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324 Cards in this Set

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What is the basic idea of KS Personal Jurisdiction?
All courts need personal jurisdiction

Key question: Can P sue D in KS?
If G sues F for an injunction to tear down part of his house that blocks G’s view. Can he qualify for the amount in controversy requirement for diversity jurisdiction?
Yes – if one of two tests are met:

1. Plaintiff’s viewpoint – does the blocked view decrease the value of plaintiff’s property by more than $75k?

2. Defendant’s viewpoint – would it cost defendant more than $75k to comply with the injunction?
What is the process of determining personal jurisdiction?
Whether there is personal jurisdiction is a two-step process:

1. Satisfy a state statute

2. Satisfy the Constitution
What do you ask to determine if federal question jurisdiction is appropriate?
Is plaintiff enforcing a federal right?
Mayberry RR gives G a lifetime pass in settlement of a claim by G. After several years, RR refuses to honor the pass, asserting that a federal statute prohibits such passes. G sues the RR for specific performance, alleging the statute does not apply. So, the complaint mentions a federal law and raises a federal issue. Is there federal question jurisdiction?
No – G is not enforcing a federal right!
What does it mean that D is instate when served with process?
D is in the state - except if:

- presence procured by fraud/duress

- only here to participate in unrelated litigation
So, I’m a plaintiff from NV and the defendant is from KS, can I get supplemental jurisdiction over a second defendant from NV?
You cannot use supplemental jurisdiction to overcome a lack of diversity in a diversity of citizenship case.

You can use supplemental jurisdiction to overcome a lack of diversity for a claim by a plaintiff in a FQ case.
How might D consent to jurisdiction?
-- By filing suit here, the plaintiff consents to jurisdiction for counterclaims filed against her by D.
-- D may consent to jurisdiction by making an “appearance” without raising the defense of lack of personal jurisdiction properly or timely.
-- D may consent to jurisdiction by filing a permissive counterclaim.
-- Parties to a commercial contract may consent in advance to the jurisdiction of a KS court for claims relating to that contract.
P (UT) sues D (UT) for (1) violation of federal antitrust laws and joins a transactionally related claim for (2) violation of state antitrust laws. Is this okay?
Claim 1 is okay because it’s a FQ. Claim 2 is not a FQ, nor diversity, but it is allowed for supplemental jurisdiction. The limitation on supplemental jurisdiction only applies to diversity cases.
What is the Long Arm Statute?
6. The long-arm statute. The long-arm statute permits jurisdiction over nonresidents - Ds who are not present, do not reside, are not incorporated, etc. here.
Can you restate the rule about hearing a non-federal, non-diversity claims?
A non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS:

1. It is asserted by the plaintiff
2. In a diversity of citizenship (not FQ) case AND
3. Would violate complete diversity.
What is removal?
A defendant (only) can have case filed in state court “removed” (transferred) to federal court. One-way street.
What cases can be removed?
Only cases that would meet diversity or federal question jurisdiction?
-- P sues D for assault, alleging that while the two were using intravenous drugs in KS, D supplied P with tainted needles. Is there in Personam Jurisdiction here?
Yes – That alleges a tortious injury by act in state and so comes under the Long Arm Statute.
Where can cases be removed to?
Only to the federal district embracing the state court in which the case was originally filed
-- P sues D for injuries sustained by drinking water allegedly tainted by gas leaking from the tanks of a gas station run by D, who leases the land on which the gas station sits. D is an out-of-state corporation. Is there In Personam Jurisdiction here?
J OK b/c either realty interest in KS or tortious injury in KS
When can a case be removed?
No later than 30 days after service of the first removable document – usually initial service of process.

All D’s must agree to removal.

Plaintiffs can’t remove, even if they are countersued.
P (PA) sues D1 (NV) and D2 (MA) in MA state court for $500k. Can the D’s remove?
No – there is a special rule for diversity cases only. No removal if any D is a citizen of the forum.
So, the Long Arm Statute reaches to the constitutional limit. What is the constitutional limit?
Minimum contacts + fair play and substantial justice
How does one remove?
1. D files notice of removal in federal court, stating grounds of removal; signed under Rule 11; attach all documents served on D in state action.
What Factors do we look at to determine the tougher cases for personal jurisdiction?
Minimum Contacts – Purposeful availment, forseeability

Fair play and substantial justice – relatedness, convenience, state’s interest

My Parents Frequently Forgot to Read Children’s Stories.

(Minimum, Purposeful, Forseeability, Fair, Reasonable, Convenience, State’s)
My Parents Frequently Forgot to Read Children’s Stories.
What happens if removal was procedurally improper?
P must move to remand to state court; must do so w/in 30 days of removal. If no fed SMJ, P can move to remand anytime. (No time limit on raising lack of F SMJ.)
What are the requirements for contact with MA?
Contact. There must be some tie between D and the forum.

-- The contact must result from purposeful availment: D’s voluntary act.
-- Also need foreseeability: that D could get sued in this forum.
How might a defendant waive the right to remove?
A D who files a permissive counterclaim probably waives the right to remove, but not if he files a compulsory counterclaim.
Fair play and substantial justice requires relatedness to the forum, what does this mean?
Does the claim asserted by P arise from D’s contact with the forum?

Can make up for small contact - Big relatedness okay

Everything Long Arm = related, since same T/O

Not required if lots of ties - general jurisdiction
How might a defendant waive the right to remove?
A D who files a permissive counterclaim probably waives the right to remove, but not if he files a compulsory counterclaim.
Fair play and substantial justice requires convenience, what does that mean?
Convenience for defendant, witnesses, and other parties. Forum OK unless so gravely inconvenient that it puts D at a severe disadvantage in litigation. Very, very tough to show.
What is the Erie doctrine?
In diversity cases, federal court must apply state substantive law.
Fair play and substantial justice looks at State’s Interest, what’s that?
State’s interest, e.g., to provide a forum for its citizens.
What are the easy substantive examples for Erie?
1. Elements of a claim or defense
2. Statute of limitations
3. Rules for tolling the statutes of limitations
4. Choice of law

Mnemonic: CELT (Choice, element, Limitations, Tolling)
CELT
Alright, one more time, could you summarize the constitutional test?
SUMMARY OF CONSTITUTIONAL TEST:
My Parents Frequently Forgot to Read Children=s Stories.
Minimum contacts
--purposeful availment --foreseeability

Fair play and substantial justice
-- relatedness – convenience – state’s interest
What if it’s not one of the clear Erie problems?
1. If Fed law - trumps
2. No federal law on point, tests:

A. Outcome determinative – apply state law

B. Balance of interest – weigh fed/state interest

C. Avoid forum shopping

TOBS - (fed law TRUMPS, if no fed law, tests: OUTCOME determinative, BALANCE interest, avoid forum SHOPPING)
TOBS
What is In Rem and Quasi-in-Rem Jurisdiction?
These are disputes in which the jurisdictional base is not the person, but her property. The statutory basis is an attachment statute. The tough issue, usually, is the constitutional test. On that, Shaffer v. Heitner says all exercises of jurisdiction, even in rem and quasi-in-rem, must satisfy International Shoe. Despite this statement, constitutionality probably depends on whether dispute is related to the property attached. If so (e.g., P attaches D's real property in a suit against D regarding ownership of that very land), constitution is probably met by presence and attachment of the property in the forum. If the claim is unrelated to the property attached (e.g,"", P attaches D's land in a suit against D for breach of a contract totally unrelated to the land), D's contacts with the forum clearly must satisfy International Shoe for jurisdiction to be constitutional.
How does venue work?
In federal court – plaintiff may have venue in any district where:
- all defendants reside
- a substantial part of the claim arose.
If no District anywhere in the US that meets either then venue ok:
- in a FQ case – in any district where any D “is found”
- in a Div case – any dist where any D is subject to personal J
What is Forum Non Conveniens?
Much better forum elsewhere

Transfer impossible (another state court, foreign country)
Wayne Newton (D. Nev) sues D1 (M.D. Ga) and D2 (S.D. GA). One venue choice would be any district where any district where a substantial part of the claim arose. What about where D’s reside?
Special rule where all D’s reside in different districts of the same state, P can lay venue in the district in which any of them resides.
What does the court look at to determine whether to dismiss with Forum Non Conveniens?
(1) public factors - what law applies

(2) private factors - Convenience, where W are, etc.

Court can condition dismissal on D waiving SOL in other court.
Where do D’s reside for purposes of venue?
1. Humans – domicile
2. Corps – ALL districts where subject to personal jurisdiction when case is filed
(Don’t confuse citizenship for jurisdiction w/ citizenship for venue – FMC a DE corp is a citizen for J in DE and MI (principal place of business) but a citizen for venue of all 50 states, since does business in all those jurisdictions)
What is the basic idea of Subject matter jurisdiction?
A. Basic Idea. Here, we’ve decided we have personal jurisdiction over D in Massachusetts, and that we will sue in state (not federal) court. Remember that any cognizable claim can be filed in some state court, except those rare exclusive federal question cases, which must go to federal court. (Most FQ cases, though, are not exclusive to federal court.)
Where can one transfer venue?
You can only transfer to a district where case could have been filed. (Meaning 1. proper venue AND 2. personal J over D. – AND must be true w/o waiver of D)
What are the courts in MA called generally?

What are the subdivisions called?
Trial Courts

Departments
How does court determine if they should transfer venue
1. If venue in original J proper - weigh public/private factors

2. If venue not proper – court may transfer in the interests of justice or dismiss
What does the Superior Court Department do?
1. The Superior Court Department. This is the principal trial court for civil cases. Each county in the Commonwealth has one. It can hear most civil cases.

Can hear wide variety of cases at law and equity, including tort and contract, specific performance, injunctions, declaratory judgment, judicial review of adjudicatory proceedings before administrative agencies.
What are the basic rules of service of process?
P must give notice to D. Must deliver to D (1) a summons (formal court notice of suit and time for response) and (2) a copy of the complaint. Must serve w/in 120 days of filing case or case dismissed without prejudice (unless P shows good cause for delay in serving).
Over which type of case is the Superior Court Department’s jurisdiction exclusive? Are jury trials available? How many jurors?
Review of administrative proceedings - except

1) Unemployment compensation - DC

2) Utility ratemaking - SJC

Jury trial available in actions at law. 12 Jurors
What are the mechanics of service?
Process must be served to a person at least 18 years old
1. Personal service – given to D personally, anywhere in forum state

2. Substituted service – okay if 1) D’s usual abode, 2) serves someone of servable age + discretion who resides there

3. Service on agent – okay if receiving service is w/in scope of agency.

4. State law – can use rules of service of forum state

5. Waiver by mail – P mailed to D by first class mail – OK if D returns waiver w/in 30 days – D waives only service, nothing else. If not returns, D must pay for cost of service.

Mnemonic: WASPS (Waiver, Agent, Substituted, Personal, State)
WASPS
What are the District & Municipal courts?
District Court Department (and Municipal Courts). There may be more than one district court in each county. (Boston Municipal Court is a district court.)
What are the geographic limitations of venue?
Venue only good in state if state law allows (long arm) unless:

Bulge Rule

Statutory interpleader
What do the District Courts have concurrent jurisdiction over? Can they hear replevin cases (i.e., for recovery of personal property)? Can they award equitable relief? Are jury trials available? How many jurors?
- Concurrent jurisdiction with superior court over actions at law where money damages are sought, only when there is no reasonable likelihood P will recover more than $25k.
- Yes, they can hear replevin cases.
- They have the same basic equity power as the Superior Court.
- They can hear jury trials only if statute allows – 6 jurors.
- Concurrent jurisdiction with superior court over consumer claims under the General Laws of the Commonwealth for damages arising from unfair and deceptive trade practices. (Only superior court can issue an injunction, though, or entertain a class action in such cases.)
When is someone immune from service of process?
When a D is instate to be a witness or party in another civil case.
Where do we start an action at law?
It can be started in either district or superior court.
What happens with the subsequent papers, after the service of process?
For subsequent papers, they are served by delivering or mailing the document to the party’s attorney (or pro se party). If mailed, add 3 days for any required response.
P sues D in Superior Court in superior court. If it appears that P will not be able to recover more than $25k (not including interest and costs), what should the superior court do?
It should dismiss and the P will refile in district court.
What does rule 11 require for filings?
The attorney must sign all pleadings, written motions and papers, certifying that to the best of their knowledge and belief, after reasonable inquiry:
1. the paper is not for an improper purpose
2. the legal contentions are warranted by law (or nonfrivolous argument for law change)
3. that factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigations)
P sues D in Superior Court in superior court. If it appears that P will not be able to recover more than $25k (not including interest and costs), must the superior court dismiss?
No. It doesn’t have to – this amount in controversy is procedural, not jurisdictional.
When is certification under rule 11 effective? Are sanctions available?
It’s effective every time position is “presented” to the court – so it’s a continuing certification.

Sanctions may be levied, but only to deter, not punish.
P sues D in district court. If it appears that P will be able to recover more than $25k (not including costs and interest), what should the district court do? Must it do this?
Dismiss and then P can refile in Superior Court. It doesn’t have to, however, since this amount in controversy is procedural, not jurisdictional.
What do you do when the other side has violated Rule 11?
Motion for violation of Rule 11 is served on the other parties but is not immediately filed with court. The party allegedly violating Rule 11 has 21 days “safe harbor” to withdraw the document or fix the problem. If does – no sanctions, if not – motion can be filed.
What can a single justice of the SJC do?
Trial-type jurisdiction over equitable claims - except labor dispute injunctions

Technically not a division of the trial court.
Can the court raise Rule 11 problems on its own?
Yes – can raise sua sponte.
What is the Probate and Family Court?
Probate and Family Court Department. Exclusive jurisdiction over probate, divorce, etc., and health care proxy issues. Concurrent with superior and single justice for equitable relief.
What is a complaint? How is it filed?
Complaint is the principal pleading by plaintiff. Filing commences an action. Requirements:
1. Statement of subject matter jurisdiction
2. Short and plain statement of the claim, showing entitled to relief.
3. Demand for judgment

(Court more lenient w/ pro se litigants – these requirements must be met)
What is the Land Court? Can it order specific performance of a land contract?
Land Court Department. Limited to actions relating to title to land. Exclusive re registering title, foreclosing tax titles, discharging mortgages, and determining municipal boundaries. Concurrent, generally, with superior and single justice re equitable relief concerning land.

-- It can order specific performance of a land contract.
What matters have to be pleaded with specificity?
Fraud, Mistake, Special Damages

Special Damages do not normally flow from an event (permanent erection)
What is the Housing Court?
Housing Court Department. There are five of these. Jurisdiction over actions involving health, safety, welfare of occupants or owners of realty.
How might a defendant respond to a complaint?
One of two ways under Rule 12:

1. By motion

2. By answer

W/in 20 days after service of process – or risk default
What is the Juvenile Court?
Juvenile Court Department. Exclusive jurisdiction over delinquency.
What are motions and how are they filed? What motions are generally filed for issues of form?
Motions are not pleadings, they are requests for a court order.
Two main types
1) Form:

1. 12(e) motion for more definite statement – pleading so vague D can’t frame response (rare)
2. 12(f) motion to strike, aimed at immaterial things, e.g. demand for jury when no right exists.
What is Small Claims?
Special session of district court.

Hears civil cases (except libel and slander) in which amount in controversy does not exceed $2,000, exclusive of interests and costs.

May award double or triple damages where allowed by statute, even if judgment then exceeds $2,000.

- No amount in controversy limitation for motor vehicle property damage claims; judgment has NO collateral estoppel or res judicata effect in later personal injury claims arising from the same accident.

- Informal procedures. No jury and no appeal and no discovery.
What motions are generally filed for defenses under 12(b)?
12(b) defenses:

1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insuff. of process (prob w/ papers)
5. Insuff. of service
6. Failure to state claim
7. Failure to join indispensable party

Some PVPS i Can't Play (Subject-matter, Personal, Venue, Process, Service, Claim, Party)
Some PVPS i Can't Play
What’s the basic idea of venue?

Can I contract a specific venue?
Basic Idea.

We're in MA, so where in MA?

Absent some reason venue clauses okay.
What defenses are waivable? What does it mean to be waivable?
2, 3, 4, 5

2. Lack of PJ
3. Improper Venue
4. Insuff. of process (prob w/ papers)
5. Insuff. of service

The waivable defenses must be in the first rule 12 response or they’re wiaved.

PVPS - Personal J, Venue, Process, Service
PVPS
What are the geographic units for venue?
Superior = counties

DC = District (subdivision of county)
What is the answer? When is it due?
It’s a pleading. It must be served w/in 20 days after service of process if D makes no motions; if D does make a Rule 12 motion and it is denied, she must serve her answer w/in 10 days after court rules on motion. If D waives service, has 60 days from P’s mailing of waiver form in which to answer. (Waiver of service does not waive personal J or venue)
What are the types of actions for purposes of venue?
1. Local Action
2. Transitory Action
3. Special cases
Answer - How does one respond to the allegations of a complaint?
1) Admit
2) Deny
3) State lack info to admit or deny

#3 acts as a denial, but can’t be used if info is public knowledge or is in D’s control
What are local actions? What are the rules for local actions?
Land cases - venue where land is

These include cases for title or possession of land and petitions in probate court for partition of land.

Venue in such a case is laid where the land is located.
Answer - What happens if you fail to deny an allegation?
Constitutes an admission on any matter except damages. In his complaint, P alleges X. In his answer, D says, “P cannot prove X.” D has failed to deny X and thus has admitted that X is true.

You must say “Deny” – if you argue you haven’t denied therefore you’ve admitted!
What are transitory actions?
- Transitory Actions. These consist of all other cases
P sues D for breach. D answers, denying material allegations. At trial, D introduces evidence that the K was procured by P’s fraud and is therefore unenforceable. P objects, what result?
The evidence is inadmissible because it relates to an affirmative defense that D failed to plead. You must plead affirmative defenses – if you fail to plead an affirmative defense you waive that defense.
How do we characterize a case for rent, use and occupation, or breach of covenant arising out of the use of realty?
Despite having to do with land, these are transitory actions.
Andy and Barney, each driving his own car, collide and each is injured. Andy sues Barney to recover for his injuries. Barney files and serves his answer and defends that case, which is litigated to judgment. Now Barney sues Andy to recover for his injuries from the same wreck. Barney’s case is dismissed. Why?
B’s claim was a compulsory counterclaim and must have been filed in the first case.

A Compulsory Counterclaim arises from the same T/O as P’s claim.

Counterclaim is an offensive claim against an opposing party. Filed with defendant’s answer.
What are the venue choices in transitory actions?
They may be brought where either party resides OR has a usual place of business.
What is a permissive counterclaim?
It’s a claim that does not arise from the same T/O as plaintiff’s claim. It does not have to be asserted in pending case; can sue in separate action.

If a counterclaim is procedurally OK, then assess whether it has subject matter jurisdiction (diversity or FQ). If so, it’s OK in federal court.
What special venue rules apply to district court?
In district court only, venue is also OK in the judicial district that adjoins a judicial district where either party resides or has a usual place of business.
What is a cross-claim?
An offensive claim against a co-party. It must arise from the same T/O as the underlying action. Not compulsory
Does “usual place of business” include where an employee works?
No – the standard is usual place of business, not usual place of employment.
Andy (NC) sues Barney (SC) and Aunt Bee (SC) for personal injuries of $500k arising from a car crash (B was driving AB’s car). No federal law is involved. So it’s a diversity case. AB doesn’t know who’s at fault, but knows her car ($85k) is shot. She wants to recover the property damage. What does she do?
1. File a compulsory counterclaim against A. It’s an opposing party and arises from the same T/O as P’s claim, so compulsory. Obviously, there’s no FQ J, but is there diversity? Yes – counter claim invokes diversity b/c AB is from a state diverse to A and it is for an amount > $75k.
2. AB may cross-claim against B. It’s against a co-party and arises from the same T/O as the underlying case, so it’s a cross-claim. What about subject matter jurisdiction? No FQ. What about diversity? Does not invoke diversity b/c not from diverse states.
(Barney (SC)
A (NC) ----( )
(Aunt Bee (SC)
So, is there SJ over cross? Yes, b/c it (1) meets the test – same T/O and 2) not a claim by a plaintiff, so limitigation on claims by plaintiffs in div cases does not apply.
What special rules apply to venue when we’re talking about a corporation?
Usual place of business

OR

Where it holds or last held annual meeting
Can a party amend a case?
Yes, a plaintiff has a right to amend once before D serves her answer.

A defendant has a right to amend once w/in 20 days of serving his answer.
Where do we do venue in replevin cases?
Where the property is.

Considered a transitory action though.
What if there’s no right to amend left?
The parties may seek the leave of the court, it will be granted if “justice so requires.” Courts usually allow unless delay or prejudice. If a claimaint amends, D must respond w/in 10 days or remaining 20 days, whichever longer.
What are the rules for venue fo trustee process actions?
Brought where trustee resides or has business

If approval of trustee process is sought in connection with a transitory action in a district court venue where ANY party or the trustee resides or has a usual place of business.
What is a variance? What happens when there is a variance?
It’s where the evidence presented at trial does not match what was pleaded. If the evidence is not objected to, the variant party may amend the complaint to conform to the evidence presented.
What about a case in which neither P nor D lives in the Commonwealth?
Venue can be anywhere in MA.
E sues for breach of K. Wilbur answers. At trial, E introduces evidence that Wilbur assaulted him. Wilber doesn’t object. Okay?

What if Wilbur does object?
If Wilbur doesn’t object, the evidence is okay. It’s admitted b/c Wilber doesn’t object. After trial, Mr. Ed can move to amend the complaint to conform to the evidence to show the assault claim. We want the pleadings to reflect what was tried.

If Wilbur does object, evidence of assault inadmissible b/c it is at “variance with the pleadings.”
What if venue is improper?
Transfer or dismiss

Can also transfer to assure impartial jury
Mr. Ed files his complaint and has process served on July 1. The statute of limitations runs on July 15. In August, Mr. Ed seeks leave to amend to add a new claim. Is the new claim time-barred because the statute ran on July 15?
No – amended pleadings “related back” if they concern the same conduct, transaction or occurrence as the original pleading.

Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid SOL problem.

Treat it as though filed on 7/1 before statute ran on 7/15.
What’s the basic idea of service of process?

What is notice?

What does process consist of?
Remember that in addition to personal jurisdiction, due process requires that D be given notice of the case and an opportunity to be heard before judgment can be entered.

Notice in this sense is service of process.

Process consists of:

(1) a summons (court order bearing the clerk’s signature (or a copy), identifying the court and parties and P’s lawyer and her address, directing D to appear and defend within the time set by rule, notifying D that failure to do so may result in default judgment) and

(2) a copy of the complaint.

Massachusetts has adopted the Federal Rules, with some slight differences.
What is a necessary party?
An absentee (A) who meets any of these tests:

1. Without A, court cannot accord complete relief (worried about multiple suits)
2. A’s interest may be harmed if he isn’t joined (practical harm)
3. A claims an interest which subjects a party (usu D) to mult obligations

JT aren’t necessary.

Mnemonic: HIM (Harmed, Inadequte, Multiple)
HIM
Who can serve process?
Who Can Serve Process? An officer (e.g., sheriff or constable) or a civilian specially appointed by the court.

(Federal court any nonparty at least 18 years old can serve process.)

The server files with clerk a "return of service" reporting when, where, and how service was effected.
BB holds 1000 shares of stock in Priceline.com. Will Shatner claims he and Bob agreed to buy stock jointly and that he paid for half the stock. Will sues PL.com, seeking to have B’s shared canceled and stock reissued in their joint names. Is BB a necessary party?
Yes. He probably meets all three tests, but at the minimum, (2) his interest will be harmed if he isn’t joined. In fact, they will be canceled.
When must process be served?
C. Timing. Serve process within 90 days of filing complaint, or else court can dismiss without prejudice (won’t dismiss, though, if P shows good cause why service not effected). (Federal court same rule but 120 days.)
What do we do next if we’ve found a party that is necessary?
We now see if joinder is feasible. It’s feasible if:

1. There is PJ over him
2. Joining him would not make diversity impossible

If Joinder is possible, A brought into case, and court decides whether he is D or P.
What are the mechanics of instate service? What about substituted service at D’s last and usual place of abode? What if none of the standard instate services are possible?
As in federal court,

(1) personal service and

(2) service on appropriate agent are OK.

- Substituted service is okay, and need not be left w/ anyone, it can simply be left there. (But, a summer home in winter ≠ a usual abode)

- (If used in district court, must also mail copy of process to defendant.)

- If none of these is possible, despite diligent search, P may ask the court to order notice by alternative means.
What if we can’t join the necessary party?
If joinder is not feasible, the court has two options.

1. Proceed w/o him
2. Dismiss case

Factors:

a) is there an alternative forum available? (esp. state court)

b) what is the actual likelihood of prejudice?

c) can the court shape relief to avoid that prejudice?

PD - ALR (Proceed, Dismiss, Alternative, Likelihood, Relief)

If the court decides to dismiss (rather than proceed w/o Bob), then Bob is “indispensable.”
PD - ALR
How do I serve process on a corporation?
Any corporate officer, agent, or person in charge of PPB.

If none found in MA - court can allow service on MA Sec State (who forwards registered mail - receipt)

You can’t serve process to a secretary.
How do I remember these different third party thingies?
Joinder rules that start with C (counterclaim, cross claim) are claims involving present parties. Claims that start with “I” involve joining someone new to the case.
What are the mechanics of out-of-state service?
The Mechanics -- Out-of-State Service. Under the long-arm statute, service is permitted out of state in any of these ways:
-- By a method permitted in Massachusetts;
-- By a method permitted in the state where service is effected;
-- By mail, return receipt requested, to D out of state;
-- On a nonresident motorist, by delivery to the registrar of motor vehicles and by registered or certified mail, Return Receipt Requested to the defendant.
-- A method ordered by the court.
What is impleader?
A defending party wants to bring in someone new for one reason: the third party defendant (TPD) may owe indemnity or contribution to the defending party on the underlying claim.
Using the long-arm, who may serve process?
Anyone proper under the law of MA or the law of the state where service is made.
When can one implead?
W/in 10 days after serving answer; after that, need court permission.
Can you waive service process by mail?
No Waiver by Mail. Massachusetts does not have the FRCP provision allowing D to waive formal service by returning a waiver form by first class mail.
Pam sues Doris to recover for personal injuries from car wreck. Doris has a right to indemnity from Insco (or a right of contribution from a joint tortfeasors) what are the steps of impleading?
1. File third-party complaint naming Insco as TPD; and
2. Serve process on the TPD (So must have personal jurisdiction over TPD)
What happens with the documents after the first service of process?
Filed w/ clerk and mailed to party's attorney (counts as service)
After the TPD is joined, can plaintiff assert a claim against TPD? Can TPD assert a claim against plaintiff?
Yes – if the claims arise from the same T/O as underlying case.
What’s the basic idea with pleadings?
Notice Pleading - same as FRCP w/ a few differences.
Impleader – assuming there is no FQ and all claims > $75k, P is a citizen of PA, D is citizen of NV, TPD is citizen of PA. Analyze.

TPD
^
|

Plaintiff------>Defendant
1. Is there SMJ over D’s claim against TPD? Yes – it meets diversity (NV v. PA and > $75k) P is irrelevant to D v. TPD
2. Is there SMJ over TPD’s claim against P? No diversity and no FQ, but supp. J is OK b/c meets test (T/O) and special limitation on P’s adding D’s to defeat div doesn’t apply to claims by non-Ps
3. Is there SMJ over P’s claim against TPD? No diversity and no FQ and NO Supplemental! Meets test, but violates limitation (A P cannot use Supp J to avoid lack of diversity in div case – this can only go to state court)
What version of Rule 11 does MA follow, and what does that mean?
Massachusetts follows the older version of Rule 11, which is different from the current federal version.

L signs saying:

(1) she has read it;

(2) as far as she knows there's support for it;

(3) not interposed for delay.

RSD - (Read, Support, Delay)

-- A lawyer may be sanctioned for willful violation of the certification.
RSD
What’s the bulge rule?
Absentees joined as necessary parties or for impleader may be served outside the forum state (even without a state long-arm statute), but only w/in 100 miles of the federal courthouse. Not available to serve process on original D’s.
What happens if there’s a frivolous complaint?
If Superior court - can order losing party to pay costs/fees

Only if wholly insubstantial, frivolous, and not advanced in good faith.
What is intervention?
An absentee wants to join a pending suit. She chooses to come in either as P or as D. Court may realign her if it thinks she came in on “wrong” side. Application to intervene must be timely.
What do you need to allege in the complaint?
Complaint. Unlike federal practice, need not allege subject matter jurisdiction. So all that’s required in an affirmative pleading are (1) short and plain statement of the claim, showing pleader entitled to relief; and (2) a demand for judgment.
What is intervention of right? What is permissive intervention?
Intervention of right - A’s interest may be harmed if she is not joined and her intervention is not adequately represented now?

Permissive intervention - A’s claim or defense and the pending case have at least one common question. Discretionary w/ court. OK unless delay or prejudicte
Even though the rule requires a demand for judgment, does P have to set forth the amount P desires in damages? Are there cases that require more detailed pleading?
Only if it’s liquidated or unascertainable by calculation.

(In district court, statement of the amount of damages is required on a form prescribed by the court.)

-- Same as federal court regarding more detailed pleading of fraud, mistake and special damages. Also require more detail for allegations of duress and undue influence.
What happens if we have a diversity case and the plaintiff intervener is not diverse from the defendant (or the defendant-intervener is not diverse from the plaintiff). Is there supplemental jurisdiction over a claim by or against an intervenor?
Generally no – the court won’t allow in a non-diverse intervenor.
What happens if the litigant is indigent?
In Forma Pauperis.

Court determines indigent = waive fee.

State pays fees

P pays back out of judgment if greater than 3X fees/costs
What is interpleader?
One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.
What is the timing of the defendant’s response?
20 days

If motion and denied - 10 days to answer after denial

Same as Federal court
Who are the different players in interpleader?
The person with property is called the stakeholder.

The folks with the claims are called claimants.
What waivable defenses are different in MA?
“pendency of a prior action in a court of the Commonwealth.”

Must be asserted in the first Rule 12 response or else it is waived.
What are the two types of interpleader in federal court? What are the rules of interpleader?
Rule (FRCP 22) and statutory.

Rule interpleader is a diversity case. 1) Stakeholder must be diverse from all claimants. 2) Amt. > $75k, 3) Service of process like a normal suit, 4) Venue – like a regular case

Statutory interpleader – 1) one claimant must be diverse from one other claimant 2) Amt. > $500, 3) Service – nationwide (no PJ probs over claimants in US) 4) Venue – any dist where any claimant resides.
D files a permissive counterclaim against P in her answer, and asserts the defense of lack of personal jurisdiction. Has D waived the defense?
YES -- filing a permissive counterclaim is a general appearance, which waives the defense. (A compulsory counterclaim would not, as long as D asserted the personal jurisdiction defense in her first Rule 12 response.)
Insco (inc. in DE, ppb NY) holds a fund of $100k under a life insurance policy. After the insured dies, potential claimants to the fund are Bonzo (NJ), Gonzo (MN) and Nonzo (NY). Insco wants to avoid being sued on the policy in three different actions. What can it do? How?
It will interplead

There’s no rule interpleader because it’s not diverse from all claimants.

There is statutory interpleader b/c one claimant is diverse from at least one other claimant. All other requirements met
What is a special motion to dismiss?
Motion to dismiss a SLAPP suit.

One who gets sued for written or oral statements to a legislative, executive, or judicial body can move to dismiss.

(The motion is permitted to counter "SLAPP" suits -- strategic lawsuits against public participation.) The court must grant this motion to dismiss unless the nonmoving party can show:

(1) the exercise of the moving party's right was devoid of any reasonable factual support or arguable basis in law, AND

(2) the moving party’s acts causes actual injury to the nonmoving party.
What are the initial requirements for class action?
Numerosity – too many class members for practical joinder
Commonality – there are some questions of law and fact common to class
Typicality – representative’s claims/defenses typical of those in the class
Adequate representation – the class representative will fairly and adequately represent class.
What are the special pleading rules?
In a few instances, defendant must deny allegations with specificity.

For example, genuineness of a signature is admitted unless D denies genuineness specifically.

Allegation that a street is a public way is admitted unless specifically denied.
Besides Numerosity, Common Question, Typicality, and Adequate Representation, what else must is required for class action?
Case must fit w/in one of three areas:
1. Prejudice – class treatment necessary to avoid harm to class members or party opposing class – Example: many claimants to fund
2. Injunction or declaratory judgment – sought because class was treated alike by other party – employment discrimination
3. Damages – 1) Common questions predominate over individual questions AND 2) class action is the superior method to handle dispute. EX: Bus crash
What is a motion for enlargement?
More time

If made before deadline - show cause

If made after deadline - show excusable neglect
What is certification?
At an early practicable time, the court must determine whether to certify case to class action. If court certifies class, must “define the class and class claims, issues or defenses,” and appoint a class counsel who must fairly and adequately represent the interests of the class.
What purpose does the answer serve?
The answer serves the same functions as in federal court.
Does the court notify the class of pendency of the class action? Who pays for notification? Is notification required in all types of class action?
In the Type 3 class the court must notify the class members, including individual notice to all reasonably identifiable members. Notice tells them 1) they can opt out, 2) they’ll be bound if they don’t and 3) they can enter a separate appearance through counsel.

The class representative pays for notification.

It is not required for types 1 & 2
How are counterclaims, cross-claims and amended pleadings handled?
Counterclaims. Same as in federal practice.

Cross-Claims. Same as in federal practice.

Amending Pleadings. Same as in federal practice.
Who is bound by the judgment in a class action?
All members of the class except those who opt out of a type 3 class.
P files a timely suit against D, but then discovers that D was dead when the case was filed. Now P amends to name D’s executor as defendant. If the statute of limitations has run in the meantime, does P’s amended complaint relate back (and thus avoid the bar of the statute of limitations)?

Exceptions?
NO! Why? Nullity doctrine. A suit against a dead person is a nullity, it does not exist.

-- The nullity doctrine will not apply, however, if the representative had been appointed when the complaint was filed, had notice of the suit, and shows no prejudice.

-- The nullity doctrine also does not apply if D dies after the case is commenced. In those cases, you may substitute executor if the case survives.
What happens when there’s a settlemtn or dismissal of class claims in a certified class action?
The court must approve all settlements or dismissals. Also, in all three types, the court gives notice to class members to get their feedback on whether the case should be settled or dismissed. If it’s a type 3 class, the court MUST give members a second chance to opt out.
How are proper parties and necessary and indispensable parties determined in MA?
Proper Parties -- who may be joined. Same as in federal practice.

Necessary and indispensable parties -- who must be joined. Same as in federal practice.
What about a class action brought under diversity of citizenship?
You look only at the representative’s citizenship and amount. If his claim meets diversity, then okay.
How is impleader handled differently in MA?
Same as in federal practice, except

process served on TPD includes copies of all original pleadings from underlying action.

Also timing different:

MA, one has a right to implead within 20 days of serving her answer versus 10 for Feds; after that, need court permission. Serve such a motion at least 7 days before the hearing on the motion.
What is the Class Action Fairness Act of 2005?
This act contains a grant of SMJ separate from regular diversity of citizenship J. It allows Fed Courts to hear class action if any class member is of diverse citizenship from any defendant and if aggregated claims of the class exceed $5M.
Can D implead someone who is not liable to D but is directly liable to the plaintiff?

-- Can the plaintiff ever implead a TPD?

-- Does Massachusetts allow impleader of a joint tortfeasor for contribution?
NO -- remember, the claim must be for indemnity or contribution to D for the underlying claim.

A P can implead a TPD, but only if a claim has been asserted against her (so, only if there’s a counterclaim)

MA allows impleader of a joint tortfeasors, since they are not necessary parties, the only way to get them in is impleader.
Summarize the Class action thought process.
1. Initial requirements (N, C, T, A)
2. Type
3. Certification
4. Notification
5. Who’s bound
6. Settlement & approval
7. Subject matter J
8. Class Action fairness Act of 2005
How is intervention handled in MA?
Intervention. Same as in federal practice, with intervention of right and permissive intervention.
What are the required disclosures in Fed court?

(Unlike to be tested)
1. Initial disclosures – w/in 14 days of r26 conf. must ID parties/docs “likely to have discoverable info”
2. Experts – must Id experts who may be used
3. Pretrial – no later than 30 days before trial, give detailed info about trial evidence, including docs and ID of wits to testify live or by depo.
-- Can someone intervene after entry of judgment?

-- If a case draws the constitutionality of a state statute or municipal ordinance into question, the party asserting unconstitutionality must do what?
Yes, but the court must assess (1) whether she could have intervened earlier; (2) possible prejudice to existing parties; and (3) need for intervention.

If the case raises the constitutionality of state statute or municipal ordinance, you must notify the MA Attorney General who might intervene.
What are the basic discovery tools?
1. Depositions
2. Interrogatories
3. Requests to produce
4. Physical or mental examination
5. Request for admission
PAID-E (Produce, Admission, Interrogatories, Depositions, Examination)
How is interpleader handled in MA? What is it again?
Same as federal practice under “rule interpleader.”

No analog to “statutory interpleader.”

Interpleader is where you force all claimants into one case
What are the rules for depositions
Parties (w/ notice) or nonparties (w/ a subpoena)

Duces Tecum – w/ documents.

- No more than 10 depos, can’t depose same person twice & no more than 1 day of 7 hours w/o court approval or party stipulation
-- After depositing the property, what happens if the stakeholder is disinterested (i.e., has no claim to the property)?
Court may discharge stakeholder from the case. Insurance companies are often disinterested.
How can I use a deposition at trial?
1) Impeach the deponent
2) any purpose if deponent is adverse party
3) any purpose if deponent is absent, unless absence was procured by party to use deposition
If the dispute is not over distribution of policy proceeds to claimants, but concerns whether the policy requires the insurance company to pay for losses or to provide the insured with a defense, what is the appropriate action?
Sue for declaratory judgment.
Rules for interrogatories?
25 in 30 days

Cannot serve more than 25 interrogatories. Must respond w/in 30 days. Can say you don’t know answer, but only after reasonable investigation; if answer could be found in business records but burdensome to find, can allow propounder access to those records. At trial, cannot use own answers, others may be used per regular rules of evidence.

Cannot be used on nonparties.
How is the class action handled in MA?
The Class Action. There are several differences from federal practice. There is only one type of class action in Massachusetts practice. It is the one we listed third in discussing the class action in federal practice -- where common questions predominate and the class action is the superior method for resolving the dispute.
What is a request to produce? Rules for request to produce?
Request to party or nonparty (w/ sub.) to make available (thing, land, etc.) for inspection

Respond in 30 days - will produce or objection
What initial requirements are there for a class action in MA?
Prerequisites. The initial four requirements are the same as in federal practice, to which we add the requirements of the “damages” type of class action. (Numerosity, Common Q, Typicality, Adequacy)
Rules for physical or mental examination?
1. Court order

2. Party's (or person in party's control)

3. health is in actual controversy

4. Good faith

CPAG (Court order, Party, Actual controversy, Good faith)

Person examined may obtain copy of report w/o making this showing, but by doing so waives Dr/Pat privilege re reports by his doctors re that condition.
CPAG
So how many prerequisites are there for a class action in Massachusetts state courts? What are they?
Six -- Must show (1) too numerous for practicable joinder; (2) questions of law or fact in common to the class; (3) claims/defenses of representative are typical of those of the class; (4) representative will fairly and adequately represent and protect the interests of the class; (5) the common questions predominate over individual questions; and (6) the class action is the superior method for resolving the dispute.
Rules for request for admission?
A request by one party to another party to admit the truth of any discoverable matters. Often used to authenticate documents; the propounding party will send copies of the documents to the authenticated with the request.

Must respond w/in 30 days of service. The response is to admit or deny; can indicate lack of information only if you’ve made reasonably inquiry. Failure to deny = admission. Can amend if failure is not in bad faith.
Will Massachusetts certify a class for a limited purpose?
No - one P can do a suit and get collateral estoppel - superior method.

Massachusetts, unlike federal courts, will not certify a class for limited purposes. The Federal courts will, so MA won’t allow an issue-only class (for example, liability)

In determining superiority, consider the test case, in which one P sues and, if successful, the other Ps may be able to use collateral estoppel in their separate cases against the same D. Does the same thing as the issue-only class.
What discovery tools are usable against third parties?
1. Depositions.
2. Request to produce (w/ subpoena)
What sort of notice is required to class members?
Notice to class members is not required; discretionary with the court. This is true regarding notice of certification of the class and of proposed settlement or dismissal of the class action. Still, there may be some constitutional requirement of notice before binding class members to a judgment.
What are lawyers required to do with discovery answers? What is the lawyer’s duty after disclosures, etc. are made?
Substantive answers are signed by parties under oath. Every discovery request and response is signed by counsel certifying (1) warranted, (2) not interposed for improper purpose and (3) not unduly burdensome.

There is a duty to supplement. If a party learns that its response to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, it must supplement its response.
Is there any right to opt-out of a class-action in MA?
No
What are the rules about scope of discovery?
1. Generally – anything relevant to a claim or defense – something relevant to the pleadings (narrower than in past – “to case” – Court can order broader discovery)
2. Privileged material not discoverable (see evidence)
3. Work product (material prepared in anticipation of litigation) generally protected
4. Expert witnesses – required to produce info about experts who may be used at trial w/o request from party – in add. Party may take depo of any expert whose opinions may be presented at trial
When does the court have to decide whether to certify a class action?
Sometime before trial begins - must assess 6 requirements.

Doesn't require "at an early practicable time" like Feds
Howell sues Skipper for losses sustained when a vessel sank. Skipper, fearing the suit, had hired Shore, an attorney, who interviewed Gilligan, a witness to the sinking. Shore (a) had Gilligan write a statement regarding the incident; (b) made a note that based on what Gilligan says, assumption of risk would be a viable defense; and (c) made a note that Gilligan is stupid and would make a lousy witness at trial.

What, if anything is discoverable?
All three items are work product, because each was generated in anticipation of litigation. So, start w/ assumption that NOT discoverable. But, item (a) is discoverable if Howell shows:
1. Substantial need
2. Not otherwise available
So, if Gilligan is marooned on an island and therefore not available for deposition, it might be discoverable.

(b) and (c) are absolutely protected b/c they are (1) mental impressions, (2) opinions, (3) conclusions and (4) legel theories.
First Question: does the action survive the death of either party?

--Contract Cases
--Tort Cases
-- Contract cases? Yes – K survives absolutely

-- Tort cases? Yes if they are for

(1) assault, battery, or "other damage to the person";

(2) consequential damages arising out of personal injury to the decedent (e.g., medical expenses); or

(3) damages to real or personal property or conversion of goods.
Does work product have to be generated by a lawyer?
No – it can be prepared by party or any representative of a party, not just the lawyer.
-- P sues for intentional infliction of emotional distress. P dies before judgment. Does the action survive? In other words, is this a case for “other damage to the person?”
Yes, it does not have to be physical damage.
How might a discovery problem present itself to the court?
1. Protective order – Receiving party seeks protective order FRCP 26 (c) b/c request overburdensome or involves trade secrets and need order limiting use to litigation
2. Partial violation – receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation and sanctions will be light.
3. Total violation – receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production. Total violation – heavy sanctions
If the action does not survive, how does the other side get dismissal?
File a suggestion of death to the court, which will then dismiss the action.
What are the sanctions against a party for violations of discovery rules?
The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement. <– this should be in essay answer
Partial violation – 1) Court order compelling party to answer unanswered questions, plus costs of bringing motion 2) IF party violates order compelling answer, RAMBO sanctions plus costs and contempt (no contempt for failing to submit to med exam)
Total violation – RAMBO plus costs – no need to get order compelling answers
If an action survives the death of the claimant, what happens?
You move to substitute decedent’s representative.
What are some other things that can get sanctions?
False Denial, Failure to make required disclosure

False denial of request to admit: only costs of proving issue

Failure to make required disclosure: Other side can treat as either partial or total violation. Party failing to make disclosure cannot use the info at trial, unless failure was justified or harmless.
D&D
What’s the deal with injunctions?
TRO or Preliminary Injunction

entered at beginning of trial

maintains status quo pending litigation
What are the RAMBO sanctions?
These sanctions are choices available to judge:

- Establishment order (establishes facts as true)

- Strike pleadings of the disobedient party (as to issues re discovery)

- Disallow evidence from the disobedient party (as to issues re discovery)

- Dismiss plaintiff’s case (if bad faith shown)

- Enter default judgment against defendant (if bad faith shown)

ESDDD (Establishment, Strike, Disallow, Dismiss P, Default D)
ESDDD
What are the first steps to getting an injunction?
--Applicant must post security; amount determined by the court unless the court decides otherwise for good cause shown. May request in motion or in complaint.

--Either way, must have verified document (under oath by party) that sets forth specific facts showing basis for relief by person with knowledge of the facts. TRO or preliminary injunction must be specific in terms and describe conduct to be restrained in reasonable detail.
What sanctions are available against a nonparty? Against an attorney?
Nonparty – contempt (for violating subpoena or court order)
Attorney – liable for all expenses (incl. atty fees) incurred by other side if she counseled one of these bad acts.
So, what do you need to do to get a temporary restraining order?
Temporary Restraining Order (TRO). May be granted without notice to the other party/attorney if specific facts are pled under oath showing that: immediate and irreparable harm will occur before the party can be heard.

-- A TRO may not last more than 10 days unless opponent consents.
-- Hearing on preliminary injunction must occur within 10 days.
-- Opponent, on 2 days= notice, may have a hearing to dissolve or modify TRO.
What is voluntary dismissal? How many times can a claim be voluntarily dismissed? What is the effect?
P files written notice of dismissal – P sues D, but (before D answers) dismissed the action by filing written notice of dismissal. This is okay, P may voluntarily dismiss w/o prejudice once before D serves her answer or a motion for summary judgment. Means P can refile.

But, if the 2nd case is dismissed by written notice, it is with prejudice, so claim cannot be re-asserted. This is true even if the 1st case was in state court
What’s the deal with a preliminary injunction? How’s it different than a TRO?
Same purpose as TRO

Notice & hearing

Remains in effect until final judgment

Can consolidate hearing w/ trial on merits
What is entry of default? What happens next?
1. An entry of default is merely ministerial, shown as an entry on the docket sheet. You need a default judgment to enforce and recover.
2. Entry of default is prerequisite to entry of default judgment. Default is entered by the clerk after P shows that D failed to respond w/in required time. D can respond anytime until default is entered on docket.
What’s the standard for getting a preliminary injunction?
Standard: must show (1) substantial likelihood he will succeed on merits; (2) substantial threat that claimant will suffer irreparable injury if relief is not granted; and (3) a balancing of the equities favors issuance of the injunction (weigh threatened injury to claimant, harm inflicted on D if the injunction is issued, and public interest).
When can a default judgment be entered by the clerk?
ONLY if four things are true:
1. D has made no response at all
2. P’s claim is for a sum certain (or calculable) + costs
3. P gives an affidavit that the sum is owed AND
4. D is not a minor or incompetent
Is a preliminary injunction appealable?
Yes

Grant or denial of preliminary injunction is appealable.
What happens if the clerk of the court can’t enter the default judgment?
P must go to the court to get default judgment. Judge can hold a hearing on damages or other issues if she feels it’s necessary. D gets notice of this hearing only if he made some appearance in the case.
What is a declaratory judgment?
B. Declaratory Judgment. This is a request that the supreme judicial court, superior court, land or probate court make a binding declaration of rights, duty, status and other legal relations. It is imperative that factual allegations show an actual controversy; the court may refuse to enter declaratory judgment if it would not actually terminate the controversy. Can secure declaratory judgments in disputes concerning deeds, wills, and written contracts. Can also seek it to test legality of administrative practices and procedures or construction or validity of statute or regulation (remember, though, must be an actual controversy).
How much can P recover in default judgment?
No more than what she asked for. (If tried, P can recover more)
-- Does the fact that another remedy is available preclude declaratory judgment?

-- May the court order a speedy hearing of declaratory judgment matters?
Another available remedy will not preclude declaratory judgment.

The court can order a speedy hearing of declaratory judgment matters, it can “advance the matter on the calendar.”
Can the D get relief from default or default judgment?
Yes – D can move to set aside the default or default judgment. Generally must show good cause for default + viable defense.
What is an attachment? Why would one want to do that?
A claimant may attach the defendant's property (real or personal) at commencement of the action or thereafter.

The reason: to ensure that the property will be available to satisfy the judgment if the claimant wins.
What’s a 12(b)(6)?

What's the standard the court uses?

What can the court look at?
Failure to state a claim. D moves to dismiss for failure to state a claim. It tests only the sufficiency of P’s allegations.

Standard: Court assumes all allegations are true and asks: If P proved all she has alleged, would she win a judgment?

Court cannot look at evidence, only face of the complaint.
How does one get an attachment?
1. Motion for approval of attachment

2. Affidavits

3. Filed w/ court

4. Serve on D w/ notice

5. Telling date/time for hearing on motion

6. State D not consenting to J by showing up
How does one get summary judgment?
Moving party must show (1) there’s no genuine dispute as to material issue of fact and (2) that she is entitled to judgment as a matter of law.

Court views evidence in light most favorable to nonmoving party.
When can the court approve attachment?
1. Reasonable likelihood P will recover > attached amount

2. D has not enough liability insurance to satisfy judgment

Real Ladies Insure (Reasonable likelihood, Insurance)
Real Ladies Insure
Can you move for partial summary judgment? What’s that?
Yes – it’s summary judgment on one of the claims. It weeds out those claims that don’t need trial.
What happens if the court approves an attachment?

Can P get an “ex parte” attachment?
Writ of attachment - sheriff serves w/in 30 days to attach property

Can get ex parte attachment in non-personam cases w:

Clear danger D will conceal, damage or remove property
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning.

In response, Larry files no affidavits, but relies on the allegations in his complaint. If Daryl moves for summary judgment, what result?
Motion for summary judgment granted. Larry gave no evidence, pleadings are not evidence. That means the only evidence before the court are the affidavits offered by Daryl. Based on that evidence, there is no dispute of fact and Daryl is entitled to judgment as a matter of law.

Look at evidence and ask is there a dispute on a material issue of fact?
What is trustee process?
D. Trustee Process. Claimant wants to attach D’s property, as in an attachment. The problem here is that the property is in the hands of a third party. The third party is called the trustee. Usually used to attach debts owed to D by the trustee (e.g., bank accounts).
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning.

Larry responds with an affidavit from Dick, who swears he heard about the fight and was told that Daryl started it. Motion for summary judgment?
Probably granted – Dick’s affidavit is inadmissible hearsay, so we’re in the same situation as before, no evidence for Larry, so no facts in issue.
Trustee process cannot be used in what kinds of cases?
1. Defamation
2. Malicious prosecution
3. Assault and Battery
4. Specific recovery of goods or chattels
Larry sues Daryl for damages, alleging that Daryl slugged him in the nose. Daryl answers and alleges the affirmative defense of self-defense. Then Daryl moves for summary judgment, attaching affidavits of a priest, a rabbi, and a nun, all of whom swear they saw the incident, and that Larry attacked Daryl first w/o provocation or warning.

Larry responds with deposition testimony from an alcoholic, drug addicted, convicted swindler who swears he saw the incident and that Daryl attacked Larry without provocation. Motion for summary judgment?
Denied – The evidence for Larry is admissible and creates a dispute on a material issue of fact. The court looks at evidence in the light most favorable to the non-moving party.
What must one do to get trustee process?
Approval, summons, Answer, Bond

--court prior approval, as in Attachment.

Court issues a “trustee summons” which claimant has served on the trustee (e.g., bank).

- Trustee files an answer in court describing the property being held for the benefit of the parties.

--Claimant must post a bond if damages claimed are over $1,000 unless the action is based upon a (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; or (6) order for alimony, maintenance or child support.
ASAB
What are the pretrial conferences?
Court may hold “pretrial conferences” as needed to expedite the case and foster settlement. Final pretrial conference determines issues to be tried and evidence to be proffered. Recorded in pretrial conference order that basically supersedes the pleadings; may be amended “to prevent manifest injustice” (tough standard).
B What funds are exempt from trustee process (unless claimant obtains a judgment against D)?
1. Wages, except to enforce alimony or child support
2. Payroll accounts
3. Government pensions
4. $500 in a bank account
5. AFDC – Aid for Families w/ dependant children

We Paid 500 Grand to the Church (Wages, Payroll, $500 in bank account, Government pension, Children - AFDC)
We Paid 500 Grand to the Church
What’s the importance of the final pretrial conference report?
Final pretrial conference order is important document – roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. So, no surprises at trial.
Tell me about reach and apply? Does one need a court order to commence reach and apply?
Attaching intangible/equity property

If in possession of D - like attachment

If in possession of 3d party - like trustee process

Get security in property by getting preliminary injunction enjoining transfer -

allege property in existence and cannot be attached in normal way.

You don’t need a court order to commence reach and apply.
When is there a right to jury trial in federal court?
7th amendment preserves right to jury in “civil actions at law” but not suits at equity.
What happens if a debtor conveys away his property in advance of bankruptcy?

How do we determine whether the conveyance comes under the statute?

Is the debtor’s intent relevant?
Fraudulent Conveyance. Under the Uniform Fraudulent Conveyance Act, a creditor may reach real or personal property transferred by a debtor in fraud of creditors.

Every conveyance made and obligation incurred by a person who is insolvent (or rendered insolvent by it) is deemed fraudulent as to creditors if it is made or incurred without fair consideration.

--Is intent relevant? No, not if it was incurred/transferred w/o fair consideration.
What if a case involves both law and equity? Is there a right to jury trial?
When there are both law and equity in a case, there is a jury for law issues, judge for equity issues.
What other relief can a creditor seek from the court?
--A creditor whose claim has matured may seek to have the conveyance set aside or the obligation annulled to the extent necessary to satisfy his claim, or could seek to attach or levy execution on the property conveyed.

--A creditor whose claim has not matured may seek a restraining order to stop D from disposing of the property or appointment of receiver to take control of the property.
What does one have to do to get a jury?
Demand jury in writing no later than 10 days after service of the last pleading raising jury triable issue.
What is the first step in a medical malpractice case?
screening tribunal determines whether “legitimate question of liability appropriate for judicial inquiry”

or “unfortunate medical result.”

- directed verdict standard - whether reasonable people could not disagree.
Tell me about voir dire?
Each side gets unlimited strikes for cause, and 3 peremptory strikes – must be used in race/gender neutral way. Jury selection is state action, even in civil action.
What happens when the tribunal makes their decision in a medical malpractice case?
T finds legitimate question - Case proceeds

If T finds no question, either $6,000 bond to proceed w/in 30 days OR

Appeal tribunal finding - but if loses no trial even w/ bond
What do I do when the other side rests?
Motion for judgment as a matter of law (old name: directed verdict) Takes case away from jury.

Rule: Reasonable people could not disagree on the result (view evidence in light most favorable to non-moving party)
What is Lis Pendens? How do you get one?
Lis Pendens. Recorded at the registry of deeds, this notifies persons that an action is pending involving title or use of real property. Until done, the action has no effect against third parties. Make a motion that the court find that the case involves title or use of realty; then record the lis pendens.

What is the effect of the litigation on third parties before the Lis Pendens is filed? None – it is the lis pendens that gives notice to the world. The 3d party is not charged w/ notice of litigation until lis penden is filed.
Tell me about the renewed motion for judgment as a matter of law?

When must it be filed?
Old name: Judgment notwithstanding the verdict (JNOV)

After jury comes back, file w/in 10 days after entry

Standard – same as judgment as matter of law

Prerequisite: At close of all evidence, must move for judgment as a matter of law
What is the general rule about when the statute of limitations starts running?
Runs from accrual of the claim - usually when there's a breach
P presents her evidence at trial, after which D moves for a judgment as a matter of law. Denied. D puts on her evidence. At close of all evidence, D does not move for judgment as matter of law. Jury finds for P and judgment is entered for P. Can D make a renewed motion for judgment as a matter of law?
No – she waived it by failing to move for judgment as a matter of law at the close of all evidence.
What’s the exception for personal injury?
-- Personal injury: based on negligence, accrues when claimant knows or reasonably should know, of the harm. If injury is not discernible, or is discernible but cause not ascertainable, accrues when knowledge of the cause may reasonably be imputed to claimant.
Tell me about the motion for a new trial?

What is it?

When must it be filed? On what grounds?
Judgment entered, but errors at trial require new trial. Move w/in 10 days.

Grounds: 1) prejudicial error at trial makes judgment unfair; 2) new evidence that could not have been obtained w/ due diligence for original trial; 3) prejudicial misconduct of party or attorney or 3d party or juror; 4) judgment against weight of evidence.

New trial less radical than renewed motion for judgment as matter of law – court simply starts over.

Mnemonic: NEW-M (NEW Evidence, ERROR, against WEIGHT, MISCONDUCT)
NEW-M
What’s the rule for medical malpractice claims? Legal malpractice?
MedMal - When act committed, unless no way patient aware - then accrues when patient reasonably would learn of injury

- Reposed after 7 years

-- Legal malpractice: same as for medical malpractice except there is no seven-year repose rule.
Tell me about motion to set aside the judgment. What are the grounds and timing?
Grounds/Timing
1. Clerical error / any time
2. Mistake, excusable neglect or surprise / reasonable time (<= 1 year)
3. new evidence not been found w/ due diligence for a new trial motion / reasonable time (<= 1 year)
4. Judgment void – reasonable time (no maximum)

Color ME Violet (Clerical, Mistake, Evidence, Void - Any time, 1 year, 1 year, reasonable time - respectively)
Color ME Violet Any 11 Reasons
What’s the rule for fraudulent misrepresentation in the sale of realty?
It accrues when the claimant knew or reasonably should have known of the injuries.
Which are final judgments one can appeal from?

Denial of a motion for summary judgment?

Grant of a motion for a new trial?

Denial of a motion for a new trial?

Grant of a motion to remand to state court?

Grant or denial or renewedmotion for judgment as a matter of law?

When does notice of appeal have to be filed?
Denial of a motion for summary judgment – no
Grant of a motion for new trial – no
Denial of a motion for new trial – yes
Denial of a motion to remand to state court – no
Grant of motion to remand to state court – no (by statute, even though federal work is done)
Grant or denial of renewed motion for judgment as matter of law – yes (either way a final judgment)

Notice of appeal must be filed in trial court w/in 30 days of entry of final judgment.
What must a plaintiff do to get their claim in before the running of the statute of limitations?
1. Commence action - file & fee

2. Mail complaint/fee to clerk - registered mail (commenced at mailing)

3. Mail complaint/fee to clerk - regular mail (commenced when received)
When can I get an interlocutory review?
Interlocutory (non-final) review:
1. Reviewable as of right: injunctions, receivers, patent infringement (when only damages left) attachments
2. Interlocutory appeals act – if Judge certifies that it involves a controlling issue of law
3. Collateral order exception – appellate court has discretion to hear ruling on an issue if it (a) is distinct from merits of case (b) involves an important legal question and (c) essentially unreviewable if parties await final judgment (ex: claim of immunity from suit)
4. When more than one claim is presented in ca case, or when there are multiple parties, trial court may expressly direct entry of final judgment as to one or more of parties if it makes an express finding no reason for delay
5. Extraordinary writ: Not technically an appeal, but an original proceeding in appellate court to compel judge to make or vacate a particular order – not substitute for appeal, only avail. To enforce clear legal duty
6. Class action – court of appeals has discretion to review orders granting or denying certification of class action. 10 days after decision.
How does D raise the statute of limitations?
It’s an affirmative defense, so must be raised by the D in his answer.
What does the 11th amendment mean for Massachusetts?
It bars federal courts from hearing damages claims against a state – unless the state waives the immunity.

It is okay to sue an individual state actor for equitable relief. No 11th amendment problem there.
What does it mean to “toll” the statute of limitations?
To “toll” the statute means to stop it from running. For example, commencing the action tolls the statute. So does suffering lack of legal capacity (e.g., minority, mental incapacity) when the claim accrues. If P lacks capacity when the claim accrues, the statute does not start to run until the disability is removed.
D tortiously injures Opie, who is twelve years old at the time of the injury. When does the statute of limitations start to run?
When Opie is 18. Opie’s minority tolls the statute of limitations.
What about medical malpractice? Does minority toll that?
In medical malpractice, there is no tolling. A minor whose claim for medical malpractice accrues before age 6 may sue until he reaches age 9.

But, in no event may a medical malpractice claim be asserted more than 7 years after the negligence.
What if the kid is six or older when his medical malpractice claim accrues?
Then, there is no tolling in a medical malpractice case.
Suppose P sues D before the statute runs, and D files a counterclaim against P after the statute ran. Is the counterclaim timely?
Yes, if it was not barred when the plaintiff sued. P’s filing tolls the running the statute for both parties.
P files a case one day before the statute of limitations would have run. Several weeks later, the case is dismissed without prejudice for insufficient service of process. Upon dismissal, the statute starts to run again (and P only has one day left). Must P file the new case within one day?
If dismissal is for a matter of form, P may commence within: One Year.

(This assumes the original action was filed timely; this one was (by one day).)
What are the limitation periods for:
1. Tort actions:
2. Tort or contract for personal injury:
3. Breach of warranty:
4. Breach of sales contracts under UCC Article 2:
5. Actions on contracts (not for personal injury):
1. Tort = 3 years
2. Tort or contract for personal injury = 3 years
3. Breach of warranty = 3 years
4. Breach of sales contracts under UCC Article 2 = 4 years
5. Actions on contracts (not for PI) = 6 years
Are there required disclosures under the Massachusetts Rules of Civil Procedure?
No Required Disclosures. There are no required disclosures in state practice.
How is discovery timing different in MA?
Discovery Tools. Timing is different from federal practice. These may be used anytime from commencement of the action until beginning of trial.
How are depositions handled in MA?
Depositions. Basically same as in federal practice, but written notice of deposition must be given at least 7 days before the deposition. Remember that nonparty deponent should be subpoenaed or she is not required to attend. Subpoena could be “duces tecum,” which requires her to bring things (e.g., documents) with her.
--Remember that deposition can be taken upon written questions. The questions are asked by an officer (e.g., court reporter); the responses are oral and recorded.
When would you need a court order to take a deposition?
1. Too soon. w/in 30 days after service of process on D - unless D has initiated discovery

2. No little - no reasonable likelihood recovery > $5k
What are the two times audiovisual depositions might come up in MA?
1. If the party intends to call a treating physician or an expert as its own witness
2. Any other witness
What may a party do if it intends to call a treating physician as or an expert as its own witness?
It can use an AV depo instead of live testimony

(Court can order live testimony)

doesn't count a physician as a party to litigation
-- If a party wants to use an audiovisual deposition of its treating physician or expert, what must it do?
No court order

1. Written report 30 days before noticing AV depo.

Report includes (a) resume of W, and details (b) subject matter, (c) substance, (d) support for matters to be testified to by W

2. Give notice telling depo used in lieu of oral testimony.
What if a party wants to take the audiovisual deposition of any other witness?
It must get a court order or stipulation of the parties allowing this. If a party moves for a court order allowing an audiotape deposition of this type, the other parties must be given notice and an opportunity to be heard in opposition.

An audiotape deposition needs a court order or stipulation.
What’s the earliest I can give notice of taking an audio-visual deposition?
CANNOT GIVE NOTICE OF TAKING AN AUDIO-VISUAL DEPOSITION OF EITHER TYPE EARLIER THAN SIX MONTHS AFTER COMMENCEMENT OF THE ACTION (unless court allows).
When do I have to object to statements of the treating physician or expert? What other procedures do I have to do with my objections?
Objections to statements of treating physicians and experts must be made, to the extent practicable, during the deposition. Objections must then be filed in court at least 21 days before trial and responded to within 14 days of receipt. Failure to meet the deadlines results in waiver of objections.
What do I do with objections to the statements of other witnesses in an audiovisual deposition?
Objections to statements of other witnesses in audiovisual deposition must be made, if practicable, before trial begins.
Can I use an audiovisual deposition at trial?
Audiovisual depositions can be used at trial to the same extent as other depositions.
Can a party use an audiovisual deposition of a treating physician or expert in lieu of live testimony even if the witness is available to testify?
Yes – that’s the joy of the audiovisual deposition of a treating physician/expert.
How are interrogatories handled in MA?
30 interrogatories (more w/ leave)

45 days to respond

Can split into groups
How are requests for production, physical or mental examination, and requests for admission handled in MA?
Requests for production. Same as in federal practice.

Physical or mental examination. Same as in federal practice.

Requests for admission. Same as in federal practice.
What is the basic scope of discovery?
- Can discover nonprivileged, relevant information

- reasonably calculated to lead to admissible evidence

Same as fed
What do I have to do with expert witnesses?
Seek discovery - interrogatories

Expert Witnesses. Because there are no required disclosures in Massachusetts practice, parties must seek discovery about the other parties= expert witnesses.

--If an expert is expected to testify at trial, send interrogatories to the party, asking (1) name(s) of expert(s); (2) subject matter on which she is expected to testify; (3) substance of facts and opinions; and (4) summary of ground for each opinion.
DI - NSSS
AFTER the answers to interrogatories are received, can the requesting party take the deposition of the expert(s)?
Yes – with either a court order or a stipulation.
P asks for court order to take deposition of D’s expert, after D answered the interrogatories related to the expert. Court denies the motion, however, because deposition would delay trial. There was no reason P could not have sent the interrogatories and asked to take the deposition earlier. Was the court right?
Its ruling is not an abuse of discretion. These issues are up to the discretion of the court.
If the deposition is taken, must the requesting party pay the expert for her time in connection with the deposition?
Yes – the court sets the reasonable fee.
What happens to discovery if an expert is not expected to testify at trial?
If an expert was retained by a party but is not expected to testify at trial, no discovery absent “exceptional circumstances,” such as inability to get such information anywhere else.
What about the work product rule?
The work product/trial preparation materials rule is the same as in federal court.
Insurance Co. hires Attorney to represent Insured. Attorney prepared materials for the defense of Insured. Can Insurance Co. claim the work product protection as to these materials?
No – because the attorney was representing the Insured. Insured is the party. Insco is not party or agent of the party. The Insured can claim the work product protection.
Is there a duty to supplement responses?
No general duty to supplement responses, so long as response was complete when made. But must supplement (1) requests for identity of witnesses or experts or subject and substance of expert testimony; (2) if responses were incorrect when made; (3) responses are no longer true and failure to supplement is Ain substance knowing concealment@; and (4) when court order or parties= agreement requires.
If a party fails to supplement when it should have, are sanctions automatic?

If a party fails to supplement when it should have, can that party use the new evidence at trial?
No. The court can sanction if the failure was willful.

The court has discretion to allow the party to use the evidence, unless it would be unfair or prejudicial.
What are the basic rules of Discovery procedure and sanctions?
1. No Rule 26(f) conference.
2. Protective order. A party trying to avoid disclosure of information requested in discovery may seek a protective order from the court. She might do this because the request is overburdensome or would result in embarrassment or undue expense or to protect privileged material. The court has great discretion to forbid discovery or to limit it to specified topics or methods.
P was injured when part of the apartment building in which she lived collapsed. She sued the owner of the building for personal injuries. In addition, P’s mother, who witnessed P’s injuries, also sued the owner, for infliction of emotional distress. Owner wants to take the deposition of the psychiatrist of P’s mother, who has been identified as an expert who will testify at trial that P’s mother suffered a nervous breakdown because of P’s injuries. P’s mother’s attorney seeks a protective order, based upon the privilege between P’s mother and her psychiatrist. Result?
P’s mother waived the privilege because she put her emotional state at issue – she put the subject of privileged communication in issue.
What are the sanctions in MA?
Sanctions basically same as in federal court.
How does voluntary dismissal work in MA?
A. Voluntary Dismissal. Same as in federal practice.
How does involuntary dismissal work in MA?
B. Involuntary Dismissal. In addition to all the Rule 12(b) grounds of dismissal, can dismiss for (1) persistent refusal to comply with court order; (2) clear and convincing evidence that P attempted to commit fraud upon the court, e.g., by destroying documents or forgery or perjured testimony; or (3) failure to prosecute.

--If there is convincing evidence of unreasonable conduct or delay, court may dismiss, but should also consider other penalties
At what point may a court dismiss on its own motion for failure to prosecute?
convincing evidence that of unreasonable conduct or delay

not clear that the court can do this sua sponte – they probably need a motion.
How does default and default judgment work in MA?
Default and Default Judgment. Basically same as in federal practice, with a couple of slight variations.
Tell me a little more about default?
Default entered by clerk - same as in Fed.

This is simply a notation on the docket sheet – you cannot collect on default.

The classic default fact pattern is that D fails to respond to the complaint within 20 days after service of process on him.
When can default judgment be entered by the clerk?
Default judgment. May be entered by the clerk if (ALL):

(1) No response at all by defendant;

(2) Claim is for a sum certain (or calculable);

(3) Plaintiff files an affidavit that D is not an infant or incompetent; and

(4) Under Soldiers' and Sailors' Civil Relief Act, plaintiff files an affidavit that D is not in the military service.

Otherwise, must seek entry of judgment by the court.

Noise-reducing, Sound-Cancelling, All-Intensive-Internet, AM-radio (No Response, Sum Certain, Affidavit not Infant/Insane, Affidavit not Military)
NR, SC, AII, AM
Noise-reducing, Sound-Cancelling, All-Intensive-Internet, AM-radio
If D had filed an appearance in the case, what notice is D entitled to before there’s a default judgment?
Written notice served at least 7 days before hearing on damages.

(And remember this kind of notice can be mailed; complete upon mailing.)
Special Rule. If D failed to appear and the judgment is secured by a motor vehicle insurance policy, insured is entitled to what before damages assessed?
Written notice at least 4 days before damages are assessed.
How does one move to set aside a default or default judgment?
Same as Feds.

Show meritorious defense

Degree of prejudice

Neglect attributable to lawyer not party

Degree of neglect
What does one do with a failure to state claim?
Failure to State a Claim. Same as FRCP 12(b)(6), with two additions.

--In superior court, motion must be accompanied with a brief. ALSO, waived if hearing is not requested within six months after filing and argument not held within one year of filing.
How does summary judgment work in MA?
Summary Judgment. The rule mirrors the FRCP – need to know the details for the state side.
What is the timing for filing a summary judgment?
D = any time after commencement

P = 20 days after commencement or after D files for SJ

Must serve 10 days before hearing
What is the form of affidavits in a summary judgment?
Must be

1) based on personal knowledge;

(2) show that the affiant is competent to testify under rules of evidence;

(3) set forth admissible facts; and

(4) attach sworn or certified copies of documents referred to.

Affiant states facts “on information and belief.” – No good, this does not meet the form – it fails to show personal knowledge.

Please Keep the College ******** Suffering (Personal Knowledge, Competent, Admissible facts, Sworn)
Please Keep the College ******** Suffering
How else might I be able to use these documents?
Though the Massachusetts rule does not say so, these documents also can be used (in addition to affidavits, discovery, and pleadings (as in federal practice)):
-- A master’s report;
-- Judgment from another state, under full faith and credit.
-- Discovery, affidavits, and pleadings.
Wait a minute. We know that pleadings are not evidence (unless “verified”). So how can pleadings be relevant in summary judgment?
They might show an issue is not in dispute. For example, if D failed to deny some allegation by P about D’s liability, the allegation is admitted and need not be tried.
How might a party that does not have the burden of proof at trial win summary judgment?

Is summary judgment likely when intent or knowledge of a party is in issue?
showing that the opposing party has no reasonable expectation of proving an essential element of its claim or defense.

Summary judgment is unlikely when intent or knowledge of a party is in issue. [Always add this to your essay.]
Is there a pretrial conference?
Pretrial Conference. There is no Rule 26(f) conference or scheduling order (as there are in federal court). But there is the pretrial conference, to be held in the judge’s discretion.
Evidence-wise, what’s a master?
Masters. A master is a person appointed to hear evidence and report facts. He is not a judge, but acts as an adjunct to the judge.
What’s the role of the master?
Role of master. The master is used to conduct evidentiary proceedings. Usually, he is asked to make findings of fact and conclusions of law. The master files his findings and conclusions with the court in a “report.”
How is the master’s report used?
Use of master’s report. In a non-jury case, the court accepts the master’s findings of fact unless they are clearly erroneous. To contest them, a party must file written objections within 10 days of the filing of the master’s report.
What happens with the master’s report in a jury case?
It’s read to the jury and is prima facie evidence.
What about the evidence that went before the master? When can a master be used?
In a non-jury case, a transcript of the evidence produced before the master is produced to the court.

When can a master be used? In any case, by consent of parties or court order. But if the case is in district court, a master can only be used if all parties agree.
Does the MA Constitution guarantee a jury trial?
Jury Trial. Although the Seventh Amendment to the U.S. Constitution does not apply to the states, the Massachusetts Constitution preserves the right to jury trial in the same basic way. So there is a right to a jury on legal (not equitable) issues. (Remember, though, basically no jury in district court unless statute grants it.)
How does one get a jury trial? Can a party change his mind after demanding a jury trial? Can there be a jury in an equity matter?
1. Written demand required, as in federal court.
2. Yes.
3. Advisory jury in equity cases. The court can empanel an advisory jury in an equity case, upon motion of a party.
What size is the jury? What if 12 are empaneled and two are unable to finish? Does the verdict have to be unanimous?
1. Jury size. Unlike federal court, 12 jurors in superior court. Parties may stipulate to fewer. What if 12 are empaneled and two are unable to finish?
B Trial can proceed before as few as ten jurors.
2. Verdict. Unlike federal court, need not be unanimous. What is required? 5/6th of jurors (so 10 of 12)
What happens if you object to jury instructions?
Object outside jury's presence

State grounds

How party would be prejudiced
How do the objections to jury instructions differ between MA and the Federal Courts?
-- Massachusetts: objection must be made known to judge sometime before jury begins deliberations. Once done, do not have to repeat the objection immediately before the jury retires.

-- Federal court (1st Circuit rule): Must object immediately before the jury retires (even if you objected earlier)
How does motion for directed verdict work? How does Motion judgment not withstanding the verdict work?
Motion for Directed Verdict. Same as Motion for Judgment as a Matter of Law in federal practice.

Motion for Judgment Notwithstanding the Verdict (JNOV). Same as Renewed Motion for Judgment as Matter of Law in federal practice.
How does a motion for a new trial work in MA?
Motion for New Trial. Basically the same as Motion for New Trial in federal practice, with a couple of differences.
What is the timing of a motion for a new trial?
Timing. Must be served within 10 days after entry of judgment.
What are the grounds for a motion for a new trial?
The grounds for granting new trial are the same as in federal court. But when damages are excessive or inadequate, the court might try a different procedure.
-- Suppose liability is clear but the court is convinced that the damages awarded by the jury are so excessive as to be manifestly against the weight of the evidence. The court may order a new trial. What else might the court do?
Remittitur

In the alternative, the court may order remittitur, which tells P that she may accept a lower amount (which the court sets) or else face the new trial.
P proves that D was negligent in driving his car. P proves that the resulting wreck sprained P’s wrist and totaled P’s bike (worth $75). The jury returned a verdict for P for $15,000. The court orders remittitur by giving P the choice of accepting $3,000 or going to new trial. P can choose which. Is this okay?
Remittitur is OK in Massachusetts AND federal courts.

Remittitur can be granted on motion or sua sponte (on the court’s own).
Suppose liability is clear and damages are so inadequate that the court is convinced the damages finding is against the manifest weight of the evidence. Here, the court might order a new trial. What else might the court do?
Additur. That order would tell the defendant that he could pay a higher figure in damages (which the court sets) or face a new trial.
P proves liability of D for their car wreck. P proves serious physical injuries, medical bills, pain and suffering. There is no doubt the jury is correct in finding D liable. But its verdict of $4,500 is plainly inadequate. With additur, the court tells D that he can pay $30,000 or face a new trial on damages. Can additur be used in Massachusetts or federal courts?
Massachusetts: yes.

Federal court: No – Additur is unconstitutional b/c of the 7th Amendment, which does not apply to the states.
How does a motion to alter or amend judgment work?
Serve on all parties. 10 days after judgment.

To have the court rehear, reconsider, or vacate its judgment.
Is the time in which to appeal tolled pending disposition of this motion?
Yes – w/in 30 days of the ruling.
How is the motion to set aside judgment handled in MA?
H. Motion to Set Aside (Vacate) Judgment. Same as federal practice.
Fourteen months after judgment was entered against him, D moves to set aside the judgment on the basis of newly discovered evidence. Even though it is clear that this evidence could not, with due diligence, have been discovered before, the motion must be denied. Why?
A motion on this basis cannot be brought more than 1 year after the judgment.
How does the final judgment rule work in MA?
Final Judgment Rule. Works as in federal practice. There is a general right to appeal from a final judgment of the superior court to the intermediate appeals court. Beyond that, review by the supreme judicial court is discretionary. (Some cases can go directly from superior court to the supreme judicial court, but only in extraordinary circumstances, e.g., two justices of the supreme judicial court order direct review and the case involves constitutional questions or questions of first impression, or appellate court could certify direct review in the pubic interest.)
How does one file an appeal? When must one file for an appeal? What happens in the appellant files in the wrong court?
File with the clerk of the trial court a notice of appeal within 30 days after final judgment.

(60 days, though, if Commonwealth or a state agency is a party.)

-- If appellant files in the wrong court (e.g., appellate court), the clerk of that court must note when the notice was filed and transfer it to the proper court. Deemed filed on the date noted by the clerk of the improper court.
What happens after the appellant files an appeal?
Clerk serves notice of appeal on other parties, who can then file appeals within14 days from appellant’s filing notice of appeal or original 30 (or 60) days, whichever is later.
What tolls the time for filing notice of appeal?

-- If appellant wrongly files during pendency of JNOV, etc., what happens?
Timely filing of motion for new trial, JNOV, or to amend the judgment tolls the time for filing notice of appeal. That period runs from ruling by the trial court on those motions. (Motion to set aside does not toll the appeals period.)

-- If appellant wrongly files during pendency of JNOV, etc., what happens? His filing is of no effect, he has not notice of appeal.
Is there a way for the appeals court to hear an appeal before a final appeal?
Interlocutory Review by Report. The trial court can “report” an interlocutory (non-final) order to the appellate court if, in its opinion, the matter ought to be reviewed before further proceedings in the trial court. The trial court must either have made findings of fact or the parties stipulated to facts. (Trial court here does not include district courts.) In addition, a single justice of the supreme judicial court can report a case to the appeals court or the supreme judicial court.
-- Suppose a judgment is entered in small claims court on property damages from a motor vehicle crash case. Does it have preclusive effect on a case involving personal injuries from the same crash?
No – there’s no collateral estoppel or res judicata for small claims court judgments.
How do I obtain in personam jurisdiction in KS?
If resident, or is served within the state - no special authorization is required.

If not, then must use long-arm statute.
If I can't serve a non-resident within KS, when can I obtain specific jurisdiction through the long-arm statute - the main three ways?
Main ways (BaTteR)
1. Transction of BUSINESS w/in KS
2. Commision of a TORT in KS
3. Ownership or possession of REAL property w/in KS
What are some less-common (not big three) ways I can get specific jurisdiction under KS long-arm statute?
1. Contracting to INSURE person, property or risk w/in KS
2. Entering a CONTRACT w/ a KS resident
3. Actiong as a director/mamager/officer of a CORPORATION w/ (a) incorporation or (b) principal place of business in KS, or acting as executor of estate in KS
4. Causing INJURY in KS from act or omission outside state if (a) D solicited w/in KS or (b) products serviced or manufactured by D were used in KS in ordinary course of business.
5. MARITAL relationship w/in KS
6. Insuring any person for an act that results in JUDGMENT in KS against person
7. SEXUAL intercourse w/in KS, if other party still resides in state
8. Contracting with KS corp or partnership about TRANSPORTATION or COMMUNICATION services managed or operated w/in KS

Hint: ICCIMJSTC
I Can't Comment In Major Instances of Sexual Transmitted Communication
Are things going to be disallowed by KS long-arm statute that would be allowed by the Constitution?
Probably not, the KS statute is pretty broad, but you should do the long-arm analysis anyway.