Mass Civo Pro - Adjudication Flashcards
Three additional “12(b)” grounds for involuntary dismissal
(1) Persistent refusal to comply with court order;
(2) Clear and convincing evidence that P attempted to commit fraud upon the court
(3) failure to prosecute the case [applies when there is a convincing evidence of unreasonable conduct or delay]
When may a clerk enter a default judgment in MA?
D fails to respond within 20 days and following reasons:
(1) D failed to appear;
(2) Claim is for a sum certain
(3) P files an affidavit that D is not a minor or incompetent;
(4) P files an affidavist that D is not in military service.
Otherwise court must file entry
Timing for Summary Judgment
D may move for SJ anytime after commencement of action.
P may move after 20 days from commencement of the action or after D serves a motion for SJ.
The moving party must serve the motion at least 10 days before hearing on the motion.
What is the form of affidavits for SJ?
Must be
(1) based on first-hand knowledge;
(2) Show that affiant is competent to testify under rules of evidence
(3) set forth admissible fact
(4) attach sworn or certified copies of documented referred to.
What documents in MA can you use other than affidavits, discovery, and pleading for SJ?
A master’s report
Judgment from another state under full faith and credit.
When must a court accept the master’s findings of facts?
In a non-jury case, must accept unless clearly erroneous. (Party may contest within 30 days of service of notice of report filed)
In a jury case, It’s read to the jury & its prima facia evidence.
Objection to jury instructions (MA vs. 1st Circuit)
Objection must be made outside jury’s presence.
MA - Objection must be made known to judge sometime before jury begins deliberations. Once done you don’t to do it again before deliberation.
1st circuit. You must object immediately before jury retires even if you objected before.
Difference on Motion for Judgement Notwithstanding the Verdict (JNOV)
The party must have moved for directed verdict at the close of all evidence. [Not just after P rests] Must be made within 10 days of the judgment.
Remuiter or Additur
When damages are excessive or inadequate and one party files a motion for new trial:
Remittiur: court tells P that may accept a lower amount or else face a new trial. [OK in MA and Fed.]
Addituir: tell D that he could pay a higher figure or higher damages. [OK in MA - Unconstiutional in Fed.]
Res Judicata (Claim Preclusion)
Only get to sue for a cause of action once. Requirements:
(1) Must be brought by the same claimant against the same defendant.
(2) Case 1 must have ended in a valid final judgment on the merits. (Not on merits if based on jurisdiction, venue, or indispensible parties, insufficient service of propcess.
(3) Case 1 and 2 involve the same claim. (arising from the same t/o)
Collateral Estoppel (Issue Preclusion)
Cannot relitigate a particular issue that was litigated and determined before. Requirements:
(1) Case 1 ended in a valid final judgment on the merits.
(2) The same issue was atually litigated and determined in Case 1.
(3) That issue was essential (or necessary) to the judgement in Case 1. (it supported the judgment)
(4) Against whom is collateral estoppel being used? It can only be used against one who was a party in Case 1.
(5) By whom is collateral estoppel being used. Traditionally had to be a party to case 1. Some courts recognize “nonmutual colleteral estoppel” Meaning collateral estoppel is being asserted in case 2 by somebody who was not a party to case 1.
