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274 Cards in this Set

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How is federal personal jurisdiction assessed?
Just as in state courts?
What are the types of federal court jurisdiction?
1. subject matter
a. fed question
b. diversity
c. supplemental

2. personal
What are the requirements for diversity of citizenship jurisdiction in federal courts?
1. the action must be between citizens of different states and
2. The amount in controversy must EXCEED 75000
What is required by diversity jurisdiction?
No plaintiff can be a citizen of the same state as any defendant. This is complete diversity rule.
How is citizenship determined for the purposes of federal subject matter jurisdiction?
1. Humans' citizenship is the state of domicile.

2. Corporations are citizens in (a) all states where in corporated and (b) the one state where has principal place of business.

3. Unincorporated associations (partnerships, llcs)are citizens of all 50 states.
How is an individual's domicile established and why relevant?
1. relevant for diversity of citizenship jurisdiction

2. Establed by physical presence instate and subjective intent to make it her home WHEN the case is filed.

**Individuals have one domicile.
How is a corporation's principal place of business identified adn why relevant?
1. Relevant to determining citizenship for purposes of federal diversity of citizenship jurisdiction.
2. Two tests (courts are split). (a) headquarters/nerve center location; (b) where most production or service activity takes place
How is citizenship of decedents minors and incompetents determined?
By citizenship of decedents, minors, incompetents and NOT by citzenship of their representatives.
How is amount in controversy determined?
When plaintiff claims in good faith that claim exceeds 75,000 UNLESS clear to legal certainty that can't recover more than 75,000 (as in statutory ceiling on recovery).
What happens if less than 75000 is recovered in diversity of citizenship case?
Winning plaintiff may be liable to d for d's litigation costs.
What is aggregation in context of federal subject matter jurisdiction?
Adding together two or more claims to meet the amount in controversy requirement.
When can claims be aggregated to meet diversity of citizenship reqs?
1. when there is one plaintiff v. one defendant.

e.g. cannot aggregate claims of two plaintiffs.

OR

2. There is a "joint claim". Then claims can be aggregated.
How is the amt in controversy requirement met when the plaintiff wants equitable relief, like injunction?
If either test is met:
1. Problem decreases value of p's property by more than 75000 OR
2. Remedy would cost defendant more than 75000.
Requirements of federal question jurisdiction?
Complaint must show a right or interest founded substantially on federal law.

ASK: Is plaintiff enforcing a federal right? There must be a federal law giving p a right that p wants to enforce.
When does supplemental jurisdiction come into play?
When a case is in court on federal question or diversity jurisdiction but a joined claim does not meet either requirement. Then ask whether the claim can be joined under supplemental jurisdiction.
When can a claim get supplemental jurisdiction?
1. case has fq or diversity jurisdiction

2. claim shares a common nucleus of operative fact with claim invoking subject matter jurisdiction. Test met when claim arises from same transaction or occurrence as underlying claims.

3. limintation for claims by plaintiffs trying to overcome lack of diversity with defendant in joined claim does NOT apply
Can supplemental jurisdiction be used to overcome lack of amoutn of controvery?
Yes, in any case
Do courts have discretion not to hear supplementary claims?
Yes, if fed question is dismissed early in proceedings or state law claim is complex or state law issues would predominate.
What is removal?
Defendants can remove case from state to federal court if the case could be heard in a federal court. (has federal subject matter jurisdiction)
Where are cases removed to?
Can only be removed from state court to the federal district embracing the state court in which the case was originally filed.
When must removal occur?
No later than 30 days after the date of teh first removable document (the doc that first made the case removable--might be service of process).
When can defendant's remove case?
1. when federal subject matter jurisdiction
2. when all d's agree
3. when within 30 days of first removable documetn
4. In diversity jurisdiction cases only, when no defendant is a citizen of forum. E.g. d with MA citizenship cannot remove a case from a MA state court.
Erie doctrine
In diversity cases, federal courts must apply state substantive law
What state laws are clearly substantive and why relevant?
1. Fed cts in diversity cases must apply state substantive law.
2. elements of claim/defense, statute of limitations, rules for tolling statutes of limitations, choice of law.
How to determine whether a state law is clearly substantive and why relevant?
1. Relevant under Erie doctrine requiring fed cts to apply state substantive laws.
2. Analysis:
a) If federal law directly conflicts with state law, apply federal law under supremacy clause.
b) If no fed law on point, balance:
i. state law is generally substantive if its application/ignorance is outcome detemrinative
ii. ask whether fed or state systems have strong interests in having their rules applied
iii. avoid forum shopping. If fed ct ignorance of state law will cause parties to flock to fed ct., probably apply state law.
Venue
Venue tells us what federal court has jurisdiction over a case. (subject matter jurisdiction tells whether can come to fed ct)
How to determine venue?
1. if action re ownership, possession, or injury to land, venue is in district where land lies.

2. If not local action, venue lies where
(a) all d's reside (if d's reside in same state, then district where either resides) OR
(b) where a substantial part of the claim arose.
What happens if no available venue?
1. in fq case, an yy district where d is found.
2. in diversity case, any district where d is subject to personal jurisdiction
Define reside and when relevant?
1. Relevant to determine proper venue.

2. for humans, residence equals domicile.

3. Corps reside in all districts where subject to personal jurisdiction when case filed.
Rules for transfer of venue
1. sending case from one fed district ct to another
2. Can only transfer to district where case could have been filed without waiver by defendant
What factors will courts consider when deciding whether to allow transfer to another federal district when venue in original district is proper?
1. public factors (what law applies, what community should be burdened with jury )
2. private factors (convenience such as where evidence and witnesses are)
What choice of law rules apply after a case has been transferred?
The choice of law rules of the original court.
forum non conveniens
court may discmiss when there is a far more appropriate court elsewhere adn when transfer is impossibel because in different judicial system.
Requirements for service of process
--this is how a defending party is first brought before the court
1. deliver summons and complaint (aka process) within 120 day sof filing case or case dismissed without prejudice
How can service be accomplished?
1. personal service anywehre in forum state
2. substituted service to someone of suitable age and discretion who resides at d's usual abode and who is served there.
3. service on d's agent.
4. any other methods of service permitted by state law
What is waiver of service rule?
Process can be mailed to D by first clas smail asking D to return waiver of formal service form w/in 30 days. (would waive ONLY formal service). If doesn't waive, service must be made formally and d may be required to pay cost.
Can a defendant be served while instate to be a witness or party in another civil case?
No, immune from service.
pleadings
docs setting forth claims and defenses
Notice pleading
only required to convey enough of one's contentions to put others on notice and allow meaningful response
Rule 11 reqs for pleadings
must sign all pleadings certifying that
1. not improper purpose
2. contentions warranted by law
3. factual contentions and enials have or are likely to have evidentiary support
Purpose of sanctions under rule 11
To deter repeat of bad conduct and monetary sanctions often paid to court.
How are Rule 11 problems raised?
1. by court sua sponte OR
2. by other party serving motion for violation on atty and then filing w/ court 21 days later if problem not fixed.
Reqs for complaint in fed ct
1. statement of subject matter jurisdiction
2. short and plain statement of cleim
3. demand for judgment
Must plead with particularity when:
fraud, mistake or special damages in play
How must d repsond to complaint
1. by motion OR
2. answer
w/20 days after service of process.
Rule 12(b) defenses to a complaint
-waivable v. non
Waived if not raised in first Rule 12 response: lack of personal jurisdiction, improper venue, insufficienty with process, insufficient service of process

Defenses that cannot be waived: lack of subject matter jurisdiction, failrue to state a claim failure to join an indispensable party
Defendant's answer
-response to summons and complaint
- can admit, deny, or state that lack sufficient infro to admit or deny
- Raises affirmative defenses such as sol, sof, res judicata, self defense
What does a failure to deny a matter in an answer signify?
An admission on any matter except damages.
What does a failure to plead affirmative defenses in answer signify?
Waiver of these defenses.
Counterclaim
Offensive claim against an opposing party that must be filed with the defendant's answer
Types of counterclaims
1. compulsory- must be filed in this case or is waived--arises from same transaction or occurrence as P's claim

2. Permissive-can be asserted in separate action--does NOT arise from same transaction or occurrance as P's claim
Determining whether counterclaim is valid
1. Ask whether it has subject matter jurisdiction (federal question or diversity of citizenship or supplemental)
Cross-claim
Offensive claim against a co-party that must arise from teh same transaction or occurrance as the underlying action.
Determining whether cross-claim is valid
- must arise from same transaction or occurrance as underlying action
- Must have subject matter jurisdiction
Can plaintiff amend pleadings?
Yes, once before defendant serves her answer. If no leave to amend, court has discretion to allow unless DELAY or PREJUDICE.
Variance in federal jurisdiction
When evidence at trial does not match what was pleaded.
1. If objection, evidence inadmissible because at variance w/ pleadings.
2. If no objection, evidence admissible and proponent should move to amend complaint to conform with evidence after trial
Relation back of amendments after the statute of limitatiosn
Amended pleadings relate back to teh date the complaint was filed IF they concern teh same conduct, transaction, or occurrence as teh original pleading.
When can defendants and plaintiffs be joined to action?
1. when claims arise from same transaction or occurrance AND
2. the claims raise at least one common question
3. There is subject matter jurisdiction
What parties must be joined to an action? (are forced to join)
There are "necessary parties" when:
1. without A, the court can't accord complete relief
2. A's interest may be harmed if he isn't joined OR
3. A claims an interest which subjects a party to multiple obligations (usually d)
When are necessary parties to an action joined?
1. when joinder is feasible meaning personal and subject matter jurisdiction
2. If not feasible court can proceed without him or dismiss whole case
What are the joinder rules regarding claims between present parties?
1. counterclaim (between parties)
2. cross claim (between co-parties
What are teh joinder rules governing claims that involve joining a new individual to case?
Impleader
Interpleader
Intervention
Impleader
When d brings in someone new--a third party defendant--who may owe indemnity or contribution to defending party on underlying claim.
Requirements for impleader
1. third party complaint naming third party defendant w/in 10 days after filing answer
2. serve process on tpd
3. must have personal/subject matter jurisdiction.
Can third party defendants and plaintiffs assert claims against one another in a diversity of citizenship case in fed ct?
Yes, as long as claims arise form same transaction or occurance as underlying case.(exception to rule that plaintiff can's use supplemental jurisdiction to overcome lack of diversity to assert a claim)
Intervention
Absentee joins a pending suit in timely manner on either side.
Three types of intervention
1. intervention of right-A's interest harmed if not joined and her interest is not adequately represneted now
2. Permissive intervention: A's claim or defense and the pending case have at least one common question. Court has discretion to accept unless delay or prejudice.
Is there supplemental jurisdiction for intervenor plaintiffs that are not diverse from defendant?
No, limitation to supplemental jurisdiction applies. Plaintiff can't use supplemental jurisdiction to overcome lack of diversity jurisdiction.
Interpleader
When one holding property forces all protential claimants into a single lawsuit to avoid multiple litigation and inconsistency.
Initial requirements for a class action
CANT
1. commonality
2. Adequate represntation
3. Numerosity (too many class members for practicable joinder)
4. Typicality (class rep's claims typical of those in class)
Three types of class actions
1. prejudice: class treatment necessary to avoid harm to class members or party avoiding class (eg. depletion of fund)
2. Injunction or delcaratory judgmetn sought bc class treated alike by other party
3. MOST COMMON: damages: common questions predominate over individual questions and class action superior method to handle dispute
How must class be notified of class action?
1. In damages type class action, court must notify individually all reasonably identifiable members telling htem (1) they can opt out; (2) they'll be bound if don't; and (3) can enter separate appearance w/ counsel. Class rep pays for notice.
2. Prejudice or injunction class actions need not give individual notice.
Who is bound by class action judgment?
All members of class except those who opted out (only available in damages type class action)
How are class claims dismissed or settled?
By court apporoval and iwth notice to class.
Damages type class must give members second-chance to opt out.
How is subject matter jurisdiction satisfied in class action?
To determine class citizenship and amt in controversy, look only to representative.
Class Action Fairness Act of 2005
Subject matter jurisdiction if any class member is of diverse citizenship from any defendant and aggregated claims of class exceed 5 million.
- Additional type of subject matter jurisdictions for class actions.
Deposition tools that can be used to get info from non-parties or parties
1. Depositions (must subpoena non-parties, subpoena duces tecum if want to bring docs)
2. requests to produce (need subpoena for non-parties)
Deposition tools that can ONLY be used to get info from parties
1. interrogatories
2. physical or mental examination
3. Request for admission
Parties duty to supplement discovery
If party learns that response to required discovery tool is incomplete or incorrect, must supplement its response
What is discoverable?
Anything "relevant to a claim or defense."

Means "reasonably calculated to lead to the discovery of admissible evidence."
- broader standard than admissibility
-privileged evidence not admissible
Work product defined and relevance
1. materials prepared in anticipation of litigation (by anyone--eg. atty, pi)
2. work product protected from discovery unless
a. substantial need and not otherwise available AND not mental impressions, opinions, conclusion, legal theories (these are always protected)
How are discovery problems presented to court?
1. protective order
2. partial violation (answers some not others)
3. total violation (fails completely, expect heavy sanction)
What must party seeking sanctions against other party for discovery problems certify?
The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement.
Process and sanctions for partial violation of discovery
1. Get order compelling party to answer unanswered questions plus get costs of bringing motion
2. If party violates this order, then heavier sanctions plus cost and possible contempt
Process and sanctions for total violation of discovery
heavy sanctions and costs
False denial of request to admit
Other party can only recover the costs (atty fees) for having to prove the issue improperly denied.
What sanctions are available to judge when party doesn't comply with discovery?
1. establishment order, establishing facts as true
2. strike pleadings of disobedient party as to issues re discovery
3. disallow evidence from disobedient party on issues
4. dismiss plaintiff's case if bad faith shown
5. enter default judgment against defendant if bad faith shown
Sanctions against non-party for not complying with discovery
contempt for violating subpoena or court order
Sanctions against atty for not complying with discovery
Liable for all expenses incurred by other side IF counseled one of bad acts
Voluntary dismissal (form of pre-trial adjudication)
When P dismisses action by filing written notice of dismissal before D answers. Can voluntarily dismiss once without prejudice (meaning can refile claim)
hypo: Case voluntarily dismissed in state court. Filed again and voluntarily dismissed in fed ct. With or without prejudice?
Dismissed in fed ct with prejudice, meaning can't refile. Can only voluntarily dismiss once without prejudice, no matter what court.
Failure to state a claim standard (12b6 motion)
Court assumes all allegations are true and asks: If P proved all she has alleged, would she win a judgment? If no, then court dismisses for failure to state a claim.
Can court consider evidence when deciding:
1. failure to state a claim
2. summary judgmetn
3. Judgment as a matter of law
1. No
2. yes
3. yes
Motion for judgment on teh pleadings
same as failure to state a claim, just asserted after D has answered
Summary judgment standard
Moving party must show:
1. there is no genuine dispute as to material issues of fact and
2. that she is entitled to judgment as a matter of law
Who does court veiw evidence in light most favorable to in summary judgmetn motion?
light most favorable to non-moving party
Why is trial given?
Only to resolve disputes of fact.
Reqs for affidavits
Need to be first-hand knowledge. No hearsay.
Importance of pre-trial conference
Final pre-trial conference order is important doc that supercedes the pleadings and presents roadmap of trial
How to amend pretrial order?
tough standard "to prevent manifest injustice"
Scope of right to jury trial in fed court
7th am gives rit to jury trial in civil actions at law but not suits at equity. If case involves both, then jury trial first on legal issues.
Motion for judgment as a matter of law (fed)

motion for directed verdict (MA)
Effect to take case away from jury. Judge decides when "reasonable people coudl not disagree on result." Views evidence in light most favorable to non-moving party.
When can motion for judgment as a matter of law be brought?
After the other side has been heard.
-D can move at close of p's evidence and at close of all evidence.
-P can move at close of all evidence.
Renewed motion for judgment as a matter of law
Filed after jury returns verdict and court enters judgment.
Prerequisite for filing a rmjol
Must have moved for jmol at close of all evidence.
Grounds for motion for new trial
1. prejudicial error at trial
2. new evidence that couldn't have been obtained with due diligence for original trial
3. prejudicial misconduct of party or atty or third party or juror
4. judgment against weight of evidence.
When can one appeal?
Only from final judgments, within 30 days after entry of final judgment
Are these final judgments:
1. granted motion for new trial
2. denial of motion for new trial
3. denial of motion to remand to state court
4. grant of motion to remand to state court
5. grant or denial of rmjol
1. not final
2. final
3. not final
4. not final
5. final
What orders are appealable even though not final?
interlocutory orders
What are the interlocutory orders reviewable as of right?
orders re injunctions
orders re appointing receiver
findings of patent infringemetn
orders affecting possession of property
Analysis for personal jurisdiction in fed or ma cts?
1. satisfy a statute
2. satisfy the constitution (minimum contacts test)
What are the statutory bases for personal jurisdiction?
1. D present instate when served
2. D domiciled/resides here
3. D has usual place of business here
4. D consents to jurisdiction
5. d is incorporated in MA
6. Long arm statute applies
How does D consent to personal jurisdiction?
1. By making an appearance without raising the defense of personal jurisdiction timely.
2. by filing a permissive counterclaim in teh pending case
3. by consenting in advance in commercial contract
Does P consent to jurisdiction for counterclaims filed against her by D when she files in MA?
Yes
When is serving D while instate insufficient for personal jurisdiction?
1. when in state by fraud or duress
2. when D here only to participate in unrelated litigation
What is purpose of long arm statute?
To give personal jurisdiction over individuals who aren't present, don't reside, arent incorporate dhere, etc.
What are grounds for personal jurisdiction under the long-arm statute?
Claim against nonresident arises from one of following:
1. transacting business in MA
2. Contracting to supply services or things in MA.
3. Causing tortious injury in MA by act or omission in MA
4. Causing tortious injury in MA by act or ommission elsewhere.
5. Holding an interest in, using, or possessing real property in MA.
6. Contracing to insure any person, property, or risk in MA.
7. Living as a party to marriage where marital domicile in MA for at least one year w/in two years before commencement of suit.
Does the long arm statute give personal jurisdiction over D when D transacts business in MA but is not physically present?
Yes
When does the long arm statute cover an individual who caused tortious injury in MA by act or omission elsewhere?
1. D regularly does or solicits business here OR
2. engages in other persistent course of conduct OR
3. derives substantial revenue from goods used or consumed or service rendered here.
What is the scope of the long arm statute?
The long arm statute is interpreted to reach to the constitutional limit.
What is the constitutional standard for personal jurisdiction?
For personal jurisdiction to exist, D must have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.
What are the factors in determining whether personal jurisdiction is valid under the minimal contacts test?
My Parents Frequently Forgot To Read Children's Stories
-minimum contacts
1. purposeful availment
3. foreseeability
- fair play & substantial justice
1. relatedness
2. convenience
3. state's interest
What does it mean that contact between defendant and state must result for purposeful availment?
-necessary for personal jurisdiction under minimum contacts test

- D must reach out voluntarily to forum. Contact can't be accidental.
What is the foreseeability requirement for the minimum contacts test?
D must be able to foresee being sued in that forum.
What are the fair play and substantial justice requirements
Relatedness
Convenience
State's interest
What is the relatedness requirements for minimum contacts test?
To have constitutional personal jurisdiction, there must be relatedness between D's contact with the forum and the claim asserted by P.
- this standard is automatically satisfied if there is a long-arm statute
- Relatedness not required if D has substantial or continuous ties with forum, eg domicile, presence when served, substantial business.
What is the convenience requirements for minimum contacts test?
Ask about convenience for all parties. Generally difficult to show enough inconvenience to defeat personal jurisdiction.
Will a MA state court dismiss a case under forum non conveniens after weighing public and private factors?
Yes
Plaintiff wants to attach property. What is the test for determining whether there is personal jurisdiction over the property?
-Apply minimum contacts test.
-Constitutional requirements probably met by presence and attachment of property in the forum.
How to determine subject matter jurisdiction in MA?
All claims, except for exclusive federal question cases such as patents.
Types of general trial cts in MA
1. Superior court (trial court for legal and equitable cases over 25000)
2. district court (trial court for legal and equitable cases where likely that plaintiff will recover less than 25000)
How many jurors in superior ct and district ct?
Superior court has 12
District court has 6
Procedural amount in controversy requirement in superior and district courts?
This is a procedural and NOT jurisdictional requirement. Superior generally takes cases with claims for over 25000 and district for claims for less than 2500 BUT not required to dismiss if not.
What court can issue an injunction or entertain a class action in consumer claims for damages arising from unfair or deceptive trade practices?
Superior court
Not district court
MA cts
1. District and superior trial courts
2. Intermediate appeals ct
3. Supreme Judicial Court
4. Probate and family, land, housing, juvenile, small claims
Cases accepted by small claims
When amt in controversy doesn't exceed 2000, but can award double or triple damages where allowed by statute, even if exceeds 2000
- No amt in controversy for motor vehicle property damage claims
Effect of judgments in small claims court
No collateral estoppel or res judicata effect in later personal injury claims arising from same accident
Venue rules in:
1. local actions
2. transitory actions
1. cases for title or possession of land--venue where land located
2. all other cases including use of land caess--venue where
-either party resides OR
-has a usual place of business (not usual place of employment)
*corps can be sued or sue where holds annual shareholders' mtg or where held last meeting
Venue for replevin actions
-return of personal property actions
-transitory BUT venue where property located
Venue for trustee process
where trustee resides or has usual place of business

* But if brought in transitory action in district court where any PARTY or trustee resides or has usual place of business
Venue when neither P or D live in commonwealth
Anywhere in MA
Who can serve process in state and federal courts?
1. State: An officer (sheriff or constable) or civilian specially appointed by the court. Then must file a return of service to clerk.
2. Federal: Any non-party at least 18 years old can serve
When must process be served in MA and fed courts?
1. MA: Within 90 days of filing complaint, or else dismissed without prejudiced unless good cause shown
2. Fed: Within 120 days of filing complaint
Who can be served in MA and fed courts?
1. MA: personal service, service on appropriate agent, substituted service at D's last and usual place of abode--need not be left with anyone
2. Fed: personal service, service on appropriate agent, substituted serves at D's last and usual place of abode with someone of suitable age
Is it proper to serve process in a MA case in a summer home during winter?
No, bc not last and USUAL place of abode.
What if not possible to serve individual in MA by any available means?
P can ask court for alternative means of service.
How can process be served on an corporation in a MA state case?
- Delivered to any corp. officer, managing or general agent, or person in charge of corps principal place of business (not receptionist)

- if none in MA, court can allow service on corp by serving MA secretary of state who sends to corp by registered mail
What service is permitted out of state under a MA long-arm statute?
1. any method permitted in MA
2. method permitted in state where service takes place
3. by mail return receipt requested
4. by method ordered by court
How can one serve a non-resident motorist in a state case??
1. Deliver to registry of motor vehicles in MA AND
2. registered or certified mail, return receipt requested to D
Who can serve process in another state under a long-arm statute?
Anyone proper under the law of MA or the state where service is made?
Can D waive formal service by returning a waiver form by first class mail in a case in MA state courts?
No, no waiver provision.
Rule 11 in Massachusetts?
1. Follows the older version, different from fed
2. lawyer's signature on pleadings certifies that (a) she has read it; (b) to best of her knowledge, info, and belief there is good ground to support it; and (c) that it is not interposed for delay
When can one move for the losing party to pay costs and atty's fees for frivolous litigation?
AFTER decision in a case.
Standard for frivolous litigaiton in state court
Claims or defenses must be "wholly insubstantial, frivolous, and not advanced in good faith."
Requirements for complaint in fed and state courts
1. Fed: statement of claim, demand for judgment, subject matter jurisdiciton
2. State: short and plain statement of claim, demand for judgment (only need to set forth specific amt of damages desired if liquidated or ascertainalbe by calculation
Defendant's response to process in fed and state cts
D must answer or bring motion w/20 days of service. If motion denied, must answer w/in 10 days.
What defenses are waived if not asserted in first Rule 12 response in fed and state ct?
1. In Federal and STate
---Waived if not raised in first Rule 12 response: lack of personal jurisdiction, improper venue, insufficienty with process, insufficient service of process

2. In state court
----also waived if not asserted as first Rule 12 response: pendency of a prior action in teh court in the commonwealth

**filing of permissive counterclaim also waives the pendency of prior action defense
What is available to one sued after making written or oral statments to a legislative, executive, or judicial body?
Can win motion to dismiss to counter SLAPP suits (strategic lawsuits agaisnt public participation) UNLESS
1. exercise of moving party's right ot speak devoid of any reasonable factual support or arguable basis in law AND
2. moving party's acts causes actual injury to nonmoving party
When must d deny allegations with specificity, otherwise admitted?
1. genuineness of signature
2. allegation that street is a public way
Motion for enlargment in MA courts
Motion to get more time. If filed before due date, court can allow extention for cause shown. If filed after, court may only grant extension on showing of excusable neglect.
What happens to suit filed against already dead D?
Under the nullity doctrine, suit does not exist so amendment to name executor as defendant does not relate back to original complaint.
*nullity doesn't apply if rep was appointed when complaint filed, had notice of suit and shows no prejudice
**nullity doctrine doesn't apply if D died after suit filed, then can relate back
Can D implead someone who is not liable to D but is directly liable to P?
No, impleader claims must be for indeminity or contribution to D for underlying claim.
Can D implead a joint tortfeasor for contribution?
Yes. Joint tortfeasors cant be brought in via necessary parties doctrine but can be force in via impleader
When can a plaintiff implead a third party defendant?
When a counter claim has been asserted against the plaintiff
Process requirements for serivng a third party defendant who has been impleaded
In MA, must serve third party complaint and summons AND copies of all original pleadings from underlying action. Fed must only serve process.

In Ma, can implead w/in 20 days of serving answer. In fed ct, can only implead w/in 10 days of serving answers.
What must a party asserting unconstitutionality of a state statute or municipal ordinance in state court do?
Notify MA atty general who may decide to intervene.
When is interpleader often used in MA?
By insurance companies to determine which claimant is entitled to policy proceeds.
--stakeholder may deposit disputed property with court to distribute and then may be discharged from case
What is the appropriate action for those involved in dispute with insurance company over whether policy requires payment.
Sue for declaratory judgment.
Types of class actions in MA
Only one type: requires common questions to predominate and that class action be superior method for resolving the dispute
Requirements for MA class action
1. common questions predominate over individual questions
2. class action superior method for resolving dispute
CANT
3. Commonality
4. Adequate representation
5. Numerosity
6. Typicality
Will MA certify a class for limited purposes?
No, either the whole case or no certification.

Fed ct will certify for limited purposes, such as to determine liability.
Differences between MA and Fed on class action rules re:
1. notice
2. opt-out
3. timing of certification
1. MA doesn't require notice,but constitution might
2. MA doesn't give optout rt
3. MA has no reqmt that class be certified "at an early practicable time"
When does an action survive the death of either party in MA?
1. In all contract cases
2. in tort cases for (a) assault, battery, or other damage to the person; (b) consequential damages arising out of personal injury to d; or (c) damages to real or personal property or conversion of goods

**Other damage to person clause includes non-physical injuries such as emotional distress.
If action fails after death of a party, how does other side get it dismissed?
File a suggestion of death
If action survives after death of party (contracts and some torts cases), what happens?
Move to substitute decedent's representative
What methods are available to maintain status quo pending litigation?
1. temporary restraining order
2. preliminary injunction
Requirements for TRO
1. may be granted ex parte if specific facts are pled under oath showing that immediate and irreparable harm will occur before the party can be heard
2. must show verified doc setting forth specific facts showing basis for relief by person with knowledge of the facts
3. Doc must descibe conduct to be restrained in reasonable detail
4. May not last more than 10 days unless opponent consents (hearing for preliminary injunction w/in 10 days)
Requirements for preliminary injunction
1. Must give notice and opp to be heard to opponent
2. must show verified doc setting forth specific facts showing basis for relief by person with knowledge of the facts
3. Doc must descibe conduct to be restrained in reasonable detail
4. remains in effect until entry of final judgment
5. Standard (a) must show substantial likelihood will succeed on merits of case; (b) substantial threat that claiminat will suffer irreparable injury if relief not granted; AND (c) balancing of equities favors issuance of injunction
Can one appeal a preliminary injunction?
Yes, even though not a final judgment.
Declaratory judgment
1. defined
2. when applicable
3. requirements
1. Binding declaration by court of rights, duty, status, and other legal relations
2. Applies in disputes concerning wills, deed, written contracts
3. Judgmetn should have the effect of terminating the controversy
(Not precluded by fact that other remedy available)
Can ct order speedy hearing of declaratory judgmetn matters?
Yes, it can "advance the matter on the calendar."
Attachment defined
ATtach d's property (real or personal) at commencement of action or after TO ensure that property available to satisfy judgment if the claimant wins
How to attach property in MA
1. file motion for approval of attachment with supporting affidavits
2. Serve them on D with notice setting date and time for hearing
3. Notice must state that defendant does not submit to personal jurisdiction by contesting the attachment.
When will a court approve attachment?
1. when there is reasonable likelihood that claimant will recover a judgment in an amt equal to or greater than the attachment AND

2. D has inadequate liability insurance to satisfy the judgment
Who serves writ of attachment?
sheriff or constable
When can claimant get an ex parte ettachment?
1. in non-personam cases
2. where court finds "clear danger that d will conceal, damage, or remove the property"
Trustee process defined
When claimant wants to attach d's property AND

its in the hands of a third party (eg bank)
Trustee process CANT be used in what cases:
1. defamation
2. malicious prosecution
3. assault and battery
4. specific recovery of goods/chattels
Must court give approval in trustee process, attachment, and reach adn apply cases?
Yes
How does claimant get trustee process?
1. Get trustee summons from court and serve on trustee

2. post bond if damages over 1000 UNLESS action based on (1) judgment
(2) contract for personal services
(3) contract for goods sold and delivered
(4) money due under a contract in writing
(5) tort for operation of unregistered motor vehicle
(6) order for alimony, maintentce, child support.
Trustee process can't be used to attache what funds
(Unless claimant gets judgment against d)
1. wages except to enforce alimony or child support
2. payroll account
3. gov pension
4. $500 in bank
5. afdc
Reach and apply
ATtachment when property intangivle or an equitable interest in property (checks, copyrights, options to purchase realty)
Uniform Fraudulent Transfer Act
Creditor may reach real or personal property transferred by debtor
in fraud of creditors

(all conveyances by insolvent person deemed fraudulent to creditors if no fair consideration)

*Intent of insolvent person not relevant in determining whether transfer is fraudulent
What relief does Uniform Fraudulent transfer act offer creditors?
1. creditors with matured claims can have conveyance set aside or attach property conveyed

2. creditors without mature claims may get restraining order to stop d from disposing of property
Lis pendens recorded at the registry of deeds
Notifies persons that action is pending involving title or use of real property.

Litigation has no effect on third parties until lis pendens is recorded to give notice
Statutes of limitations
--when starts to run?
Plaintiff must commence case before:

1. at accrual of the claim (when claimant has right to sue, whether knew or not)
2. exception: statute runs whne claimant learned or reasonably should have learned that she was harmed in:
(a) personal injury cases
(b) legal malpractice
(c) fraudulent misrepresentation in sale of realty
(d) medical malpractice cases
*med mal cases must be brought within 7 years of wrongful act under the statute of repose*
How does plaintiff commence case?

By when must plaintiff commence case?
1. Must commence before teh statute runs.

2. Commence by
(a) filing claim, pay filing fee
(b) mail claim and fee by cert or reg. mail--commences at mailing
(c) mail claim and fee by regular mail--commences when received by clerk
How does d raise the statute of limitations?
As an affirmative defense.
Toll the statute
1) defined
2) how tolled
1) Stop the statute of limitations from running

2) --commencing action,
--lack of legal capacity when claim accrues (minority, mental incapacity),
--When minor injured in med mal case before age six reaches age 9
Statute of repose
No medical malpractice claim can be asserted more than 7 years after the negligence
Is a counterclaim within the statute of limitations?
Yes, if it was not barred when teh plaintiff sued.
When dismissial is for a matter of form, how long does plaintiff have to recommence suit?
one year
SOL periods for:
1. torts
2. contract for personal injury
3. breach of warranty
4. Breach of sales under UCC ARt. 2
5. actions on contracts (not for personal injury)
1. 3yrs
2. 3 yrs
3. 3 yrs
4. 4 yrs
5. 6 yrs
Required disclosures in MA
No required disclosures
Can a deposition be taken upon written questions?
Yes
What is the notice requirement for depositions in MA?
Notice must be given at least 7 days before teh deop.
Types of audiovisual depositions in ma
1. when party wants to call treating physician or extert as its own witness, can depose by audiovisual means and use tape at trial in lieu of testimony, even when physician would be available to testify.
* not available when physician party to litigation. Don't need court order just must give written report 30 days before depo to give details about matters that physician will speak to.

2. Party wanting a audiovisual depo of witness must get court order. This tape is not used in lieu of testimony at trial.
When can one give notice of an audi-visual deposition in MA?
Only six months or later after commencement of the action (unless court allows)
What should a party do if the opposing party has an expert witness to testify at trial?
Send interrogatories seeking:
(1) name of experts
(2) subject matter on which he is expected to testify
(3) substance of facts and opinions and
(4) summary of ground for each opinion

**Can also get deposition of expert with court order or stipulation of parties. Court has discretion to deny deposition for delay of trial. Party requesting depo must pay expert for her time with fee set by court
Can a party discover from an expert of the opposing party not expected to testify at trial?
No, consulting experts can't be discovered absent "excpetional circumstances" such as inability to get info elsewere.
Who can claim the work product protection?
Only the attorney
(party?)
Not person who hired atty, such as ins co hiring atty for insured individual
Duty to supplement responses in MA?
No so long as response complete when made.
--Must supplement
(1) requests for identity of witnesses/experts OR
subject and substance of expert testimony
(2) responses that were incorrect when made
(3) responses that are no longer true and failure to supplement would be knowing concealment AND
(4) when court order or parties agreement requires
Are there rule 26(f) conferences in MA?
No
When is doctor-patient privilege waived in state court?
When p puts subject of privileged communication at issue.
Are protective orders available in MA?
Yes, to forbid or limit discovery on topics/methods that are overburdunsome or would result in embarassment, undue expense Or to protect privileged materials.
When can court dismiss case for unreasonable conduct or delay?
- When "convincing evidence of unreasonable conduct or delay"

- e.g., persistent refusal to comply with court order, clear and convincing evidence that P attempted to commit fraud upon ct.(destroying docs, perjury, forgery), or failure to prosecute
What should P do when D fails to respond to complaint w/in 20 days after service of process on him?
P should go to clerk to get default entered. This is notation on docket sheet saying D is in default. Can't collect on default--need a default judgment.
How can p get a default judgment?
1. get default entered by clerk--clerk can give judgment if D failed to appear, claim is for sum certain/calculable, plaintiff files affidavit that d is not infant or incompetent AND affidavit that D not in military

2) Seek entry of judgment with court

3) D must get written notice at least 7 days before hearing on damages IF d made appearance in case
Required disclosures in MA
No required disclosures
Can a deposition be taken upon written questions?
Yes
What is the notice requirement for depositions in MA?
Notice must be given at least 7 days before teh deop.
Types of audiovisual depositions in ma
1. when party wants to call treating physician or extert as its own witness, can depose by audiovisual means and use tape at trial in lieu of testimony, even when physician would be available to testify.
* not available when physician party to litigation. Don't need court order just must give written report 30 days before depo to give details about matters that physician will speak to.

2. Party wanting a audiovisual depo of witness must get court order. This tape is not used in lieu of testimony at trial.
When can one give notice of an audi-visual deposition in MA?
Only six months or later after commencement of the action (unless court allows)
When is the an evidentiary privilege waived?
When the party put the subject of the privileged communication in issue
When can court dismiss a case due to unreasonable conduct or delay in MA?
- Must be "convincing evidence of unreasonable conduct or delay"

- e.g. persistent refusal to comply with court order, clear and convinceing evidence that p committed fraud on court (destroy docs, perjury, forgery), failure to prosecute
How can a party get a default judgment in MA?
1. get entry of default by clerk (notation on docket, can't collect until get an entry of default judgment)

2. Clerk can enter default jdgment when D didn't appear, claim for certain or calculable sum, plaintiff files affidavit that d not incompetent or infant and that D not in military service

3. Otherwise get entry of jdgmt by court

4. If D made appearance, gets 7 days notice before damages hearing.

5. If D didn't appear and judgmet secured by car insurance policy, insurer gets 4 days written notice before damages assessed
How can d assert failure to state a claim in MA?
--file brief with motion

--request hearing w/6 mths and hold argumetn w/in 1 year of filing, or else defense is waived.
When can p an d file for summary judgment?
D can move anytime after commencement of action

P can move 20 days after commencement or after d serves motion for summary judgment.
What affidavits need to be valid in MA?
1. based on personal knowledge (not info and belief)
2. show affiant competent to testify under rules of evidence
3. set forth admissible facts AND
4. attach sworn or certified copies of docs referred to
Can party without burden of proof at trial win summary judgment by showing that opposing party has no reasonable expectation of proving an essential element of claim or defense?
Yes--then other side can produce evicdence to avoid sj.
Can a party get summary judgment when intent or knowledge of party at issue?
Not usually bc facts in dispute.
What affidavits need to be valid in MA?
1. based on personal knowledge (not info and belief)
2. show affiant competent to testify under rules of evidence
3. set forth admissible facts AND
4. attach sworn or certified copies of docs referred to
Can party without burden of proof at trial win summary judgment by showing that opposing party has no reasonable expectation of proving an essential element of claim or defense?
Yes--then other side can produce evicdence to avoid sj.
Can a party get summary judgment when intent or knowledge of party at issue?
Not usually bc facts in dispute.
Pretrial conference in MA
Yes pretrial conf but no rule 26(f) conference/scheduling order as in fed court.
What happens with a masters report in a MA jury case?
Read to the jury as prima facie (not binding) evidence.
When can master be used in MA?
By consent of parties or court order
Rt to jury trial in MA?
Same as in fed, right to jury on legal, not equitable issues.
How can one get a jury trial?

Withdraw request?
By written demand.

Can only withdraw demand if all parties consent.
Pretrial conference in MA
Yes pretrial conf but no rule 26(f) conference/scheduling order as in fed court.
What happens with a masters report in a MA jury case?
Read to the jury as prima facie (not binding) evidence.
When can master be used in MA?
By consent of parties or court order
Rt to jury trial in MA?
Same as in fed, right to jury on legal, not equitable issues.
How can one get a jury trial?

Withdraw request?
By written demand.

Can only withdraw demand if all parties consent.
Jury size in MA
(1) superior ct
(2) district ct
1. 12 jurors empaneled, can proceed with as few as ten if parties stip to fewer and two unable to finish

2. 6 jurors in district ct
Does a jury need be unanimous in
fed ct?
MA?
1. Yes in fed ct.
2. No, only 5/6 agreement required in MA.
How can one object to jury instructions to preserve appeal in MA?

In 1st circuit?
1. IN MA, make objection known before jury begins deliberation

2. IN 1st circuit must object immediately before jury retires to preserve appeal.

3. IN both, must object outside jury's presence and state distinctly the grounds for objection and how party would be prejudiced by instruction.
Terminology in MA for
1. JMOL
2. renewed jmol
1. motion for directed verdict
2. motion for judgment notwithstanding the verdict
Jury size in MA
(1) superior ct
(2) district ct
1. 12 jurors empaneled, can proceed with as few as ten if parties stip to fewer and two unable to finish

2. 6 jurors in district ct
Does a jury need be unanimous in
fed ct?
MA?
1. Yes in fed ct.
2. No, only 5/6 agreement required in MA.
How can one object to jury instructions to preserve appeal in MA?

In 1st circuit?
1. IN MA, make objection known before jury begins deliberation

2. IN 1st circuit must object immediately before jury retires to preserve appeal.

3. IN both, must object outside jury's presence and state distinctly the grounds for objection and how party would be prejudiced by instruction.
Terminology in MA for
1. JMOL
2. renewed jmol
1. motion for directed verdict
2. motion for judgment notwithstanding the verdict
Remittitur and additur in MA court
When court convinced that damages are against the "manifest weight of the evidence", it may order new trial OR order order remittitur or additur--give parties a choice of accepting judge determined damages amount or new trial
Remittitur and additur in fed court
Unconstitutional under the 7th Am.

Okay in MA bc 7th am doesn't apply in state courts.
What must a party do to have the court rehear, reconsider , or vacate judgmetn in MA?
File a motion w/10 days of jdgment to alter or amend or vacate judgment. Appeals period tolls w/30 days of ruling on this motion.
Can party bring motion to vacate judgment on basis of newly discovered evidence in MA?
Yes, but motion to vacate judgment on this ground cannot be brought more than 1 year after judgment.
Where to a appeal a decision from superior and district cts?
*General right to appeal from final judgment to intermediate appeals ct.

1. Superior ct decisions appealed to intermediate appeals ct
2. District ct decisions appealed to appellate division of district court. Then to intermediate appeals ct.
When must a notice of appeal be filed?
W/in 20 days after final judgment.

--Motion for new trial, JNOV, or to alter or amend judgment tolls time for filing notice of appeal.

--Notice filed during tolled time for appeal is of no effect, gives no notice.
Res Judicata and collateral estoppel
When questions concern preclusive effect of a prior judgment on the merits
Does small claims ct decisions have preclusive effect?
No
Res Judicata
AKA claim preclusion

--You only get to sue on a claim once. Necessary to seek all possible relief from that claim in a single action. Then lose right to later actions on that claim
Requirements for res judicata (claim preclusion)
1. Both cases must be brought by teh same claimant against the same defendant

2. Case 1 must have ended in a valid final judgment on the merits

3. Both cases must involve the same claim (right to relief ariainsg from a transaction or occurance)
Define "final judgment on the merits"

Why relevant?
1. relevant to res judicata claims. Only claims ending in final judgment on the merits can be precluded.

2. Includes default judgments, venue or indispensable parties

3. Does not include dismissal for insufficient servic eof process, jurisdiction)
Collateral Estoppel
AKA issue preclusion

Precludes relitigation of a particular issue that was litigated and determined before
Requirements for collateral estoppel
1. Case 1 ended in final valid judgment on the merits

2. same issue ACTUALLY LITIGATED and DETERMINED in Case 1

3. Issue was essential to judgmetn in Case 1

4. Collateral estoppel can only be used by someone who was a party in case one or in privity with a party in case one (unless nonmutual collateral estoppel applies)
Nonmutual defensive collateral estoppel
When defendant in case 2 asserts collateral estoppel AND
defendant was not a party in case 1
Requirements for res judicata (claim preclusion)
1. Both cases must be brought by teh same claimant against the same defendant

2. Case 1 must have ended in a valid final judgment on the merits

3. Both cases must involve the same claim (right to relief ariainsg from a transaction or occurance)
Define "final judgment on the merits"

Why relevant?
1. relevant to res judicata claims. Only claims ending in final judgment on the merits can be precluded.

2. Includes default judgments, venue or indispensable parties

3. Does not include dismissal for insufficient servic eof process, jurisdiction)
Collateral Estoppel
AKA issue preclusion

Precludes relitigation of a particular issue that was litigated and determined before
Requirements for collateral estoppel
1. Case 1 ended in final valid judgment on the merits

2. same issue ACTUALLY LITIGATED and DETERMINED in Case 1

3. Issue was essential to judgmetn in Case 1

4. Collateral estoppel can only be used by someone who was a party in case one or in privity with a party in case one (unless nonmutual collateral estoppel applies)
Nonmutual defensive collateral estoppel
When defendant in case 2 asserts collateral estoppel AND
defendant was not a party in case 1
Requirements for nonmutual defensive collateral estoppel to be asserted
1. Case 1 ended on final judgmetn on merits
2. Issue was litigated adn determined in case 1
3. ISsue was essential to judgment in case 1
4. Collateral estoppel being used against one who was party in Case 1
5. When used BY one who wasn't party to Case 1, allowed if p had a full opportunity to litigate in Case 1.
Nonmutual offensive collateral estoppel (estoppel asserted by plaintiff)
1. p who was not a party to case 1

2. asserts collateral estoppel against d who was a party to case 1
REquirements for nonmutual offensive collateral estoppel
Must satisfy general collateral estoppel rules AND

Factors to consider:
1. did d have full fair opp to litigate in case 1
2. could d foresee multiple suits when sued in case 1
3. P could not have joined easily in case 1
4. Whether inconsistent judgments on record. If so, less likely to be able to assert collateral estoppel.