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55 Cards in this Set
- Front
- Back
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District Court & Boston Municipal Court
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-Essentially the same subject matter jurisdiction
-Original jurisdiction over all actions sounding in tort or contract and certain statutory actions where money damages are sought Specialized actions District Court can hear: (1) summary process (2) replevin (3) repossession of Motor Vehicles |
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Equitable Powers of District/Boston Municipal Courts
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Same equitable powers as Superior Court BUT only in a case for money damages or by statute
*No jurisdiction over a case seeking only equitable relief |
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Small Claims
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Cases where P $7,000 or less can be brought within special small claims division of District/Boston Municipal Court.
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Jurisdiction of the Appeals Court
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appeals from decisions of the:
1. Appellate Division 2. District Court 3. Superior Court 4. Probate Court 5. Housing Court 6. Land Court |
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Jurisdiction of the Appellate Division of the District Court
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jurisdiction over appeals from all cases decided by the District Courts
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Jurisdiction of Supreme Judicial Court
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- has concurrent jurisdiction with the Appeals Court.
DIRECT appellate review to SJC only established when: 1. 2 justices of SJC determine that case presents constitutional questions or is of first impression/issues of public importance; 2. maj. vote of the appels court sends case to SJC |
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Jurisdiction of the Superior Court
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Concurrent jurisdiction with District Court
Exclusive original jurisdiction: 1. actions seeking only equitable relief 2. actions under Mass Torts Claim Act 3. claims agains the Commonwealth 4. most civil rights actions; and 5. med mal tribunals ***there is a "procedural amount" requirement of MORE than $25,000 If party can show that there is "no reasonable likelihood that recovery by P will exceed $25,000 case must be dismissed by Superior Court |
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Probate and Family Court:
Exclusive original jurisdiction over: |
1. probate of wills and administration of estates and trusts;
2. appointment of guardians and conservators; 3. divorce, separate support, adoption, changes of names, and annulments; and 4. health care proxies |
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Can the SJC issue advisory opinions?
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Yes!
On constitutionality of a proposed statute when requested by legislature or governor |
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When will SJC hear an appeal from an Appeals Court decision?
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1. 3 justices of SJC authorize an appeal; or
2. A maj. of the Appeals Court justices deciding the case certifies the case for further review |
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Where both parties are corporations, the action must be in any county where:
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1. either corporation has a usual place of business; or
2. in which it usually holds or last held its annual meeting |
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Suits by the Commonwealth can be brought in
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1. Suffolk County; or
2. any county for D lives or has a usual place of business |
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What claims must be pleaded with particularity?
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1. a general claim for special damages;
2. Fraud, Mistake, Duress, or Undue Influence; 3. lack of capacity; 4. a denial that conditions precedent have been met |
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When is an action commence for purposes of SOL?
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By:
1. filing the complaint (action commences when court receives complaint) OR 2. mailing the complaint by certified or registered mail (action commences when the complaint is mailed) |
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Service of the complaint and summons must be made upon a defendant within _____ days of the commencement of the action
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90 Days
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What are the 3 ways that service of summons and complaint may be made upon individuals:
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1. to the individual personally (in hand)
2. individual's last and usual abode (but in District Court must immediately follow up with mailing) 3. an agent authorized by D to receive service |
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What the 2 ways to serve a corporation:
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1. upon any officer, managing or general agent, person in charge of the business at the corporation's principal place of business in MA; or
2. any other agent authorized by D to receive service - follow up with mailing |
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How do you serve the Commonwealth?
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by delivering papers to the Boston office of the state attorney general
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Mass rule of relation back
(amending the complaint) |
MA doesn't give a shit about the SOL as long as original complaint was timely!
An amended complaint relates back to the date of the filing of original complaint if new claim arose out of the same transaction or occurrence |
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What are the additional 12(b) motions in Mass?
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12(b)(8) misnaming a party
12(b)(8) pendency of a prior action in a Mass court; and 12(b)(10) improper amount of damages, procedural amount doesn't meet requirements for Superior Court (**Highly testable) |
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An answer must be served on the P within
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20 days after service of the complaint, must be filed with court reasonable time after.
*however, if D brings a 12(b) motion first, D has until 10 days after court's decision on the MTD to serve the answer |
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Death of person tolls SOL if...
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1. person dies before end of SOL or 30 days after SOL.
2. Person rep has 2 years after after personal rep posts bond. |
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If an action is dismissed for some technical matter a party has from ____ year of that dismissal to refile the action
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1 year
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Agreement to shorten SOL
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Any agreement to shorten the SOL expect in a UCC contract IS VOID
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One Year SOL:
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- actions against banks for payment on authorized signatures
- actions against estate administrators and executors on their contracts -actions by a creditor a decedent |
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Three Year SOL
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- tort actions
-med mal -replevin actions -claims against Commonwealth - Actions against hit-and-run motorists -Wrongful death actions -Actions for negligence in design, construction, or improvements to real property -Civil rights actions -Actions for value of property taken by eminent domain |
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Four Year SOL
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Chapter 93A
UCC Article 2 breach of contract Actions for breach of warranty |
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Six Year SOL
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Actions on contract
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Twenty year SOL
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-Actions on contracts under seal
-Actions by notes issued by banks -Actions by original payee on a promissory note -Actions on court judgments -Actions to recover property |
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Fifty year SOL
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Foreclosure on a mortgage
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Statute of Repose
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Med mal - 7 years (unless claim is for foreign object in body)
Construction actions- 6 years after construct is substantially finished an owner takes possession *owner must sue 3 years after noticing defect but never more than 6 years after taking possession |
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Requirements for class action
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SCANT
S- superiority (a class action is superior to other available methods of adjudication) C- commonality (of legal and factual issues) A- adequacy (representative party fairly and adequately protects interest of class members) N- numerous (so many ppl that joinder is not practical T- typicality (claims or defenses of representative party is typical of entire class) |
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Attachment:
So you can show.. 1. that there is a reasonable likelihood that you will recover from me 2. that i don't have adequate insurance to cover the liability FINE you move for an attachment but you CAN'T ATTACH MY... |
1. necessaries up to $15,000
2. tools and materials for my business/trade up to $5,000 3. Homestead ( automatic exemption of $125,00; if I filed homestead in registry of deeds before the suit then $500,000); 3. automobile (up to $7,500 or $15,00 if handicapped or over 60) |
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Can you attach a home held as tenancy by the entirety?
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YES! (trick question)
You can attach it BUT it's not subject to sale if the property is the principal residence of the non-debtor spouse |
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Grounds for dissolving attachment:
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1. voluntary release by P
2. non-compliance with procedures 3. posting bond or money 4. no reasonable likelihood of recovery for P 5. judgment for D 6. judgment for P more than 30 days ago 7. six years have passed |
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What is trustee process?
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Like attachment except D's property is attached into the hands of a 3rd party.
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Trustee process is not available for:
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1. recovery of specific goods
2. a debt that is conditional 3. malicious prosecution, slander, libel, assault and battery; or 4. against an individual who is not an inhabitant of the Commonwealth |
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What types of property are exempt from trustee process:
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1. wages
2. certain govt benefits (the Joey G paycheck AKA unemployment, SS) 3. pension benefits; 4. $2,500 held in a bank account 5. individual retirement accounts |
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Generally P must post a bond in an amount to be determined by the court, except in suits:
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1. brought by the Commonwealth
2. on a judgment 3. for personal services 4. for goods sold and delivered 5. money due under written contract *takeaway--> if you forget P doesn't have to post a bond in cases that are no brainers for the P. |
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Preliminary Injunctions,
moving party must show: |
1. a substantial likelihood of prevailing on the merits;
2. a substantial likelihood that P will suffer irreparable harm if the injunction is not granted; 3. threatened injury outweighs the harm to the enjoined party 4. injunction will not harm the public interest |
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What is a Temporary Restraining Order?
& What must a party show to get one? |
-its a type of preliminary injunction where it is impossible or unwise to give advanced notice to other party
-party must show by affidavit or verified complaint that irreparable harm will be endured by moving party if opposing party is heard on this. |
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What is Reach and Apply?
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it is a separate civil action used to assert an interest in tangible property or equity interests to satisfy a debt
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What is Lis Pendens?
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where title or use of property is an issue in a suit, a party may move the court to issue a lis pendens which can be filed in the appropriate registry to give notice to any subsequent purchasers that rights to the land are contested
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How many interrogatories can you serve on the other party?
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30 days (remember subparts count as individual questions)
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How long does a party have to serve answer/objections to interrogatories?
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45 days
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Can you serve a non-party witness with interrogatories
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No!
But you can get depositions upon written questions |
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How long does a party have to respond to a request for admissions?
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within 30 days of service UNLESS the request was served with the complaint, then you have 45 days
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What is a privilege log?
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List of discovery that you are withholding because of privilege must say:
1. authors and senders of the communication 2. the recipients 3. the date and type of communication and 4. the general subject matter of the communication |
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What do you need to show if you want work product from the other side?
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1. a substantial need for the materials in preparation of the case; and
2. substantially equivalent information cannot be obtained without undue hardship |
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when is the earliest that P can file a motion for summary judgment?
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20 days after commencement of action
*unless D serves P with the motion first (D can file motion for SJ anytime) |
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A party must serve a demand for a jury trial no later than ___ days after service of the last pleading
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10 days
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When must a party bring a motion for a new trial?
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no later than 10 days after judgment
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Additur
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Court conditions his refusal of a motion for a new trial on the losing party agreeing to pay more damages
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Remittitur
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Court conditions its refusal of a motion for a new trial on the agreement of the opposing party to accept lesser damages than what jury awarded
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Notice of appeal must be filed within...
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30 dyas of the date of entry of judgment
Exceptions: -w/in 10 days if District Court to the Appellate Division -if motion for new trial was denied you only get 10 days from that decision. |
