MD Civ Pro Flashcards
Waive JDX?
Subject matter: no. Personal: yes if D doesn’t raise/submits to JDX of court
Circuit Ct JDX
full equity JDX over all criminal and civil matters - general JDX cts. Also appeals from the District Ct in their county (notice w.in 30 days)
District Ct JDX
Exclusive: small claims actions under $5k as determined by aggregate value of claims. Also K and tort where damages less than $30k
Orphans’ Ct JDX
probate
Transfer Circuit to District Court IF:
- parties consent 2. waive jury trial 3. make amendments to comply with DC JDX. NOTE that if there’s a jury right and the parties are in DC, defendant can demand change to CC (OJO w/in 30 days of service of last pleading)
Personal JDX: What authority
Due process clause: notice and opportunity to be heard
Personal JDX: General test
JDX must have such minimum contacts with parties or property such that would not offend traditional notions of fair play or substantial justice
Personal JDX: In state defendant
- domicile 2. personal delivery of summons 3. service on a resident agent -> gives GENERAL JDX for any cause of action
Personal JDX: Domiciled
person’s intent by objective factors such as where lives, votes, receives mail, then presumption domiciled until abandoned. for corp: organized under MD law or principle place of business -> GENERAL
Personal JDX: Personal delivery
physically deliver within the state: tag JDX -> GENERAL. EXCEPT in state 1. only to testify 2. passing through to testify 3. fraudulently got them into the state
Personal JDX: Resident Agent
Foreign corporation w. resident agent to accept service + at least 1 of criteria in Long Arm Statute -> GENERAL.
Personal JDX: OOS D and Minimum contacts
D purposefully availed self of privilege of conducting activities w/in the state. GENERAL -> contacts must be continuous and systematic, doing business intentionally. SPECIFIC -> 1. extent of purposeful availment 2. whether c/a arises out of those activities 3. whether constitutionally reasonable. OJO: personal availment more than mere foreseeability, must create substantial connection
Personal JDX: Long Arm
- child support/alimony OR 2. paternity proceeding PLUS minimum contacts. 1. transacts business or performs any work 2. causes tortious injury in state 3. interest in, uses or possesses real property in state. In general to the limits of Const.
In rem JDX
Need 1. presence of res 2. adequate notice to persons w. interest
Venue
Generally where person 1. resides 2. carries on regular business 3. is employed 4. habitually engages in vocation 5. corp maintains principal offices. Also 6. where tort action occurred. Can be waived -> MUST raise in MTD before answer.
Venue: Where c/a arises
Tort: where all elements satisfied - where accident happened. K: if place of payment specified, there. If not specified, where creditor resides or has place of business.
Motion to change venue
grant if 1. change to another place where venue proper 2. convenience for parties/witness 3. if party can’t get fair and impartial trial
Service of Process: What included
complaint, info report
Service of Process: How
to the person, at their dwelling place with resident of suitable age, certified mail OR if by proof of affidavit that good faith efforts failed, court may order other means deemed appropriate and reasonably calculated
Service of Process: By Whom
sheriff, other competent person 18+ yrs (including a lawyer), NOT a party
Service of Process: To whom
- Individual or authorized agent 2. disabled individual AND parent/guardian 3. corporation’s resident agent, prez, sec, treas OR if good faith efforts fail then manager, director, VP, asst sec/treas or other authorized
Service of Process: Refusal
can’t complain of insufficient process
Joinder: Necessary
MUST IF: 1. complete relief cant be granted 2. would a. impair/impede person’s ability to protect claimed interest or b. leave parties subject to substantial risk of incurring multiple or inconsistent obligations -> raise in MTD, if unavailable court determines whether to proceed or dismiss w/o prejudice
Joinder: Permissive
MAY IF 1. right to relief out of same transaction/occurrence or 2. if any Q of fact or law in common
Intervention: as of right
MUST IF: 1. they have unconditional right or 2. person claims interest and is so situated that action will impair or impede their ability to protect that interest and not adequately represented
Intervention: permissive
MAY IF: 1. claim or defense has Q of law/fact in common 2. won’t unduly delay/prejudice the adjudication
Interpleader
Pure: disinterested person has property w. conflicting claims, asks court to join all and tenders property. In the nature of: person not disinterested and contests obligation to pay but seeks ct intervention if has to
Class Actions: (a) requirements
- numerosity 2. common Qs of law or fact 3. typicality of claims/defenses of named reps 4. reps will fairly and adequately rep the class
Class Actions: (b) types
- would create risk of a. inconsistent adjudications that would create incompatible standards for D (e.g. dif procedures) b. would be dispositive of or substantially impair/impede interests of nonparty members (eg limited fund) 2. D actions on grounds generally applicable to the class such that injunctive relief appropriate 3. Qs of law or fact predominate over any individually affecting members
Computational rules for deadlines
IF more than seven days -> Saturdays, Sundays, Holidays counted. IF less than 7 days -> not counted
Deadlines: if service by mail
3 extra days
Deadlines: to file answer
30 days from being served
Contents of answer
- any permissive defenses 2. any applicable neg/affirmative defenses 3. answers to averments in complaint (otherwise deemed admitted) OJO Mandatory defenses MUST be made in MTD before answer OJO in Dist Ct it’s a notice of intention to defend w/in 15 days of complaint, demand jury trial w/in 10 days of that.
Counter v. Cross Claim
- across v. within the “v” 2. regardless of whether arises from same transaction v. must at least relate to property subject to original action. Time for filing both 30 days from answer.
Impleader
D brings in 3rd party liable to D for P’s claims (NOT liable directly to P). If P does have claim agst 3rd party, MUST assert or will be barred. All deadlines 30 days.
Amendments to complaint
30 days b4 trial or with permission. Relation back (SoL problems): if states a new c/a or new D, DOES NOT relate back. If same operative facts but new theory or legal basis, DOES relate back.
Deadlines: responses to motions
15 days
Mandatory Defenses
MUST file MTD b4 answer for: 1. lack of personal JDX 2. improper venue 3. insufficiency of process 4. insufficiency of service of process
Permissive Defenses
May be filed at any appropriate time: 1. lack of subject matter JDX 2. failure to state a claim (including SoL has run) 3. failure to join necessary party 4. discharge in bankruptcy 5. governmental immunity
Affirmative Defenses
Long list of 20 things - K defenses, tort defenses, laches, res judicator, privilege, etc.
SoL: Laches
- claimant delayed 2. delay inexcusable 3. delay prejudiced opposing party
Types of injunctions
- TRO: without opportunity for hearing, must clearly appear that immediate substantial and irreparable harm will result. 2. Prelim Inj: after notice and hearing but before final determination on merits 3. Final Inj: after merits, disposes of suit
Standard for Injunction
- likelihood of success on merits 2. balance of equities 3. suffer irreparable injury (ie $ damages won’t make whole) 4. public interest
Discovery: Scope
any relevant matter that’s not privileged - anything reasonably calculated to lead to discovery of admissible evidence. on privilege, must provide description of nature of info so other parties may asses applicability
Discovery: Limits
Ct will limit if 1. unreasonably cumulative/duplicative/obtainable from other more convenient source 2. seeking party has had ample opp to obtain it 3. burden/cost outweighs likely benefit
Discovery: Work Product
Qualified immunity unless shown that: 1. relevant 2. substantial need 3. unable to obtain equivalent by other means w/o substantial hardship ESP statement by witness. NEVER for mental impressions, conclusions, opinions, legal theories
Discovery: Experts
use interrogatories. if going to testify: 1. identity 2. subject matter 3. substance of findings 4. summary of grounds for opinion and any written response. if not going to testify: can only get if show substantial need and unable to get otherwise
Discovery: Deposition
from any person (not just party), notice 10 days before, subpoena for nonparties, must say if video or audiotaped
Deposition: Interrogatories
Written questions answered in writing under oath, on any PARTY, up to 30 per party, response w/in 30 days or 15 after initial pleading, whichever later
Discovery: Production of Docs/Entry upon Land
to any PARTY, produce and permit copying of items in possession, writings photos recordings data compilations or samples, w/in 30 days or 15 after initial pleading, whichever later
Discovery: Exam of persons
only when characteristic is in controversy and order of court
Discovery: Requests for admission
to any PARTY, can be about 1. genuineness of a document or 2. truth of a relevant matter, deemed admitted if not answered w/in 30 days or 15 after initial pleading, whichever later. must 1. object w. reason 2. admit/deny 3. detail why can’t admit or deny - must make reasonable inquiry before saying lack knowledge. admission -> conclusively established absent withdrawal
Summary Judgment: Standard
No genuine dispute to any material fact AND entitled to judgment as a matter of law. Burden on movant that no genuine issue, shifts to opponent to show at issue. Response must attach portions of record, ID facts, w/in 15 days.
Voluntary dismissal
P w.o leave, counter/cross/3rd by notice. After answer filed, need court order. Need to still support counterclaim, otherwise cant. Can only do it once
Dismiss: Lack of JDX
if d hasn’t been served or no JDX w/in 120 days
Dismiss: Lack of prosecution
after 1 yr of last docket entry
Motion to vacate order
w/in 30 days of entry of ORDER. for default judgment must plead equitable excuse for failure to plead
Motion to revise judgment
w/in 30 days of entry of JUDGMENT. under court’s revisory power can only change relief, not liability determination. OR allowed whenever if evidence of fraud, mistake, or irregularity.
Motion to alter/amend judgment
w/in 10 days of entry of JUDGMENT. Can receive new evidence, amend findings, set for additional findings, amend or enter new judgment.
Right to jury trial
If more than $10k at issue, demand w.in 30 days of answer OR if in Dist Ct file within 10 days of notice of intention to defend (which is w.in 15 days of complaint). CIVIL at least 6 people unless DQ’d and all agree. 4 preemptory challenges.
Motion for judgment
At closing of opposing party’s case or in jury trial at close of evidence. Standard: any evidence. REQUIRED for post judgment notwithstanding the verdict
Motion for judgment notwithstanding the verdict
(OJO only if did motion for judgment during trial) w/in 10 days of verdict/discharge -> deny, grant, set aside and direct new judgment, order new trial at same time
JNOV appeal
IF was granted and reversed, can 1. enter judgment on original verdict 2. remand for new trial 3. order new trial. IF was denied and reversed, can 1. enter as if motion granted 2. order new trial NOTE file notice of appeal 30 days
Motion for new trial
w/in 10 days of entry of judgment, reviewable only for abuse of discretion
Levy and sale of property
(post judgment) 1. writ of execution = order to sheriff to seize 2. for real property: enter description, post writ and schedule on property. 3. for personal property: 1. remove from premises 2. leaving writ on it 3. posting writ and schedule in prominent place. sheriff will sell upon request
Garnishment
take property held by a 3rd party in order to satisfy judgment. includes wages
Enforcement of foreign judgments
entitled to deference unless inconsistent with MD public policy
Court of Special Appeals JDX
Exclusive initial appeals from Circuit or Orphan Ct
Court of Appeals JDX
Special appeals court appeals OR circuit court as appellate court appeals, Qs of law certified to it, only through writ of cert: 1. where same statute has been construed differently or 2. special circumstances/public interest
Appeals of interlocutory orders
- action concerning possession of property 2. order for sale of real or personal property or payment of money 3. order depriving parent, grandparent, guardian custody
Collateral order doctrine
MUST 1. conclusively determine the question 2. resolve an important issue 3. resolve an issue completely separate from the merits 4. would effectively be unreviewable
Res judicata: definition
CLAIM preclusion: b/w same parties or their privies. MUST 1. same parties or in privity
- same c/a
- first suit valid final judgment on merits by court of competent JDX
Res judicata: same parties
(so ID’d that represent same legal right)
Res judicata: same cause of action
a. transactional test: growing out of same series. b awareness: if there was claim splitting from same transaction, party could have litigated everything in the prior proceeding ie was aware of facts giving rise to all components c. counterclaim precluded IF relationship between claims is such that successful prosecution of second action would nullify initial judgment or would impair rights established in first action OJO changed circumstances may permit
Motion for remittitur
If D believes jury verdict was excessive
Res judicata: final judgment on merits
must have had subject matter and personal JDX, notice and opp to be heard, can be: summary, default, multiple voluntary, consent judgment, settlement
Collateral estoppel: definition
ISSUE preclusion: if actually litigated and necessarily determined (OJO NOT if two or more bases for judgment)
Collateral estoppel: requirements
- issue identical 2. final judgment on merits 3. party against whom asserted must have been party or in privity in first action 4. party against whom asserted had opp for fair hearing in first
Collateral estoppel: full faith and credit
Must give same effect to judgment of court in another state as courts in that JDX would give
Judicial estoppel
when necessary to protect integrity of judicial system from s/o trying to gain unfair advantage over another through manipulating court system
SoL: General
3 years in civil actions
SoL: When start to run?
when c/a accrues - when claimant knew or should have known EXCEPT 1. continuation of events: tolled during existence of fiduciary relationship 2. continuing harm: continuous violations toll 3. fraud: if knowledge kept from P by fraud of adverse party then when by ordinary diligence would have discovered
SoL: Specific accrual rules
K: date of breach. Wrongful death: time of death. Replevin: demand and refusal or assertion of adversary right by holder
SoL: Specific terms
- adverse possession - 20 yrs 2. Assault, libel, slander - 1 yr. 3. health care providers: 5 yrs from time of injury or 3 yrs from when injury discovered. K for sale of goods - 4 yrs or K down to 1yr.
SoL: reasons to extend
- minor/incompetent when c/a accrues - 3 years from removal.
- absent from state - starts upon return.
- new promise to pay a debt if a. unconditional or b. conditional and performed or c. admission from which promise can be inferred
- estoppel - if D held out inducements not to bring suit
Class Action: Notice
- the court will exclude from the class any member who requests to “opt out” by a specified date;
- the judgment will include all members who do not opt out; and
- any member who does not request exclusion and who desires to enter an appearance through counsel may do so.
