MA civ pro vs. federal civ pro

Question 1

The 7 statutory bases for PJ in MA are:

Answer 1

1. D is served with process in MA
2. D is domiciled or resides in MA
3. D has usual place of business in MA
4. D is incorporated in MA
5. D consents
6. Long-arm statute
7. Nonresident motorist statute

Question 2

The long-arm statute allows PJ over nonresidents if the claim arises from the D doing one of these 7 things:

Answer 2

1. transacting any business in MA
2. contracting to supply services/things in MA
3. causing tortious act/injury by conduct in state
4. causing tortious act/injury by conduct OUT of state (only if D has other regular contact with MA, like regularly does business or derives substantial revenue from state)
5. holding interest in, using, or possessing property in MA
6. contracting to insure a person/risk in MA
7. living as party to marriage, where domicile has been MA for one of last two years

Question 3

The nonresident motorist statute allows

Answer 3

PJ over nonresidents who drive on MA roads, under legal fiction that they consent to having the registrar of motor vehicles as their agent for service of process.

Question 4

Superior court can hear cases at ___________, with ___ jurors, and D can move to dismiss if there’s no ____________.

Answer 4

law or equity; 12; reasonable likelihood that P could recover more than $25k.

Question 5

District court can hear cases at ___________, with ___ jurors, and court can KEEP case, after D’s motion to dismiss, only if there’s no ____________.

Answer 5

law (equity available only if P also seeks damages); 6; reasonable likelihood that P could recover more than $25k.

Question 6

A defendant who doesn’t raise the issue of the amount in controversy in superior or district court

Answer 6

waives the argument that the case is too big to be in district court or too small to be in superior court.

Question 7

Are forum selection clauses enforceable in MA?

Answer 7

Yes, unless procured by fraud or unconscionable conduct.

Question 8

Local actions are ________________ and venue for them is laid ____________________.

Answer 8

actions dealing with title, possession, partition of land; where the land is

Question 9

Transitory actions are _______________ and venue for them is laid __________________.

Answer 9

all non-local actions, including those for rent, use/occupation, or breach of covenant regarding realty; where ANY PARTY resides, or, if corporation is a party, where the corporation has its annual shareholders’ meeting.

Question 10

For cases where all parties are nonresidents, venue is proper

Answer 10

anywhere in MA.

Question 11

Venue in STATE court is generally OK where?

Venue in FEDERAL court is generally OK where?

Answer 11

where any PARTY resides

where any DEFENDANT resides (NB: corporation resides anywhere that there is PJ over it)

Question 12

Who can serve process instate in MA state proceedings?

Who can serve process out-of-state in MA state proceedings?

Who can serve process in federal court proceedings?

Answer 12

An officer or civilian appointed by the court

Anyone who can properly serve under MA law or laws of state where service is made.

Anyone over 18

Question 13

What’s the timing of service of process in state court?

In federal court?

Answer 13

90 days after complaint is filed

120 days after complaint is filed

Question 14

What methods of serving process on an in-state D are OK in state court?

Answer 14

The “big three” (personal, agent, substituted), plus you can ask court’s permission to serve by mail if none of the big three methods work

Question 15

What methods of serving process are OK in federal court?

Answer 15

The “big three” (personal, agent, substituted), plus any method authorized by state law where service is made.

Question 16

What methods of serving process on an out-of-state D are OK in state court?

Answer 16

The “big three,” plus registered mail (without court’s permission), plus any method that’s allowed in the state where process is served.

If lawsuit claims PJ under the nonresident motorist statute, service is OK if made on BOTH the registrar of motor vehicles AND the D via registered mail.

Question 17

How is substituted service different in MA than in federal court?

Answer 17

In MA, can be left at usual place of abode WITHOUT leaving it with a person there, as long as you make a follow-up mailing.

In federal court, can be served at usual place of abode but must be left with a person of “suitable age and discretion.”

Question 18

Is waiver by mail allowed in MA? In federal court?

Answer 18

NO; YES.

Question 19

What is waiver by mail?

Answer 19

D waives service of process after P sends D a waiver form and copies of the complaint. D gets extra time to respond this way.

Question 20

Pleadings must state _______________ in order to survive a 12(b)(6) motion in MA.

Answer 20

a plausible claim for relief

Question 21

If litigation is frivolous, MA trial courts can

Answer 21

order attorney’s fees and costs to be paid by losing party, plus 12% interest – but only if the claim or defense asserted by losers was wholly insubstantial, frivolous, and not advanced in good faith.

This occurs ONLY on motion by a party and after decision in the case.

Question 22

Complaints in MA state court differ from complaints in federal court because they

Answer 22

don’t require a statement of the court’s subject matter jurisdiction, or a dollar figure for damages sought

Question 23

As in federal court, in MA state court these claims must be plead with particularity:

Answer 23

fraud, mistake, special damages

also duress and undue influence in MA

Question 24

D must respond to P’s complaint within ___ days in state court.

Within ___ days in federal court.

Answer 24

20

21

Question 25

Waivable defenses in MA include

Answer 25

personal jx, venue, process, and service of process (same as federal court) PLUS pendency of prior action & improper amount of damages in superior or district court.

Question 26

An anti-SLAPP motion to dismiss is one in which a D moves to dismiss based on

Answer 26

the notion that the P is bringing the suit to discourage public participation (free speech exercises) by the D – e.g. D has reported P to a government agency and P is now suing D to get D to shut up.

Question 27

A court must do what after an anti-SLAPP motion to dismiss is filed?

Answer 27

MUST DISMISS unless P shows that D’s exercise of his right to speak was devoid of any reasonable basis in fact or law, and D’s act caused P actual injury.

Question 28

In state court, P has the right to amend her pleading until

Answer 28

D serves her answer – EVEN IF D has already served a motion to dismiss. Super-literal interpretation of “until D serves answer.”

Question 29

In federal court, P has the right to amend her pleading until

Answer 29

21 days AFTER D serves her answer OR her MTD

Question 30

When does an amended pleading “relate back” to the original pleading?

Answer 30

Same as federal court – when the statute of limitations would otherwise bar the amended pleading, can “relate back” to the date of the original pleading, but only if amendment relates to the same transaction or occurrence.

Question 31

Does relation back avoid the statute of repose?

Answer 31

NO; statute of limitations only

Question 32

If a D was dead when the initial complaint was filed, then

Answer 32

the suit is a nullity – cannot sue a dead person.

Question 33

Required disclosures in state court proceedings

Answer 33

do not exist!

Question 34

In state court, D has a right to amend pleadings

Answer 34

within 20 days of serving her answer

Question 35

In federal court, D has a right to amend pleadings

Answer 35

within 21 days of serving her answer

Question 36

What is an audiovisual deposition?

Answer 36

A deposition via AV means of a party’s own expert or a treating physician. AV depositions can be used at trial IN PLACE OF live testimony in MA.

Question 37

In MA, do you need a court order to permit an AV deposition to be taken and/or used at trial?

Answer 37

Not if the depo is of a treating physician or an expert witness. If it’s of any other witness, yes.

Question 38

An audiovisual deposition can be used at trial in place of an expert/treating physician’s testimony if the expert/physician is AVAILABLE/UNAVAILABLE.

Answer 38

EITHER!

Question 39

Steps for doing an AV deposition:

Answer 39

1. Provide a written report at least 30 days before noticing the deposition, including the resume of the deponent and explaining subject matter, substance, and support for matters about which the expert/physician will testify.
2. Give notice explaining the depo will be in lieu of oral testimony.
3. Other side then has 14 days to move to oppose the depo.

Question 40

What’s the earliest after a case starts that a party can give notice that it’s taking an AV deposition?

Answer 40

6 months

Question 41

In state court, how long does someone have to respond to (a) interrogatories; (b) admissions; (c) requests for production?

Answer 41

(a) 45 days (30 in federal court)
(b) 30 days
(c) 30 days

Question 42

What’s the max number of interrogatories that a party can send in state court? In federal court/

Answer 42

30; 25.

Question 43

To take the deposition of an opposing expert witness in MA state proceeding, a party must first

Answer 43

serve the opposing party with interrogatories asking for the witness’s name, the subject she’ll testify on, the substance of her facts/opinions, and the grounds for her opinions.

Question 44

In MA state proceeding, can you seek information via interrogatories about consulting experts not expected to testify at trial?

Answer 44

No, barring extraordinary circumstances (e.g. impossible to get the information in other ways)

Question 45

When must you update discovery responses in MA proceedings? In federal proceedings?

Answer 45

MA: no obligation if they were correct when made, unless it’s about expert testimony or it would be knowing concealment not to update.

Fed: obligation to update if info changes after you responded.

Question 46

Attendance is mandatory at conferences to discuss issues relating to discovery of ESI if the conference is

Answer 46

requested within 90 days of D serving her first responsive pleading.

Question 47

In MA state proceedings, D has right to implead a third party within ___ days of serving answer.

In federal proceedings, right to implead within ____ days of serving answer.

Answer 47

20; 14

Question 48

Who can be impled?

Answer 48

Only someone who is liable to a DEFENDANT for indemnity or contribution – not simply someone that the plaintiff has an independent claim against.

(true in MA and fed court)

Question 49

Permissive intervention is allowed where

Answer 49

your claim shares at least one common issue of law or fact with the underlying claim.

(true in MA and fed court)

Question 50

Intervention as of right is allowed where

Answer 50

your interest would be harmed (i.e. where your joinder is NECESSARY)

Question 51

Will MA courts certify a class action for a limited purpose? Will federal courts?

Answer 51

NO; YES

Question 52

What are the three biggest differences between MA class actions and federal class actions?

Answer 52

1. MA only has “Type 3” or “common question” class actions
2. MA does NOT require notice that the action is pending to be sent to class members
3. MA does NOT require that class members be given an opportunity to opt out

Question 53

In MA, does the court appoint class counsel?

Answer 53

Doesn’t have to.

Question 54

What kinds of actions survive a party’s death?

Answer 54

All contract actions do, and tort actions do if they are about “damages to the person” – assault, battery, and emotional distress – damages to property, or consequential damages related to personal injury.

Question 55

In MA, if you’re challenging the constitutionality of a state statute or municipal ordinance, you must

Answer 55

notify the state attorney general.

Question 56

How long can TROs last in MA?

In federal court?

Answer 56

no more than 10 days

no more than 14 days (extendable for a max of an additional 14 days)

Question 57

What is attachment?

Answer 57

Get court order to have D’s personal or real property attached at the start of an action to ensure that it’ll be available to pay a judgment if D is found liable.

Question 58

What is trustee process?

Answer 58

Attachment but where property is in the hands of a third party. Need court order for this too.

Question 59

What is reach and apply?

Answer 59

It’s like attachment or trustee process, but for intangible property or equitable interest in property (e.g. option to buy realty). Treat it like attachment if the property is in hands of D, or like trustee process if it’s in hands of third party.

NO COURT ORDER REQUIRED HERE.

Question 60

A court will approve an attachment if it finds

Answer 60

1. reasonable likelihood claimant will recover judgment equal to or greater than value of the property; and
2. D’s liability insurance isn’t adequate to satisfy the judgment.

Question 61

A court will approve an EX PARTE attachment if it finds

Answer 61

that there’s a clear danger that D will damage, remove, or conceal property otherwise (and other aspects of attachment test must be met too)

Question 62

In a trustee process situation, a trustee is served with _______ and must, in return, ______________.

Answer 62

a trustee summons (served like regular service of process); file answer in court describing property.

Question 63

In a trustee process situation, the claimant must _____________ as a prerequisite for attaching the property.

Answer 63

post a bond (if damages claimed are over $1,000) – unless action is based on a bunch of stuff I won’t remember (mainly breaches of various types of contracts and alimony/child support payments).

Bond is a jurisdictional requirement.

Question 64

Trustee process cannot be used in these types of cases

Answer 64

malicious prosecution, defamation, assault and battery, specific recovery of goods and chattels

Question 65

The Uniform Fraudulent Transfer Act provides that

Answer 65

creditors may reach the real or personal property of a debtor that’s transferred to defraud creditors. Creditor does this by seeking to set aside conveyance, attach property, or restrain D from disposing of property.

Question 66

Medical malpractice suits in MA must first go to _________ before they can be filed in court.

Answer 66

a “screening tribunal” of an attorney, superior court judge, and doctor, which decides if there’s a “legitimate question of liability appropriate for judicial inquiry” or whether this was just an “unfortunate result.”

Question 67

If the screening tribunal in a med malpractice case decides there’s no legitimate question of liability, what happens?

Answer 67

The case proceeds only if the P posts a $6,000 bond within 30 days, and the tribunal’s finding is admissible evidence at trial. P can take immediate appeal of tribunal’s decision but if she loses, she’s done for good.

Question 68

A lis pendens is a

Answer 68

recording that puts the world on notice that you have an action pending involving the title or use of real property.

Question 69

A personal injury claim based on negligence accrues when

Answer 69

the claimant knows or reasonably should know of the harm.

Question 70

A medical (or legal) malpractice claim accrues when

Answer 70

the professional committed the malpractice, UNLESS there’s no way the patient/client could’ve been aware of the negligence, in which case it accrues when patient/client learned, or with reasonable diligence should have learned, of the facts giving rise to the claim.

Question 71

The statute of repose in medical malpractice cases is _____ but never applies to ______.

Answer 71

7 years; cases where a foreign object is inside the claimant’s body

Question 72

What tolls a statute of limitations?

Answer 72

1. commencing the action
2. lack of legal capacity (e.g. SOL for 12-year-old’s tortious injury doesn’t run till she turns 18) – exception for medical malpractice.

Question 73

Under a special rule for medical malpractice, a minor whose claim accrues

Answer 73

before age 6 may sue until she reaches age 9. BUT the statute of repose still applies and cuts off at 7 years.

Question 74

In a medical malpractice suit, if a child is 6 or older when a claim accrues, her case

Answer 74

is not tolled as a result of minority.

Question 75

Counterclaims filed after the statute of limitations has run are

Answer 75

timely as long as they weren’t barred when P initially sued D.

Question 76

The renewal statute provides that if P files her case right before the statute of limitations runs, and it’s dismissed without prejudice for a mistake of form, she

Answer 76

has an extra year after dismissal to refile.

Question 77

The statute of limitations for breach of K claims is

Answer 77

6 years (unless for personal injury K claims – then 3 – or UCC Art. 2 breach of K claims – then 4)

Question 78

The statute of limitations for tort claims is

Answer 78

3 years

Question 79

The statute of limitations for breach of warranty claims is

Answer 79

3 years

Question 80

In MA state court, in addition to the 12(b) grounds for dismissal, involuntary dismissal can happen when:

Answer 80

1. P fails to prosecute case
2. P persistently refuses to comply with court order, or
3. There’s clear and convincing evidence that P attempted to commit fraud on the court

Question 81

In federal court, in additional to the 12(b) grounds for dismissal, involuntary dismissal can happen when:

Answer 81

1. P fails to prosecute the case
2. P persistently refuses to comply with court order, or
3. P fails to comply with the FRE.

Question 82

Default judgment can be entered by the clerk if

Answer 82

D failed to appear, claim is for sum certain, and P files affidavits saying D isn’t a minor, incompetent, or in military service.

Question 83

In MA, a D can move for summary judgment _____ and a P can move for summary judgment _______.

Answer 83

anytime after case is filed; 20 days or more after case has been filed OR anytime after D moves.

Question 84

The MA Constitution provides a right to jury trial in cases

Answer 84

at law.

Question 85

In MA state court, must demand a jury no later than

Answer 85

10 days after the service of the last pleading that raises a jury-triable issue.

Question 86

In federal court, must demand a jury no later than

Answer 86

14 days after the service of the last pleading that raises a jury-triable issue.

Question 87

Verdicts in MA state court NEED/DON’T NEED to be unanimous.

Answer 87

DON’T NEED. At least 10 of 12 jurors in superior court is good enough.

Question 88

Directed verdict in MA state court is the same as _____ in federal court.

Answer 88

JMOL

Question 89

Judgment notwithstanding the verdict in MA state court is the same as _____ in federal court.

Answer 89

RJMOL, but must be filed within 10 days of judgment (RJMOL is 28).

Question 90

A party must move for a motion for new trial within ____ days of judgment in state court.

In federal court?

Answer 90

10

28 in federal

Question 91

Motion to alter or amend judgment may be made in MA state court within _____ days of judgment.

Answer 91

10

Question 92

Motion to set aside judgment may be made in MA within _____ of judgment.

In federal court?

Answer 92

1 year (generally)

1 year (generally – unless, e.g., no SMJ)

Question 93

To appeal a judgment from MA trial court, must file with ______ and within ____ days of appealable order.

Answer 93

clerk of trial court; 30 days

Question 94

Timely filing of a motion for new trial, motion for JNOV, relief from judgment, or to alter/amend judgment ____ for filing notice of appeal.

Answer 94

tolls the time

Question 95

Appeals of administrative agency decisions are filed with ____ and within ____ days of decision.

Answer 95

superior court; 30 days

Question 96

In MA state court, for claim preclusion purposes, a valid final judgment on the merits does NOT include resolutions of a case based on

Answer 96

jurisdiction, venue, failure to join an indispensable party, or improper service of process.

(In federal court, all but the improper service of process are not on the merits.)

Question 97

In MA, a plaintiff can do what if the defendant’s answer raises affirmative defenses that the P feels are unfounded?

Answer 97

Move to strike the affirmative defenses as insufficient as a matter of law.

Question 98

In MA practice, depositions of expert witnesses are not taken

Answer 98

as a matter of course. Usually, scope of discovery re: experts is limited to answers to interrogatories. Need prior approval from the court to take a depo of an opposing party’s expert.

Question 99

If a responding party in discovery willfully fails to provide a response in a timely manner, the other party can

Answer 99

move for sanctions.

Question 100

Can a plaintiff cure improper service of process?

Answer 100

YES, by properly serving within the original time period allowed, and before the court hears or rules on a motion to dismiss or answer.

Question 101

Under federal rules, sanctions may not be imposed for failing to provide ESI if

Answer 101

the ESI was lost as a result of the routine good faith operation of the electronic information system.

Question 102

A court should freely give a party leave to amend a pleading past the time when it can do so by right if

Answer 102

justice requires the amendment.

Question 103

In MA state court, if the D is a MA corporation, service must be made on ______________.

If none of these people can be found, court can order service on the corporation by

Answer 103

a corporate officer, managing or general agent, or the person in charge at the corporation’s PPB.

delivery of an order/notice to the secretary of state, who will forward it by registered mail (RRR) to the corporation.

Question 104

Notice of removal to federal court must be filed within

Answer 104

30 days of service; no more than 1 year after filing.

Question 105

If there are multiple defendants in a case, removal is permitted only if

Answer 105

all defendants agree.