Weak Areas

Question 1

Subject Matter jx

Answer 1

courts power to adjudicate a dispute - may not be waived by a party or by an agreement between parties. Issue of smj may be raised at any time, even at the appellate level, by any party or by the court on its own initiative.

Question 2

District Court JX

Answer 2

1. Exclusive: Damages in controversies that don’t exceed $5000, including small claims actions; some cases like replevin regardless of the amount.
2. Concurrent: with circuit courts - tots, contract, and attachment actions in which the amount in controversy exceeds $5000 but does not exceed $30000
3. Damages in Excess of Amount in Controversy Limit: does not lose jx merely because the amount of damages awarded is greater than the amount in controversy limit; if P has taken advantage of the expedited procedure for the admission of medical records and bills without the testimony of the recordkeeper, he cannot recover more than $30000.

Limits of District Court JX: No equity jx

*D cant file cross claims or counterclaims that exceed jx amount; if his counterclaim exceeds it, the court may stay the action against the D and permit the D to commence an action in the circuit court on that claim.

Question 3

Circuit Court JX

Answer 3

Exclusive over most actions in which the amount in controversy exceds a certain limit, except certain medical malpractice claims must be sbmitted to arbitration unless properly waived.

Appellate court for DC decisions.

If in interest of justice, cases filed in CC can be transferred to DC if parties agree, the right to jury trial is waived, and the pleadings are amended to bring the action with the jx of the DC.

Question 4

Personal Jurisdiction & Its Consequences

Answer 4

JX over a specific person. This leads to:

1. Personal liability such that the judgment may be satisfied out of the D’s property;
2. Red judicata and collateral estoppel; and
3. Full faith and credit of the judgment in other states

Question 5

Bases of Personal Jx

Answer 5

1. Consent
2. Domicile (review distinctions in domestic corp, service in MD , long arm statute)
3. Due Process - minimum contacts
4. effects test:

Question 6

Maryland Long Arm Statute

Answer 6

An MD court may excercise jx over a person ro entity not present int he state who directly or by agent:

1. transacts business, works, or performs services in the state
2. Contracts to do business in the state
3. causes tortious injury in the state by an act or omission in the state
4. causes tortious injury inside or outside the state by an act or omission outside the state if he regularly does or solicits business, engaged in a persistent course of conduct, or derives substantial revenue from business in the state
5. has an interest in, uses, or possesses real property in the state; or
6. contracts to insure or act as a surety for anything in state

Question 7

In Rem JX

Answer 7

affects the interest of all persons in a thing

Qausi in rem: interest of particular persions in a thing. Possible defendants are:

1. nonresident or absconding debtors
2. resident debtors guilty of fraudulently concealing or transferring property

The court must have physical power over the property itself. Minimum contacts are required.

Question 8

Venue

Answer 8

Civil actions must be brought in the county where the D resides, carries on a regular nusiness, is employed, or engages in a vocation. A corporation may also be sued where it maintains its principal in-state offices. If there are multiple Ds and no common venue, venue is proper where any one of the Ds may be sued or where the cause of action arose. Plaintiff may sue in any ounty if more than one would be proper. Determined at the time the action is filed.

Transfer or dismissal

Question 9

Mandatory Joinder

Answer 9

One who is subject to service must be joined as a party t an action if in his absence:

1. Complete relif could not be accorded among the existing parties;
2. Disposition of the action might impair or impede the absent party’s ability to protect an interest involved in the action; or
3. Disposition of the action might leave the existing parties subject to a substantial risk of incurring multiple or inconsistent obligations
   * know rule for pleafder who omits a party

Question 10

Permissive Joinder

Answer 10

Two or more plaintiffs or Ds may be made parties to an action if:

1. A right to relief assserted by or against them arises out of the same T/O or the same series of transactions or occurrences, and
2. A question fo law or fact common to all will arise.

Misjoinder is not rounds for dismissal; the property party should be added or deleted.

Question 11

Intervention Rights

Answer 11

A right when a person:

1. Has an unconditional right to intervene by law, or
2. Claims an interest int he property involved and his ability to protect it would be impaired if he is not made a party

Question 12

Permissive Intervention

Answer 12

When there is a common question of law or fact, or the intervenor is a political entity whose law is at issue

Question 13

Interpleader

Answer 13

A stakeholder may sue two or more parties with adverse claims to a property. He may or ma not claim entitlement to the property. He may be released from the action after depositing the property or a bond with the court.

Question 14

Class Actions Requirements

Answer 14

A class action will be allowed only if all of the following conditions are satisfied:

1. So numerous that joinder is impractical
2. Common questiosn of law or fact exist
3. Named parties; claims are typucal of those of the class members; and
4. the named class representatives will fairly and adequately protect the interests of the class

Must also meet at least one of these:

1. Prosecution of separate actions would create a risk of inconsistent adjudications or dispose of class members’ interests and impede their ability to safeguard them
2. A party is opposg the class action on grounds generally applicable to the class; or
3. The court finds that common questions of law or fact predominate and a class action is the superior method proceeding.

CANT COMPROMISE OR DISMISS WITHOUT COURT APPROCAL AND NOTICE TO THE CLASS.

Question 15

How Do You Commence an Action?

Answer 15

By filing a complaint with the court. After the complaint is filed, the court clerk must promptly issue a summons. Summons contains names, addresses fo both parties, the date of issuance, and the time within which it must be served.

Question 16

Service: Defendant Corporation

Answer 16

Resident agent, president, secretary, or treasurer. If corp doesnt hae a resident agent or if service is attempted unsuccessfully, service may be made upon any manager, director, vice president, assistant secretary, assistant treasurer, or any other person expressl y or impliedly authorized to receive service

Question 17

Service: Defendant Partnership

Answer 17

If general partner, service may be made upon any general partner. If the D is a limited partnership, limited liability companym or limited liability partnership that has a resident agent, a good faith attempt must be made to serve the resident agent before serving the general patner or any other person authorized to receive service of process.

Question 18

Service: Defendant Unincorporated Association

Answer 18

Service may be mae upon any officer or member of the board, or, if none, upon any member

Question 19

Service: Maryland as Defendant

Answer 19

AG or a person appointed by her to receive service. Howeber, if action attacks the validity of an order of a state officer or a state agency, the officer or agency must also be served. When the state officer or agency is a defendant, service may be made either on the attorney general or on the officer or agency

Question 20

Service: Local governmental entity as defendant

Answer 20

On resident agent designated by the local entity. If none, service may be made on the cheif executive or presiding officer, or, if one, on any member of the governing body

Question 21

Service: US as Defendant

Answer 21

When the US is sued, service is made upon the US AG and the US States Attorney for MD.

Question 22

Substituted Service on State Department of Assessments and Taxation

Answer 22

If state entity required to appoint resident agent and doesnt, or id the agent is dead or no longer at the address maintained at the State department of Assessments, or if two good faith attemts on the separate days to serve thr resident failed, service may be made on the entity by serving the state department of assessments and taxation.

Question 23

Service: Nonresident Driver

Answer 23

Deemed to have appointed the MVA as agent to receive a subpoena, summons, or other process that names the driver as party in MD actiont hat is related to an accident involing a car driven by the nonresident driver MVA must send a copy of the process to the nonresident driver by mail (certified, return receipt requested)

Question 24

Time Limit for Serving Process

Answer 24

Summons must be served with 60 days after is it issued or it becomes dormant and the P must file a written request in order to renew it. Failure to acquire jx over a D within 120 days from the last issuance of original process can lead to dismissal of the action.

Question 25

Methods of Service

Answer 25

Delivery, either in person or by certified mail (restricted delivery) to the D or the D’s agent who is quthorized to receive service. Service by mail is deemed made on the day that the D received it. Alternatively, process may be served at the D’s dwelling or usual place of abode by delivery to a person of suitable age and discretion who resides there.

Question 26

In Rem Actions: Service

Answer 26

Where D’s whereabouts are ubknown and reasonable eforts to locate him have failed, the court may order service by both mailing a notice to the D’s last known address, and by posting or publishing notice. This service must be accomplished at least 30 days before the date by which a response to the complaint is to be filed.

Question 27

Writ of Attachment

Answer 27

At time action is commenced or while it is pending, a P who is stautorily entiled to attachment before judgment may file a request for an order directing the issuance of a writ of attachment for levy or garnishment of the D’s property. The D may obtain a release of the attached property by posting a bond. hThe writ of attachment is not treated as a separate action, but is combined with the original action.

Question 28

Pleading Requirements

Answer 28

1. Set forth sufficient facts to state a claim for relief or a defense
2. Allege amount in controversy satisfied the jx requirements of the court
3. Set forth in succinct numbered paragraphs, each limited to a single set of circumstances.
4. Demand for a money judgment must include the amount sought if the amount does not exceed $75,000.
5. Signed by party and signed b attorney who certifies that 1) he has read the pleading, 2) there are grounds to support the pleading, and 3) the pleading was not filed for an improper purpose.

Question 29

Denials and Admissios

Answer 29

Action in tort, contract, or debt that seeks only montary damages –> answer may contain a general denial of liability.

All other actions –> D must 1) admit averments, 2) specifically deny the averments, or 3) state that D is without sufficient information to admit or deny. If the latter two options are not taken, the averment is deemed admitted.

Question 30

Negative Defenses for D

Answer 30

A D desiring to contest a P’s alleations for the following issues MUST do so by negative averment. If not raised, they are deemed admitted:

1. Legal existence of a party, including a partnership or corporation
2. Capacity of a party to sue or be used
3. Authority of a party to sue or be sued n a representative capacity
4. Execution of a written instrument, and
5. Ownership of a motor vehicle.

Question 31

Affirmative Defenses for D

Answer 31

MUST be specfically asserted by D:

1. SOL
2. Collateral estoppel
3. Res judicata
4. Fraud
5. Laches,
6. Contributory negligence
7. SOF
8. Charitabe immunity

Question 32

Timing for Answer

Answer 32

Within 30 days after service of process

60 days wthin service if:

1. D was served outside of MD, but within US
2. D is a corp and was served via State Department of Assessmet and Taxation or another state agency; or
3. D is the Us or a federal officer or agency

Answer due within 90 days of service if D was served outside of the US.

Question 33

How to Get an Automatic Extension

Answer 33

Filing a motion to:

1. Dismiss
2. Strike
3. For a more definite statement

extends to 15 days after the resolution fo the motion, but a motion to dismiss fewer than all counts does not extend the time for those not challenged.

Question 34

When does a party get a trial by jury?

Answer 34

When the amount in controversy exceeds $15,000.

1. Must be in writing
2. Filed no later than 15 days after service of the last pleading filed by any party directed to the issue; if not by the deadline, waived
3. Demand for jury trial cant be withdrawn unless as parties consent.
4. Transferred to circuit court if the case originated in district court

Question 35

Counterclaims

Answer 35

A party may assert as a counterclaim any claim that the party has against any opposing party; permissive.

Question 36

Cross-Claim

Answer 36

More restricted; must arise out of the same T/O or property already involved in the original action

Question 37

Third Party Defendant

Answer 37

If D has a claim against a nonparty ho is or may be liable to the D for all or part of the P’s claim against him, he can make a claim against the nonparty, making the nonparty a third-party D. Third party can assert against the P any defenses that the third party D has.

P must assert against the third party D all claims arising out of the T/O that is the subject matter ofhsi claim against the third party P.

Question 38

Amendment and Pleading time Frame

Answer 38

A part may file an amended pleading withour leave of court by the date set forth in the scheduling order or if non, no later than 30 days before trial.

Any party opposing an amendment must file, within 15 days of service, a motiont o strie the amendment.

If new matters are raised, an opposing party wishing to contest them must file a new answer to the amended pleading, otherwise original answer is controlling.

After this time, you must take leave from court; free given - unamended errors in the pleading are overlooked nless they affect substantial rights.

Question 39

When and What to File with Motion to Dismiss

Answer 39

Motion to dismiss must be filed by the defendant before the filing of an answer if the motion raises any of the following:

1. Lack of personal jx
2. improper venue
3. insufficient process; or
4. insufficient service

CANNOT be raised in the D’s answer. However, filing a discover request does not waive these defenses so long as they are raised prior to the filing of the answer

Question 40

Permissive motions

Answer 40

Can be made prior to the answer, in the answer, in any later pleadding, or at trial:

1. Lack of subject matter jx
2. failure to state a claim upon which relief can be granted
3. failure to join a necessary party
4. discharge in bankruptcy; and
5. governmental immunity

A court must dismiss the action whenever it finds that it lacks subject matter jx.

Question 41

Summary Judgment Requirements

Answer 41

1. No genuine dispute as to any material fact exists; AND

2. the moving party is entitled to judgment as a matter of law

Question 42

Affidavit Requirements

Answer 42

Motion must be supported by one if filed before the date of filinf of the opponents initial pleading or motion.

Must:

1. Be based on personal knowledge
2. set forth facts admissible in evidence; and
3. show the affiant’s competency to testify

The opposing party must counter the motion with affidavits or other statements under oath.

Question 43

When are trial preparation materials discoverable?

Answer 43

Defined: Items prepare din anticipation of litigation for or by the party.

May only be discovered on showing of:

1. Substantial need; and
2. Inability without undue hardship to obtain a substantial equivilant by other means.

Mental impressions, opinions, or legal theories of an attorney or other representative of a party are ALMOST NEVER DISCOVERABLE. Inadvertent disclosure of privleged information does not waive the privilege.

Question 44

Notice for Depositions

Answer 44

Oral examination: 10 days written notice must be given to all parties. If it’s an organization, then the notice must advise the org to designate an officer or agent to testify.

Notice compels the appearance of a party to be deposed, while a subpoena is necessary to require the appearance of NON PARTIES.

If they have to bring documents: 30 days notice

Question 45

Place of Deposition

Answer 45

Non-party MD resident: Only in county where he resides, is employed, or engages in business, or in any other convenient place fixed by court order.

Non-party non-resident: In county where served, or within 40 miles thereof, or where the court fixes.

Party deponent may be required to attend in the county where the action is pending.

Parties may agree to conduct a deposition by telephone!`

Question 46

Use of Deposition

Answer 46

May be used at trial, in part or as a whole, as far as admissible under the rules of evidence:

1. To impeach
2. As an admission of a party opponent; or
3. For any purpose aainst a party with notice of the deposition if thr witness is deeased, out of state, or otherwise unavailable; the offeror is unable to procure the witness by summons; or exceptional circumstances require its use. - deponent is the witness f the party introducing the deposition if used for this purpose. Other party may require the production of any other part which in fairness ought to be considered.

Question 47

Number of Interrogatories

Answer 47

A party may serve one or more sets of interrogatories, but the total number cannot exceed 30 for each answering party without court approval.

If the answer is in a business record, the party need only make that specific rlevant record available.

Interrogatories may be used at trial to the extent permitted by the rules of evidence.

Question 48

Methods of Adjudication without Trial

Answer 48

1. Motion to dismiss
2. Motion for summary judgment
3. Dissmissal as a discovery sanction
4. Default
5. Confessed judgment
6. Consent judgment
7. voluntary or involuntary dismissal

Question 49

Voluntary Dismissal

Answer 49

A party can dismiss voluntarily without leave if:

1. All the other parties stipulate to dismissal; or
2. If the opposing party has not yet filed an answer or summary judment motion, in which case one can unilaterally file a notice of dismissal.

D may voluntarily dismiss a cross-claim against a third party defendant without the plaintiff’s approval because the P is not a party to the cross-claim.

All other situation: Party can only dismiss voluntarily with leave of court and on grounds that are just.

Parties first dismissal is without predjudice, but each dismissal thereafter is with predjudice.

Question 50

Involuntarily Dismissal Grounds

Answer 50

1. Lack of Jurisdiction: If D hasnt been served or court has not otherwise acquired jx is subject to involuntary dismissal 120 days after the last issuance of original process to the D.
2. Lack of Prosecution: 1 year after last docket entry (after two years in an action for permanent alimony or limited divorce)

Question 51

Scheduling Order Conference Requirements

Answer 51

Court must draft a schedulign over that, unless the court orders a scheduling conference, must be entered no later than 30 days after any D filed hsi answer.

Assigns the case to the appropriate scheduling category, which, in part, determines how quickly the case can be tried, and also sets dates by which (1) expert witnesses must be disclosed, (2) discovery must be completed, and (3) all dispositive motions must be filed.

Question 52

Jury Size

Answer 52

Civil juries consist of 6 persons. With court approval, parties may agree to accept a verdict by fewer than 6 jurors I during trial, one or more of the 6 jurors becomes unable to perform her duties or is otherwise disqualified.

Question 53

Motion for Judgment Standard

Answer 53

Formerly a directed verdict

Judgment will be granted if, considered in a light most favorable to the adverse part, all credible evidence and fair inferences lead to a conclusion about which reasonable minds could not differ.

Question 54

Motion to Alter or Amend Judgment

Answer 54

Must be filed within 10 days after entry of a judgment.

Question 55

Motion for New Trial

Answer 55

Must be made within 10 days after entry of judgment, must state grounds and may b made with respect to all or part of the matters in controversy.

Question 56

Motion for Remittitur

Answer 56

Where the amount of the verdict exceeds the amount requested byt he P in his complaint, the defendant can move for remittitur. Under remittitur, the court can require the P to remit that portion of the verdict that exceeds the ad dammun amount.

Question 57

Standard for Declaratory Judgment

Answer 57

Discretionary relief will be granted if it will terminate uncertainty or controversy AND is:

1. An actual controversy exists
2. Antagonistic claims exist indicating imminent and inevitable litigation; or
3. a legal relation, status, right or privilege is being challenged

Question 58

Revisory Power over Judgments

Answer 58

Trial court retains broad discretion to revise a judgment upon the filing of a motion within 30 days after the entry of judgment.

After 30 day period, judgments may be revised only for clerical mistakes or fraud, mistake, or irregularity.

Question 59

Consent Judgment

Answer 59

Court may enter judgment based on the consent of the parties. The court clerk may enter a consent judgment if:

1. it is for a specific amount of money or costs, or denies all relief; and
2. it adjudicates all the claims.

Question 60

Default Judgment

Answer 60

When a party has failed to answer within the prescribed time limits, the clerk will enter an order of default. After the clerk notifies the D o default, the D has 30 days to move to vacate, explaining her reasons for not answering and setting forth a defense. If no motion is filed or the motion is denied, judgment by default is entered if the court finds that it has jurisdiction and that the clerk mailed notice to the D’s last known address.

Question 61

Enforcement of Judgment

Answer 61

A judgment is automatically stayed for 10 days. There are three other general methods of enforcement:

1. Enforcing a money judgment
2. Garnishment of property other than wages; and
3. Garnishment of wages.

A judgment creditor can learn of a judgment debtor’s asets through discovery devices or court-prdered appearane.

Judgment expires 12 years after but can be renewed before that tiem.

Question 62

Final Judgment Rule

Answer 62

Generally, only a final judgment is appealable. However, appeal may be made from one or more resolved claims of a multiple claim action, from colateral orders separate from the merits of a case, from statutory interlocutory orders, and from orders that deny a party the ability to litigate his case in a particular form.

Question 63

Acquiescence Rule

Answer 63

Right to appeal can be lost where a party acquiesces in the decision from which the appeal is taken. A plaintiff’s knowing and voluntary acceptance of the benefits accuring to the P from a judgement generally constituted acquiescence in the decision.

Question 64

Court of Special Appeals Jurisdiction and Timing

Answer 64

1. Reviews cases initially tried in circuit court. No appellate jx over cases initially tried in district court. Appeal taken by filing notice of appeal IN THE CIRCUIT COURT.
2. Notice of appeal must be filed within 30 days from date of judgment or resolution of motion for JNVOC, for a new trial, or to ater or amend judgment
3. If request for stay is denied in circuit court, it can be sought in the COSA.

Question 65

Court of Appeals Jurisdiction and Timing

Answer 65

Discretionary appelate jx over:

1. Cases pending in or decided by COSA
2. cases in which a final judgment has been rendered by a circuit court on appeal from DC, and
3. undecided questions of MD law certified to it by the SCOTUS, federal courts of appeal or district courts or state appellate courts.

Petition of writ for cert may be filed

1. after notice of appeal has been filed in the COSA but not later than 12 days after the final judgment; or
2. within 30 days after the final judgment of the circuit court has been entered where cert is sought.

Question 66

Briefing Procedures: COA & COSA

Answer 66

Appellant brief is due 40 days after the record is filed; appelee brief is due 30 days after. Appellant may file a reply brief 20 days after. A hearing is then held, and a written opinion is issued.

Reconsideration: a motionf or reconsideration of a decison other than one granting or denying cert may be filed within 30 daysafter the opinion of the court has been filed

Question 67

Circuit Court Appeals

Answer 67

Apeals from the DC are to the circuit court of the same county as the DC.

Civil claims of more than $5000 –> appeal is ont he record

All other cases –> receive trial de novo, unless the parties agree to have the appeal decided on the DC record.

Notice of appeal must be filed within 30 days from the date of judgment being appealed. CC also review decisions by state administrative agencies.

Question 68

District Court Procedures: Timing for Notice to Defend

Answer 68

Defending party must, by mailing a form to the court within 15 days of sservice of the complaint, ntify the court of his intention to defed the suit.

If ntoice is not filed, and the D does not appear, the court may assess liability and damages on the P’s ex parte proof.

If the D filed no notice but did appear, the court may then conduct a trial or grant the P time to prepare for a trial on the merits.

Question 69

District Court Procedures: Timing of Counterclaims and Cross-Claims

Answer 69

Counterclaims and cross-caims must be filed within 10 days after the filing of the notice of intention to defend.

If a counterclaim or cross-claim exceeds $25,000 the party must file it in circuit court and may request a stay of the district court suit.

Question 70

District Court Procedures: Discovery

Answer 70

May be had only by interrogatories and if the parties so stipulate, by deposition.

Interrogatories are limited to one set of 15 per party. If necessary for the purpose of justice, the court may require production of a document or testimony of a witness.

Question 71

District Court Procedures: Trial Upon Default

Answer 71

When no motion for judgment on affidavit is filed and D has not appeared on the trial date:

1. if a notice of intention to defend was not filed, the P need only prove damages at trial; or
2. if a timely notice was filed, the P must prove noth liability and damages

Question 72

Small Claim Action

Answer 72

1. An action for a money judment in which the amount claimed does not exceed $5000, exclusive interest, costs, and attorneys feeds.
2. Trial is set within 60 days of filing the complaint
3. No pretrial discover is permitted
4. Trial is to be conducted in an informal manner and is not bound by the rules of evidence
5. When a counterclaim, cross-claim, or third party claim exceeds the amount in controversy for small claims, the case must be transferred.

Question 73

Time: Person under Disability

Answer 73

A person under a disability when an action accrues has the longer of:

1. 3 years after the disability is removed or
2. the remaining period of the SOL in which to file the action.

Fraud of an adverse party tolls the SOL ntil the part discovers or should have discovered the fraud. The SOL is arrested upon the filing of the complaint.

Question 74

Laches Doctrine

Answer 74

Laches applied to bar an action in equity where there has been:

1. Inexcusable delay in asserting an equitable claim; and
2. defending party has been prejudiced by the delay

Question 75

Res Judicata Requirements

Answer 75

Bars litigation of the same cause of action once it has been fully litgated. Res judicata applies if:

1. final judgment on the merits has been entered
2. the parties in the present litigation are the same parties as the parties in the first suit; and
3. the same cause of action is involved.

Question 76

Collateral Estoppel Requirements

Answer 76

Makes the prior determination of an issue of fact conclusive if the issue was litigated and determined on the merits in the original action. A second cause of action or claim may differ from the first, but for collateral estoppel to apply:

1. there must be a final judgment ont he merits
2. party against whom estoppel is asserted must have been a party or in privity with a party to the prior adjudication
3. the party against whom estoppel is asserted must have been given a fair opportunity to be heard on the issue; and
4. the issue decided in the prior adjudication must be identical to the one presented in the current action and necessary to thedecision in the prior suit.