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194 Cards in this Set
- Front
- Back
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Subject Matter Jurisdiction |
the authority of a particular court to hear and decide a general type of suit. It is not waiveable, lack of SMJ may be raised at any time by the parties or the court |
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Personal Jurisdiction |
The power to exercise jurisdiction over a particular person, a defect in PJ may be waived by the D's failure to raise it or by his submitting to the court's jurisdiction |
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Heirarcy of the MD Courts |
Court of Appeals Court of Special Courts Circuit Courts District Courts |
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The Circuit Courts |
1. Trial courts of general jurisdiction 2. Highest common law and equity courts exercising original jurisdiction 3. General jurisdiction over all civil and cirminal cases 4. Appeals from the district court must be taken to the circuit court |
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Circuit Court - Jury Trial |
Only the Circuit Court has the power to condcut a jury trial. There is no jury trial in a civil action in which the amount in controversy does not exceed 10k, excluding attorney fees |
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District Court |
Have exclusive jurisdiction over small claim actions where the amoutn claimed does not exceed 5k. Exclusive original jurisdiction over other matters including landlord/tenant actions, proceedings for speeding violations, proceedings for replacement of a motor vehicle under warranty and damages for a dishonored check |
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Service of Process - Due Process |
Satisifies the due process requirement of notice and opportunity to be heard |
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Personal Jurisdiction - In State Defendant |
Domicile (physical presence in state + intent to stay) Personal Service Service on Agent / Consent |
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Personal Jurisdiction - Out of State Defendant |
1. Long Arm Statute 2. Child Support or Alimony Proceeding 3. Paternity Proceeding |
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Long Arm Statute |
1. Transacts any business or performs any work or servive in MD 2. Contracts to supply goods, food, services, surety, or manufactured products in MD 3. Causes tortious injury (act or omission) in MD 4. causes tortious injury in or outside MD by an act or omission outside MD if regularly doing or soliciting business in MD 5. Has/uses real property in MD 6. Consents to PJ in MD |
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Domicile |
An individual domiciled in MD is subject to PJ in any cause of action in the state. Where the person actually lices, votes, pays taxes and receives mail
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Domicile - Corporation |
A corporation organized under MD laws or that maintains its principal place of business in MD is subject to PJ in any cause of action in the state |
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Agent - Service |
Service upon the registered agent of a foreign corporationwill subject the corporation to PJ if the long arm statute is satsified |
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In rem jurisdiction |
Based upon the physical presence of property in the state which is the subject matter of the action. |
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Venue |
Rules of covenience relating to the proper place of trial; objections to venue are waived if not timely raised. |
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Venue - Civil Action |
Venue lies in a county where the Defendant resides, carries on a regular business, is employed, habitually enagges in a vocation, or if a corporation, maintains its principal offices in MD. |
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Venue - Multiple Defendant |
If there are multiple Defendants are no single venue applies to all of them, then all defednants may be sued in a county in which any one of them could be sued or in the county where they cause of action arose. |
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Venue - Tort |
A cause of action in tort arises in the place where all the elements of the claim are satisfied, which is gnerally where the injury first occurs
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Venue - Contract |
If the contract for payment of money specifies a place for payment, venue lies in the county where the payment was agreed to be made (or, if not specified, where the creditor resides or has a place of business) |
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Change of Venue |
The defense of improper venue is waived unless raised in a motion to dismiss filed before the answer. If a court sustains a defense of improper venue but determines that in the interest of justice the action should not be dismissed, the court may transfer the action to any county in which it could have been brought. - On a motion of any party, the court may transfer any action to any other circut court where venue is also proper for the convenience of the parties and witnesses, if the transfer serves the interest of justice. - If a party cannot obtain a fair and impartial trial in the court where the case is pending, the party may seek to have the action removed to another court with jurisdiction |
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Commencement of the Action - Complaint |
A civil action is commenced by filing a complaint with the court. Upon the filing of the complaint the clerk issues a summons for each defendant |
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Summons - service |
A summons is effective for service for 60 days after issuance. Thereafter the summons is dormant and is renewable only upon the plaintiff's written request |
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Summons - contents |
The summons must contain the name of the cort, the name and address of the party requesting the summons, the name and address of the person to be served, the date of issuance, the time within which process must be served, and the time within which the defendant must file a response to the complaint by pleading or motion |
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Service of Process |
Process may be served any time including on a Sunday or holiday, except that a writ of distraint or for eviction or possession may not be served on Sunday |
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Service - In Personam Action |
Service of process may be made within or outside MD by delivering to the person to be served a copy of the summons, complaint, and all other papers to be filed with it; (individual) by leaving a copy of the summons, complaint, and all papers to be filed with it at the individuals dwelling house or usual place of abodfe, with a resident of suitable age and discretion; OR by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting "Restricted Delivery - show to whom, date, address of delivery." Service by certified mail is completed upon delivery |
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Service - Outside of MD |
Service outside of MD may also be made in the manner prescribed by the court or the manner prescribed by the foreign jurisdiction if reasonably calcualted to give actual notice. |
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Service - Evasion of Process |
When proof is made by an affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at his last known residence and delivery a copy of each person of suitable age and descretion at his place of business. |
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Service In Rem or Quasi in Rem |
When the P has shown by affidavit that the D's whereabouts are unknown and that reasonable efferts have been made in good faith to locate the D, the court may order service by mailing of a notice to the D's last known known address and (1) posting the notice at the courthouse or on a bulletin board within its immediate vicinity, (2) publishing the notice at least once a week in each of three successive weeks in one or more newspapers of general circulation published in the county in which the action is pending, or (3) in an action in which the rights of land are in dispute by posting on the land |
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Who can serve process |
Sherrif competent private person - including an attorney of record |
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Service on Whom |
1. Individual - serve the individual / serve the individuals agent 2. Individual Under Disability (minor or incompetent) - serve the individual + the parent, guardian, or custodian 3. Corporation - Serve its resident agent, president, secretary, or treasurer, if no resident agent or good faith attempt to serve others fail, serve manager, any director, vice president, et 4. General Partnership - serve any general partner 5. LP, LLP, LLC - Serve its resident agent, if no resident agent...good faith... 6. Unincorporation Assocaition - serve any officer or members of its board 7. State of MD - Serve Attorney General or his designee 8. State officer or State Agency - Serve agent designed by the officer or agency, of the Attorney General or his designee 9. United States - Serve U.S. Attorney for the District of MD |
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Return of Service |
Failure to make proof of service does not invalidate servce, however, proper return of service serves as prima facie evidence of valid service |
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Service by Delivery or Mail: Return of Service |
An individual serving process by delivery or mailing must file proof of service with the court promptly and in any event within the time for response by the person served |
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Service by Delivery |
The proof must include the name of the person served, the dtate, and the particular place and manner of servce. If an individual was served, the proof must also include a description of the individual served and the basis for the server's conclusion that the individual was of suitable age and discretion |
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Filing Return of Servce |
An individual unable to serve process in accordancve with these rules must file a retun as soon thereafter as practicable and in no event later than 10 days after the ermination of the validity of the process |
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Appearance - Individual |
An individual may enter an appearance in an action by an attorney or may appear in proper person and represent himself |
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Appearance - Corporation |
A corporation may enter an appearance only by an attorney |
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How does one enter an appearance |
An appearance is entered by filing a pleading or motion, by filing a written requestion for the entry of an appearance, or if the court permits, by orally requesting the entry of an appearance in court |
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Effect of Entering an Appearance |
The entry of an appearance is not a waiver of the right to assert any defense that could otherwise be raised. A challenege to PJ is not waived by entering an appearance, however, the D still must raise his objection to PJ or servce or process by a motion to dismiss filed before the answer, or it will be waived. |
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Additional Time After Service by Mail
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The period is extended by 3 days
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Affirmative Defenses
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Defenses raised by separate paragraphs in Answer
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Amendment of Pleadings
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At any time prior to 15 days before the scheduled trial date
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Appeals to the Circuit Court
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From DC and admin hearings; de novo or on the record
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Appeals to the Court of Special Appeals
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Exclusive initial appellate jurisdiction over any reviewable judgment, decree, order or other action of a CC and an Orphans Court.
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Appellate Jurisdiction
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Circuit Court - from district court and administrative hearingsCourt of Special Appeals - Appeals from Circuit CourtCourt of Appeals
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Appellate SMJ of Circuit Court
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Appeals from D.C., $5,000 or less and domestic violence (appeals de novo - do over); More than $5,000 (appeals on the record); Final administrative decision in a contested case (appeal on the record)
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Attachment Before Judgement
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An attachment, at the commencement of the action or while it is pending, against any property or credits which belong to a debtor to ensure the property will be available to satisfy any award of damages.
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Bad Faith/Unjustified Proceedings
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Requirement of good faith, prevents unjustified bad faith proceedings. Only can file a law suit if there is a good faith basis in law or in fact to support it. Even if you realize later there is no good faith basis, you must stop the lawsuit.
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Basis for Personal Jurisdiction
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"D.O.P.S.S."D= DomicileO= Organized under the laws of the stateP= Principal place of businessS= Service of process - on party or party's agentS= Support Obligations - child support, alimony, and paternity
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Basis for Venue
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"V.E.R.B" - Where Defendant sleeps or worksV= Vocation (habitually engages in)E= EmployedR= ResidesB= Business regularly conducted
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Capacity of Parties
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A business - whether formally organized or notIndividuals Under Disability - suit by individuals under disability - by a guardian or next friend; custodial parent has the exclusive right to sue on child's behalf for one year following the accrual of the cause of action; Suit against individuals under disability - must be sued in individual's own name
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Circuit Court
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Trial and appellate court of general jurisdiction. Original (trial level) exclusive jurisdiction and original concurrent jurisdiction
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Class Action
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"C.A.N.T R.I.P. apart the class"4 Prerequisites:C= Commonality: class has common fact/legal issuesA= Adequacy: representatives of the class fairly and adequately protect the interests of the class N= Numerosity: too many parties to joinT= Typically: representatives of class are typically of classAND 1 of 3 Grounds:R= Risk of adverse effects from separate actionsI= Injuctive/Declaratory Relief is applicable to class in general because the opposing party has acted or failed to actP= Predominance of Common questions
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Collateral Estoppel/Issue Preclusion
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Bars re-litigating AN ISSUE that has been determined in a prior suit.Elements: The issue was actually litigated, finally determined and essential to the judgement
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Computation of Time AFTER an Act
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The day of the act, event of default after which the designated period begins to run is NOT included; If date of act required falls on weekend or holiday, must file on next business day AFTER the weekend of holiday
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Computation of Time BEFORE an Act
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All days prior thereto, including Saturdays, Sundays, and holidays, are counted; If date of act required falls on weekend or holiday, must file on last business day BEFORE the weekend of holiday
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Confessed Judgements
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Written instrument authorizing the confession of judgement for a liquidated amount, and an affidavit specifying the amount due and stating the defendant's address or that his whereabouts are unknown. Defendant may move to open, modify, or vacate the judgement within 30 days.
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Consent Judgments
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By consent of the parties.
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Consolidation or Separate Trials
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Common question of law or fact or a common subject matter. Court may join or separate trial of claims or parties.
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Content of Answer
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For each individual averment/paragraph must specifically admit or deny (no denial - deemed admitted) or claim she is without sufficient knowledge or information to form a belief as to the truth of an averment - acts like a denial.
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Content of Complaint
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Simple, concise and direct, and contains the facts necessary to show the pleader's entitlement to relief or ground of defense, the amount in controversy, and claims for relief (aka addendum clause)
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Counter-Claims
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A claim that a party has against an opposing party. Defendant files a complaint against the plaintiff. Need not arise out of the same transaction or occurrence.
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Cross Claims
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A claim that a party has against a co-party (already a party in the case). Defendant files complaint against Co-Defendant. Must arise out of the same transaction or occurrence.
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Default Judgments
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Defendant failed to answer and personal jurisdiction has been obtained over the defendant. Clerk issues a notice informing the defendant that a default judgement has been entered against the judgement. Defendant can move to vacate the default order within 30 days.
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Defenses Not Waived, Even If Not in Answer
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Failure to state a claim upon which relief can be granted; Failure to join a party required to be joined; Governmental Immunity; Lack of SMJ
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Depositions
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Oral or written. Who: Can be taken from any person, even if not a party. When: Notice of oral deposition - 10 days before the deposition, 30 days before deposition if requesting documents. Where: A nonparty, MD resident - county where she resides, is employed, or is engaged in business; A nonparty, NON-MD resident - in the county in which she is served or within 40 miles of the place of service; Party - wherever a nonparty would be, or in the county in which the action is pending.How: Use of depositions
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Discovery
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Generally, process by which a party requests, gives or obtains information related to the case. Shall be served on all parties, with certificate of service.Duty to supplement responses (e.g. Answers).
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Discovery Protective Orders
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To protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense resulting from a discovery request
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Dismissal for Lack of Jurisdiction
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Defendant not served 120 days from the last issuance of original process. Summons issued, but can't get service. No personal jurisdiction.
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Dismissal for Lack of Prosecution
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1 year from the last docket entry, usually done sua sponte by the Court. Notice of dismissal sent - 30 days to respond
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District Court
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Trial court with exclusive and concurrent jurisdiction.
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Enforcement of Judgments
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Money judgment - automatically stayed for 10 daysCan obtain discovery to aid enforcement of money judgment (D must disclose assets)
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Entry of Appearance
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Permits attorney to act on behalf of party to litigation
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Entry of Appearance is Accomplished by
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filing any pleading or motion; filing a formal written entry of an appearance; orally, in open court
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Failure to Comply with Discovery
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Motion for Order Compelling Discovery - Must file a "Certificate of Attempted Resolution"Motion for Sanctions - Facts not disclosed can be taken as proven, pleadings stricken, Motion to Dismiss the cause of action (rarely granted), or financial sanctions
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Final Injunction
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Issued after a determination on the merits of the action
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Final Judgment Rule
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General rule, you can appeal only from a final order
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Form of Pleadings
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Each adverment in a separately numbered paragraph; Each cause of action is a separately numbered count; Each separate defense is separately numbered
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Garnishment
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A writ of garnishment directs the garnishee (the third party) to hold the property of the judgement debtor, typically, to be turned over to the judgement holder. Garnishment of wages.
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General Denial
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Only available for breach of contract, debt, or tort that seeks money damages.
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General Verdict
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Requires a jury only to find for one party or the other and determine the relief to be awarded.
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Hearings on Motions
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Can rule without holding a hearing; Must request a hearing, if you want one; Must conduct a hearing if Court GRANTS a JNOV, Motion for New Trial, or Motion to Amend a Judgement, but can deny these motions without a hearing
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In Rem Jurisdiction
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Based on the physical presence of property - "the res" - in the state which is the subject matter of the action. Not against any one party and no personal liability is imposed beyond disposing of the property or affecting a person's interest in "the res"
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In the Nature of Interpleader
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The stakeholder first contests its obligation to pay, and then seeks an order of interpleader if it is initially found to be liable.
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Injunctions
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An order mandating or prohibiting a certain act.
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Interlocutory Appeals
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Appeal of a non-final order. Only permitted where specifically authorized - listed in statute. There must be irreparable harm if you have to wait for final judgment. E.g. appeal from a preliminary injunction
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Interrogatories
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Written questions, asked of a party only, not more than 30 interrogatories total.Use of interrogatories
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Intervention
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Right of a party to seek to become a party to an action - File and serve a Motion to Intervene
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Intervention as of Right
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Disposition of the action may, as a practical matter, impair or impede the ability to protect that interest
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Joinder
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Having parties brought into the suit.
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Judgements Entered by Court Clerk
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Marks the starting time of the periods for filing post-judgment motions or an appeal
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Jury Trial
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Need to file a written demand for a jury trial; Jury trial is waived, unless a party files a demand within 15 days after service of the last pleading. Only can get a jury trial in Circuit Court (6 jurors in civil trial), when the amount in controversy is over $15,000
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Jury Trials
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Amount in controversy exceeds $15,000 and a jury demand is made in Dist. Ct. immediately vests jurisdiction in the CC
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Levy
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Actual or constructive seizure of property, typically, for sale to satisfy a judgement
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Liens of Money Judgment
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A money judgement for a sum certain that is recorded and indexed - attached - in the Circuit Court clerk's office, constitutes a lien on the judgment debtor's real property (not personal property) located in the county of where the judgement was recorded. Circuit Court Judgment + D's Land is in SAME County = Automatically Attaches. A money judgment obtains in a Circuit Court becomes a lien on the judgement debtor's land in the same county automatically - without the judgement holder filing the judgementCircuit Court Judgment + D's Land in DIFFERENT County or ANY District Court Judgment = MUST Record to Attach. A money judgment obtained in any District Court or a Circuit Court becomes a lien on the judgment debtor's land in a different county only if filed in the CC Clerk's office of the county where the debtor's land is located.
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Long-arm Jurisdiction
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Requires some "minimum contacts," constitutional rights of DP, and not offending traditional notions of fairness.
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Mandatory Preliminary Motions
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Defenses that are waived, unless raised in a motion to dismiss filed BEFORE the answer is filed. 4 defenses that MUST be raised in a motion to dismiss BEFORE the answer:1) Lack of personal jurisdiction2) Improper Venue3) Insufficiency of Process4) Insufficiency of Services of Process
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Mental or Physical Examination
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Available only by court order upon motion for good cause, absent stipulation. Only a party or a person in the custody or under the legal control of a party, may be required to submit to an examination. Notice required.
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Methods of Service
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By hand delivering; by certified mail requesting "restricted delivery;" if an in rem action, by posting or publishing
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Misjoinder
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Either the issues do not arise out of the same transactions or occurrence, or there is no common question of law or fact.Remedy - not ground for dismissal, parties may be dropped or added, claim against a party may be severed and proceeded with during a separate trial.
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Motion for Change of Venue/Removal
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Venue is proper but a party wants a different venue for convenience (aka doctrine of forum non conveniens) or for prejudice
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Motion for Judgement Notwithstanding the Verdict (JNOV)
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Challenges the sufficiency of the evidence - no reasonable jury could have reached the verdict reached. Motion for Judgment at the end of all evidence is required to make this motion. Must be filed within 10 days in writing. Extends the time for filing an appeal until 30 days after disposition of the motion. In a Court trial, party would file a Motion to Alter or Amend.
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Motion for Judgment
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Formerly Motion for a Directed Verdict. Made at close of the evidence offered by opposing party, and in a jury trial, at the close of all the evidence. If a party's Motion for Judgement is denied and party offers evidence thereafter, this acts as a withdrawal of the motion for judgement, then it must be renewed. Renewal of the motion at the close of all the evidence is a prerequisite to a Motion for Judgement Notwithstanding the Verdict, JNOV.Court must consider the evidence in light most favorable to the party against whom the motion is made.
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Motion for New Trial
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Must be filed within 10 days in writing. Extends the time for filing an appeal until 30 days after disposition of the motion.Typical Grounds: The verdict is against the weight of the evidence; Improper or prejudicial conduct by jurors, counsel, or the judge; Newly discovered evidence (must show new facts were not known during trial); Errors at law; or Fraud in the prosecution of the actionCourt may set aside all or party of a judgment entered, and may grant a new trial to all or any of the parties and on all or some of the issues.
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Motion to Alter or Amend a Judgment (Court Trial Only)
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Within 10 days in writing. Extends the time for filing an appeal until 30 days after ruling. Typical Grounds: Receive additional evidence, or amend/add/enter findings or statement of reasons, or amend or enter new judgements.
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Motion to Dismiss for Improper (Wrong) Venue
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Mandatory preliminary motion. Is waived unless raised in a motion to dismiss filed BEFORE the answer
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Motions
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A request that the court take a specific action or make a ruling
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Multiple Defendants
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If a single venue is applicable to all D's, must sue in that venueIf NO single venue is applicable to all, all D's may be sued in a county in which any one of them could be sued, or the county where the cause of action arose.
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Negative Defenses
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Matters are admitted if not negatively averred
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Nonjoinder
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Raised by a motion to dismiss for failure to state a claim upon which relief can be granted
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Office of Administrative Hearings
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Administrative
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Orphan's Court
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Probate and Guardianship
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Permissive Intervention
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When there is a common question of law or fact or by the government. The court must consider undue delay or prejudice to the original parties
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Permissive Joinder
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Actions arising out of the same transactions or occurrences; Actions involving common question of law or fact
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Permissive Preliminary Motions
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Defenses that may be raised in a motion to dismiss filed before the answer:1) Lack of SMJ2) Failure to state a claim upon which relief can be granted3) Failure to join a party required to be joined4) Governmental immunity5) Discharge in bankruptcy
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Person Served
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Actual Party or Agent - process server may leave at home with any adultPerson under a disability - must serve the individual and, in addition, the guardianBusiness - if there is a resident agent - must serve on agent; if no resident agent - must serve SDATGovernment - if State of MD - must serve on AG and Secretary of State; if US - must serve on US Atty. and US Atty. for MD
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Personal Jurisdiction
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The power of the Court to bind the parties to the suit by its judgement. A DP issue - requires notice and some MD connection
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Pleadings
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General types of pleadings are: Complaint (commences a civil action), Answer to complaint, Counterclaim, Cross-claim, Third-party complaint, Answer to cross-claim, counter claim, or third party complaint, and Reply to an answer (if allowed by the Court)
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Post-Trial Procedures
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After-verdict motions/procedures
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Preliminary Injunction
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Issued after a full hearing on the propriety of issuing an injunction but, before a determination on the merits of the action
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Preliminary Motions
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Defenses raised by Motion filed before trial
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Pure Interpleader
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The stakeholder admits that he holds property that is owed to some claimant, but he does not know to which claimant.
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Requests for Admissions
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One or more written requests to any other party. Admit the genuineness of any relevant documents, or truth of any relevant matters of fact.Any matter admitted is conclusively established
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Requests for Production of Documents or Entry Upon Land
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Request to produce and permit inspection and copying of any designated documents or to permit entry upon his land or property for the purpose of inspecting, testing, or sampling any tangible things. Only for a party, use a subpoena for a non-party. May file at any time, one or more is permitted.
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Required Joinder
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Complete relief cannot be accorded among those already parties; or disposition may impair or impede non-party's interest relating to the subject of the action; or current party faces substantial risk of incurring multiple or inconsistent obligations
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Requirements for a TRO
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Irreparable injury, likelihood of success on the merits, there is no adequate legal remedy at law
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Res Judicata/Claim Protection
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Bars reasserting A CLAIM OR CAUSE OF ACTION that has already been decided on the merits in a prior suit.Elements: same claim or cause of action or based on same transaction, involves the same parties or successors in interest, and there was a valid, final judgement, on the merits
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Response to Interrogatories
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Full answer under oath or grounds for refusal to answer, must be signed, within 30 days after service of interrogatories or within 15 days after that party's initial pleading or motion is due, whichever is later.
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Response to Request for Admissions
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Admitted unless, within 30 days after service of the request or within 15 days after the date on which that party's initial pleading or motion is due, whichever is later, the party files a response by the party or the party's attorney.
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Response to Requests for Production of Documents or Entry Upon Land
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Within 30 days after service of the request or within 15 days after the date on which that party's initial pleading or motion is required, whichever is later
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Return of Service
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Must file notice with the Court under affidavit
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Revisory Power
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On motion filed within the 30 days, the court has revisory power over the judgement. After 30 days the court has revisory power only in case of: fraud, mistake, irregularity, or failure of an employee of the court or of the clerk's office to perform a duty required by statute or rule.Clerical mistakes - can be corrected any time.
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Scope of Discovery
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Any matter, not privileged, which is relevant to the subject matter of the action. "Relevance" for discovery purposes means "appears reasonably calculated to lead to the discovery of admissible evidence."
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SMJ of Circuit Court
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Original Exclusive - Adoption; Child alleged to be delinquent, CINS and CINA; Protective proceedings for disabled persons; Orders requiring a party to comply with a notice to abate a nuisance; All equity actions and most claims for injunctive relief; Divorce proceedings; Claims exceeding $30,000; Jury trials (claims exceeding $15,000)Original Concurrent with District Court - Claims between $5,000 - $30,000
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SMJ of Court of Appeals
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Certiorari
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SMJ of Court of Special Appeals
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Appeals from CC
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SMJ of District Court
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Exclusive - small claims (<$5,000); replevin (an action seeking an order to get property returned); landlord tenant, disraint, or forcible entry and detainer; grantee suits for ejectment; petitions for injunction regarding preservation of property that is claimed in replevin action, or sought to be levied upon in an action of distress.Concurrent with CC - Claims between $5,000 - $30,000
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Special Venue Provisions
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In Divorce cases, venue is where the Plaintiff residesCorporation which has no principal place of business in the state, venue is where the Plaintiff residesAn action for possession of real property, venue is where a portion of the land on which the action is based is locatedNegligence action, venue is where the cause of action aroseAction for damages against a nonresident individual, venue is any county in the state
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Special Verdict
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Written questions submitted to jurors for answers
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Statute of Limitations
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Generally, a defense to liability, begins to run when the claimant's cause of action accrues. Cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.Person Under a Disability - minor or mentally incompetent person? Begins to run after the disability is removed.Time Limits - Most civil actions - 3 years. Special Limitations - Contract under seal, Court order/judgments - 12 years. Civil assault and defamation - 1 year
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Subject Matter Jurisdiction
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The authority of the court to hear and decide a type of case.
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Subpoenas
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Court order to compel a person - a non-party - to attend, give testimony, and produce designated documents or other tangible things at a court proceeding. Must be personally delivered either to the person named or to an authorized agent
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Substitution of Parties
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The proper may be substituted for a party who: dies, if the action survives; becomes incompetent; transfers an interest in the action, whether voluntarily or involuntarily; if a corporation dissolves, forfeits its character, merges or consolidates; or if a public officer ceases to hold office
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Summary Judgment
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Must show that there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Court enters judgment in favor of that party as to the entire case, part of the case, or makes a binding determination on certain issues or facts.
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Summons/Service of Process
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Process - the papers - must be issued by the CourtParties being sued must be served with a copy of the process - the summons and complaint and all other papers filed with it.
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Temporary Restraining Order (TRO)
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Issued prior to a full hearing on the propriety of issuing an injunction but, after reasonable attempts to provide notice to the defendant; may be ex parte, if party certified they are unable to notify the defendant
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The Information Report
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Plaintiff must file an information report; Provides information regarding the nature and complexity of the litigation
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Third Party Practice (aka impleader under the Fed. Rules)
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A claim against a third person, not a party to the original action, who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant. Defendant files complaint against Party X on the theory that IF Defendant is liable to Plaintiff, Party X is liable to Defendant
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Time for Filing an Answer
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Circuit Court rule - within 30 days of being served.If served OUTSIDE MD, but WITHIN the US - within 60 daysServed OUTSIDE US - within 90 daysServed by publication or posting - within the time specifiedIf preliminary motion is filed - automatically extended until 15 days after the court's order on the motion.District Ct. rule - file Notice of Intention to Defend (not an Answer) within 15 days after being served; 60 days if served OUTSIDE MD
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To the Court of Appeals
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By certiorari; By certification
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Venue
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The proper county for trial, a matter based on convenience.
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Verdict
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Must be unanimous, unless the parties stipulate to a majority verdict.
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Voluntary Dismissal
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By plaintiff or by stipulation - before the adverse party files an answer or a motion for summary judgment.By Order of Court - after the defendant has answered or moved for summary judgment, the plaintiff can dismiss only by order of court. First voluntary dismissal is without prejudice.
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Who Can Service Process
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Public Service by a Sheriff; or Private Service by a competent private person, 18 years of age or older, and NOT a party to the action
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Withdrawal of Appearance
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If there is another attorney of record (new atty already entered) - file Notice of WithdrawalIf there is NOT another attorney of record and you want to withdrawal, requires the permission of the court - file a Motion to Withdraw; Motion must include: client's written consent, or attorney's certification that 5 days notice given to Client, and advice to client to get another counsel to enter appearance or notify Court of intent to represent self.Court can deny withdrawal if prejudice to Client or undue delay
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Writ of Execution
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Order to a sheriff to seize ("levy upon") and sell property belonging to a judgment debtor to satisfy a judgment
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Writ of Possession
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court order issued to sheriff ordering removal of tenant
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Agent - Service
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Service upon the registered agent of a foreign corporationwill subject the corporation to PJ if the long arm statute is satsified
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Appearance - Corporation
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A corporation may enter an appearance only by an attorney
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Appearance - Individual
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An individual may enter an appearance in an action by an attorney or may appear in proper person and represent himself
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Change of Venue
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The defense of improper venue is waived unless raised in a motion to dismiss filed before the answer. If a court sustains a defense of improper venue but determines that in the interest of justice the action should not be dismissed, the court may transfer the action to any county in which it could have been brought.- On a motion of any party, the court may transfer any action to any other circut court where venue is also proper for the convenience of the parties and witnesses, if the transfer serves the interest of justice.- If a party cannot obtain a fair and impartial trial in the court where the case is pending, the party may seek to have the action removed to another court with jurisdiction
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Circuit Court - Jury Trial
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Only the Circuit Court has the power to condcut a jury trial. There is no jury trial in a civil action in which the amount in controversy does not exceed 10k, excluding attorney fees
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Commencement of the Action - Complaint
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A civil action is commenced by filing a complaint with the court. Upon the filing of the complaint the clerk issues a summons for each defendant
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District Court
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Have exclusive jurisdiction over small claim actions where the amoutn claimed does not exceed 5k.Exclusive original jurisdiction over other matters including landlord/tenant actions, proceedings for speeding violations, proceedings for replacement of a motor vehicle under warranty and damages for a dishonored check
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Domicile
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An individual domiciled in MD is subject to PJ in any cause of action in the state.Where the person actually lices, votes, pays taxes and receives mail
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Domicile - Corporation
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A corporation organized under MD laws or that maintains its principal place of business in MD is subject to PJ in any cause of action in the state
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Effect of Entering an Appearance
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The entry of an appearance is not a waiver of the right to assert any defense that could otherwise be raised. A challenege to PJ is not waived by entering an appearance, however, the D still must raise his objection to PJ or servce or process by a motion to dismiss filed before the answer, or it will be waived.
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Filing Return of Servce
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An individual unable to serve process in accordancve with these rules must file a retun as soon thereafter as practicable and in no event later than 10 days after the ermination of the validity of the process
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Heirarcy of the MD Courts
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Court of AppealsCourt of Special CourtsCircuit CourtsDistrict Courts
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How does one enter an appearance
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An appearance is entered by filing a pleading or motion, by filing a written requestion for the entry of an appearance, or if the court permits, by orally requesting the entry of an appearance in court
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In rem jurisdiction
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Based upon the physical presence of property in the state which is the subject matter of the action.
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Long Arm Statute
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1. Transacts any business or performs any work or servive in MD2. Contracts to supply goods, food, services, surety, or manufactured products in MD3. Causes tortious injury (act or omission) in MD4. causes tortious injury in or outside MD by an act or omission outside MD if regularly doing or soliciting business in MD5. Has/uses real property in MD6. Consents to PJ in MD
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Personal Jurisdiction
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The power to exercise jurisdiction over a particular person, a defect in PJ may be waived by the D's failure to raise it or by his submitting to the court's jurisdiction
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Personal Jurisdiction - In State Defendant
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Domicile (physical presence in state + intent to stay)Personal ServiceService on Agent / Consent
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Personal Jurisdiction - Out of State Defendant
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1. Long Arm Statute2. Child Support or Alimony Proceeding3. Paternity Proceeding
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Return of Service
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Failure to make proof of service does not invalidate servce, however, proper return of service serves as prima facie evidence of valid service
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Service - Evasion of Process
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When proof is made by an affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at his last known residence and delivery a copy of each person of suitable age and descretion at his place of business.
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Service - In Personam Action
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Service of process may be made within or outside MD by delivering to the person to be served a copy of the summons, complaint, and all other papers to be filed with it; (individual) by leaving a copy of the summons, complaint, and all papers to be filed with it at the individuals dwelling house or usual place of abodfe, with a resident of suitable age and discretion; OR by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting "Restricted Delivery - show to whom, date, address of delivery." Service by certified mail is completed upon delivery
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Service - Outside of MD
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Service outside of MD may also be made in the manner prescribed by the court or the manner prescribed by the foreign jurisdiction if reasonably calcualted to give actual notice.
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Service by Delivery
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The proof must include the name of the person served, the dtate, and the particular place and manner of servce. If an individual was served, the proof must also include a description of the individual served and the basis for the server's conclusion that the individual was of suitable age and discretion
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Service by Delivery or Mail: Return of Service
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An individual serving process by delivery or mailing must file proof of service with the court promptly and in any event within the time for response by the person served
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Service In Rem or Quasi in Rem
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When the P has shown by affidavit that the D's whereabouts are unknown and that reasonable efferts have been made in good faith to locate the D, the court may order service by mailing of a notice to the D's last known known address and (1) posting the notice at the courthouse or on a bulletin board within its immediate vicinity, (2) publishing the notice at least once a week in each of three successive weeks in one or more newspapers of general circulation published in the county in which the action is pending, or (3) in an action in which the rights of land are in dispute by posting on the land
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Service of Process
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Process may be served any time including on a Sunday or holiday, except that a writ of distraint or for eviction or possession may not be served on Sunday
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Service of Process - Due Process
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Satisifies the due process requirement of notice and opportunity to be heard
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Service on Whom
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1. Individual - serve the individual / serve the individuals agent2. Individual Under Disability (minor or incompetent) - serve the individual + the parent, guardian, or custodian3. Corporation - Serve its resident agent, president, secretary, or treasurer, if no resident agent or good faith attempt to serve others fail, serve manager, any director, vice president, et4. General Partnership - serve any general partner5. LP, LLP, LLC - Serve its resident agent, if no resident agent...good faith...6. Unincorporation Assocaition - serve any officer or members of its board7. State of MD - Serve Attorney General or his designee8. State officer or State Agency - Serve agent designed by the officer or agency, of the Attorney General or his designee9. United States - Serve U.S. Attorney for the District of MD
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Subject Matter Jurisdiction
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the authority of a particular court to hear and decide a general type of suit. It is not waiveable, lack of SMJ may be raised at any time by the parties or the court
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Summons - contents
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The summons must contain the name of the cort, the name and address of the party requesting the summons, the name and address of the person to be served, the date of issuance, the time within which process must be served, and the time within which the defendant must file a response to the complaint by pleading or motion
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Summons - service
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A summons is effective for service for 60 days after issuance. Thereafter the summons is dormant and is renewable only upon the plaintiff's written request
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The Circuit Courts
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1. Trial courts of general jurisdiction2. Highest common law and equity courts exercising original jurisdiction3. General jurisdiction over all civil and cirminal cases4. Appeals from the district court must be taken to the circuit court
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Venue
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Rules of covenience relating to the proper place of trial; objections to venue are waived if not timely raised.
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Venue - Civil Action
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Venue lies in a county where the Defendant resides, carries on a regular business, is employed, habitually enagges in a vocation, or if a corporation, maintains its principal offices in MD.
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Venue - Contract
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If the contract for payment of money specifies a place for payment, venue lies in the county where the payment was agreed to be made (or, if not specified, where the creditor resides or has a place of business)
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Venue - Multiple Defendant
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If there are multiple Defendants are no single venue applies to all of them, then all defednants may be sued in a county in which any one of them could be sued or in the county where they cause of action arose.
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Venue - Tort
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A cause of action in tort arises in the place where all the elements of the claim are satisfied, which is gnerally where the injury first occurs
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Who can serve process
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Sherrifcompetent private person - including an attorney of record
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