Mass Civ Pro - Learning About the Case Flashcards
Who can serve process and by when?
(1) An Officer
(2) A civilian appointed by the court
Must serve within 90 days of filing complaint or else court can dismiss without prejudice. [Federal 120 days]
How must process be served (Individual and Corporate)?
(1) Personal Service
(2) Service on appropriate Agent
(3) Left at D’s last and usual place of abode (tacking OK - do not need to leave with anyone.)
If none of the above work after diligent search, P may ask the court to use alternative means including mail service.
Corporation - must be delivery on a corporate officer, managing or general agent, or person in charge of PPB.
If none of these in Commonwealth, notify MA secretary of state who will forward by registered mail.
What about service on someone out of state?
Per long-arm statue
- By method permitted in MA
- By method permitted in state where service is offered
- By registered mail, return receipt requested (RRR) to D out of state. [Don’t need court order]
Nonresident merger - delivery to Mass RMV and by registered or certified mail to D.
What is the Massachusetts Pleading Standard?
Same as Federal Standard (“Plausible claim”)
What is does a MA lawyer certify under Rule 11?
Old version of Rule 11
Certifies that:
(1) She has read it
(2) that to the best of her knowledge, information, and belief there is good ground to support it, and
(3) that is is not interposed for delay
A lawyer can be sanctioned for willful violations.
What is the standard and sanctioned for frivolous litigation?
If a claim or defense is (i) wholly insubstantial, (ii) frivolous, and (iii) not advanced in good faith ….
The court can impose on the losing party to pay the otherside’s costs and reasonable attorney’s fees (plus 12 percent interest).
Party must bring appropriate motion and the decision must be made after the case ends.
What is required in a MA complaint?
Must have:
(1) a short and plain statement of the claim, showing pleader entitled to relief
(2) a demand for judgment. [Do not need to demand damages]
Do not need to allege SMJ
May demand damages if damages are liquidated and plaintiff attaches a sworn statement showing the calculation of damages.
More detailed pleaing required for fraud, mistake, and special damages.
When must a D respond? Response is generally same as Federal, what are the differences?
Must respond within 20 days.
Two additional waivable defense: (i) pendency of a prior action and (ii) improper amount of damages in superior court or in district court.
Motion for enlargement - motion for more time to do something. Must show cause for extension. If after time period, must show excusable neglect.
What is an anti-SLAPP motion to dimiss and when must be it be granted?
A “SLAPP” is a strategic lawsuits against public participation (i.e. grocer sues D who made complaints to health department)
An anti-SLAPP motion to dismiss must grant motion unless P can show:
(1) the exercise of the defendant’s right to speak was devoid of any reasonable factual support or arguable basis in law AND
(2) defendant’s act caused actual injury to the P.
Two differences between MA and Federal Right to Amend:
(1) P has right to amend once before D serves her answer.
(2) D has right to amend once within 20 days of serving her answer.
Note: If a person was D when you filed, and you amend to file against the estate, the SoL doesn’t not toll because of the person’s death.
Massachusetts Rule on Deposition [Timing and Need for a Court order]
Rules generally the same as FRCP.
Written notice of deposition must be given at least 7 days before the deposition.
You need a court order if:
(1) P seeks to take deposition within 30 days after service on D (unless D has initiated discovery) or
(2) If there is no reasonable likelihood that recovery will exceed $5,0000.
Two Types of Audiovisial Depositions:
(1) Can use when calling a treating physician or expert as own witness. [Other party can bring a motion in opposition within 14 days of notice.]
* Must submit a report with at least 30 days notice, detailing testimony.
* Give notice that it will be used in lieu of oral testimony
* No need to receive order
(2) Need a court order for any other witness.
For either, the earliest you can give notice is 6 months after case is commeneced.
Interrogatories (basically the same for federal except for dates)
Receiving party has 45 days to respond
No more than 30 interrogatories can be served
Scope of Discovery
Slightly broader than federal - “relevant to the subject matter of the case.”
Do not need to disclose expert. Otherwise must discover via interrogatories. Ask questions. After disclosure, must ask for court order to depose. It’s in court’s discretion whether to grant.
Court will set a reasonable fee to pay expert for his time.
Situations in which you must supplement your discovery responses.
No general duty to update.
Must supplement when:
(1) Request for identity of witnesses and subject/substance of expert testimony;
(2) If responses were incorrect when made;
(3) responses are no longer true and failure to supplement is “in substance knowing concealment; and
(4) when court order or parties’ agreement requires.
If you fail - court can sanction for willful behavior and court has discretion to allow party to use new evidence at trial unless it would be unfair or prejudicial.
