Massachusetts Civil Procedure

Question 1

How do you have PJ in MA? (ONE OF SIX HIGHLY TESTED AREAS)

Answer 1

1) Satisfy an MA statute
2) Satisfy the Const.

Statutes
1) Present in state when served (presence not procured by fraud or duress and not in state only to participate in litigation or contest PJ).

2) Domiciled in or resident of MA
3) D has a usual place of business in MA
4) Inc. in MA
5) Consent

6) Long arm
(a) Transacting any business in MA
(b) Contracting to supply services or things in MA
(c) Causing tortious injury in MA by act or omission in MA (BOTH)
(d) Causing tortious injury in MA by act or omission out of state. Works if (i) D regularly does or solicits business, or (ii) D engages in other persistent course of conduct, or (iii) D derives substantial revenue from goods used or consumed or services rendered here.
(e) Holding an interest in or using or possessing real property in MA (claim arises from D’s use of realty in MA)
(f) Contracting to insure any person, property, or risk in MA.
(g) Living as a party to marriage where the marital domicile has been in MA for at least one year within the two years before commencement of the suit.

7) Non-Resident Motorist Statute (NMS) - arising from operating MV in MA. Registrar of MV is appointed as rep to receive service of process.

Question 2

What statement do I always throw in after I note the basis for PJ by long arm statute?

Answer 2

The long arm statute is interpreted to reach the constitutional limit.

Question 3

What is the constitutional standard to judge PJ?

Answer 3

Same as Fed.

Minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice.

Question 4

Give a quick Overview of SMJ in MA.

Answer 4

Any claim can be filed in MA unless Fed Ct. has exclusive jurisdiction like bankruptcy, patent infringement, and some securities and anti-trust stuff.

There are several different types of Courts:
1) Superior Courts - More than $25,000 in controversy unless waived (dismissal for that is w/o prej.). Law or equity. 12 person juries. Juries available if at law.

2) District - Actions at law or issue of law combined with issue in equity. $25,000 and under unless waived (dismissal for that is w/o prej.). Concurrent juris. w/ superior ct over actions at law and ch. 93A. 6 Jurors unless stipulate to fewer.
3) Single Justice - Single SJC justice sits and decides equitable claims. Concurrent with Sup. Ct.
4) Probate and Family Ct.
5) Land Court
6) Housing Court
7) Juvenile Court
8) Small Claims

Question 5

Give quick overview of Venue in MA.

Answer 5

1) Forum Selection Clauses are valid unless procured by fraud or they are unconscionable.
2) Sup. Ct. venue is laid in the appropriate county.
3) Dist. Ct. enue is laid in the appropriate district.

4) Local or Transitory
(a) Local - Title or possession of land and petition in probate and family court division for partition of land. Venue is proper where the land lies.
(b) Transitory - All other cases, where ANY party resides or has a usual place of business (not place of employment).

3) Special Cases
(a) Replevin - where the personal property is located.
(b) Trustee Process - where trustee resides or has a usual place of business.
(c) Non-residents - If neither P nor D is MA resident, anywhere in MA

4) Change of venue - Court can change if venue is improper or may dismiss. Courts can elect to dismiss to get an impartial jury. Same as FRCP.

Question 6

What are the MA rules for Service of Process? (ONE OF SIX HEAVILY TESTED MA AREAS)

Answer 6

1) Summons and Copy of the Complaint Required
Summons has clerk’s sig or a copy of it, IDs court and parties, P’s lawyer and address, directs D to appear, notify that failure to do so will result in default judgement.

2) Served by an officer or civilian appointed by the court. If out of state, can use someone proper under that state’s rules.
3) Must serve within 90 days of filing complaint or court can dismiss w/o prej. unless P shows good cause.

4) In-State or Out-of-State
(a) In-State
(i) Personal Service
(ii) Service on appropriate agent
(iii) Substituted Service - Last and usual place of abode and need not be left w/ anyone.
(iv) If none of first 3 available - Service by mail W/ COURT ORDER
(v) Service on a corp. delivered to any corp. officer, a managing or general agent, or the person in charge of the corporation’s principal place of business. If not in MA, deliver to Sec. of State to forward by registered mail with return receipt requested.

(b) Out of State
(i) By a method permitted in MA
(ii) By a method permitted in the state where service is affected.
(iii) By registered mail, RRR to D out of state (no court order required for out of state D)
(iv) Non-res. Motorist - Deliver to registrar of MV and by registered mail to D, RRR.

5) No waiver by mail.
6) Subsequent docs - All subsequent docs must be filed with the clerk of court with a copy served on other parties (by mail or delivery). 3 extra days to respond if by mail, but service is complete at mailing.

Question 7

MA Rule 11 changes?

Answer 7

Attorneys sign pleadings certifying:

1) They have read it.
2) To best of knowledge info and beliefs are on good grounds.
3) Not interposed for delay

Sanctions for willful violations only.

Must pay costs and reasonable attorney’s fees (and 12% interest) for litigation if frivolous litigation after there’s been a decision in the case on motion by a party only, not the court. Moving party must show that a claim or defense was wholly insubstantial, frivolous, and not advanced with good faith.

Question 8

What is well pleaded complaint?

Answer 8

1) Short plain statement of the claim showing pleader is entitled to relief, with enough specific facts supporting a plausible claim.
2) No $ figure required. Can if liquidated damages and attach a sworn statement showing the calculation. In Dist. Ct. statement of damages is done on a form prescribed by the court.
3) Fraud, mistake, special damages, duress, and undue influence must be pleaded with particularity.

Question 9

When and what is in the responsive pleading?

Answer 9

1) Must respond in 20 days.
2) If answer, admit or deny. Include affirmative defenses and waivable rule 12 motions.

3) If respond by motion, include all waivable rule 12 motions.
Remember to pursue the rule 12 motion or it will be deemed waived later.
Additional MA rule 12 motions
(a) Pendency of a prior action
(b) Improper amount of damages in Sup or Dist Ct.
Additional MA motions:
(a) Anti-SLAPP - strategic lawsuits against public participation. Sued for reporting something to a gov’t body. Must dismiss unless P can show that the claim was bogus or statement caused actual injury to P.
(b) Motion for enlargement - Asking for more time.

Question 10

How do counterclaims and cross claims work in MA?

Answer 10

Same as Fed.

Question 11

How do amended pleadings work in MA?

Answer 11

P can amend once as a matter of right before D serves her answer. Note, this is an answer, not a rule 12 motion.

D has right to amend once within 20 days of serving her answer.

Nullity Doctrine: If P filed suit against an already dead guy, and SoL has run before P can switch it to the executor, no relation back. If files suit against a guy who is alive, then the guy dies, no nullity.

Other than this, such as amendment and relation back, it works like Fed.

Question 12

What are the MA Rules for discovery tools? ONE OF SIX HEAVILY TESTED TOPICS WITHIN MA CIV PRO.

Answer 12

Mostly mirror Fed w/ the following exceptions:
1) Special meeting to discuss ESI

2) No required disclosures
3) Written notice of depositions must be given within 7 days before the depo. Same as fed but important is that the non-party witness should be subpoenaed or he doesn’t have to show.
4) Depo requires a court order if depo is sought within 30 days after service on D (unless D has initiated discovery) or there is no reasonable likelihood that the recovery will exceed $5000.
5) Audio Visual Deposition (A BIG ONE WITHIN THIS) See subsequent slide.
6) 45 days to respond to interrogatories, 30 questions max. Can divide those 30 Qs into more than one set.

Question 13

What are the rules surround audio visual depositions?

Answer 13

Two types

(1) If a party intends to call a treating physician or an expert as its own witness, a party may depose that person by audiovisual means, and use the recording at trial instead of live testimony. Court can order live testimony.
(a) No court order required
(b) Can do it whether witness is available or not
(c) Can’t do it if the treating physician or expert witness is a party.
(d) To do it you must give a written report at least 30 days before noticing the depo. Include resume and subject matter, substance, and support for the matters for which the physician or expert will testify AND give notice stating depo will be used in lieu of oral testimony at trial. Other party has 14 days to object.

(2) Audiovisual depo of any other witness requires court order or stipulation of the parties. Must give other side notice and opp. to object.

NOTES

• Unless the court orders otherwise, the earliest that a party can give notice of taking an audio-visual deposition of either type is 6 months after the case commenced.
• These depos can be used at trial just like other depos

Question 14

What are the scope of discovery rules in MA? ONE OF SIX HEAVILY TESTED MA CIV PRO TOPICS.

Answer 14

1. Party can discover any non-privileged info relevant to the subject matter of the case.
2. Must seek discovery of experts since no required disclosures. To get this file interrogatories asking about each expert witness’ name, subject matter, substance of her facts and opinions, and grounds. Then ask to take the deposition. Don’t wait too long because if you do and your discovery would delay trial, it could be denied subject to abuse of discretion.
3. Court sets reasonable fee for expert witnesses.
4. Work produce is same as fed.
5. Generally no duty to update discovery BUT MUST SUPPLEMENT THE FOLLOWING:
   (a) Requests for ID of witnesses and subject/substance of expert testimony. (BIGGEST ONE ON BAR)
   (b) Responses that were not correct when made.
   (c) Responses that are no longer true and failure to supplement is in substance a knowing concealment.
   (d) When a court order or parties’ agreement requires.
   No sanctions for failure to supplement unless willful. Failure to supplement may bar evidence at trial based on the court’s discretion (unfair or prejudicial to allow?).
6. Discovery procedure and sanctions basically mirror Fed. May request equivalent of rule 26(f) conf. within 90 days after service. If requested or court orders, attendance is mandatory.

Question 15

Give a quick overview of MA joinder rules.

Answer 15

Basically the same as Fed except:

1) Impleader
(a) Service or proces includes not only the third party complaint and summons but copies of all original pleadings in the underlying action.
(b) Right to implead within 20 days. After that, need court permission.
(c) D can’t implead someone who is not liable to D, but is liable directly to P. Claim must be for indemnity or contribution.
(d) P can implead a TPD if a claim has been filed againast her and she impleads for contribution or indemnity.

2) Intervention
(a) Same as Fed
(b) Except a party alleging that a state or municipal law is unconstitutional must notify the MA AG.

3) Interpleader - see page 19 of handout.

4) Class Actions -
(a) Only Common Class. That’s the only type in MA.
(b) Requires showing all 6 things as Fed Ct. common question.
(c) No notice or opt out requirements
(d) No class counsel appointed

5) Death of a party - see page 21

Question 16

What are the special claims in MA procedure? ONE OF SIX HEAVILY TESTED MA CIV PRO TOPICS
(See pages 21-26)

Answer 16

1) Injunctions
2) Declaratory Judgement
3) Attachment
4) Trustee Process
5) Reach and Apply
6) Fraudulent Transfer
7) Med Mal
8) Lis Pendens

Question 17

What are the general rules for SoL and tolling?

Answer 17

1) In general, statute runs from when the injury of breach happens (accrual), not discovery.
2) Discovery rule does apply in personal injury based on negligence or med mal when patient couldn’t have learned of it right away.
3) Filing complaint and paying entry fee gets you in under SoL. Mailbox rule applies to certified or registered mail ONLY, not regular mail.
4) Using SoL defense requires raising it in the answer.
5) Commencing the action tolls the statute.
6) Statute of Repose prevents bringing a med mal case seven years after accrual, regardless of discovery rule. Also, minors in med mal may not be tolled unless the action accrues when the P is under 6. (Statute of Repose still applies though.)
7) If P is a minor or mentally incapacitated that tolls SoL until disability is removed. See 6) above though.
8) P sues D before SoL. Then, after SoL, D counterclaims. Counterclaim is timely if it was not barred when P sued.
9) P sues D before SoL. Remember this tolls the SoL. Then, after SoL would have run, case is dismissed w/o prejudice. P has a one year clock to refile.

10) Genearl SoLs:
(a) Torts = 3
(b) Tort or K for PI = 3
(c) Breach of Warranty = 3
(d) Breach of sales K under Art. 2 = 4
(e) Actions on K not for PI = 6

Question 18

“Termination of Case w/o Trial” includes what subtopics?

Answer 18

1) Voluntary Dismissal
2) Involuntary Dismissal
3) Default and Default Judgement
4) Failure to State a Claim
5) Summary J.

See pages 30-32

Question 19

What are the trial motions in MA? ONE OF SIX HEAVILY TESTED TOPICS ON MA CIV PRO

Answer 19

1. Role of Master (pg. 32)
2. Jury Trial
   (a) Preserved by MA Const.
   (b) Written demand within 10 days after the last pleading that raises a jury triable issue.
   (c) Can only be withdrawn with consent of the parties
   (d) Court can empanel a jury in equity on motion
   (e) Sup. Ct. gets 12 jurors (can proceed with 10)
   (f) Verdict need only be by 5/6.
   (g) Must object to jury instructions before deliberation, and need not repeat. (In 1st Cir. must object immediately before jury retires even if you did it before).
   (h) Motions in limine are heard before jury is sat.
3. Motion for Directed Verdict = JMOL
4. Motion for JNOV = RJMOL - Must have moved for DV at the close of ALL evidence. AN ABSOLUTE REQUIREMENT, INTERPRETED LITERALLY. Move within 10 days after entry of judgement.
5. Motion for a new trial - Same as Fed. Move within 10 days after entry of judgement.
6. Motion to alter or amend judgement - A party may move to have the court rehear or reconsider its judgement. Must serve the motion on all parties within 10 days after entry of the judgement.
7. Motion to set aside (vacate) judgement - same as fed.

Question 20

Time for appealing a final judgement?

Answer 20

Within 30 days of the appealable order, filed with clerk of trial court.

Interlocutory only for injunction or review by report.

See 35-36

Question 21

How to Claim and Issue Prec. work in MA?

Answer 21

Claim Preclusion - Same as Fed but dismissal for improper service, as well as, jurisdiction, venue, and indispensable parties is not a final judgement on the merits.

Issue Preclusion is the exact same.

Question 22

A case for trespass onto land in Essex County in which the plaintiff claims $12,500 in damages may be filed in which court(s)?

A The Essex County Land Court.
B The Essex County District Court.
C The Superior Court for Essex County.
D Either the Northeastern Division of the Housing Court or the District Court for Essex County.

Answer 22

D Either the Northeastern Division of the Housing Court or the District Court for Essex County.

The superior court department has jurisdiction over cases where damages exceed $25,000. In contrast, the district court has jurisdiction over cases when damages are $25,000 or less. Because the plaintiff claims $12,500 in damages, the case can be filed in the District Court for Essex County. The housing court, however, shares concurrent jurisdiction with the superior and district court departments. Since this question involves damages for trespass, the case can also be filed in the housing court.

Question 23

A resident’s breach of contract case against a corporation may be filed:

A Only in the county where the resident lives.
B Either in the county where the resident lives or the county where the corporation holds its shareholders’ meeting.
C In any of the fourteen counties in Massachusetts because the corporation can sell products anywhere.
D Only in the county where the corporation holds its shareholders’ meeting.

Answer 23

B Either in the county where the resident lives or the county where the corporation holds its shareholders’ meeting.

Transitory actions that involve corporations and residents of Massachusetts may be brought in the county in which the resident dwells or in which the corporation has its principal place of business or in which it holds its annual shareholders’ meeting.

Question 24

A court may order an involuntary dismissal under rule 41 for lack of prosecution under which of the following scenarios?

A The defendant makes a motion showing with convincing evidence that a case has been unreasonably pending in the court for 5 years.
B The plaintiff dies and there has been no motion to substitute filed.
C The plaintiff fails to complete service of process within 120 days of filing the complaint.
D The plaintiff files a complaint that on its face clearly shows it has not been filed within the applicable statute of limitations.

Answer 24

A The defendant makes a motion showing with convincing evidence that a case has been unreasonably pending in the court for 5 years.

Massachusetts judges can involuntarily dismiss cases for lack of prosecution where a defendant files a motion and shows with clear and convincing evidence that the plaintiff has unreasonably delayed the case. However, the mere fact that 5 years have passed without satisfying the clear and convincing standard is not enough for the dismissal. If an action survives the death of a party, the proper procedure is to file a motion for substitution of parties (e.g., the executor or administrator of the deceased party’s estate). If the action is one which does not survive, a suggestion of death is filed and the court dismisses the action (except that the action may proceed between any remaining parties). The dismissal is not under rule 41 for a lack of prosecution. Although the failure to serve the defendant within the applicable time period may lead to a dismissal (if no good cause for the failure can be shown), the dismissal is again not for a lack of prosecution under rule 41. Rather, the motion is made under rule 12. The dismissal for failure to file within the statute of limitations would be under rule 12, not under rule 41 for a lack of prosecution.

Question 25

When deciding a motion to dismiss under Rule 12(b)(6), a Massachusetts judge:

A Must review the well pled allegations in the complaint, consider the credibility of the allegations made, and draw all reasonable inferences she can make from a review of the pleadings.
B Must consider only the allegations in the complaint, must assume that all allegations are true, and must resolve any doubts in favor of the nonmoving party.
C Must look no further than the four corners of the complaint, must consider the plausibility of the allegations made by the plaintiff to suggest his entitlement to relief, and must determine whether the plaintiff has stated all elements of any cause of action.
D Must consider all allegations in the complaint and any affidavits submitted by the moving party, must resolve all doubts in favor of the nonmoving party, and must determine whether there are any plausible issues of fact in dispute.

Answer 25

C Must look no further than the four corners of the complaint, must consider the plausibility of the allegations made by the plaintiff to suggest his entitlement to relief, and must determine whether the plaintiff has stated all elements of any cause of action.

When considering a motion brought under Rule 12(b)(6) for failure to state a claim for which relief can be granted, the court cannot look beyond the four corners of the complaint and all allegations will be assumed to be true. Massachusetts follows the federal “plausibility standard” and requires that at the pleadings stage there be factual allegations plausibly suggesting entitlement to relief.

Question 26

Unless stipulated to, the time to respond to requests to admit under Rule 36 must be served within ____________________ days after being served with the requests or ____________________.

Answer 26

30; the requests will be deemed admitted.

Question 27

Which of the following statements is correct with regard to requests for the production of documents or entry on land under Rule 34?

A A party may serve up to 30 requests to produce documents for inspection and copying on another party or a nonparty witness, and the documents or any objections that can be validly made must be produced within 30 days.
B A party may serve requests to produce documents that are relevant to the subject matter of the pending action and which are not privileged for inspection and copying. The requests can be served only on other parties, and responsive documents must be produced within 30 days or the documents will be deemed genuine.
C A party may request that another party produce documents for inspection and copying about any matter that is relevant to the subject matter of the pending action and not privileged. A responding party must produce the requested documents or may raise objections within 30 days.
D A party may make 30 requests that another party produce documents about any matter that is relevant to the subject matter of the pending action. The responding party has 40 days to either produce the responsive documents or seek a protective order under Rule 26 on the basis of a privilege.

Answer 27

C A party may request that another party produce documents for inspection and copying about any matter that is relevant to the subject matter of the pending action and not privileged. A responding party must produce the requested documents or may raise objections within 30 days.

Question 28

A final decision of an administrative agency may be appealed:

A By filing a notice of appeal within 30 days of the final administrative decision with the Massachusetts Court of Appeals.
B To the Appellate Division of the Massachusetts District Court Department.
C By filing a complaint with the Massachusetts Superior Court within 30 days of the final administrative decision.
D By filing a notice of review with the director of the appropriate administrative agency within 30 days of the final decision by the administrative hearing officer.

Answer 28

C By filing a complaint with the Massachusetts Superior Court within 30 days of the final administrative decision.

Question 29

A party filing a complaint has ____________________ days to serve the summons and complaint on the defendant or the court can ____________________.

Answer 29

90; dismiss the case on its own initiative with prior notice to the party required to make the service of process.

Under Massachusetts Rule 4, a plaintiff has 90 days to serve process after the case is commenced or the action can be dismissed, even on the court’s own initiative with prior notice to the party required to make the service of process. Note that a party can request more time to serve when they demonstrate to the court that there was “good cause” for not making the service within that time, but the court will not automatically allow the extension of time.

Question 30

A defendant, in a personal injury case for a car accident, files a motion to dismiss for failure to state a claim on which relief could be granted under Rule 12(b)(6) and also attaches an affidavit to her motion in which she states that, on information and belief, the plaintiff had been at a bar before the accident and had consumed five beers. How should the judge rule on such a motion?

A The court should take into account the affidavit, consider the credibility of both parties, and resolve all doubts about any allegations in favor of the plaintiff.
B The court must disregard the affidavit because it was made on information and belief and is beyond the four corners of the complaint, consider only the well pleaded facts in the plaintiff’s complaint as true, and, if it considers the affidavit, the motion should be treated as one for summary judgment.
C Determine whether the defendant has shown that there are no genuine issues of material fact on which reasonable jurors could disagree.
D Disregard the affidavit and determine whether the plaintiff has stated plausible allegations of fact in his complaint. If the allegations are not plausible, then the court should allow the plaintiff to amend the complaint one time as a matter of course.

Answer 30

B The court must disregard the affidavit because it was made on information and belief and is beyond the four corners of the complaint, consider only the well pleaded facts in the plaintiff’s complaint as true, and, if it considers the affidavit, the motion should be treated as one for summary judgment.

Under Rule 12(b)(6), a court should limit its inquiry to the allegations made within the “four corners of the complaint” and should not consider extraneous materials like the affidavit presented. If it does consider the affidavit, it should treat the motion as one for summary judgment. (As an aside, affidavits made on “information and belief” are insufficient under the Massachusetts Rules of Civil Procedure.) At the Rule 12(b)(6) stage, a court would not consider the credibility of the parties.

Question 31

A valid affidavit under Rule 56 does NOT contain which of the following?

A A clear statement that it is made on information and belief.
B Statements of fact that would be admissible into evidence.
C A clear demonstration that the affiant is competent to testify.
D A statement that it is made on personal knowledge.

Answer 31

A A clear statement that it is made on information and belief.

Under Rule 56, affidavits must be made on personal knowledge; they cannot be made just on information and belief. They must also contain statements of fact that are ultimately admissible at trial. This is a different standard than that under Rule 26 for discovery purposes which deals merely with relevance. Finally, the affiant must be competent to testify.

Question 32

Under Rule 4, when a plaintiff in a district court case serves a summons and complaint on an individual defendant by leaving it in the mailbox of the defendant’s last and usual place of abode, the service of process is:

A Valid, and the defendant should be defaulted if he does not file an answer within the time frame permitted under the rules.
B Invalid, unless the plaintiff has also mailed a copy to the defendant.
C Valid, as long as the defendant files an answer or other responsive pleading within the time frame allowed under the rules.
D Invalid, but only if the defendant files a motion to dismiss for improper service under Rule 12.

Answer 32

B Invalid, unless the plaintiff has also mailed a copy to the defendant.

Under Rule 4, service of process can be made on an individual by (i) delivering a copy of the summons and complaint on the defendant personally; (ii) leaving them at the defendant’s dwelling house or usual place of abode, with a follow up mailing; or (iii) delivering them to an authorized agent. Additionally, unlike under the Federal Rules, service can be made simply by leaving at the last and usual place of abode without having to leave it with a person of suitable age.

Question 33

Under Rule 15, a direct claim by the plaintiff against a third-party defendant may be asserted:

A Only if neither the statute of limitations nor the statute of repose has expired.
B Only if the statute of limitations has not expired. The pleading will “relate back” to the date the original pleading was filed for purposes of the statute of repose if the claim set forth in the amended pleading arises out of the same transaction or occurrence as the original pleading.
C Only if the statute of repose has not expired. The pleading will “relate back” to the date the original pleading was filed for purposes of the statute of limitations if the claim set forth in the amended pleading arises out of the same transaction or occurrence as the original pleading.
D Regardless of whether the statute of repose or the statute of limitations has expired. The pleading will “relate back” to the date the original pleading was filed if the claim set forth in the amended pleading arises out of the same transaction or occurrence as the original pleading.

Answer 33

C Only if the statute of repose has not expired. The pleading will “relate back” to the date the original pleading was filed for purposes of the statute of limitations if the claim set forth in the amended pleading arises out of the same transaction or occurrence as the original pleading.

Under Rule 15 a party may amend a complaint that will relate back to the original filing by adding a direct claim against an already named third-party defendant as long as the time for the statute of repose has not expired. Statutes of repose are treated differently than statutes of limitation for purposes of “relating back.”

Question 34

At the conclusion of the plaintiff’s case in chief in a bench trial, the defendant may move for a directed finding. For such a motion, the judge:

A Must consider the evidence in the light most favorable to the nonmoving party, and she may not weigh the credibility of the witnesses.
B Need not consider the evidence in the light most favorable to the nonmoving party, and she may weigh the credibility of the witnesses.
C Must consider the evidence in the light most favorable to the nonmoving party, and she may weigh the credibility of the witnesses.
D Need not consider the evidence in the light most favorable to the nonmoving party, and she may not weigh the credibility of the witnesses.

Answer 34

B Need not consider the evidence in the light most favorable to the nonmoving party, and she may weigh the credibility of the witnesses.

When a judge acts as a fact finder in place of the jury, the judge does not have to view the evidence in the light most favorable to the nonmoving party, and she may weigh the credibility of witnesses. A civil case tried before a judge instead of before a jury (i.e., a “bench trial”), uses the motion for a directed finding/involuntary dismissal under Rule 41(b) to terminate the action.

Question 35

On motion and after a hearing where the court makes a finding that the subject matter of an action involves the use or title of real property, a party may record:

A An attachment on trustee process.
B A reach and apply.
C A lis pendens.
D A writ of attachment.

Answer 35

C A lis pendens.

A lis pendens is a written notice that a lawsuit has been filed concerning real estate. It may be obtained after a motion and hearing in which the court finds that an action involves the title to or use of real property. The recording of a lis pendens at the appropriate registry of deeds notifies people checking the title to the property that an action involving it is pending in the court.

Question 36

Which of the following statements regarding the computation of time for service of a motion under the Massachusetts Rules of Civil Procedure is true?

A The day the period begins to run is included in the computation.
B The last day is included in the computation unless it is a Saturday, Sunday, or holiday.
C If the period is less than seven days, Saturdays, Sundays, and holidays are included.
D If the last day falls on a Saturday, Sunday, or holiday, the period ends on the previous workday.

Answer 36

B The last day is included in the computation unless it is a Saturday, Sunday, or holiday.

When computing the time periods specified by rule, court order, or statute, the last day is included unless the last day is a Saturday, Sunday, or holiday. If the last day is a Saturday, Sunday, or holiday, the next workday is considered to be the end of the period. If the period is less than seven days, Saturdays, Sundays, and holidays are excluded. The day the period beings to run is not included. For example, if you must give at least 10 days’ notice to another party, and you place the motion in the mail on a Wednesday, you would begin calculating your 10 days on Thursday because Wednesday is not included in your calculation. If you then were to calculate 10 days from that Thursday, your tenth day will fall on the following Saturday. Since Saturdays, Sundays, and holidays are not included in the calculation, the last day of your notice calculation will be that Monday after the last Saturday.

Question 37

The deposition of a witness may be used at trial for all of the following reasons EXCEPT:

A To impeach the witness’s trial testimony.
B When the witness resides more than 50 miles from the place of trial.
C When the witness is not available because of sickness.
D When a party is unable to serve a subpoena on the witness to force him to attend.

Answer 37

B When the witness resides more than 50 miles from the place of trial.

A deposition of a witness may be used if it satisfies the rules of evidence and: (i) the deposition is used to impeach the witness’s trial testimony (e.g., by prior inconsistent statement); or (ii) the witness is not available to testify at trial (e.g., death, sickness, infirmity, could not be served with subpoena, more than 100 miles from the place of trial).

Question 38

Which of the following is a plaintiff NOT required to demonstrate when seeking an ex parte attachment?

A That there is a reasonable likelihood that she will recover a judgment in an amount equal to or greater than the attachment sought.
B That the plaintiff has posted a prejudgment bond or surety in an amount equal to or greater than the attachment sought.
C That there is a clear danger that the defendant will convey, remove, conceal, or damage the property sought to be attached if prior notice of the attachment is given.
D That the defendant has inadequate liability insurance to satisfy a judgment.

Answer 38

B That the plaintiff has posted a prejudgment bond or surety in an amount equal to or greater than the attachment sought.

In Massachusetts, a plaintiff is not required to post a bond in order to obtain an ex parte attachment. Instead, a plaintiff must show: (i) a reasonable likelihood that she will recover a judgment in an amount equal to or greater than the attachment sought; (ii) that the defendant is not adequately insured to cover a judgment; and (iii) that there is a clear danger that the defendant will convey, remove, or conceal the property or an immediate danger that he will damage or destroy the property if notified in advance.

Question 39

Under Rule 60, which of the following is NOT a reason a party may be relieved from a judgment?

A Good cause shown.
B Mistake, inadvertence, surprise, or excusable neglect.
C Fraud, misrepresentation, or other misconduct of an adverse party.
D Newly discovered evidence which due diligence could not have uncovered in time for a motion for a new trial

Answer 39

A Good cause shown.

A showing of good cause is not a reason for a party to be relieved from a judgment. This question tests the distinction between relief from an entry of default and relief from a judgment. Under Rule 55, a default may be set aside by the court for good cause shown. When a party seeks to set aside a judgment, she must meet a higher standard under Rule 60. The court in its discretion may set aside a judgment on motion by a party within one year for: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence (which due diligence could not have uncovered in time for a motion for a new trial); or (iii) fraud, misrepresentation, or other misconduct of an adverse party.