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78 Cards in this Set
- Front
- Back
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Venue - "Venue is not a VERB."
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Venue is proper in a county where the defendant resides, carries on a regular business, is employed or habitually engages in a vocation.
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Additional Venue Rules
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In a tort action based on negligence, venue is proper where the cause of the action arose.
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Jury Trial Demand
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In a civil action, a person has a right to a jury trial if the amount in controversy is greater than $15,000. Once a jt demand is filed, the action is transferred to the appropriate Circuit Court.
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Interrogatories
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Interrogatories may only be served on a party, not a witness; no more than 30 interrogatories per case.
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Methods of Service
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Process may be served personally, be left at a person's dwelling "with a resident of suitable age and discretion," or mailed via certified mail requesting "restricted delivery."
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Motion Dismiss for Insufficiency of Service of Process
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A motion to dismiss based on insufficiency of service of process must be filed before the Answer is filed.
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Extension of Timing of Filing
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Filing a preliminary motion to dismiss automatically extends the time for filing an Answer until 15 days after the court's order on the motion.
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Timing of Filing
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Generally, an Answer must be filed within 30 days of being served.
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Exclusive Jurisdiction - District Court
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-Small claims < $5k
-Replevin -LL/T, distraint, forcible entry, detainer -Grantee suits for ejectment -Petitions for injunction re: preservation of property claimed in replevin action or sought to be levied upon in action of distress |
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Concurrent Jurisdiction - District and Circuit Courts
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Claims between $5k and $30k
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Original Jurisdiction - Circuit Court
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-Adoption
-Delinquency -Protective proceedings for disabled -Abatement of nuisance -All other injunction requests -Divorce proceedings -Claims exceeding $30k -Jury Trials (must exceed $15k) |
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Personal Jurisdiction Bases (DILPSS)
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-Domicile
-Incorporation -Long-Arm jxdn -Principal place of business -Service of process -Support obligations |
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Long Arm Jurisdiction
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Long-arm jxdn provides for a court to exercise personal jxdn over a non-domiciliary if he has "minimum contacts" (e.g. by purposefully availing self of privilege of conducting biz in MD) and it would not "offend traditional notions of fair play and substantial justice."
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In Rem Jurisdiction
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In rem jxdn is based upon the physical presence of property in the state which is the subject matter of the action and requires adequate notice to persons with interest in the res.
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Forum Non Conveniens
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On motion of any party, the court may transfer any action to any other CC where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice.
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Removal Based on Prejudice
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Removal based on prejudice provides for any party to file a motion for removal accompanied by an affidavit alleging that the party cannot receive a fair and impartial trial in the county in which the action is pending.
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Service of Process
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Service of process includes the process (which includes summons, complaint, and all other papers filed with it) to be issued by the Court, and then the parties being sued must be served with a copy of the process.
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Motion to Dismiss for Improper Venue (defense)
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The defense of improper venue is waived unless raised in a motion to dismiss filed before the answer.
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Public Service
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Public service can be done by a sheriff.
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Private Service
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Private service requires a competent person 18 or older, who is not a party to the action.
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Person with Disability - Service
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The person with a disability and his/her guardian must be served.
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Business - Service
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A resident agent for a business must be served; if no resident agent, then the SDAT.
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Return of Service
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Return of service is proof of service, and must be filed with the Court under an affidavit, within the time for response by the person served.
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Information Report
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In addition to the writ of summons and complaint, the plaintiff must file an information report providing specified info regarding the nature and complexity of the litigation.
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Entry of Appearance
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Entry of appearance allows an attorney to act on behalf of a party to litigation, and is accomplished by filing any pleading or motion, or filing a formal written entry of appearance, or orally in open court.
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Withdrawal
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If there is another attorney on record, then filing a notice of withdrawal is sufficient; if no other atty on record, must file a motion to withdraw which includes the client's written consent or atty's certification that 5 days notice was given to the client and the client was advised to get new counsel/notify court of intent to represent self. The Court may deny if prejudice to client or undue delay would result from withdrawal.
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Capacity - Business
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A business, whether formally organized or not, can sue or be sued.
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Capacity - Individual with Disability
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Suit BY - by a guardian or next friend. A custodial parent has a exclusive right to sue on child's behalf for on year following accrual of cause of action.
Suit AGAINST - must sued in individual's own name. |
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Required Joinder
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Joinder is mandatory when complete relief cannot be accorded among those already parties or disposition may impair or impede non-party's interest or current party faces substantial risk of incurring multiple or inconsistent obligations.
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Permissive Joinder
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Joinder is permissive if the actions are arising out of the same transaction or occurrence or involve common questions of law or fact.
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Misjoinder
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Parties or claims may be added or dropped because of misjoinder where the issues do not arise out of the same transaction or occurrence or there is no common question of law or fact.
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Nonjoinder
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Nonjoinder of a party whose joinder is required is raised by a motion to dismiss for failure to join a party. But where action was brought by the real party in interest, her non-joinder is raised by a motion for failure to state a claim upon which relief can be granted.
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Mandatory Intervention
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Intervention as a right/is mandatory when disposition of the action may impair or impede that ability to protect that interest.
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Permissive Intervention
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Intervention is permissive when there are common questions of law or fact or by the government, but the court must consider undue delay or prejudice to the original parties.
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Interpleader
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Interpleader is when 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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Class Action Requisites - "CANT RIP apart the class"
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4 Prerequisites:
-Commonality -Adequacy -Numerosity -Typicality And 1 of 3 grounds: -Risk of adverse effects from separate actions -Injunctive/declaratory relief is applicable to class in general -Predominance of common questions |
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Substitution of Parties
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The proper person may be substituted for a party who dies (if the action survives), becomes incompetent, transfers an interest in the action, if a corporation dissolves, forfeits its charter, merges or consolidates, OR if a public officer ceases to hold office.
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Complaint
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A complaint must be simple, concise and direct, contain the facts necessary to show the pleader's entitlement to relief or ground of defense, include amount in controversy, and claims for relief.
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Computation of Time After an Act
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The day of the act, event or default after which the designated period begins to run is not included.
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Computation of Time Before an Act
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All days prior thereto, including Sats, Sundays, and holidays, are counted.
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Temporary Restraining Order
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A TRO is issued prior to a full hearing on the propriety of issuing an injunction but, after reasonable attempts to provide notice to the defendant. Requirements are:
-irreparable injury -likelihood of success on the merits -AND no adequate legal remedy at law |
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Preliminary Injunction
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A preliminary injunction is 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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Permanent/Final Injunction
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A permanent/final injunction is issued after a determination on the merits of the action
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Attachment Before Judgment
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An attachment, at the commencement of the action or while pending, against any property which belong to debtor to ensure the property will be available to satisfy any award of damages.
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Mandatory Preliminary Motions
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These four defenses must be raised in a motion to dismiss before the answer (or else will be waived):
-lack of personal jxdn -improper venue -insufficiency of process -insufficiency of service of process |
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Permission Preliminary Motions
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These defenses may be raised in a motion to dismiss before, in, or after the answer:
-lack of subject matter jxdn -failure to state a claim upon which relief can be granted -failure to join a required party -governmental immunity -discharge in bankruptcy |
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Content of Answer
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For each individual averment, the party must specifically admit, deny, or claim s/he is without sufficient knowledge or info to form a belief as to the truth of an averment (acts like a denial).
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General Denial
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A general denial to an entire complaint can be made in breach of contract, debt, or tort that seeks money damages ONLY.
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Res Judicata/claim Preclusion
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Res judicata bars reasserting a claim or cause of action that has already been decided on the merits in a prior suit, and requires:
-same claim or cause of action or based on same transaction -same parties or successors in interest AND -resulted in valid and final judgment on the merits |
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Collateral Estoppel/Issue preclusion
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Collateral estoppel bars relitigating an issue that has been determined in a prior suit, and requires:
-actually litigated -finally determined AND -essential to the judgment. |
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Statute of Limitations
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The S of L begins to run when the claimant's cause of action accrues (when claimant "in fact knew or reasonably should have known of the wrong"). File a motion to dismiss based on failure to state a claim upon which relief can be granted for a S of L issue.
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Statute of Limitations - Person under a Disability
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S of L for a person under a disability begins to run after the disability is removed.
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Jury Trial Demand - Filing of Written Demand
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The right to a jury trial is waived, unless a party files a demand within 15 days after service of the last pleading.
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Counter-Claim
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A counterclaim is a claim that a party has against an opposing party, and need NOT arise out of the same transaction or occurrence.
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Cross-Claim
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A crossclaim is a claim that a party has against a co-party (already in the case), and must arise out of the same transaction or occurrence.
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Third Party Claim
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A third party claim is a claim against a third person (not already a party to the action), who is or may be liable to the defendant for all or part of the plaintiff's claim against the defendant.
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Amendment of Pleadings
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Pleadings may be amended any time prior to 15 days before the scheduled trial date or within 15 days before the trial date by agreement of parties or leave of court.
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Lien Priority
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Lien priority is given in the order of attachment of the lien.
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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 is in the scope of discovery.
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Deposition
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A deposition can be taken from any person (even if not a party), giving 10 days notice before the deposition, or 30 days before if requesting documents.
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Mental or Physical Exam - Discovery
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A mental or physical exam for discovery purposes is available only by court order upon motion for "good cause" absent stipulation and can only be made on a party of the action.
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Work Product Doctrine
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Under the work product doctrine, any document prepared in anticipation of litigation by a party, its agent or insurer is NOT discoverable, absent a required showing.
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Motion for Order Compelling Discovery
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A party can file a motion for order compelling discovery if the other side does not cooperate, by filing a Certificate of Attempted Resolution first.
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Immediate Sanctions for Certain Failures of Discovery
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A motion for sanctions can be made without first obtaining an order compelling discovery if a party failed to appear for a deposition, or if a party fails to serve a response to interrogatories or to a request for production or inspection, after proper notice.
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Motion for Sanctions
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Sanctions that are "just" are permitted, resulting in pleadings being stricken, facts not disclosed being taken as proven, dismissal of action (rarely granted), or financial sanctions.
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Motion for Summary Judgment
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To win on a motion for SJ, must show no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
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Dismissal for Lack of Jurisdiction
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A case/claim can be dismissed if the defendant is not served within 120 days from the last issuance of original process directed to that defendant.
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Dismissal for Lack of Prosecution
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An action is subject to dismissal for lack of prosecution at the expiration of one year from the last docket entry (other than entry or striking of appearance or a motion to dismiss for lack of prosecution). But in divorce or alimony cases - 2 years.
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Motion for Judgment
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A motion for judgment is made at the close of evidence offered by the opposing party essentially claiming that the plaintiff has not proven their case. If denied, this acts as a withdrawal of motion, and must be renewed -- a prerequisite (!) to a Motion for Judgment Notwithstanding the Verdict.
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Motion for Judgment Notwithstanding the Verdict (In bench trial - Motion to Alter or Amend)
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A Motion for Judgment Notwithstanding the Verdict is made after the verdict, challenging the sufficiency of the evidence to reach such a verdict. It must be filed in writing within 10 days of the verdict, and a Motion for Judgment is a prerequisite to filing.
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Motion for a New Trial
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A motion for a new trial can be made if a party believes the verdict is against the weight of the evidence, improper or prejudicial conduct, newly discovered evidence, errors at law, or fraud in the prosecution of the action. It must be filed within 10 days in writing of entry of judgment, and extends the time for filing an appeal until 30 days after disposition of the motion.
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Motion to Revise Judgment
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On motion of any party filed within 30 days after entry of judgment, the court may revise a judgment by granting a new trial on the ground of newly discovered evidence. After 30 days, the court only has revisory power in case of fraud, mistake, irregularity or failure of a court's employee to perform a duty.
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Default Judgment
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A default judgment can be entered if D fails to answer and personal jxdn has been obtained over D; notice must be given to inform the D, who can move to vacate the judgment within 30 days.
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Lien of Money Judgment
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A money judgment that is recorded and indexed (attached) in the Circuit Court constitutes a lien on the judgment debtor's real property located in the county where judgment was recorded. A judgment made in a different county or by any district court must be recorded/attached in the Circuit Court of the county where the debtor's land is located to become a lien.
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Levy on Personal Property
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A judgment by itself does not create a lien on personal property; an actual levy on property must be made for the lien to attach to the personalty.
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Automatic 10-day Stay of Enforcement
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Enforcement of a money judgment is automatically stayed until 10 days after its entry allowing the debtor time to file post-trial motions.
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Final Judgment Rule
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Generally, one can only appeal only from a final order.
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Interlocutory Appeal
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An interlocutory appeal is an appeal from a non-final order, permitted by statute, if irreparable harm would be done if had to wait for final judgment to appeal. Includes appeals from preliminary injunctions, qualified immunity, and class certification.
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