Ma Bar Exam: Massachusetts Civil Procedure

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METHODS FOR PERSONAL JURISDICTION

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1. Defendant is domiciled or resides in Massachusetts
2. Defendant has their usual place of business in Massachusetts
3. Defendant is in Massachusetts when served with process
4. Defendant is incorporated in Massachusetts
5. Defendant consents to jurisdiction
6. Massachusetts' long arm statute

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MASSACHUSETTS LONG AREM STATUTE

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Where a defendant doesn't otherwise meet requirements for personal jurisdiction the long arm statute allows for personal jurisdiction nonetheless where defendant is:
1. Transaction any business in Massachusetts
2. Contracting to supply services or things in Massachusetts
3. Causing tortious injury in Massachusetts by act or omission in Massachusetts
4. Causing tortious injury in Massachusetts by act or omission OUT of state
a. regularly does or solicits business in MA
b. engages in persistent course of conduct
c. derives substantial revenue from work in MA
5. Holding an interest in or using or possessing real property in MA
6. Contracting to insure any person, property, or risk in Massachusetts
7. Nonresident motorist Statute
8. Living as a party in marriage where the marital domicile has been MA

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NONRESIDENT MOTORIST STATUTE

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Any nonresident who operates a motor vehicle in Massachusetts thereby appoints the registrar of motor vehicles as her agent for service of process for a claim against her arising from her operation of the vehicle

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CONSITUTIONAL STANDARD

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Does defendant have "such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice"

Must meet:
1. Contact
a. Purposeful availment
b. Forseeability
2. Fair play and substantial justice
a. Relatedness
b. Convenience
c. State's interest

MY PARENTS FREQUENTLY FORGOT TO READ CHILDREN'S STORIES (minimum contacts: purposeful availment, foreseeability; fair play and substantial justice: relatedness, convenience, state's interest)

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TRIAL COURTS: BASICS

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Massachusetts refers to all its trial courts generically as trial courts and to the different individual trial courts as departments

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SUPERIOR COURT DEPARTMENT

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This is the principal trial court for civil cases

It can hear most civil cases, a wide variety of law and equity including tort and contract

Needs 12 jurors

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DISTRICT COURT DEPARMTENT (AND MUNICIPAL COURTS)

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There may be more than one district court in each county

Concurrent jurisdiction with superior court over actions at law where money damages are sought

Can give equitable relief but only to the same extent as superior court if the plaintiff also seeks damages

Needs 6 jurors

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SUBJECT MATTER JURISDICTION

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Any cognizable claim can be filed in some state court, except those rare exclusive federal question cases which must go to federal

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OTHER TRIAL COURTS

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Include:
1. Probate/family
2. Land court department
3. Housing court department
4. Juvenile court
5. Small claims court

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VENUE: LOCAL CASES

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All cases are either local or transitory

Local Actions: include cases for title or possession of land and petitions in probate and family court division for partition of land so venue in these cases is laid where the land lies

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VENUE: TRANSITORY ACTIONS

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All cases are either local or transitory

Transitory actions: include all other cases that are not local. Here venue can be laid anywhere a party resides or has its usual place of business

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VENUE: REPLEVIN

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Replevin actions are for redelivery or return of personal property and venue is proper wherever property is located

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VENUE: TRUSTEE PROCESS

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Actions must be brought where the trustee resides or has their usual place of business

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VENUE: NONRESIDENTS

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If neither the plaintiff nor defendant live in Massachusetts, venue is ok anywhere

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CHANGE OF VENUE

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Like in federal court, if venue is improper the court may transfer to a proper venue or may dismiss

Even where it is proper the court has the discretion to transfer a case to assure an impartial jury

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FORUM NON CONVENIENS

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As in federal court, sometimes the court may grant dismissal conditioned on defendant's waiving statute of limitations or some other defense in the other court

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SERVICE OF PROCESS: CONSISTS OF

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1. A summons identifying the court and parties, Plaintiff's lawyer and address, and directing Defendant to appear and defendant at a certain time and place
2. A copy of the complain

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SERVICE OF PROCESS: WHO CAN SERVE

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1. An officer
2. A civilian appointed by the court

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SERVICE OF PROCESS: MECHANICS (IN STATE)

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As in federal court
1. Personal service and
2. Service on appropriate agents
3. Substituted service at defendant's last and usual place of abode is permitted but doesn't need to be left with anyone

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SERVICE OF PROCESS: MECHANICS (OUT OF STATE)

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Under the long arm statute service is permitted out of state in any of these ways:
1. By a method permitted in Massachusetts
2. By a method permitted in the stat where service is effected
3. By registered mail, return receipt requests, to Defendant out of state

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SERVICE OF PROCESS: NONRESIDENT MOTORIST STATUTE

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Must be served by:
1. Delivery to the Massachusetts registrar of motor vehicles AND
2. By registered or certified mail to defendant
3. OR any method ordered by the court

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SERVICE OF PROCESS: WAIVER BY MAIL

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This is not allowed in Massachusetts

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PLEADINGS: STANDARD

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Standard for stating a claim in Massachusetts is facts supporting a plausible claim (Fact pleading)

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PLEADINGS: RULE 11

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Massachusetts follows an older rule 11

The lawyer signs documents thereby certifying:
1. They have read the documents
2. That to the best of their knowledge, information, and belief there is a good ground to support it and
3. That it is not interposed for delay

A lawyer can be sanctioned for a willful violation under rule 11

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COMPLAINT

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Must have:
1. A short and plain statement of the claim, showing pleader entitled to relief and
2. A demand for judgment

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AD DAMNUM

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A clause for a demand for damages

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DEFENDANT'S RESPONSE

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Must respond within 20 days of being served with process

Must respond with a motion or answer (these are the same as in federal court)

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ANTI-SLAPP MOTION TO DISMISS

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This is a strategic lawsuit against public participation. Defendant gets sued for her statements to a governmental body

Court must grant this motion unless the PLAINTIFF can show:
1. The exercise of the defendant's right to speak was devoid of any reasonable factual support or arguable basis in law AND
2. The defendant's act caused actual injury to the plaintiff

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MOTION FOR ENLARGEMENT

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This is a motion to get more time to do something

If made before the act is due, the court may allow an extension for cause shown.

If made after expiration of the time allowed, the court may grant an extension for excusable neglect

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AMENDING PLEADINGS

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Plaintiff has the right to amend once before defendant servers their answer

Defendant has a right to amend once within 20 days of serving her answer

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DISCOVERY: BASICS

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There are no required disclosures in state practice

Otherwise state rules mirror the federal rules

Discovery may be used anytime from commencement of the action to the beginning of trial

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DISCOVERY: DEPOSITIONS

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Basically the same as in federal practice but written notice of deposition must be given at elast 7 days before the deposition

Remember that nonparty deponent should be subpoenaed or she is not required to attend

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DISCOVERY: AUDIOVISUAL DEPOSITIONS GENERAL

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There are 2 types of this in Massachusetts:
1. If a party intends to call a treating physician or an expert as its own witness, it may depose that person by audiovisual means, and use the recording at trial, rather than live testimony. The court can order live testimony however

2. May take an audiovisual deposition of any other type of witness with a court order or stipulation of the parties allowing this

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DISCOVERY: AUDIOVISUAL DEPOSITIONS PROCEDURE

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For a PHYSICIAN OR EXPERT:
1. Give a written report at least 30 days before noticing the audio visual deposition that includes the resume of the witness and details of subject matter etc that they will testify to
2. AND give notice stating deposition will be used in lieu of oral testimony at trial

For ANY OTHER PARTY:
1. Get a court order OR
2. Stipulation from all parties that this is allowed

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DISCOVERY: SCOPE

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In Massachusetts, a party can discover non-privileged information relevant to the subject matter of the case

This is slightly broader than in federal court

Note: there are NO required disclosure in Massachusetts so parties must inquire into other parties' experts etc

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DISCOVERY: DEPOSITION MANDATORY SUPPLEMENT

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Deposition must be supplement in these situations:
1. Requests for identity of witnesses and subject/substance of expert testimony
2. If responses were incorrect when made
3. Responses are no longer true and failure to supplement is "in substance knowing concealment" AND
4. When court order to parties' agreement requires

If a party fails to supplement the court will only sanction where the failure was willful and the court has discretion to allow the party to use the new evidence unless it is unfairly prejudicial

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JOINDER: IMPLEADER

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aka third party practice

Same as in federal practice, except process served on TPD includes not only the third party complain and summons but copies of all original pleadings from the underlying action

One has a right to implead within 20 days of serving her answer and after that needs court permission

Defendant cannot implead someone who is not liable to defendant, even if the defendant believes they may be liable to the plaintiff, impleading is for the claim of indemnity or contribution not for substantive claims from the plaintiff

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JOINDER: INTERVENTION

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Same as in federal practice

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JOINDER: INTERPLEADER

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Holder of property (stakeholder) forces all claimants into a single case, to avoid multiple litigation. Often used by insurance companies to determine which, if any , of the claimants is entitled to policy proceeds.

Stakeholder may deposit the disputed property, or any part thereof with the court

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CLASS ACTION

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In Massachusetts you 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 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

Massachusetts will not certify a class for limited purposes

Notice to class members is not required but it discretionary with no right to opt out of a class

Front 41

INJUNCTIONS

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Both a TRO and a preliminary injunction will maintain the statutes quo pending litigation

Applicant must post security unless the court finds otherwise for good cause; the amount will be determined by the court

Either way, must have verified document that sets forth specific facts showing basis for relief by person with knowledge of the facts

An injunction must be specific in terms and describe conduct to be retrained in reasonable detail

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TEMPORARY RESTRAINING ORDER (TRO)

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My be granted without notice to the other party/attorney if specific facts are pled under oath showing that immediate harm will occur before the party determination

If granted without other party notice (ex parte TRO)

May not last more than 10 days

Hearing on preliminary injunction must occur within 10 days

Opponent, on 2 days notice, may have a hearing to dissolve or modify TRO

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PRELIMINARY INJUNCTION

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Same purpose of a TRO but this may be granted only after notice to the opponent and opportunity to be heard

Remains in effect until entry of final judgment

Hearing may be consolidated with trial on merits

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PRELIMINARY INJUNCTION: STANDARD

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Must show:
1. Substantial likelihood he will succeed on merits
2. Substantial threat that claimant will suffer irreparable injury if relief is not granted
3. A balancing of the equities favors issuance of the injunction

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DECLARATORY JUDGMENT

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Request that the court make a binding declaration of rights, duty, status, and other legal relations

Factual allegations must show an actual controversy

The fact that there is another remedy will not preclude a declaratory judgment

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ATTACHMENT

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A claimant may attempt to have the defendant's property attached at commencement of the action or thereafter to ensure that the property will be available to satisfy the judgment if the claimant wins

You need court permission for this and will make a motion for approval with support by affidavits

Court will approve if:
1. There is "reasonable liklihood" that claimant will recover a judgment in an amount equal to or greater than the attachment and
2. Defendant has inadequate liability insurance to satisfy the judgment

Front 47

ATTACHMENT: TRUSTEE PROCESS

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Where claimant wants to attach defendant's property that is in the hands of a third party (like a bank) the third party is called a trustee.

These kinds of cases are exempt to trustee process:
1. Defamation
2. Malicious prosecution
3. Assault and Battery
4. Specific recovery of goods or chattels

Court will give approval and issues a "trustee summons" which claimant has served on the trustee. Trustee files an answer in court describing the property

Front 48

ATTACHMENT: TRUSTEE PROCESS - FUNDS THAT CANNOT BE SEIZED

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1. $2500 held in a bank or similar account
2. Some portion of wages (amount not exceeding 85% of gross wages)
3. Some government pensions

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ATTACHMENT: REACH AND APPLY

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Here the property is intangible or an equitable interest in property

If it's in possession of defendant, reach and apply operates as attachment

If it is in possession of third party, it works like trustee process

Front 50

ATTACHMENT: FRAUDULENT TRANSFER

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Under the Uniform Fraudulent Transfer 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

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 defendant from disposing of the property or appointment of receiver to take control of the property

Front 51

ATTACHMENT: MEDICAL MALPRACTICE

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Every damages action for malpractice committed by a health care provider goes to a screening tribunal that consists of an attorney, a superior court judge, and a physician.

The panel determines if there is a legitimate question of liability appropriate for judicial inquiry or just an unfortunate medical result

If the tribunal decides a real case exists it goes to trial

if the tribunal rules against plaintiff the case can go to litigation only if plaintiff posts a $6000 bong within 30 days and then may appeal

Front 52

LIS PENDENS

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Recorded at the registry of deeds, this notifies persons that an action is pending involving title or use of real property

You make a motion and if the court finds that the case involves title or use of realty you then can record the lis pendens

Front 53

STATUTES OF LIMITATIONS: ACCRUAL GENERAL RULE

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The statute starts to run from "accrual" of the claim

In most cases that is when the claimant's right to sue is complete

That is when there is an injury or breach, which means it starts even when claimant is unaware and the claim runs from the injury or breach

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STATUTES OF LIMITATIONS: ACCRUAL EXCEPTIONS

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1. Personal injury: based on negligence; will run from when claimant knows or should reasonably know of the harm

2. Medical malpractice: accrues when health care professional committed malpractice unless that is no way the patient was away of the physician's negligence therefore claim accrues when plaintiff learns of the harm or when in an exercise of reasonable diligence should have learned of the harm

3. Legal malpractice: same as medical malpractice with no statute of repose

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STATUTE OF REPOSE

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In cases of medical malpractice an action cannot be brought more than 7 years past the negligent act or omission

EXCEPTION: Does not apply if the case involves a foreign object being placed in the body

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STATUTES OF LIMITATIONS: BASIC RULES

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1. Plaintiff must commence the case before the statute runes
a. Case can commence by filing a complaint or mailing the complaint and entry fee to the clerk by certified/registered mail in that case it commences when it is mailed (note that if it is regular mail it commences when the clerk receives it)

2. Statute of limitations is an affirmative defense that the defendant must raise in an answer it is considered waived

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STATUTES OF LIMITATIONS: TOLL THE STATUTE

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This means that the statute stops running

In medical malpractice case the there is no tolling BUT if the medical malpractice accrues before the child is 6 they may sue until they are 9

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STATUTE OF LIMITATIONS: TIME LIMITS

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1. Torts: 3 years
2. Tort/contract for personal injury: 3 years
3. Breach of warranty: 3 years
4. Breach of sales contract under UCC: 4 years
5. Actions on contracts: 6 years

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VOLUNTARY DISMISSAL OF A CASE

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Same as federal, done by written notice of dismissal

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INVOLUNTARY DISMISSAL

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In addition to all the Rule 12(b) grounds a court can dismiss for:
1. Persistent refusal to comply with court order
2. Clear and convincing evidence that plaintiff attempted to commit fraud upon the court
3. Failure to prosecute the case

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DEFAULT

Back 61

Same as in federal practice so default is entered by the clerk

Classic default patter is that defendant fails to respond to the complaint within 20 days after service of process on him

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DEFAULT JUDGMENT

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May be entered by the clerk if:
1. Defendant failed to appear
2. Claim is for a sum certain or is calculable
3. Plaintiff files an affidavit that defendant is not a minor or incompetent
4. AND under Soldiers' and Sailor's Civil Relief Act, plaintiff files an affidavit that defendant is not in the military service

Otherwise is it must be done by the court

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SUMMARY JUDGMENT DIFFERENCES

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Mostly the same as federal court BUT

1. Defendant may move for summary judgment anytime after the commencement of the action, plaintiff may move 20 days from commencement of the action or after defendant serves a motion for summary judgment. Motion must be served at least 10 days before a hearing

2. Affidavits must be on first hand knowledge, show that the affiant is competent to testify under the rules of evidence, set forth admissible facts, and attach sworn or certified copies of documents referred to

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PRETRIAL CONFERENCE

Back 64

still had, though not statutorily required like in FRE

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MASTERS

Back 65

A master is a person appointed to hear evidence, not a judge

Master is used to conduct evidentiary proceedings

A master's report is then used in a a non-jury case and will be accepted by the court unless clearly wrong

A master's report in a jury case is read to the jury and is used as prima facie evidence

Parties must consent to a master

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JURY TRIALS

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Seventh amendment doesn't apply to the states but MA preserves a jury trial in the same way the FRE does

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INADEQUATE DAMAGES

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In MA but NOT in FRE additur of damages is allowed

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MOTION TO ALTER OR AMEND JUDGMENT

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A party may move to have the court rehear or reconsider its judgment

Must serve motion on all parties within 10 days after entry of judgment

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RES JUDICATA:

Back 69

Claim preclusion

You only get to sue on a cause of action or claim once so you will lose the right to go after a second claim if:

1. Case 1 and 2 must be brought by the same claimant against the same defendant
2. Case 1 must have ended in a valid final judgment on the merits
3. Case 1 and Case 2 involve the same claim

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COLLATERAL ESTOPPEL

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Issue preclusion

This preclude relitigation of a particular issue that was litigated and determined before. So a claim will be barred if:
1. Case 1 ended in a valid final judgment on the merits
2. The same issue was actually litigated and determined in case 1
3. That issue was essential and necessary to the judgement
4. Note against whom colleteral estoppel is being used, it can only be used against a party who was a party in Case 1