Mass Civil Procedure

Question 1

Statutory Basis of Personal Jurisdiction

Answer 1

1) Defendant is present instate when served (unless here for unrelated litigation); 2) D is domiciled or resides in Massachusetts; 3) D has a usual place of business in Mass; 4) D consents to jurisdiction (not raising lack of personal jurisdiction or filing a permissive counterclaim); 5) D is incorporated in Massachusetts 6) Long arm statute 7) Nonresident motorist statute

Question 2

Long Arm statute

Answer 2

The claim must arise from the defendant doing one of the following: !) transacting business in Mass; 2) contracting to supply services or things in Mass (NH requires individuals to be physically present when contracting); 3) Causing tortious injury in Mass by act or omission in mass; 4) Causing tortious injury in Mass by an act or omission out of state if (a) regularly does business in Mass; or(b) engages in other persistent course of conduct or (c) derives substantial revenue from goods used or consumed here; 5) Holding an interest in or using or possessing real property in Mass; 6) Contracting to insure a person, property or risk in Mass; 7) living as a party to marriage where the marital domicile has been in Mass for at least one year within 2 before suit

Question 3

Constitutional Standard

Answer 3

Does D have such minimum contacts with the forum so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice

Question 4

Minimum Contacts

Answer 4

1) The contact must result from purposeful availment or a voluntary act and 2) It must be foreseeable to be sued

Question 5

Fair Play and Substantial Justice

Answer 5

1) Relatedness (not required if D is subject to general jurisdiction because of substantial and continuous ties in forum); 2) Convenience; 3) State’s interest

Question 6

Superior Court

Answer 6

Can hear cases in law and equity. Jury trial is available of 12 jurors. $25,000 or more in damages.

Question 7

District Court

Answer 7

Can hear cases in law. Can only give equitable relief if the plaintiff seeks damages in consumer claims. Jury trial of 6 jurors allowed only if statute allows it. Less than $25,000.

Question 8

Forum Selection Clause

Answer 8

Enforceable as long as not product of fraud, abuse of power or unconscionable.

Question 9

Venue in transitory actions

Answer 9

The case may be brought where a party resides or hosts its usual place of business. You can seek venue where the plaintiff resides. In district court, venue is okay in the judicial district that adjoins the district where either party resides or has usual place of business. It is not where employment is.

Question 10

Replevin Venue

Answer 10

Where the property is located

Question 11

Nonresident Venue

Answer 11

Anywhere in the state if neither P nor D lives in Mass

Question 12

Service of Process

Answer 12

Process consists of 1) a summons (court order bearing the clerk’s signature, identifying the court and parties, directing D to appear within the time set by rule and 2) A copy of a complaint

Question 13

Who can serve process?

Answer 13

An officer or civilian appointed by the court

Question 14

Timing of Service

Answer 14

Within 90 days for Mass (120 for federal)

Question 15

How to serve (in-state person)

Answer 15

(1) Personal service; (2) Serve on an appropriate agent (3) Substituted service to D’s usual place of abode and does not need to be left with anyone (4) If none of these methods are possible, then may ask for alternative means

Question 16

How to serve (in state corporation)

Answer 16

Can be delivered to any corporate officer, a managing or general agent, or the person in charge of the corporation’s principal place of business. If none of these can be found, then deliver to Mass Sec. of State

Question 17

How to serve (out of state)

Answer 17

1) By method permitted in Mass; 2) By method in state where service effected; 3) By registered mail, return receipt requested

Question 18

Standard for Pleading

Answer 18

Facts supporting a plausible claim. there must be a short and plain statement of claim and showing entitled to relief and a demand for judgment. In superior court, do not need to state amount of damages, but do for district court.

Question 19

Rule 11

Answer 19

A lawyer can be sanctioned if the court determines there is a willful violation. A willful violation is one where the claims or defenses are wholly insubstantial, friviolous, and not advanced in good faith. The lawyer certifies that she has read the complaint, to the best of her knowledge there is a good ground to support it and it is not for delay.

Question 20

Defendant’s response to pleadings

Answer 20

Must respond within 20 days with a motion and answer. Other defenses are pendancy to prior action, and improper amount damages.

Question 21

Anti-SLAPP (Strategic Lawsuit Against Public Participation)

Answer 21

D gets sued for her statements to public body. She can move to dismiss unless plaintiff can show that the plaintiff’s statement lacked factual support or basis in law and caused defendant harm.

Question 22

Amending of Pleadings

Answer 22

Plaintiff has a right to amend once before defendant replies. Defendant as a right to amend within 20 days of answer.

Question 23

Depositions

Answer 23

Written notice must be given 7 days before the deposition. A nonparty deponent should be subpoenaed or is not required to attend. If there is no reasonable likelihood that the recovery will exceed $5,000 or it is 30 days after service, then need court order.

Question 24

Audiovisual Deposition

Answer 24

If a party intends to call a treating physician as its own witness, it may depose that person by audiovisual means and use the recording at trial, rather than live testimony. It is allowed as long as a person does not object.The notice must be provided 6 months after case is commenced. The party must give 30 days notice and explain substance and support. For any other witness, there must be a court order or stipulation.

Question 25

Interrogatories

Answer 25

Receiving party has 45 days in which to respond (30 in federal court). No more than 30 interrogatories may be served without leave of court (25 in federal court). In interrogatories, would ask for the expert’s name, subject they would testify on, substance of facts and opinions and grounds for the opinions.

Question 26

Discovery standard

Answer 26

A party can discover non-privileged information relevant to the subject matter of the case. It is broader than admissible.

Question 27

Consulting Expert

Answer 27

If the expert was retained by a party but is not expected to testify, no discovery absent “exceptional circumstances” such as inability to get information elsewhere.

Question 28

Supplement Discovery

Answer 28

(1) Requests for identity of witnesses and subject/substance of expert testimony; (2) If statements incorrect when made; (3) Responses no longer true and failure to supplement is in substance knowing concealment; (4) When court order or parties’ agreement requires. If the party fails to supplement, the court has discretion to admit the evidence and give sanctions.

Question 29

Impleader

Answer 29

In Mass, must be within 20 days of answer. In federal court, it is within 14 days or need permission.

Question 30

Intervention

Answer 30

If case draws on constitutionality of statute statute or ordinance, must notify the AG.

Question 31

Class Action

Answer 31

There is only one type of class action. It is where common questions predominant and class action is the superior method for resolving the dispute. An individual must show: (1) too numerous for practical 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 class; (5) the common questions predominate over individual questions; 
(6) class action is superior method. 

There is no notice required to class members and there is no right to opt-out. Unlike federal court, there is no class counsel appointed.

The court must approve the settlement or voluntary dismissal. The court is not required to give notice to the class members.

Question 32

Death of a Party

Answer 32

Action survives if for contract. Survives in tort if for assault, battery or other damage to the person, consequential damages arising out of personal injury or damages to real or personal property.

Question 33

Temporary Restraining Order

Answer 33

There must be specific facts showing basis for relief. It must be specific in facts.

Applicant must post security.

It must be granted without notice to the other party/attorney (ex parte) if specific facts are plead under oath that show immediate and irreparable harm will occur before party can be heard.

It only lasts for 10 days and hearing must be within 10 days. Opponent can get a hearing within 2 days.

Question 34

Preliminary injunction

Answer 34

Same as a TRO, but can only be granted after notice and hearing. It lasts until final decision. There must be (1) a substantial likelihood of succeeding on the merits; (2) substantial threat that claimant will suffer irreparable injury if relief is not granted; (3) and a balancing of the equities (weigh threatened injury to the claimant, harm inflicted on the defendant if injunction is granted and public interest)

Question 35

Declaratory Judgment

Answer 35

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

Question 36

Attachment

Answer 36

A claimant can have defendant’s property attached at commencement of the action or thereafter to ensure property is therefore judgment. You need court permission with affidavits.

Court will approve it only if (1) there is a “reasonable likelihood” that the claimant will recover a judgment in amount equal or greater to the attachment (2) D does not have adequate liability insurance.

There is only an ex parte hearing in rem or quasi rem cases if there is a clear danger that defendant will conceal, destroy or remove property out of state.

Question 37

Trustee process

Answer 37

Claimant wants to attach D’s property, but in hands of third party. There must be prior approval and the trustee summons is served on trustee. There must be a bond if damages are over $1,000 unless action based on a judgment, contract for personal services, goods sold and delivered, money due in a contract under writing, tort for operation of unregistered motor vehicle, or order for alimony or child support.

It cannot be used for defamation, malicious prosecution, assault and battery, specific recovery of goods or chattel.

You cannot get $2500 from bank account, more than 85% of wages or government pensions

Question 38

Reach and Apply

Answer 38

Like attachment and trustee process, but here the property is intangible or equitable interest in property. You do not need a attachment.

Question 39

Fraudulent Transfer

Answer 39

Under the Uniform Fraudulent Transfer Act, a creditor may reach real or personal property transferred by a debtor in fraud of creditors. If a person is insolvent, it is assumed to be fraudulent if not fair consideration.

Question 40

Accrual

Answer 40

Claims run from the time of breach.

Exceptions:
1) Personal injury based on negligence occurs when claimant reasonably knew or should have known of the harm. If injury or cause not discernible, it accrues when knowledge is reasonable.

2) Medical malpractice accrues when health care professional committed practice unless no way patient was aware. Then, the claim accrues when patient learned or should have learned of facts. Even then, under statute of repose, cannot be brought more than 7 years after claim. This statute does not apply to foreign object n body.

Question 41

Tolling of statute of limitations

Answer 41

The statute of limitations stops running if commence action or suffer legal incapacity.

A minor whose medical malpractice claim accrues before age 6 may sue until age 9.

If dismissal is for a matter of form, plaintiff may commence within 1 year of dismissal.

Question 42

Statute of limitations time period

Answer 42

Tort - 3 years; Tort or contract for personal injury - 3 years; Breach of warranty - 3 years; Breach of sales under UCC – 4 year; Actions on contract 6 years

Question 43

Involuntary dismissal

Answer 43

In additional to all 12(b) grounds, persistent refusal to comply with court order, clear and convincing evidence to commit fraud and failure to prosecute the case.

Question 44

Default

Answer 44

The D fails to respond to the complaint within 20 days of service. The clerk will enter a notation on the docket sheet, but then plaintiff needs a judgment.

Question 45

Default judgment

Answer 45

It may be entered if the defendant failed to appear, it is for a certain amount of money, plaintiff files affidavit that not a minor or incompetent or in military service. Otherwise need a court judgment.

Question 46

Summary judgment

Answer 46

D can move for summary judgment any time prior to commencement of action. P must wait 20 days until commencement of action or after D serves a motion for summary judgment. The opposing party must be served10 days before hearing.

The affidavits must be based on first hand knowledge and show that the person is able to testify and with admissible evidence.

Question 47

Jury Trial

Answer 47

Right under Massachusetts Constitution for legal claims. A written demand is required 10 days after last pleading that raises a jury issue (14 days in federal court). The motion cannot be withdrawn without consent of the parties.

There can be an advisory jury in equity cases.

There is no requirement of unanimity. 5/6 of the 12 jurors.

Question 48

Objections to Jury instructions

Answer 48

You must object outside the juror’s presence. You must state distinctly the grounds for the objection and how you would be prejudiced. It must be made known before jury deliberations.

1st Circuit – You must object immediately before jury retires even if object earlier.

Question 49

Motion for Judgment Notwithstanding the Verdict

Answer 49

You must have made a motion for directed verdict at the close of all the evidence. If not, you waive, JNOV. It must be within 10 days of verdict.

Question 50

Motion for new trial

Answer 50

Within 10 days of judgment (28 in federal court). If there are excessive damages that are manifestly against weight of evidence, can get a new trial.

Question 51

Remittur

Answer 51

P must accept a lower amount or else face a new trial.

Question 52

Additur

Answer 52

If liability and damages are so inadequate that the court is convinced that the finding is against manifest weight of the evidence. The Court will order a new trial or tell the defendant to pay a higher figure or face a new trial. (not allowed in federal court as violates 7th amendment).

Question 53

Appeal

Answer 53

File within 30 days of decision. If it is filed in wrong court, the clerk must note and transfer it,

Clerk serves notice of appeal on other parties who can then file appeals within 14 days from notice of appeal or time remaining on the original 30 days, whichever is later.

Filing of motion for new trial, JNOV or alter or amend the judgment tolls the period.

Question 54

Res judicata (claim preclusion)

Answer 54

1) Case 1 and Case 2 must be brought by the same claimant against the same defendant
2) Case 1 must have ended in a final valid judgment on the merits (not based on jurisdiction, venue or indispensable parties or insufficient service of process)
3) They involve the same claim (based on transaction or occurrence)

Question 55

Collateral Estoppel

Answer 55

1) Case 1 ended in a valid final judgement on the merits
2) The same issue was actually litigated and determined in Case 1
3) It can only be used against one who was party in Case 1 It is not required that it be said by someone who was not a party to Case 1.

Question 56

Nonmutual offensive claim preclusion

Answer 56

It is allowed as long as not unfair. There was a full and fair opportunity to litigate in case 1. They could foresee multiple suits. They could have not joined easily in case 1 and there are no consistent judgments on record.