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189 Cards in this Set

  • Front
  • Back
PJ is a two step-process - what are the two steps?
1 - satisfy a statute
2 - satisfy the constitution (due process)
What does 'in personam' mean?
jurisdiction gives power over D because he has some sufficient contact with the forum.
What are the 7 ways that there can be PJ over a D?
1 - D is present instate
2 - D is domiciled or resides
3 - D has usual place of business
4 - D consents
5 - D is incorporated
6 - long-arm statute
7 - nonresident motorist statute
If D is present in the state what are the 2 ways that he can be immune from service?
1 - in MA because of fraud or duress
2 - only in MA for unrelated litigation
What are the four ways that D can consent to PJ?
1 - by filing suit in MA
2 - by failing to raise the defense
3 - by filing permissive counterclaim
4 - advance consent in a K
What does the long arm statute do?
Permits jurisdiction over non-residents that is interpreted to reach the constitutional limit
7 situations when long-arm can be applied
1 - transacting ANY biz in MA

2 - K to supply services in MA

3 - causing tort injury in MA (by act or omission in MA)

4 - causing tort injury in MA by act or omission elsewhere

5 - holding an interest in, or using, or possessing real property in MA

less important
6 - K to insure person, property or risk in MA
7 - living as a party to a marriage
*If you're applying the long arm for 'causing tort injury in MA by act or omission elsewhere' - what three things must be true about the D?
1 - regularly does or solicits biz in MA
2 - engages in other persistent course of conduct
3 - derives substantial revenue from goods used or consumed or rendered in MA
What does the nonresident motorist statute say?
Any nonresident who operates a motor vehicle in MA thereby appoints the RMV as her agent for service of process for a claim against her arising from her operation of the vehicle
What is the Constitutional Standard test?
does D have “such minimum contacts with the forum so that exercise of jurisdiction does not offended traditional notions of fair play and substantial justice”
What are the easy cases to meet the constitutional standard of PJ?
- domicile
- consent
- presence in the forum when served
What are the main two factors to analyze in the Constitution standard?
1 - minimum contact (must be a tie btw D and forum)
2 - fair play and substantial justice
How to analyze minimum contact?
1 - The contact must have resulted from purposeful availment – D’s voluntary act
2 - need foreseeability: that D could get sued in the forum
*3 Factors for 'fair play and substantial justice'?
1 - relatedness between contact and claim asserted by P (not required when D has substantial and continuous ties with the forum)
2 - convenience for parties
3 - state's interest in providing forum for its citizens

note: relatedness is especially important if D has a SMALL amount of contact with the forum
Which claims can go to state court in MA?
Any claim can go to state court EXCEPT RARE EXCLUSIVE FEDERAL QUESTIONS (bankruptcy, patent infringement, antitrust)
Will a court enforce a K provision regarding venue (forum selection clause)?
Yes unless there was fraud, duress, abuse of power, or other unconscionable behavior
What are the geographic units for venue?
- For superior court, venue is laid in the appropriate county

- For district court, venue is laid in the appropriate district (subdivision of a county)
What is a local action and what do you do when you have one?
When land involved (title or possession, not rent/use/occupation), lay venue where land is
What is a transitory action and what do you do when you have one?
all other cases than local actions. lay venue where a party resides or has its usual place of business
Why/When would the court change venue?
a. If venue improper, the court may transfer to a proper venue or may dismiss
b. Even if venue is proper – court may transfer case to assure an impartial jury (e.g. for prejudicial pretrial publicity)
What is included in the service of process?
1 - a summons
2 - copy of the complaint
What is a summons?
Court order bearing the clerk’s signature (or a copy):
1. Identifying the court and parties and P’s lawyer and her address,
2. directing D to appear and defend within the time set by rule,
3. notifying D that failure to do so may result in default judgment
Who can serve process?
a. An officer or a civilian who is appointed by the court
b. Server files with clerk a “return of service” reporting when, where, and how service was effected
Is waiver by mail permissible in MA?
No
What are the timing rules for service of process?
Serve process within 90 days of filing complaint, or else court can dismiss without prejudice.

BUT won’t dismiss if P shows good cause as to why service not effected
[mechanics of in-state service]
What are the acceptable methods of service on persons?
i. Personal service
ii. Service on appropriate agent
iii. Substituted service at D’s last and usual place of abode (need not be left with anyone)

NOTE: If none of these methods available - P may ask the court to order notice by alternative means (example – mail)
[mechanics of in-state service]
What are the acceptable methods of service on a corporation?
Process can be delivered to'
1. ANY corporate officer,
ii. a managing or general agent, or
iii. the person IN CHARGE of the corporation’s principal place of business

NOTE: if none found in MA - court can allow service on the corp by delivering an order of notice to the MA sec of state (who then forwards it by registered mail, return receipt requested)
[mechanics of out-of-state service]
Under the long-arm statute, what are the permitted ways to serve process?
1. By method permitted in MA
2. By method permitted in the state where service is effected
3. By certified mail, return receipt requested (RRR), to D out of state
[mechanics of out-of-state service]
Under the long-arm statute, WHO may serve?
1. Anyone under MA law or
2. State law where service is made
[mechanics of out-of-state service]
Under the non-resident motorist statute, what are the permitted ways to serve process?
1. by delivery to the MA RMV *AND* by registered or certified mail to the D, return receipt requested (RRR) OR
2. serve by any method ordered by the court
How must subsequent documents in the litigation be served?
Must be filed with the clerk of court with a copy served on other parties

i. Service for this can be made by mailing it to the party’s attorney – when service is completed upon mailing
ii. Add 3 days to required time for response to the document mailed
What is the standard for stating a claim in MA?
state facts supporting a PLAUSIBLE CLAIM (not just possible)
Under Rule 11, the lawyer signs documents, certifying what three things?
i. She has read it;
ii. That to the best of her knowledge, information, and belief there is good ground to support it; AND
iii. That it is not interposed for delay
Can there be sanctions for violations of Rule 11?
Yes - for willful violations
What is the punishment for a frivolous lawsuit?
A trial court (but not district court) can order the losing party (if represented by counsel) to pay costs and reasonable attys fees (and 12% interest) incurred by the other side in litigating the case.
What must a court determine to impose sanctions?
that the claims or defenses asserted were wholly insubstantial, frivolous, and not advanced in good faith
When does the issue of a frivolous lawsuit come up?
only after decision in the case and motion of a party
What two things must a complaint in MA have?
1 - A short and plain statement of the claim, showing pleader entitled to relief AND
2 - A demand for judgment (doesn't need to be dollar amount)
When may a P set forth a damages figure? What must P do?
If damages are liquidated and P attaches a sworn statement showing the calculation
D must respond within how many days and with what?
D must respond within 20 DAYS – by MOTION OR AN ANSWER
What are the 6 waivable defenses?
In addition to those in federal court:
1. Lack of personal jurisdiction
2. Improper venue
3. Insufficiently of process – problem with the papers
4. Insufficient service of process

State specific
1. “pendency of a prior action” in state court
2. “improper amount of damages in the superior court or in district court”
What is an anti-SLAPP (Strategic Lawsuits Against Public Participation) Motion to Dismiss?
Used when D gets sued for her statements to a governmental body (ex: reporting health code violations)
Court must grant the anti-SLAPP motion unless P can show what?
(VERY high burden!)
1. The exercise of the D’s right to speak was devoid of any reasonable factual support or arguable basis in law AND
2. The D’s act cause actual injury to the P
What is a motion for enlargement?

How does it work?
Motion to get more time to do something


ii. If made before the act is due, the court may allow an extension for cause shown
iii. If made AFTER the expiration of time allowed  court may grant extension for excusable neglect
What is a counterclaim?
Claim against an opposing party.
What are the two types of counterclaims?
Compulsory and permissive
What is a compulsory counterclaim?
Arises from the same T/O as P’s claim. MUST BE FILED IN THE SAME CASE OR IT’S WAIVED FOREVER
What is a permissive counterclaim?
- Does not arise from same T/O as P’s claim.

- You MAY file it with your answer in this case of can assert it in a separate case
What is a crossclaim?
Optional claim against a co-party that MUST arise from the same T/O as the underlying claim.
When can D and P amend their pleadings?
- P has the right to amend ONCE before D serves her answer

- D has a right to amend ONCE within 20 days of serving her answer

- Otherwise – works as in federal court
What are the required disclosures?
There are none.
What's the timing for state court discovery?
Is different than in federal court. May be used anytime from commencement of the action until beginning of trial
What are the requirements for taking a deposition?
- Written notice must be given at least 7 days before the depo
- Non-party deponent must be subpoenaed or else not required to attend
Can party's who are non-residents of MA be deposed where the case is pending?
Yes because there's PJ over them
When do you need a court order to take a deposition? (2 reasons)
- If P seeks to take depo within 30 days after service on D (unless D has initiated discovery)

OR

- If there’s a reasonable likelihood that the recovery will exceed
What's the earliest a party can give notice of taking an audio-visual deposition?
6 months after the case if filed (unless the court says earlier is okay)
What are the two types of Ws that can do audiovisual depos?
1 - treating physician or expert

AND

2 - any other witness
If a party intends to call a treating physician or expert as its own witness, what must they do? (2 things)
1 - Given written report at least 30 days before noticing the audio-visual depo (Including resume, details of subject matter, substance, support for matters that he will testify)

2. Give notice stating depo will be used in lieu of oral testimony at trial
If the opposing party opposes the audiovisual depo of a treating physician or expert, what can they do and what's the timeline?
- Other party has 14 days to make a motion in opposition

- They have the burden to make a motion
How much time does a party have to respond to interrogatories?
45 days
What's the max # of interrogatories you can have?
No more than 30 - including subparts.
Can the interrogatories be divided up into parts?
Yes - can be 3 sets of 10 for example
What is the standard for relevance in discovery?
“reasonably calculated to lead to admissible evidence”
Is there a duty to update discovery responses if they were correct when made?
No - no duty to police himself
What MUST the parties supplement? (4 things)
i. Requests for identity of witnesses and subject/substance of expert testimony

ii. If responses were incorrect when made

iii. Responses are no longer true and failure to supplement is “in substance knowing concealment”

iv. When court order or parties’ agreement requires
Regarding expert witnesses, what must parties do?
They must SEEK discovery about the other parties’ expert witnesses.

This means they need to serve them with interrogatories regarding: names, subjects that they will testify on, substance of their facts and opinions, grounds for each opinion
After interrogatories are received, what must the requesting party do to take the depo of an expert? (2 things)
- need COURT ORDER OR STIPULATION

- must pay expert for her time – court (judge) sets reasonable fee
When is there an exception with regarding to discovery about an expert witness?
If expert 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 are the rules regarding work product and trial preparation materials?
same as federal court
What are the discovery procedures and sanctions?
Basically same as federal court BUT NO rule 26(f) conference!
What is a protective order?
A party trying to avoid disclosure of info requested in discovery may seek a protective order from the court.
Over what kind of info would a party ask for a protective order?
info that’s embarrassing, overburdensome, undue expense, protect privileged material
When can you implead someone?
claim MUST be for indemnity or contribution to D for the underlying claim
Who can D implead?
someone who is liable to D directly
Who can P implead?
a 3rd party if a claim has been filed against her (like a counterclaim)
What is different about impleader in MA (versus fed)?
process served on 3rd party D includes not only the 3rd party complaint and summons BUT copies of all original pleadings from the underlying actions
What is the timing for impleader in MA?
right to implead within 20 DAYS of serving her answer (fed ct is 14 DAYS); after that – need court permission
Does MA allow impleader of joint tortfeasor for contribution?
Yes - good news
What are the rules for intervention in MA?
Generally same as fed practice with intervention of right and permissive intervention
What is the special MA rule regarding intervention?
If case draws the constitutionality of a state statute or municipal ordinance into question - the party asserting unconstitutionality must notify the MA attorney general
*What is interpleader?
Holder of property (stakeholder) forces all claimants into a single case to avoid multiple litigation
When is interpleader often used?
Often used by insurance companies to determine, which, if any, of the claimants is entitled to policy proceeds
What can a stakeholder do in an interpleader case to be discharged from the case?
Stakeholder MAY deposit the disputed property, or any part thereof, with the court

After doing this, if the stakeholder is disinterested (has no claim to the property), then the ct may discharge him from case
What types of class action are there in MA?
There is only one kind - Type 3 - damages
What are the SIX initial requirements for a class action in MA?
First 4 are same as federal:
i. Numerosity: too many class member for practicable joinder (no magic #)

ii. Commonality: there are some questions of law of fact in common to class

iii. Typicality: Rep’s claims/defenses typical of those of the class

iv. Representative is adequate: Rep will fairly and adequately represent class


2 ARE SPECIAL TO MA:

v. *the common questions PREDOMINATE over individual questions; and
vi. *the class action is the SUPERIOR METHOD for resolving the dispute
Will MA certify a class for a limited purpose?
No - all or nothing!
Is notice to class members required?
No. discretionary with the court.
In MA must there be an appointed class counsel?
No - Court certifying a class action does NOT have to appoint class counsel
May people opt-out of the MA class action?
No right to opt-out
Can the parties dismiss or settle a certified class action?
Yes - court not required to approve or get feedback on settlement or voluntary dismissal
Do actions survive the death of either party?
i. K cases - yes

ii. Tort cases - yes IF they are for:
1. Assault, battery, or “other damage to the person” (including IIED)
2. Consequential damages arising out of personal injury to the decedent (e.g. medical expenses)
3. Damages to real or personal property or conversion of goods
What happens procedurally if the action does NOT survive the death of a party?
File a suggestion of death and court may dismiss
What happens procedurally if the action DOES survive the death of a party?
party should make a motion to substitute the decedent’s representative
What are the two options for injunctions in MA?
1 - temporary restraining order

2 - preliminary injunction
What are the 3 requirements for injunctions in MA?
1 - Applicant must post security unless the court finds otherwise for good cause; amount determined by the court

2 - must have a verified document under oath by party that sets forth SPECIFIC FACTS showing basis for relief by person with knowledge of the facts

3 - document describe conduct to be restrained in reasonable detail
When may a temporary restraining order be granted?
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
What are three important points about timing re: TROs?
1. TRO cannot last more than 10 days unless opponent consents

2. Hearing must occur within 10 days

3. Opponent, on 2 days’ notice, may have a hearing to dissolve or modify TRO
A TRO granted without notice is sometimes called what?
EX PARTE
When is a preliminary injunction granted?
Some purpose as TRO, but may only be granted AFTER NOTICE to the opponent and opportunity to be heard
How long does a preliminary injunction remain in effect?
Remains in effect until entry of final judgment (unless court orders otherwise)
What is the standard for a preliminary injunction? - must show 3 things
1. Substantial likelihood that he will succeed on the 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 (weight threatened injury to claimant, harm inflicted on D if the injunction is issued, and public interest)
Can a preliminary injunction be appealed?
Yes - both a grant or a denial
What is a declaratory judgment?
Request that the court make a binding declaration of rights, duty, status, and other legal relations
What must be true about the factual allegations in a declaratory judgment?
MUST SHOW an actual controversy
May the court order a speedy hearing of declaratory judgment matters?
Yes - may advance it on the calendar
What is an attachment?
A claimant may attempt to have the D’s property (real or personal) attached at the commencement of the action of thereafter
How does a P get an attachment? (must do two things)
1 - make MOTION FOR APPROVAL OF ATTACHMENT, supported with AFFIDAVITS

2 - Motion served on D with notice of when the hearing will take place + statement that D does not submit to PJ by contesting the attachment
When may the court approve of the attachment? (2 things)
Only if it finds:

i. There is a “reasonable likelihood that claimant will recover a judgment in an amount equal to or greater than the attachment; AND

ii. D has inadequate liability insurance to satisfy the judgment
If an attachment is approved, what happens?
court issues the writ of attachment, which the sheriff or constable must serve
When would one use trustee process? When is it usually used?
When property is in the hands of a 3rd party, called the trustee.
usually used to attach debts owed to D by the trustee (e.g. bank account)
In what 4 types of cases is trustee process NOT used?
i. Defamation
ii. Malicious prosecution
iii. Assault and battery
iv. Specific recovery of chattels
What funds are generally exempt from trustee process? (4)
i. First
1000 unless the action is based upon a: (6)
i. Judgment
ii. K for personal services
iii. K for goods sold and delivered
iv. Money due under a K in writing
v. Tort for operation of unregistered motor vehicle
vi. Order for alimony, maintenance or child support
How does the court enforce trustee process?
Court MUST give PRIOR APPROVAL with a “trustee summons” which claimant has served on the trustee (e.g. bank)
What does a trustee do in the answer?
Trustee files an answer in court describing the property being held for the benefit of the parties – served like serving process
What is special about medical malpractice cases in MA?
every damages action goes through a tribunal screening that consists of an attorney, a superior court judge, and a physician to determine if there is a legit question of liability
What does the Uniform Fraudulent Transfer Act do?
allows creditor to reach real or personal property transferred by a debtor in fraud of creditors
When is a conveyance deemed fraudulent automatically?
when a person is insolvent (or made insolvent buy it) and they incur an obligation without fair consideration
What may creditors seek in MA courts?
A creditor whose claim:

i. HAS matured - may seek to have the conveyance set aside or annulled to the extent necessary to satisfy his claim

ii. HASN’T matured - may seek an RO to stop D from disposing of property or appointment of receiver to take control of it
What is 'reach and apply' used for?

How does it work?
Like attachment but here the property is intangible or an equitable interest in property (ex: copyright, option to purchase property).

If D has it – this operates as attachment ; if 3rd party has it – works like trustee process
What is a lis pendens?
Recorded at the registry of deeds – this notifies persons that an action is pending involving title or use of real property
How do you get a lis pendens?
Make the motion and if the court finds involved title or use of realty, you then can record the lis pendens
When does a statute of limitations begin to run? What are the exceptions?
the claimant’s right to sue is complete: when there IS an injury or breach (even if claimant is unaware of it)

Exceptions -
1-personal injury
2-medmal
What is the rule for the SOL accrual in personal injury cases?
Based on negligence, accrues when claimant knows or reasonably should know, of the harm
What are the 3 methods of commencing the case for purposes of SOL?
i. usually when P files the complaint and pays the entry fee

ii. but can also be when P mails the complaint and entry fee to the clerk of court by certified or registered mail (mailbox rule – commenced when mailed)

iii. P may mail the complaint and entry fee to clerk of court by regular mail – not commenced until clerk gets it
What is the injury is not discernible or the cause is not ascertainable in a personal injury case?
SOL accrues when knowledge of the cause may reasonably be imputed to claimant
What is the rule for the SOL accrual in medmal cases?
accrues when health care professional committed malpractice, unless there’s no way the patient was aware of the physician’s negligence

Then, claim accrues when patient learned, or in exercise of reasonable diligence should have learned, of facts giving rise to the claim
What is the statute of repose?
Even under the medmal exception the action generally cannot be brought more than seven years after the negligent act or omission
When does the statute of repose NOT apply?
if the case involves a foreign object placed in the body
What happens if D does not raise the SOL as an affirmative defense?
Waives it
What are the 2 things that toll the SOL?
i. Commencing the action tolls the statute

ii. Suffering lack of legal capacity (e.g. minority, mental incapacity) when the claims accrues - If P lacks capacity when the claim accrues, the statute does not start to run until the disability is removed
What is the rule with SOL and counterclaims?
If P sues D before the statute runs, and D files a counterclaim against P after the statute ran – the counterclaim IS okay if it was not barred when P sued
What does the 'renewal statute' say?
If dismissal for a matter of form – P may commence within one year of dismissal
What is the SOL for tort actions?
3 years
What is the SOL for tort or K for personal injury?
3 years
What is the SOL for Breach of warranty?
3 years
What is the SOL for breach of sales K under UCC?
4 years
What is the SOL actions on Ks (not personal injury)?
6 years
How does voluntary dismissal work?
Same as in federal practice re: written notice of dismissal
Involuntary dismissal - In addition to all the rule 12(b) grounds of dismissal, D can dismiss for: (3)
i. Persistent refusal to comply with court order

ii. Failure to prosecute the case – convincing evidence of unreasonable conduct or delay

iii. Clear and convincing evidence that P attempted to commit fraud upon the court (destroying docs, perjured testimony)
When can the court enter default?
Same as federal practice, so default entered by the clerk (motions to set aside are the same)

ex: D fails to respond to the complaint within 20 days after service of process on him
When can the clerk enter default judgment? (4 needed)
i. D failed to appear

ii. Claim is for a sum certain (calculable)

iii. P files an affidavit that D is not a minor or incompetent

iv. Under soldiers’ and sailors’ civil relief act, P files an affidavit that D is not in the military service
If the situation for automatic default judgment don't apply - what must the P do?
must seek entry of judgment by the court
If D filed a appearance what rights does he have in regards to default judgment?
D is entitled to written notice at least 7 days before the hearing on damages
What can D's defense be to both default and default judgment?
same as fed - look for meritorious defense, degree of prejudice, neglect of lawyer
What is 'failure to state a claim'?
When D moves to file this under the standard that if every fact were true - the P would STILL NOT WIN
(same as fed)
Moving party for summary judgment must show what two things?
i. There’s NO genuine dispute as to material issue of fact AND
ii. That she is entitled to judgment as a matter of law

(same as fed)
In evaluating a motion for summary judgment - what does the court look at?
i. Unverified pleadings are NOT evidence, but they might be relevant (ex: D failed to deny allegation – can be treated as fact)

ii. Evidence must be firsthand knowledge; affidavits okay
Forms of Affidavits – Must : (4 things)
i. Based on first-hand knowledge

ii. Show that the affiant is competent to testify under rules of evidence

iii. Set forth admissible facts

iv. Attach sworn or certified copies of docs referred to
What are the timing issues with SJ?
i. D may move for DJ after commencement of the action

ii. P may move after 20 days from commencement of the action or after D serves a motion for SJ

iii. Moving party must serve the motion at least 10 days before hearing on the motion
When is SJ unlikely?
when intent or knowledge of a party is in issue
What is the rule on pretrial conferences?
No rule - completely within the discretion of the judge
What is a master and what is her role?
- appointed as an adjunct to the judge

- role is to conduct evidentiary proceedings, make findings of fact and conclusions of law with the court in a “report”
How can a master's report be used in a jury trial?
it is read to the jury and is prima facie evidence. Not binding
How can a master's report be used in a non-jury trial?
1. the court accepts the master’s findings of fact unless they are clearly erroneous
How can a party contest the finding of a master's report?
arty must file written objections within 30 days of service of notice that the report was filed
What is a motion in limine?
motion by trial to determine if certain evidence can be produced
What is the process for getting a jury trial in MA?
Written demand required (as in fed ct)
Can a party withdraw demand for a jury trial?
Once a party has demanded a jury trial – he can ONLY withdraw it if ALL PARTIES CONSENT
How does an 'advisory jury' work?
court can empanel an advisory jury in an equity case upon motion of a party
What is jury size in MA?
12 in superior court
(can proceed with 10 if need be)

6 in district court

but parties may stipulate to fewer.
Does the verdict need to be unanimous?
No - at least 5/6ths of the jury must agree (10/12)
What must a party do to object to jury instructions? (2)
- to preserve the issue for appeal, must object to judge’s proposed jury instructions, outside the jury’s presence

- When making objection, must state the grounds for the objection and state how party would be prejudiced by the instruction
When must the objection to jury instructions be made? (MA Rule)
objection must be made to judge sometime before jury begins deliberations
When must the objection to jury instructions be made? (1st cir. Rule)
must object immediately before the jury retires to deliberate
What is a motion for directed verdict?
same as Motion for Judgment of Law in federal practice
What is a motion for judgment notwithstanding the verdict?
Same as Renewed Motion for Judgment as Matter of Law in fed practice
What must a party do that's unique in MA to motion for judgment notwithstanding the verdict?
to bring JNOV, a party must have moved for directed verdict at the close of all the evidence
Why would a court grant a motion for a new trial?
Judgment entered but errors at trial require a new trial
When must a motion for a new trial be filed?
Motion must be served (not merely filed in court) within 10 days after entry of judgment
What are the 5 grounds for a motion for new trial?
i. Prejudicial (harmful) error at trial makes judgment unfair (like wrong jury instructions)

ii. New evidence that could not have been obtained with due diligence for the original trial

iii. Prejudicial misconduct of party, attorney, third party, or juror

iv. Judgment is against the weight of the evidence (serious error of judgment by jury)

v. Excessive or inadequate damages
What can the court suggest if there's excessive damages? (as an alternative to a new trial)
Court may suggest remittiur - tells P that she may accept a lower amount (which the court sets) OR face a new trial
What can the court suggest if there's inadequate damages? (as an alternative to a new trial)
Court may suggest additur - tells D that he could pay higher figure in damages (which the court sets) OR face a new trial
What is a motion to alter or amend judgment and what is the timing for this?
A party may move to have the court rehear, or reconsider its judgment. Must serve the motion on all parties within 10 days after entry of the judgment.
What is the final judgment rule?
There is a right to appeal ONLY from final judgments

Means ultimate judgment by the trial court of the merits of the entire case (ex: denial of motion for new trial, RJMOL)
Where does an appeal from the superior court go?
Goes to the intermediate appeals court - beyond that - review by the SJC is discretionary
Where does an appeal from the district court go?
rulings on issues of law may be appealed to the appellate division of the district court
How do you appeal a case? (procedure and timing)
File with the clerk of the TRIAL COURT a notice of appeal within 30 DAYS of the final judgment
What happens is appellant files in the wrong court?
clerk of that court must note when the notice was filed and transfer it to the proper court

and deemed filed on the date noted by the clerk of the improper court
How are other parties notified of the appeal?
Clerk serves notice of appeal on other parties – who can then file appeals within 14 days from appellant’s filing notice of appeal or original 30 (or 60) days, whichever is later
What effect does: motions for new trial, JNOV, or to alter or amend the judgment have on the appeal?
tolls the time for filing notice of appeal. That period runs from ruling by the trial court on those motions.
If the appellant wrongly filed during pendency of JNOV – what happens?
Filing is ineffective so you have to refile within 30 days of the court’s filing
What effect does an interlocutory review by report have on the appellate process?
The trial court can “report” an interlocutory (non-final) order to the appellate court if, in its opinion, the matter should be reviewed before further proceedings in the trial court
What is Res Judicata / Claim Preclusion?
You only get to sue on a cause of action (or claim) once, so you must seek all relief possible under that claim in that single action or else you lose the right to go after it later.
What are the requirements for invoking Res Judicata / Claim Preclusion? (2)
- Case 1 and Case 2 must be brought by the same claimant against the same D

- Case 1 must have ended in a valid final judgment ON THE MERITS (not jurisdiction, venue, or indispensible parties)
What is collateral estoppel / issue preclusion?
Precludes relitigation of a particular ISSUE that was litigated and determined before. That issue is deemed established in the second action, so it cannot be litigated again
What are the requirements for invoking collateral estoppel / issue preclusion? (4)
i. Case 1 ended in a valid final judgment on the merits

ii. The same issue was actually litigated and determined in Case 1

iii. The issue was essential
(necessary) to the judgment in Case 1 (it supported the judgment

iv. Can ONLY be used AGAINST one who was a party in Case 1 – requirement of due process!
who can use collateral estoppel? - what is nonmutual defensive issue preclusion?
when the person using it in case 2 was not a party in case 1 and the D is in case 2
who can use collateral estoppel? - what is nonmutual offensive issue preclusion?
When the person using it in case 2 was not a party in case 1 and is the P in case 2

ONLY ALLOWED IF NOT 'UNFAIR'

Factors:
i. D had full and fair opportunity to litigate in case 1
ii. D could foresee multiple suits
iii. P could not have joined easily in case 1
iv. There’s no inconsistent judgments on record. If there had been multiple litigation, and sometimes not, it would be unfair to let P get issue preclusion on a negligence finding