer 32

claim arises under the Constitution, laws or treaties of the United States.

Question 33

Diversity Jurisdiction

Answer 33

(1) amount in controversy exceeds $75,000
(2) complete diversity of parties (citizens of different states)

Question 34

Venue when removing a case to federal court

Answer 34

it is appropriate to remove only to a district court “embracing the place where such action is pending.”

Question 35

two-pronged test for when MI has jurisdiction over a party

Answer 35

(1) Michigan’s long-arm statutes and
(2) federal constitutional due process.

Question 36

When does a party need to bring an action for summary disposition on merits of personal jurisdiction?

Answer 36

must be raised in the defendant’s first motion or first responsive pleading, or it will be waived.

Question 37

Due process clause regarding personal jurisdiction

2 options

Answer 37

(1) minimum contacts test

or

(2) insufficient notice of the suit

Courts will also consider if the Defendant intentionally directed its activities toward the forum state and purposefully availed itself to the benefits and protections of the forum states laws.

Question 38

Can the opposing party make the other party get a physical examination for purposes of discovery?

Answer 38

Yes, when the physical condition of a party is in controversy, “the court in which the action is pending may order the party to submit to a physical examination by a physician”.

This court order “may be entered only on motion for good cause with notice to the person to be examined and to all parties.”

In addition to the order specifying the time, place, manner, conditions, and scope of the examination, it “may provide that the attorney for the person to be examined may be present at the examination.”

Question 39

When can a court order a sanction regarding discovery?

Answer 39

a court may order as a sanction for a failure to comply with an order to provide or permit discovery “that the matters regarding which the order was entered or other designated facts may be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.”

Courts will also consider whether

(a) a necessary precondition (violation of an order) has occurred and
(b) a physician (who refused to conduct an examination with the parties attorney in the room) is a “party” or any of the other entities expressly covered

Question 40

Process to take if adverse party is not responding or is refusing to comply with a discovery request:

Answer 40

Step 1: send a follow up request

Step 2: seek a court order for the adverse party to supply the requested discovery

Step 3: Request the court issue sanctions.

Question 41

When will a court issue sanctions for failure to provide requested discovery?

Answer 41

Sanctions are only appropriate if a party fails to obey an order to provide or permit discovery.

Question 42

Requirment for court sanctioned discovery?

Answer 42

failure to comply with request ,

the discovery sought is “in controversy”, and

seeking party must have good cause

Question 43

What court has exclusive jurisdiction to hear to hear “claims and demands, liquidated and unliquidated, ex contract and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms or agencies?”

Answer 43

The Court of Claims

Question 44

When can a motion for lack of subject matter jurisdiction be raised?

Answer 44

anytime, and it cannot be waived (need not be preserved)

Question 45

A plaintiff seeking a preliminary injunction in MI must establish:

Answer 45

(1) he is likely to succeed on the merits
(2) he is likely to suffer irreparable harm in the absence of relief
(3) the balance of equities is in his favor
(4) the injunction is in the best interest of the public

Question 46

Irreparable harm

Answer 46

a plaintiff must demonstrate:

(1) a non-compensable injury for which there is no legal measurement of damages

or

(2) damages cannot be determined

The injury must be certain and great, it must be actual rather than theoretical.

Question 47

Balance of equities

Answer 47

A judicial analysis under which a court weighs factors like the public interest, injury to the parties, fairness, etc. in deciding on a matter.