Mass Civ Pro - Parties and Claims

Question 1

MA Distinctions on Impleader (Third-Party Practice)

Answer 1

Generally the same as Fed. Practice except:

Must also provided TPD copies of all original pleadings from underlying action.

Party has right to implead within 20 days of serving her answer (federal - 14 days)

P can implead a TPD and MA allows impleader of joint tortfeasors.

Question 2

MA only has “Type 3” Class Actions - What are the six requirements for a class action?

Answer 2

(1) Too numerous for practicable joinder
(2) Questions of law or fact in common to the class;
(3) Claims/Defenses of representative are typical of those of the class
(4) Representative will fairly and adequately represent and protect the interests of the class;
(5) The common questions predominate over individual questions. [Add’ factor]
(6) Class action is the superior method of resolving the dispute. [Add’l Factor]

Mass will not certify a class for a limited purpose. Court does not have to appoint counsel.

No right to opt out and up to court’s discretion where to require notification or give notification of settlement/dismissal.

Question 3

What actions survive the death of either party?

Answer 3

(1) Contract Cases
(2) Tort Cases - If for
(a) Assault, battery, or “other damages to the person” (including IIED);
(b) Consequential damages arising out of personal injury to the decedent (i.e. medial expeses)
(c) damages to real or personal property or conversion of goods

If action survives - Party must make motion to substitute the descendent’s representative.

If action does not survive, get dismissal by filing a “suggestion of death”

Question 4

Two Types of Injunctions and Requirements for Both

Answer 4

Temprorary Restraining order

Preliminary Injunction

For both

• Applicant must post security unless court finds otherwise for good cause.
• Must have verified document (under oath by party) that sets forth SPECIFIC FACTS showing basis for relief by person with knowledge of the facts.

Question 5

Temporary Restraining Order - Basics

Answer 5

May be granted without notice to the other party if specific facts are pled that show IMMEDIATE IRREPARABLE HARM will occur before party can be heard.

TRO last no more than 10 days unless opponent consents. Hearing must occur within 10 days.

Opponent on 2 days notice may have a hearing to dissolve or modify TRO.

Question 6

Preliminary Injunction - Basics

Answer 6

Same purpose as TRO, but can only be granted after notice to the party and opportunity to be heard. Remains in effect until final judgment.

Standard: Must show:

(1) Substantial likelihood that he will succeed on merits
(2) Substantial threat that claimant wil suffer irreparable injury if relief is not granted
(3) Balancing of the equities favors issuance of the injunction (threatened injury to claimant, harm inflicted on D, public interest)

Question 7

What is a declaratory judgment?

Answer 7

Request that the court make a binding declaration of rights, duty, status, and other legal relations.

Factual allegations must show an actual controversy.

Question 8

What is an Atachment and Requirements?

Answer 8

A claimant may attempt to have the defendant’s property attached at commencement of the action or thereafter.

Need court permission. May approve only if:

(1) There is reasonable likelihood that claimant will recover a judgment in an amount equal to or greater than the attachment.
(2) D has inadequate liability insurance to satisfy the judgment.

Can only attached without notice to D if case is in rem or quasi-in-rem and court find that there is a clear danager that D will conceal, destroy or remove the property from the state.

Question 9

What is a trustee process and what cases CANNOT be used?

Answer 9

Process to force a third party (i.e. a bank) to cough up D’s property to attach.

Can’t be used in:

(1) Defamation
(2) Malicious Prosecution
(3) Assault & Battery
(4) Special recovery of goods or chattle.

Must get prior approval then issue a trustee summons.

Claimaint must post a bond if damages are over $1,000 (otherwise dismissed) unless the action is based upon

(1) Judgment
(2) Contract for personal services
(3) Contract for good sold and delivered
(4) money due under a contract in writing
(5) Tort for operation of unregistered motor vehicle

(60 Order for alimony or child support.

Question 10

Statute of Limitations Period for:

Tort Actions:

Tort or contract for personal injury:

Breach of Warranty:

Breach of Sales Contracts under UCC Article 2:

Actions on Contracts (not for personal injury):

Answer 10

Tort Actions: 3 Years

Tort or contract for personal injury: 3 Years

Breach of Warranty: 3 Years

Breach of Sales Contracts under UCC Article 2: 4 years

Actions on Contracts (not for personal injury): 6 years