Ma Civil Procedure

Front 1

What is the basic idea of MA Personal Jurisdiction?

Back 1

All courts need personal jurisdiction

Can P sue D in MA?

Front 2

What is the process of determining personal jurisdiction?

Back 2

Whether there is personal jurisdiction is a two-step process:

1. Satisfy a state statute

2. Satisfy the Constitution

Front 3

What are the statutory bases of In Personam Jurisdiction in MA?

Back 3

1. D is present instate when served
2. D is domiciled or resides in MA
3. D has a usual place of business in MA
4. D consents to J
5. D is incorporated in MA
6. Long Arm Statute

I Can’t Look At Poker on Ultimate Bet Damn it - Incorporated, Consent, Long Arm, Present, Usual place of Business, Domiciled

Hint 3

I Can’t Look At Poker on Ultimate Bet Damn it.

Front 4

Could you come up with a mnemonic for remembering statutory bases of Jurisdiction?

Back 4

I Can’t Look At Poker on Ultimate Bet Damn it.

Incorporated, Consent, Long Arm, Present, Usual place of Business, Domiciled

Front 5

What does it mean that D is instate when served with process?

Back 5

D is in the state - except if:

- presence procured by fraud/duress

- only here to participate in unrelated litigation

Front 6

How might D consent to jurisdiction?

Back 6

-- 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 Massachusetts court for claims relating to that contract.

Front 7

What is the Long Arm Statute?

Back 7

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.

Front 8

How does a Defendant come under the Long Arm Statute in MA?

Back 8

-- Transacting any business in Massachusetts (D need not be physically present);

-- Contracting to supply services or things in Massachusetts;

-- Causing tortious injury in Massachusetts by act or omission in Massachusetts;

-- Causing tortious injury in Massachusetts by act or omission elsewhere, provided D (1) regularly does or solicits business, or (2) engages in other persistent course of conduct, or (3) derives substantial revenue from goods used or consumed or services rendered here.

-- Holding an interest in, or using, or possessing real property in Massachusetts;

-- Contracting to insure any person, property, or risk in Massachusetts; or

-- Living as a party to marriage where the marital domicile has been in Massachusetts for at least one year within the two years before commencement of the suit. If P still lives in Massachusetts, action can determine all obligations or modifications of alimony, custody, child support and property settlement.

Front 9

Can you come up with a good mnemonic for remembering what the Long Arm Covers?

Back 9

BaSTards Pay To Be In Mass

Transacting any BUSINESS in mass;
contracting to SUPPLY goods/services in mass;
causing TORT in mass by act in mass;
PROPERTY;
causing TORT in mass and having BUSINESS in mass;
contracting to INSURE any person/place/risk in mass; MARRIAGE in mass

Front 10

-- P sues D for assault, alleging that while the two were using intravenous drugs in Massachusetts, D supplied P with tainted needles. Is there in Personam Jurisdiction here?

Back 10

Yes – That alleges a tortious injury by act instate and so comes under the Long Arm Statute.

Front 11

-- 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?

Back 11

J OK b/c either realty interest in MA or tortious injury in MA

Front 12

-- In addition to noting a basis for jurisdiction under the long-arm, what else should you say?

Back 12

The Long Arm Statute is interpreted to the reach of the constitutional limit.

Front 13

So, the Long Arm Statute reaches to the constitutional limit. What is the constitutional limit?

Back 13

Minimum contacts + fair play and substantial justice

Front 14

What Factors do we look at to determine the tougher cases for personal jurisdiction?

Back 14

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)

Hint 14

My Parents Frequently Forgot to Read Children’s Stories.

Front 15

What are the requirements for contact with MA?

Back 15

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.

Front 16

Fair play and substantial justice requires relatedness to the forum, what does this mean?

Back 16

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

Front 17

Fair play and substantial justice requires convenience, what does that mean?

Back 17

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.

Front 18

Fair play and substantial justice looks at State’s Interest, what’s that?

Back 18

State’s interest, e.g., to provide a forum for its citizens.

Front 19

Alright, one more time, could you summarize the constitutional test?

Back 19

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

Front 20

What is In Rem and Quasi-in-Rem Jurisdiction?

Back 20

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.

Front 21

What is Forum Non Conveniens?

Back 21

Much better forum elsewhere

Transfer impossible (another state court, foreign country)

Front 22

What does the court look at to determine whether to dismiss with Forum Non Conveniens?

Back 22

(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.

Front 23

What is the basic idea of Subject matter jurisdiction?

Back 23

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.)

Front 24

What are the courts in MA called generally?

What are the subdivisions called?

Back 24

Trial Courts

Departments

Front 25

What does the Superior Court Department do?

Back 25

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.

Front 26

Over which type of case is the Superior Court Department’s jurisdiction exclusive? Are jury trials available? How many jurors?

Back 26

Review of administrative proceedings - except

1) Unemployment compensation - DC

2) Utility ratemaking - SJC

Jury trial available in actions at law. 12 Jurors

Front 27

What are the District & Municipal courts?

Back 27

District Court Department (and Municipal Courts). There may be more than one district court in each county. (Boston Municipal Court is a district court.)

Front 28

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?

Back 28

- 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.)

Front 29

Where do we start an action at law?

Back 29

It can be started in either district or superior court.

Front 30

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?

Back 30

It should dismiss and the P will refile in district court.

Front 31

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?

Back 31

No. It doesn’t have to – this amount in controversy is procedural, not jurisdictional.

Front 32

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?

Back 32

Dismiss and then P can refile in Superior Court. It doesn’t have to, however, since this amount in controversy is procedural, not jurisdictional.

Front 33

What can a single justice of the SJC do?

Back 33

Trial-type jurisdiction over equitable claims - except labor dispute injunctions

Technically not a division of the trial court.

Front 34

What is the Probate and Family Court?

Back 34

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.

Front 35

What is the Land Court? Can it order specific performance of a land contract?

Back 35

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.

Front 36

What is the Housing Court?

Back 36

Housing Court Department. There are five of these. Jurisdiction over actions involving health, safety, welfare of occupants or owners of realty.

Front 37

What is the Juvenile Court?

Back 37

Juvenile Court Department. Exclusive jurisdiction over delinquency.

Front 38

What is Small Claims?

Back 38

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.

Front 39

What’s the basic idea of venue?

Can I contract a specific venue?

Back 39

Basic Idea.

We're in MA, so where in MA?

Absent some reason venue clauses okay.

Front 40

What are the geographic units for venue?

Back 40

Superior = counties

DC = District (subdivision of county)

Front 41

What are the types of actions for purposes of venue?

Back 41

1. Local Action
2. Transitory Action
3. Special cases

Front 42

What are local actions? What are the rules for local actions?

Back 42

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.

Front 43

What are transitory actions?

Back 43

- Transitory Actions. These consist of all other cases

Front 44

How do we characterize a case for rent, use and occupation, or breach of covenant arising out of the use of realty?

Back 44

Despite having to do with land, these are transitory actions.

Front 45

What are the venue choices in transitory actions?

Back 45

They may be brought where either party resides OR has a usual place of business.

Front 46

What special venue rules apply to district court?

Back 46

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.

Front 47

Does “usual place of business” include where an employee works?

Back 47

No – the standard is usual place of business, not usual place of employment.

Front 48

What special rules apply to venue when we’re talking about a corporation?

Back 48

Usual place of business

OR

Where it holds or last held annual meeting

Front 49

Where do we do venue in replevin cases?

Back 49

Where the property is.

Considered a transitory action though.

Front 50

What are the rules for venue fo trustee process actions?

Back 50

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.

Front 51

What about a case in which neither P nor D lives in the Commonwealth?

Back 51

Venue can be anywhere in MA.

Front 52

What if venue is improper?

Back 52

Transfer or dismiss

Can also transfer to assure impartial jury

Front 53

What’s the basic idea of service of process?

What is notice?

What does process consist of?

Back 53

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.

Front 54

Who can serve process?

Back 54

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.

Front 55

When must process be served?

Back 55

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.)

Front 56

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?

Back 56

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.

Front 57

How do I serve process on a corporation?

Back 57

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.

Front 58

What are the mechanics of out-of-state service?

Back 58

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.

Front 59

Using the long-arm, who may serve process?

Back 59

Anyone proper under the law of MA or the law of the state where service is made.

Front 60

Can you waive service process by mail?

Back 60

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.

Front 61

What happens with the documents after the first service of process?

Back 61

Filed w/ clerk and mailed to party's attorney (counts as service)

Front 62

What’s the basic idea with pleadings?

Back 62

Notice Pleading - same as FRCP w/ a few differences.

Front 63

What version of Rule 11 does MA follow, and what does that mean?

Back 63

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.

Hint 63

RSD

Front 64

What happens if there’s a frivolous complaint?

Back 64

If Superior court - can order losing party to pay costs/fees

Only if wholly insubstantial, frivolous, and not advanced in good faith.

Front 65

What do you need to allege in the complaint?

Back 65

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.

Front 66

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?

Back 66

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.

Front 67

What happens if the litigant is indigent?

Back 67

In Forma Pauperis.

Court determines indigent = waive fee.

State pays fees

P pays back out of judgment if greater than 3X fees/costs

Front 68

What is the timing of the defendant’s response?

Back 68

20 days

If motion and denied - 10 days to answer after denial

Same as Federal court

Front 69

What waivable defenses are different in MA?

Back 69

“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.

Front 70

D files a permissive counterclaim against P in her answer, and asserts the defense of lack of personal jurisdiction. Has D waived the defense?

Back 70

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.)

Front 71

What is a special motion to dismiss?

Back 71

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.

Front 72

What are the special pleading rules?

Back 72

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.

Front 73

What is a motion for enlargement?

Back 73

More time

If made before deadline - show cause

If made after deadline - show excusable neglect

Front 74

What purpose does the answer serve?

Back 74

The answer serves the same functions as in federal court.

Front 75

How are counterclaims, cross-claims and amended pleadings handled?

Back 75

Counterclaims. Same as in federal practice.

Cross-Claims. Same as in federal practice.

Amending Pleadings. Same as in federal practice.

Front 76

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?

Back 76

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.

Front 77

How are proper parties and necessary and indispensable parties determined in MA?

Back 77

Proper Parties -- who may be joined. Same as in federal practice.

Necessary and indispensable parties -- who must be joined. Same as in federal practice.

Front 78

How is impleader handled differently in MA?

Back 78

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.

Front 79

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?

Back 79

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.

Front 80

How is intervention handled in MA?

Back 80

Intervention. Same as in federal practice, with intervention of right and permissive intervention.

Front 81

-- 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?

Back 81

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.

Front 82

How is interpleader handled in MA? What is it again?

Back 82

Same as federal practice under “rule interpleader.”

No analog to “statutory interpleader.”

Interpleader is where you force all claimants into one case

Front 83

-- After depositing the property, what happens if the stakeholder is disinterested (i.e., has no claim to the property)?

Back 83

Court may discharge stakeholder from the case. Insurance companies are often disinterested.

Front 84

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?

Back 84

Sue for declaratory judgment.

Front 85

How is the class action handled in MA?

Back 85

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.

Front 86

What initial requirements are there for a class action in MA?

Back 86

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)

Front 87

So how many prerequisites are there for a class action in Massachusetts state courts? What are they?

Back 87

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.

Front 88

Will Massachusetts certify a class for a limited purpose?

Back 88

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.

Front 89

What sort of notice is required to class members?

Back 89

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.

Front 90

Is there any right to opt-out of a class-action in MA?

Back 90

No

Front 91

When does the court have to decide whether to certify a class action?

Back 91

Sometime before trial begins - must assess 6 requirements.

Doesn't require "at an early practicable time" like Feds

Front 92

First Question: does the action survive the death of either party?

--Contract Cases
--Tort Cases

Back 92

-- 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.

Front 93

-- 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?”

Back 93

Yes, it does not have to be physical damage.

Front 94

If the action does not survive, how does the other side get dismissal?

Back 94

File a suggestion of death to the court, which will then dismiss the action.

Front 95

If an action survives the death of the claimant, what happens?

Back 95

You move to substitute decedent’s representative.

Front 96

What’s the deal with injunctions?

Back 96

TRO or Preliminary Injunction

entered at beginning of trial

maintains status quo pending litigation

Front 97

What are the first steps to getting an injunction?

Back 97

--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.

Front 98

So, what do you need to do to get a temporary restraining order?

Back 98

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.

Front 99

What’s the deal with a preliminary injunction? How’s it different than a TRO?

Back 99

Same purpose as TRO

Notice & hearing

Remains in effect until final judgment

Can consolidate hearing w/ trial on merits

Front 100

What’s the standard for getting a preliminary injunction?

Back 100

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).

Front 101

Is a preliminary injunction appealable?

Back 101

Yes

Grant or denial of preliminary injunction is appealable.

Front 102

What is a declaratory judgment?

Back 102

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).

Front 103

-- Does the fact that another remedy is available preclude declaratory judgment?

-- May the court order a speedy hearing of declaratory judgment matters?

Back 103

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.”

Front 104

What is an attachment? Why would one want to do that?

Back 104

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.

Front 105

How does one get an attachment?

Back 105

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

Front 106

When can the court approve attachment?

Back 106

1. Reasonable likelihood P will recover > attached amount

2. D has not enough liability insurance to satisfy judgment

Real Ladies Insure (Reasonable likelihood, Insurance)

Hint 106

Real Ladies Insure

Front 107

What happens if the court approves an attachment?

Can P get an “ex parte” attachment?

Back 107

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

Front 108

What is trustee process?

Back 108

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).

Front 109

Trustee process cannot be used in what kinds of cases?

Back 109

1. Defamation
2. Malicious prosecution
3. Assault and Battery
4. Specific recovery of goods or chattels

Front 110

What must one do to get trustee process?

Back 110

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.

Hint 110

ASAB

Front 111

B What funds are exempt from trustee process (unless claimant obtains a judgment against D)?

Back 111

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)

Hint 111

We Paid 500 Grand to the Church

Front 112

Tell me about reach and apply? Does one need a court order to commence reach and apply?

Back 112

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.

Front 113

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?

Back 113

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.

Front 114

What other relief can a creditor seek from the court?

Back 114

--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.

Front 115

What is the first step in a medical malpractice case?

Back 115

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.

Front 116

What happens when the tribunal makes their decision in a medical malpractice case?

Back 116

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

Front 117

What is Lis Pendens? How do you get one?

Back 117

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.

Front 118

What is the general rule about when the statute of limitations starts running?

Back 118

Runs from accrual of the claim - usually when there's a breach

Front 119

What’s the exception for personal injury?

Back 119

-- 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.

Front 120

What’s the rule for medical malpractice claims? Legal malpractice?

Back 120

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.

Front 121

What’s the rule for fraudulent misrepresentation in the sale of realty?

Back 121

It accrues when the claimant knew or reasonably should have known of the injuries.

Front 122

What must a plaintiff do to get their claim in before the running of the statute of limitations?

Back 122

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)

Front 123

How does D raise the statute of limitations?

Back 123

It’s an affirmative defense, so must be raised by the D in his answer.

Front 124

What does it mean to “toll” the statute of limitations?

Back 124

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.

Front 125

D tortiously injures Opie, who is twelve years old at the time of the injury. When does the statute of limitations start to run?

Back 125

When Opie is 18. Opie’s minority tolls the statute of limitations.

Front 126

What about medical malpractice? Does minority toll that?

Back 126

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.

Front 127

What if the kid is six or older when his medical malpractice claim accrues?

Back 127

Then, there is no tolling in a medical malpractice case.

Front 128

Suppose P sues D before the statute runs, and D files a counterclaim against P after the statute ran. Is the counterclaim timely?

Back 128

Yes, if it was not barred when the plaintiff sued. P’s filing tolls the running the statute for both parties.

Front 129

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?

Back 129

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).)

Front 130

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):

Back 130

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

Front 131

Are there required disclosures under the Massachusetts Rules of Civil Procedure?

Back 131

No Required Disclosures. There are no required disclosures in state practice.

Front 132

How is discovery timing different in MA?

Back 132

Discovery Tools. Timing is different from federal practice. These may be used anytime from commencement of the action until beginning of trial.

Front 133

How are depositions handled in MA?

Back 133

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.

Front 134

When would you need a court order to take a deposition?

Back 134

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

Front 135

What are the two times audiovisual depositions might come up in MA?

Back 135

1. If the party intends to call a treating physician or an expert as its own witness
2. Any other witness

Front 136

What may a party do if it intends to call a treating physician as or an expert as its own witness?

Back 136

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

Front 137

-- If a party wants to use an audiovisual deposition of its treating physician or expert, what must it do?

Back 137

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.

Front 138

What if a party wants to take the audiovisual deposition of any other witness?

Back 138

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.

Front 139

What’s the earliest I can give notice of taking an audio-visual deposition?

Back 139

CANNOT GIVE NOTICE OF TAKING AN AUDIO-VISUAL DEPOSITION OF EITHER TYPE EARLIER THAN SIX MONTHS AFTER COMMENCEMENT OF THE ACTION (unless court allows).

Front 140

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?

Back 140

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.

Front 141

What do I do with objections to the statements of other witnesses in an audiovisual deposition?

Back 141

Objections to statements of other witnesses in audiovisual deposition must be made, if practicable, before trial begins.

Front 142

Can I use an audiovisual deposition at trial?

Back 142

Audiovisual depositions can be used at trial to the same extent as other depositions.

Front 143

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?

Back 143

Yes – that’s the joy of the audiovisual deposition of a treating physician/expert.

Front 144

How are interrogatories handled in MA?

Back 144

30 interrogatories (more w/ leave)

45 days to respond

Can split into groups

Front 145

How are requests for production, physical or mental examination, and requests for admission handled in MA?

Back 145

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.

Front 146

What is the basic scope of discovery?

Back 146

- Can discover nonprivileged, relevant information

- reasonably calculated to lead to admissible evidence

Same as fed

Front 147

What do I have to do with expert witnesses?

Back 147

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.

Hint 147

DI - NSSS

Front 148

AFTER the answers to interrogatories are received, can the requesting party take the deposition of the expert(s)?

Back 148

Yes – with either a court order or a stipulation.

Front 149

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?

Back 149

Its ruling is not an abuse of discretion. These issues are up to the discretion of the court.

Front 150

If the deposition is taken, must the requesting party pay the expert for her time in connection with the deposition?

Back 150

Yes – the court sets the reasonable fee.

Front 151

What happens to discovery if an expert is not expected to testify at trial?

Back 151

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.

Front 152

What about the work product rule?

Back 152

The work product/trial preparation materials rule is the same as in federal court.

Front 153

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?

Back 153

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.

Front 154

Is there a duty to supplement responses?

Back 154

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.

Front 155

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?

Back 155

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.

Front 156

What are the basic rules of Discovery procedure and sanctions?

Back 156

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.

Front 157

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?

Back 157

P’s mother waived the privilege because she put her emotional state at issue – she put the subject of privileged communication in issue.

Front 158

What are the sanctions in MA?

Back 158

Sanctions basically same as in federal court.

Front 159

How does voluntary dismissal work in MA?

Back 159

A. Voluntary Dismissal. Same as in federal practice.

Front 160

How does involuntary dismissal work in MA?

Back 160

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

Front 161

At what point may a court dismiss on its own motion for failure to prosecute?

Back 161

convincing evidence that of unreasonable conduct or delay

not clear that the court can do this sua sponte – they probably need a motion.

Front 162

How does default and default judgment work in MA?

Back 162

Default and Default Judgment. Basically same as in federal practice, with a couple of slight variations.

Front 163

Tell me a little more about default?

Back 163

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.

Front 164

When can default judgment be entered by the clerk?

Back 164

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)

Hint 164

NR, SC, AII, AM
Noise-reducing, Sound-Cancelling, All-Intensive-Internet, AM-radio

Front 165

If D had filed an appearance in the case, what notice is D entitled to before there’s a default judgment?

Back 165

Written notice served at least 7 days before hearing on damages.

(And remember this kind of notice can be mailed; complete upon mailing.)

Front 166

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?

Back 166

Written notice at least 4 days before damages are assessed.

Front 167

How does one move to set aside a default or default judgment?

Back 167

Same as Feds.

Show meritorious defense

Degree of prejudice

Neglect attributable to lawyer not party

Degree of neglect

Front 168

What does one do with a failure to state claim?

Back 168

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.

Front 169

How does summary judgment work in MA?

Back 169

Summary Judgment. The rule mirrors the FRCP – need to know the details for the state side.

Front 170

What is the timing for filing a summary judgment?

Back 170

D = any time after commencement

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

Must serve 10 days before hearing

Front 171

What is the form of affidavits in a summary judgment?

Back 171

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 Assholes Suffering (Personal Knowledge, Competent, Admissible facts, Sworn)

Hint 171

Please Keep the College Assholes Suffering

Front 172

How else might I be able to use these documents?

Back 172

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.

Front 173

Wait a minute. We know that pleadings are not evidence (unless “verified”). So how can pleadings be relevant in summary judgment?

Back 173

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.

Front 174

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?

Back 174

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.]

Front 175

Is there a pretrial conference?

Back 175

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.

Front 176

Evidence-wise, what’s a master?

Back 176

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.

Front 177

What’s the role of the master?

Back 177

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.”

Front 178

How is the master’s report used?

Back 178

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.

Front 179

What happens with the master’s report in a jury case?

Back 179

It’s read to the jury and is prima facie evidence.

Front 180

What about the evidence that went before the master? When can a master be used?

Back 180

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.

Front 181

Does the MA Constitution guarantee a jury trial?

Back 181

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.)

Front 182

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?

Back 182

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.

Front 183

What size is the jury? What if 12 are empaneled and two are unable to finish? Does the verdict have to be unanimous?

Back 183

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)

Front 184

What happens if you object to jury instructions?

Back 184

Object outside jury's presence

State grounds

How party would be prejudiced

Front 185

How do the objections to jury instructions differ between MA and the Federal Courts?

Back 185

-- 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)

Front 186

How does motion for directed verdict work? How does Motion judgment not withstanding the verdict work?

Back 186

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.

Front 187

How does a motion for a new trial work in MA?

Back 187

Motion for New Trial. Basically the same as Motion for New Trial in federal practice, with a couple of differences.

Front 188

What is the timing of a motion for a new trial?

Back 188

Timing. Must be served within 10 days after entry of judgment.

Front 189

What are the grounds for a motion for a new trial?

Back 189

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.

Front 190

-- 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?

Back 190

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.

Front 191

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?

Back 191

Remittitur is OK in Massachusetts AND federal courts.

Remittitur can be granted on motion or sua sponte (on the court’s own).

Front 192

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?

Back 192

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.

Front 193

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?

Back 193

Massachusetts: yes.

Federal court: No – Additur is unconstitutional b/c of the 7th Amendment, which does not apply to the states.

Front 194

How does a motion to alter or amend judgment work?

Back 194

Serve on all parties. 10 days after judgment.

To have the court rehear, reconsider, or vacate its judgment.

Front 195

Is the time in which to appeal tolled pending disposition of this motion?

Back 195

Yes – w/in 30 days of the ruling.

Front 196

How is the motion to set aside judgment handled in MA?

Back 196

H. Motion to Set Aside (Vacate) Judgment. Same as federal practice.

Front 197

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?

Back 197

A motion on this basis cannot be brought more than 1 year after the judgment.

Front 198

How does the final judgment rule work in MA?

Back 198

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.)

Front 199

How does one file an appeal? When must one file for an appeal? What happens in the appellant files in the wrong court?

Back 199

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.

Front 200

What happens after the appellant files an appeal?

Back 200

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.

Front 201

What tolls the time for filing notice of appeal?

-- If appellant wrongly files during pendency of JNOV, etc., what happens?

Back 201

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.

Front 202

Is there a way for the appeals court to hear an appeal before a final appeal?

Back 202

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.

Front 203

-- 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?

Back 203

No – there’s no collateral estoppel or res judicata for small claims court judgments.