Glossary of MA Civil Procedure
Other Decks By This User
- What is the basic idea of MA Personal Jurisdiction?
- All courts need personal jurisdiction
Can P sue D in MA?
- What is the process of determining personal jurisdiction?
- Whether there is personal jurisdiction is a two-step process:
1. Satisfy a state statute
2. Satisfy the Constitution
- What are the statutory bases of In Personam Jurisdiction in MA?
- 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
- Could you come up with a mnemonic for remembering statutory bases of Jurisdiction?
- I Can’t Look At Poker on Ultimate Bet Damn it.
Incorporated, Consent, Long Arm, Present, Usual place of Business, Domiciled
- What does it mean that D is instate when served with process?
- D is in the state - except if:
- presence procured by fraud/duress
- only here to participate in unrelated litigation
- How might D consent to jurisdiction?
- -- By filing suit here, the plaintiff consents to jurisdiction for counterclaims filed against her by D.
-- D may consent to jurisdiction by making an “appearance” without raising the defense of lack of personal jurisdiction properly or timely.
-- D may consent to jurisdiction by filing a permissive counterclaim.
-- Parties to a commercial contract may consent in advance to the jurisdiction of a Massachusetts court for claims relating to that contract.
- What is the Long Arm Statute?
- 6. The long-arm statute. The long-arm statute permits jurisdiction over nonresidents - Ds who are not present, do not reside, are not incorporated, etc. here.
- How does a Defendant come under the Long Arm Statute in MA?
- -- 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.
- Can you come up with a good mnemonic for remembering what the Long Arm Covers?
- 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;
causing TORT in mass and having BUSINESS in mass;
contracting to INSURE any person/place/risk in mass; MARRIAGE in mass
- -- 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?
- Yes – That alleges a tortious injury by act instate and so comes under the Long Arm Statute.
- -- P sues D for injuries sustained by drinking water allegedly tainted by gas leaking from the tanks of a gas station run by D, who leases the land on which the gas station sits. D is an out-of-state corporation. Is there In Personam Jurisdiction here?
- J OK b/c either realty interest in MA or tortious injury in MA
- -- In addition to noting a basis for jurisdiction under the long-arm, what else should you say?
- The Long Arm Statute is interpreted to the reach of the constitutional limit.
- So, the Long Arm Statute reaches to the constitutional limit. What is the constitutional limit?
- Minimum contacts + fair play and substantial justice
- What Factors do we look at to determine the tougher cases for personal jurisdiction?
- Minimum Contacts – Purposeful availment, forseeability
Fair play and substantial justice – relatedness, convenience, state’s interest
My Parents Frequently Forgot to Read Children’s Stories.
(Minimum, Purposeful, Forseeability, Fair, Reasonable, Convenience, State’s)
- What are the requirements for contact with MA?
- Contact. There must be some tie between D and the forum.
-- The contact must result from purposeful availment: D’s voluntary act.
-- Also need foreseeability: that D could get sued in this forum.
- Fair play and substantial justice requires relatedness to the forum, what does this mean?
- Does the claim asserted by P arise from D’s contact with the forum?
Can make up for small contact - Big relatedness okay
Everything Long Arm = related, since same T/O
Not required if lots of ties - general jurisdiction
- Fair play and substantial justice requires convenience, what does that mean?
- Convenience for defendant, witnesses, and other parties. Forum OK unless so gravely inconvenient that it puts D at a severe disadvantage in litigation. Very, very tough to show.
- Fair play and substantial justice looks at State’s Interest, what’s that?
- State’s interest, e.g., to provide a forum for its citizens.
- Alright, one more time, could you summarize the constitutional test?
- SUMMARY OF CONSTITUTIONAL TEST:
My Parents Frequently Forgot to Read Children=s Stories.
--purposeful availment --foreseeability
Fair play and substantial justice
-- relatedness – convenience – state’s interest
- What is In Rem and Quasi-in-Rem Jurisdiction?
- These are disputes in which the jurisdictional base is not the person, but her property. The statutory basis is an attachment statute. The tough issue, usually, is the constitutional test. On that, Shaffer v. Heitner says all exercises of jurisdiction, even in rem and quasi-in-rem, must satisfy International Shoe. Despite this statement, constitutionality probably depends on whether dispute is related to the property attached. If so (e.g., P attaches D's real property in a suit against D regarding ownership of that very land), constitution is probably met by presence and attachment of the property in the forum. If the claim is unrelated to the property attached (e.g,, P attaches D's land in a suit against D for breach of a contract totally unrelated to the land), D's contacts with the forum clearly must satisfy International Shoe for jurisdiction to be constitutional.
- What is Forum Non Conveniens?
- Much better forum elsewhere
Transfer impossible (another state court, foreign country)
- What does the court look at to determine whether to dismiss with Forum Non Conveniens?
- (1) public factors - what law applies
(2) private factors - Convenience, where W are, etc.
Court can condition dismissal on D waiving SOL in other court.
- What is the basic idea of Subject matter jurisdiction?
- A. Basic Idea. Here, we’ve decided we have personal jurisdiction over D in Massachusetts, and that we will sue in state (not federal) court. Remember that any cognizable claim can be filed in some state court, except those rare exclusive federal question cases, which must go to federal court. (Most FQ cases, though, are not exclusive to federal court.)
- What are the courts in MA called generally?
What are the subdivisions called?
- Trial Courts
- What does the Superior Court Department do?
- 1. The Superior Court Department. This is the principal trial court for civil cases. Each county in the Commonwealth has one. It can hear most civil cases.
Can hear wide variety of cases at law and equity, including tort and contract, specific performance, injunctions, declaratory judgment, judicial review of adjudicatory proceedings before administrative agencies.
- Over which type of case is the Superior Court Department’s jurisdiction exclusive? Are jury trials available? How many jurors?
- Review of administrative proceedings - except
1) Unemployment compensation - DC
2) Utility ratemaking - SJC
Jury trial available in actions at law. 12 Jurors
- What are the District & Municipal courts?
- District Court Department (and Municipal Courts). There may be more than one district court in each county. (Boston Municipal Court is a district court.)
- What do the District Courts have concurrent jurisdiction over? Can they hear replevin cases (i.e., for recovery of personal property)? Can they award equitable relief? Are jury trials available? How many jurors?
- - Concurrent jurisdiction with superior court over actions at law where money damages are sought, only when there is no reasonable likelihood P will recover more than $25k.
- Yes, they can hear replevin cases.
- They have the same basic equity power as the Superior Court.
- They can hear jury trials only if statute allows – 6 jurors.
- Concurrent jurisdiction with superior court over consumer claims under the General Laws of the Commonwealth for damages arising from unfair and deceptive trade practices. (Only superior court can issue an injunction, though, or entertain a class action in such cases.)
- Where do we start an action at law?
- It can be started in either district or superior court.
- P sues D in Superior Court in superior court. If it appears that P will not be able to recover more than $25k (not including interest and costs), what should the superior court do?
- It should dismiss and the P will refile in district court.
- P sues D in Superior Court in superior court. If it appears that P will not be able to recover more than $25k (not including interest and costs), must the superior court dismiss?
- No. It doesn’t have to – this amount in controversy is procedural, not jurisdictional.
- P sues D in district court. If it appears that P will be able to recover more than $25k (not including costs and interest), what should the district court do? Must it do this?
- Dismiss and then P can refile in Superior Court. It doesn’t have to, however, since this amount in controversy is procedural, not jurisdictional.
- What can a single justice of the SJC do?
- Trial-type jurisdiction over equitable claims - except labor dispute injunctions
Technically not a division of the trial court.
- What is the Probate and Family Court?
- Probate and Family Court Department. Exclusive jurisdiction over probate, divorce, etc., and health care proxy issues. Concurrent with superior and single justice for equitable relief.
- What is the Land Court? Can it order specific performance of a land contract?
- Land Court Department. Limited to actions relating to title to land. Exclusive re registering title, foreclosing tax titles, discharging mortgages, and determining municipal boundaries. Concurrent, generally, with superior and single justice re equitable relief concerning land.
-- It can order specific performance of a land contract.
- What is the Housing Court?
- Housing Court Department. There are five of these. Jurisdiction over actions involving health, safety, welfare of occupants or owners of realty.
- What is the Juvenile Court?
- Juvenile Court Department. Exclusive jurisdiction over delinquency.
- What is Small Claims?
- Special session of district court.
Hears civil cases (except libel and slander) in which amount in controversy does not exceed $2,000, exclusive of interests and costs.
May award double or triple damages where allowed by statute, even if judgment then exceeds $2,000.
- No amount in controversy limitation for motor vehicle property damage claims; judgment has NO collateral estoppel or res judicata effect in later personal injury claims arising from the same accident.
- Informal procedures. No jury and no appeal and no discovery.
- What’s the basic idea of venue?
Can I contract a specific venue?
- Basic Idea.
We're in MA, so where in MA?
Absent some reason venue clauses okay.
- What are the geographic units for venue?
- Superior = counties
DC = District (subdivision of county)
- What are the types of actions for purposes of venue?
- 1. Local Action
2. Transitory Action
3. Special cases
- What are local actions? What are the rules for local actions?
- Land cases - venue where land is
These include cases for title or possession of land and petitions in probate court for partition of land.
Venue in such a case is laid where the land is located.
- What are transitory actions?
- - Transitory Actions. These consist of all other cases
- How do we characterize a case for rent, use and occupation, or breach of covenant arising out of the use of realty?
- Despite having to do with land, these are transitory actions.
- What are the venue choices in transitory actions?
- They may be brought where either party resides OR has a usual place of business.
- What special venue rules apply to district court?
- In district court only, venue is also OK in the judicial district that adjoins a judicial district where either party resides or has a usual place of business.
- Does “usual place of business” include where an employee works?
- No – the standard is usual place of business, not usual place of employment.
- What special rules apply to venue when we’re talking about a corporation?
- Usual place of business
Where it holds or last held annual meeting
- Where do we do venue in replevin cases?
- Where the property is.
Considered a transitory action though.
- What are the rules for venue fo trustee process actions?
- Brought where trustee resides or has business
If approval of trustee process is sought in connection with a transitory action in a district court venue where ANY party or the trustee resides or has a usual place of business.
- What about a case in which neither P nor D lives in the Commonwealth?
- Venue can be anywhere in MA.
- What if venue is improper?
- Transfer or dismiss
Can also transfer to assure impartial jury
- What’s the basic idea of service of process?
What is notice?
What does process consist of?
- Remember that in addition to personal jurisdiction, due process requires that D be given notice of the case and an opportunity to be heard before judgment can be entered.
Notice in this sense is service of process.
Process consists of:
(1) a summons (court order bearing the clerk’s signature (or a copy), identifying the court and parties and P’s lawyer and her address, directing D to appear and defend within the time set by rule, notifying D that failure to do so may result in default judgment) and
(2) a copy of the complaint.
Massachusetts has adopted the Federal Rules, with some slight differences.
- Who can serve process?
- Who Can Serve Process? An officer (e.g., sheriff or constable) or a civilian specially appointed by the court.
(Federal court any nonparty at least 18 years old can serve process.)
The server files with clerk a "return of service" reporting when, where, and how service was effected.
- When must process be served?
- C. Timing. Serve process within 90 days of filing complaint, or else court can dismiss without prejudice (won’t dismiss, though, if P shows good cause why service not effected). (Federal court same rule but 120 days.)
- What are the mechanics of instate service? What about substituted service at D’s last and usual place of abode? What if none of the standard instate services are possible?
- As in federal court,
(1) personal service and
(2) service on appropriate agent are OK.
- Substituted service is okay, and need not be left w/ anyone, it can simply be left there. (But, a summer home in winter ≠ a usual abode)
- (If used in district court, must also mail copy of process to defendant.)
- If none of these is possible, despite diligent search, P may ask the court to order notice by alternative means.
- How do I serve process on a corporation?
- Any corporate officer, agent, or person in charge of PPB.
If none found in MA - court can allow service on MA Sec State (who forwards registered mail - receipt)
You can’t serve process to a secretary.
- What are the mechanics of out-of-state service?
- The Mechanics -- Out-of-State Service. Under the long-arm statute, service is permitted out of state in any of these ways:
-- By a method permitted in Massachusetts;
-- By a method permitted in the state where service is effected;
-- By mail, return receipt requested, to D out of state;
-- On a nonresident motorist, by delivery to the registrar of motor vehicles and by registered or certified mail, Return Receipt Requested to the defendant.
-- A method ordered by the court.
- Using the long-arm, who may serve process?
- Anyone proper under the law of MA or the law of the state where service is made.
- Can you waive service process by mail?
- No Waiver by Mail. Massachusetts does not have the FRCP provision allowing D to waive formal service by returning a waiver form by first class mail.
- What happens with the documents after the first service of process?
- Filed w/ clerk and mailed to party's attorney (counts as service)
- What’s the basic idea with pleadings?
- Notice Pleading - same as FRCP w/ a few differences.
- What version of Rule 11 does MA follow, and what does that mean?
- Massachusetts follows the older version of Rule 11, which is different from the current federal version.
L signs saying:
(1) she has read it;
(2) as far as she knows there's support for it;
(3) not interposed for delay.
RSD - (Read, Support, Delay)
-- A lawyer may be sanctioned for willful violation of the certification.
- What happens if there’s a frivolous complaint?
- If Superior court - can order losing party to pay costs/fees
Only if wholly insubstantial, frivolous, and not advanced in good faith.
- What do you need to allege in the complaint?
- Complaint. Unlike federal practice, need not allege subject matter jurisdiction. So all that’s required in an affirmative pleading are (1) short and plain statement of the claim, showing pleader entitled to relief; and (2) a demand for judgment.
- Even though the rule requires a demand for judgment, does P have to set forth the amount P desires in damages? Are there cases that require more detailed pleading?
- Only if it’s liquidated or unascertainable by calculation.
(In district court, statement of the amount of damages is required on a form prescribed by the court.)
-- Same as federal court regarding more detailed pleading of fraud, mistake and special damages. Also require more detail for allegations of duress and undue influence.
- What happens if the litigant is indigent?
- In Forma Pauperis.
Court determines indigent = waive fee.
State pays fees
P pays back out of judgment if greater than 3X fees/costs
- What is the timing of the defendant’s response?
- 20 days
If motion and denied - 10 days to answer after denial
Same as Federal court
- What waivable defenses are different in MA?
- “pendency of a prior action in a court of the Commonwealth.”
Must be asserted in the first Rule 12 response or else it is waived.
- D files a permissive counterclaim against P in her answer, and asserts the defense of lack of personal jurisdiction. Has D waived the defense?
- YES -- filing a permissive counterclaim is a general appearance, which waives the defense. (A compulsory counterclaim would not, as long as D asserted the personal jurisdiction defense in her first Rule 12 response.)
- What is a special motion to dismiss?
- Motion to dismiss a SLAPP suit.
One who gets sued for written or oral statements to a legislative, executive, or judicial body can move to dismiss.
(The motion is permitted to counter "SLAPP" suits -- strategic lawsuits against public participation.) The court must grant this motion to dismiss unless the nonmoving party can show:
(1) the exercise of the moving party's right was devoid of any reasonable factual support or arguable basis in law, AND
(2) the moving party’s acts causes actual injury to the nonmoving party.
- What are the special pleading rules?
- In a few instances, defendant must deny allegations with specificity.
For example, genuineness of a signature is admitted unless D denies genuineness specifically.
Allegation that a street is a public way is admitted unless specifically denied.
- What is a motion for enlargement?
- More time
If made before deadline - show cause
If made after deadline - show excusable neglect
- What purpose does the answer serve?
- The answer serves the same functions as in federal court.
- How are counterclaims, cross-claims and amended pleadings handled?
- Counterclaims. Same as in federal practice.
Cross-Claims. Same as in federal practice.
Amending Pleadings. Same as in federal practice.
- 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
- 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.
- How are proper parties and necessary and indispensable parties determined in MA?
- Proper Parties -- who may be joined. Same as in federal practice.
Necessary and indispensable parties -- who must be joined. Same as in federal practice.
- How is impleader handled differently in MA?
- Same as in federal practice, except
process served on TPD includes copies of all original pleadings from underlying action.
Also timing different:
MA, one has a right to implead within 20 days of serving her answer versus 10 for Feds; after that, need court permission. Serve such a motion at least 7 days before the hearing on the motion.
- Can D implead someone who is not liable to D but is directly liable to the plaintiff?
-- Can the plaintiff ever implead a TPD?
-- Does Massachusetts allow impleader of a joint tortfeasor for contribution?
- NO -- remember, the claim must be for indemnity or contribution to D for the underlying claim.
A P can implead a TPD, but only if a claim has been asserted against her (so, only if there’s a counterclaim)
MA allows impleader of a joint tortfeasors, since they are not necessary parties, the only way to get them in is impleader.
- How is intervention handled in MA?
- Intervention. Same as in federal practice, with intervention of right and permissive intervention.
- -- Can someone intervene after entry of judgment?
-- If a case draws the constitutionality of a state statute or municipal ordinance into question, the party asserting unconstitutionality must do what?
- Yes, but the court must assess (1) whether she could have intervened earlier; (2) possible prejudice to existing parties; and (3) need for intervention.
If the case raises the constitutionality of state statute or municipal ordinance, you must notify the MA Attorney General who might intervene.
- How is interpleader handled in MA? What is it again?
- Same as federal practice under “rule interpleader.”
No analog to “statutory interpleader.”
Interpleader is where you force all claimants into one case
- -- After depositing the property, what happens if the stakeholder is disinterested (i.e., has no claim to the property)?
- Court may discharge stakeholder from the case. Insurance companies are often disinterested.
- If the dispute is not over distribution of policy proceeds to claimants, but concerns whether the policy requires the insurance company to pay for losses or to provide the insured with a defense, what is the appropriate action?
- Sue for declaratory judgment.
- How is the class action handled in MA?
- The Class Action. There are several differences from federal practice. There is only one type of class action in Massachusetts practice. It is the one we listed third in discussing the class action in federal practice -- where common questions predominate and the class action is the superior method for resolving the dispute.
- What initial requirements are there for a class action in MA?
- Prerequisites. The initial four requirements are the same as in federal practice, to which we add the requirements of the “damages” type of class action. (Numerosity, Common Q, Typicality, Adequacy)
- So how many prerequisites are there for a class action in Massachusetts state courts? What are they?
- Six -- Must show (1) too numerous for practicable joinder; (2) questions of law or fact in common to the class; (3) claims/defenses of representative are typical of those of the class; (4) representative will fairly and adequately represent and protect the interests of the class; (5) the common questions predominate over individual questions; and (6) the class action is the superior method for resolving the dispute.
- Will Massachusetts certify a class for a limited purpose?
- No - one P can do a suit and get collateral estoppel - superior method.
Massachusetts, unlike federal courts, will not certify a class for limited purposes. The Federal courts will, so MA won’t allow an issue-only class (for example, liability)
In determining superiority, consider the test case, in which one P sues and, if successful, the other Ps may be able to use collateral estoppel in their separate cases against the same D. Does the same thing as the issue-only class.
- What sort of notice is required to class members?
- Notice to class members is not required; discretionary with the court. This is true regarding notice of certification of the class and of proposed settlement or dismissal of the class action. Still, there may be some constitutional requirement of notice before binding class members to a judgment.
- Is there any right to opt-out of a class-action in MA?
- When does the court have to decide whether to certify a class action?
- Sometime before trial begins - must assess 6 requirements.
Doesn't require "at an early practicable time" like Feds
- First Question: does the action survive the death of either party?
- -- 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.
- -- P sues for intentional infliction of emotional distress. P dies before judgment. Does the action survive? In other words, is this a case for “other damage to the person?”
- Yes, it does not have to be physical damage.
- If the action does not survive, how does the other side get dismissal?
- File a suggestion of death to the court, which will then dismiss the action.
- If an action survives the death of the claimant, what happens?
- You move to substitute decedent’s representative.
- What’s the deal with injunctions?
- TRO or Preliminary Injunction
entered at beginning of trial
maintains status quo pending litigation
- What are the first steps to getting an injunction?
- --Applicant must post security; amount determined by the court unless the court decides otherwise for good cause shown. May request in motion or in complaint.
--Either way, must have verified document (under oath by party) that sets forth specific facts showing basis for relief by person with knowledge of the facts. TRO or preliminary injunction must be specific in terms and describe conduct to be restrained in reasonable detail.
- So, what do you need to do to get a temporary restraining order?
- Temporary Restraining Order (TRO). May be granted without notice to the other party/attorney if specific facts are pled under oath showing that: immediate and irreparable harm will occur before the party can be heard.
-- A TRO may not last more than 10 days unless opponent consents.
-- Hearing on preliminary injunction must occur within 10 days.
-- Opponent, on 2 days= notice, may have a hearing to dissolve or modify TRO.
- What’s the deal with a preliminary injunction? How’s it different than a TRO?
- Same purpose as TRO
Notice & hearing
Remains in effect until final judgment
Can consolidate hearing w/ trial on merits
- What’s the standard for getting a preliminary injunction?
- Standard: must show (1) substantial likelihood he will succeed on merits; (2) substantial threat that claimant will suffer irreparable injury if relief is not granted; and (3) a balancing of the equities favors issuance of the injunction (weigh threatened injury to claimant, harm inflicted on D if the injunction is issued, and public interest).
- Is a preliminary injunction appealable?
Grant or denial of preliminary injunction is appealable.
- What is a declaratory judgment?
- B. Declaratory Judgment. This is a request that the supreme judicial court, superior court, land or probate court make a binding declaration of rights, duty, status and other legal relations. It is imperative that factual allegations show an actual controversy; the court may refuse to enter declaratory judgment if it would not actually terminate the controversy. Can secure declaratory judgments in disputes concerning deeds, wills, and written contracts. Can also seek it to test legality of administrative practices and procedures or construction or validity of statute or regulation (remember, though, must be an actual controversy).
- -- Does the fact that another remedy is available preclude declaratory judgment?
-- May the court order a speedy hearing of declaratory judgment matters?
- Another available remedy will not preclude declaratory judgment.
The court can order a speedy hearing of declaratory judgment matters, it can “advance the matter on the calendar.”
- What is an attachment? Why would one want to do that?
- A claimant may attach the defendant's property (real or personal) at commencement of the action or thereafter.
The reason: to ensure that the property will be available to satisfy the judgment if the claimant wins.
- How does one get an attachment?
- 1. Motion for approval of attachment
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
- When can the court approve attachment?
- 1. Reasonable likelihood P will recover > attached amount
2. D has not enough liability insurance to satisfy judgment
Real Ladies Insure (Reasonable likelihood, Insurance)
- What happens if the court approves an attachment?
Can P get an “ex parte” attachment?
- Writ of attachment - sheriff serves w/in 30 days to attach property
Can get ex parte attachment in non-personam cases w:
Clear danger D will conceal, damage or remove property
- What is trustee process?
- D. Trustee Process. Claimant wants to attach D’s property, as in an attachment. The problem here is that the property is in the hands of a third party. The third party is called the trustee. Usually used to attach debts owed to D by the trustee (e.g., bank accounts).
- Trustee process cannot be used in what kinds of cases?
- 1. Defamation
2. Malicious prosecution
3. Assault and Battery
4. Specific recovery of goods or chattels
- What must one do to get trustee process?
- Approval, summons, Answer, Bond
--court prior approval, as in Attachment.
Court issues a “trustee summons” which claimant has served on the trustee (e.g., bank).
- Trustee files an answer in court describing the property being held for the benefit of the parties.
--Claimant must post a bond if damages claimed are over $1,000 unless the action is based upon a (1) judgment; (2) contract for personal services; (3) contract for goods sold and delivered; (4) money due under a contract in writing; (5) tort for operation of unregistered motor vehicle; or (6) order for alimony, maintenance or child support.
- B What funds are exempt from trustee process (unless claimant obtains a judgment against D)?
- 1. Wages, except to enforce alimony or child support
2. Payroll accounts
3. Government pensions
4. $500 in a bank account
5. AFDC – Aid for Families w/ dependant children
We Paid 500 Grand to the Church (Wages, Payroll, $500 in bank account, Government pension, Children - AFDC)
- Tell me about reach and apply? Does one need a court order to commence reach and apply?
- Attaching intangible/equity property
If in possession of D - like attachment
If in possession of 3d party - like trustee process
Get security in property by getting preliminary injunction enjoining transfer -
allege property in existence and cannot be attached in normal way.
You don’t need a court order to commence reach and apply.
- What happens if a debtor conveys away his property in advance of bankruptcy?
How do we determine whether the conveyance comes under the statute?
Is the debtor’s intent relevant?
- Fraudulent Conveyance. Under the Uniform Fraudulent Conveyance Act, a creditor may reach real or personal property transferred by a debtor in fraud of creditors.
Every conveyance made and obligation incurred by a person who is insolvent (or rendered insolvent by it) is deemed fraudulent as to creditors if it is made or incurred without fair consideration.
--Is intent relevant? No, not if it was incurred/transferred w/o fair consideration.
- What other relief can a creditor seek from the court?
- --A creditor whose claim has matured may seek to have the conveyance set aside or the obligation annulled to the extent necessary to satisfy his claim, or could seek to attach or levy execution on the property conveyed.
--A creditor whose claim has not matured may seek a restraining order to stop D from disposing of the property or appointment of receiver to take control of the property.
- What is the first step in a medical malpractice case?
- screening tribunal determines whether “legitimate question of liability appropriate for judicial inquiry”
or “unfortunate medical result.”
- directed verdict standard - whether reasonable people could not disagree.
- What happens when the tribunal makes their decision in a medical malpractice case?
- T finds legitimate question - Case proceeds
If T finds no question, either $6,000 bond to proceed w/in 30 days OR
Appeal tribunal finding - but if loses no trial even w/ bond
- What is Lis Pendens? How do you get one?
- Lis Pendens. Recorded at the registry of deeds, this notifies persons that an action is pending involving title or use of real property. Until done, the action has no effect against third parties. Make a motion that the court find that the case involves title or use of realty; then record the lis pendens.
What is the effect of the litigation on third parties before the Lis Pendens is filed? None – it is the lis pendens that gives notice to the world. The 3d party is not charged w/ notice of litigation until lis penden is filed.
- What is the general rule about when the statute of limitations starts running?
- Runs from accrual of the claim - usually when there's a breach
- What’s the exception for personal injury?
- -- Personal injury: based on negligence, accrues when claimant knows or reasonably should know, of the harm. If injury is not discernible, or is discernible but cause not ascertainable, accrues when knowledge of the cause may reasonably be imputed to claimant.
- What’s the rule for medical malpractice claims? Legal malpractice?
- MedMal - When act committed, unless no way patient aware - then accrues when patient reasonably would learn of injury
- Reposed after 7 years
-- Legal malpractice: same as for medical malpractice except there is no seven-year repose rule.
- What’s the rule for fraudulent misrepresentation in the sale of realty?
- It accrues when the claimant knew or reasonably should have known of the injuries.
- What must a plaintiff do to get their claim in before the running of the statute of limitations?
- 1. Commence action - file & fee
2. Mail complaint/fee to clerk - registered mail (commenced at mailing)
3. Mail complaint/fee to clerk - regular mail (commenced when received)
- How does D raise the statute of limitations?
- It’s an affirmative defense, so must be raised by the D in his answer.
- What does it mean to “toll” the statute of limitations?
- To “toll” the statute means to stop it from running. For example, commencing the action tolls the statute. So does suffering lack of legal capacity (e.g., minority, mental incapacity) when the claim accrues. If P lacks capacity when the claim accrues, the statute does not start to run until the disability is removed.
- D tortiously injures Opie, who is twelve years old at the time of the injury. When does the statute of limitations start to run?
- When Opie is 18. Opie’s minority tolls the statute of limitations.
- What about medical malpractice? Does minority toll that?
- In medical malpractice, there is no tolling. A minor whose claim for medical malpractice accrues before age 6 may sue until he reaches age 9.
But, in no event may a medical malpractice claim be asserted more than 7 years after the negligence.
- What if the kid is six or older when his medical malpractice claim accrues?
- Then, there is no tolling in a medical malpractice case.
- Suppose P sues D before the statute runs, and D files a counterclaim against P after the statute ran. Is the counterclaim timely?
- Yes, if it was not barred when the plaintiff sued. P’s filing tolls the running the statute for both parties.
- P files a case one day before the statute of limitations would have run. Several weeks later, the case is dismissed without prejudice for insufficient service of process. Upon dismissal, the statute starts to run again (and P only has one day left). Must
- If dismissal is for a matter of form, P may commence within: One Year.
(This assumes the original action was filed timely; this one was (by one day).)
- What are the limitation periods for:
1. Tort actions:
2. Tort or contract for personal injury:
3. Breach of warranty:
4. Breach of sales contracts under UCC Article 2:
5. Actions on contracts (not for personal injury):
- 1. Tort = 3 years
2. Tort or contract for personal injury = 3 years
3. Breach of warranty = 3 years
4. Breach of sales contracts under UCC Article 2 = 4 years
5. Actions on contracts (not for PI) = 6 years
- Are there required disclosures under the Massachusetts Rules of Civil Procedure?
- No Required Disclosures. There are no required disclosures in state practice.
- How is discovery timing different in MA?
- Discovery Tools. Timing is different from federal practice. These may be used anytime from commencement of the action until beginning of trial.
- How are depositions handled in MA?
- Depositions. Basically same as in federal practice, but written notice of deposition must be given at least 7 days before the deposition. Remember that nonparty deponent should be subpoenaed or she is not required to attend. Subpoena could be “duces tecum,” which requires her to bring things (e.g., documents) with her.
--Remember that deposition can be taken upon written questions. The questions are asked by an officer (e.g., court reporter); the responses are oral and recorded.
- When would you need a court order to take a deposition?
- 1. Too soon. w/in 30 days after service of process on D - unless D has initiated discovery
2. No little - no reasonable likelihood recovery > $5k
- What are the two times audiovisual depositions might come up in MA?
- 1. If the party intends to call a treating physician or an expert as its own witness
2. Any other witness
- What may a party do if it intends to call a treating physician as or an expert as its own witness?
- It can use an AV depo instead of live testimony
(Court can order live testimony)
doesn't count a physician as a party to litigation
- -- If a party wants to use an audiovisual deposition of its treating physician or expert, what must it do?
- No court order
1. Written report 30 days before noticing AV depo.
Report includes (a) resume of W, and details (b) subject matter, (c) substance, (d) support for matters to be testified to by W
2. Give notice telling depo used in lieu of oral testimony.
- What if a party wants to take the audiovisual deposition of any other witness?
- It must get a court order or stipulation of the parties allowing this. If a party moves for a court order allowing an audiotape deposition of this type, the other parties must be given notice and an opportunity to be heard in opposition.
An audiotape deposition needs a court order or stipulation.
- What’s the earliest I can give notice of taking an audio-visual deposition?
- CANNOT GIVE NOTICE OF TAKING AN AUDIO-VISUAL DEPOSITION OF EITHER TYPE EARLIER THAN SIX MONTHS AFTER COMMENCEMENT OF THE ACTION (unless court allows).
- When do I have to object to statements of the treating physician or expert? What other procedures do I have to do with my objections?
- Objections to statements of treating physicians and experts must be made, to the extent practicable, during the deposition. Objections must then be filed in court at least 21 days before trial and responded to within 14 days of receipt. Failure to meet the deadlines results in waiver of objections.
- What do I do with objections to the statements of other witnesses in an audiovisual deposition?
- Objections to statements of other witnesses in audiovisual deposition must be made, if practicable, before trial begins.
- Can I use an audiovisual deposition at trial?
- Audiovisual depositions can be used at trial to the same extent as other depositions.
- Can a party use an audiovisual deposition of a treating physician or expert in lieu of live testimony even if the witness is available to testify?
- Yes – that’s the joy of the audiovisual deposition of a treating physician/expert.
- How are interrogatories handled in MA?
- 30 interrogatories (more w/ leave)
45 days to respond
Can split into groups
- How are requests for production, physical or mental examination, and requests for admission handled in MA?
- Requests for production. Same as in federal practice.
Physical or mental examination. Same as in federal practice.
Requests for admission. Same as in federal practice.
- What is the basic scope of discovery?
- - Can discover nonprivileged, relevant information
- reasonably calculated to lead to admissible evidence
Same as fed
- What do I have to do with expert witnesses?
- Seek discovery - interrogatories
Expert Witnesses. Because there are no required disclosures in Massachusetts practice, parties must seek discovery about the other parties= expert witnesses.
--If an expert is expected to testify at trial, send interrogatories to the party, asking (1) name(s) of expert(s); (2) subject matter on which she is expected to testify; (3) substance of facts and opinions; and (4) summary of ground for each opinion.
- AFTER the answers to interrogatories are received, can the requesting party take the deposition of the expert(s)?
- Yes – with either a court order or a stipulation.
- P asks for court order to take deposition of D’s expert, after D answered the interrogatories related to the expert. Court denies the motion, however, because deposition would delay trial. There was no reason P could not have sent the interrogatories a
- Its ruling is not an abuse of discretion. These issues are up to the discretion of the court.
- If the deposition is taken, must the requesting party pay the expert for her time in connection with the deposition?
- Yes – the court sets the reasonable fee.
- What happens to discovery if an expert is not expected to testify at trial?
- If an expert was retained by a party but is not expected to testify at trial, no discovery absent “exceptional circumstances,” such as inability to get such information anywhere else.
- What about the work product rule?
- The work product/trial preparation materials rule is the same as in federal court.
- Insurance Co. hires Attorney to represent Insured. Attorney prepared materials for the defense of Insured. Can Insurance Co. claim the work product protection as to these materials?
- No – because the attorney was representing the Insured. Insured is the party. Insco is not party or agent of the party. The Insured can claim the work product protection.
- Is there a duty to supplement responses?
- No general duty to supplement responses, so long as response was complete when made. But must supplement (1) requests for identity of witnesses or experts or subject and substance of expert testimony; (2) if responses were incorrect when made; (3) responses are no longer true and failure to supplement is Ain substance knowing concealment@; and (4) when court order or parties= agreement requires.
- If a party fails to supplement when it should have, are sanctions automatic?
If a party fails to supplement when it should have, can that party use the new evidence at trial?
- No. The court can sanction if the failure was willful.
The court has discretion to allow the party to use the evidence, unless it would be unfair or prejudicial.
- What are the basic rules of Discovery procedure and sanctions?
- 1. No Rule 26(f) conference.
2. Protective order. A party trying to avoid disclosure of information requested in discovery may seek a protective order from the court. She might do this because the request is overburdensome or would result in embarrassment or undue expense or to protect privileged material. The court has great discretion to forbid discovery or to limit it to specified topics or methods.
- P was injured when part of the apartment building in which she lived collapsed. She sued the owner of the building for personal injuries. In addition, P’s mother, who witnessed P’s injuries, also sued the owner, for infliction of emotional distress.
- P’s mother waived the privilege because she put her emotional state at issue – she put the subject of privileged communication in issue.
- What are the sanctions in MA?
- Sanctions basically same as in federal court.
- How does voluntary dismissal work in MA?
- A. Voluntary Dismissal. Same as in federal practice.
- How does involuntary dismissal work in MA?
- B. Involuntary Dismissal. In addition to all the Rule 12(b) grounds of dismissal, can dismiss for (1) persistent refusal to comply with court order; (2) clear and convincing evidence that P attempted to commit fraud upon the court, e.g., by destroying documents or forgery or perjured testimony; or (3) failure to prosecute.
--If there is convincing evidence of unreasonable conduct or delay, court may dismiss, but should also consider other penalties
- At what point may a court dismiss on its own motion for failure to prosecute?
- convincing evidence that of unreasonable conduct or delay
not clear that the court can do this sua sponte – they probably need a motion.
- How does default and default judgment work in MA?
- Default and Default Judgment. Basically same as in federal practice, with a couple of slight variations.
- Tell me a little more about default?
- Default entered by clerk - same as in Fed.
This is simply a notation on the docket sheet – you cannot collect on default.
The classic default fact pattern is that D fails to respond to the complaint within 20 days after service of process on him.
- When can default judgment be entered by the clerk?
- Default judgment. May be entered by the clerk if (ALL):
(1) No response at all by defendant;
(2) Claim is for a sum certain (or calculable);
(3) Plaintiff files an affidavit that D is not an infant or incompetent; and
(4) Under Soldiers' and Sailors' Civil Relief Act, plaintiff files an affidavit that D is not in the military service.
Otherwise, must seek entry of judgment by the court.
Noise-reducing, Sound-Cancelling, All-Intensive-Internet, AM-radio (No Response, Sum Certain, Affidavit not Infant/Insane, Affidavit not Military)
- If D had filed an appearance in the case, what notice is D entitled to before there’s a default judgment?
- Written notice served at least 7 days before hearing on damages.
(And remember this kind of notice can be mailed; complete upon mailing.)
- Special Rule. If D failed to appear and the judgment is secured by a motor vehicle insurance policy, insured is entitled to what before damages assessed?
- Written notice at least 4 days before damages are assessed.
- How does one move to set aside a default or default judgment?
- Same as Feds.
Show meritorious defense
Degree of prejudice
Neglect attributable to lawyer not party
Degree of neglect
- What does one do with a failure to state claim?
- Failure to State a Claim. Same as FRCP 12(b)(6), with two additions.
--In superior court, motion must be accompanied with a brief. ALSO, waived if hearing is not requested within six months after filing and argument not held within one year of filing.
- How does summary judgment work in MA?
- Summary Judgment. The rule mirrors the FRCP – need to know the details for the state side.
- What is the timing for filing a summary judgment?
- D = any time after commencement
P = 20 days after commencement or after D files for SJ
Must serve 10 days before hearing
- What is the form of affidavits in a summary judgment?
- Must be
1) based on personal knowledge;
(2) show that the affiant is competent to testify under rules of evidence;
(3) set forth admissible facts; and
(4) attach sworn or certified copies of documents referred to.
Affiant states facts “on information and belief.” – No good, this does not meet the form – it fails to show personal knowledge.
Please Keep the College Assholes Suffering (Personal Knowledge, Competent, Admissible facts, Sworn)
- How else might I be able to use these documents?
- Though the Massachusetts rule does not say so, these documents also can be used (in addition to affidavits, discovery, and pleadings (as in federal practice)):
-- A master’s report;
-- Judgment from another state, under full faith and credit.
-- Discovery, affidavits, and pleadings.
- Wait a minute. We know that pleadings are not evidence (unless “verified”). So how can pleadings be relevant in summary judgment?
- They might show an issue is not in dispute. For example, if D failed to deny some allegation by P about D’s liability, the allegation is admitted and need not be tried.
- How might a party that does not have the burden of proof at trial win summary judgment?
Is summary judgment likely when intent or knowledge of a party is in issue?
- showing that the opposing party has no reasonable expectation of proving an essential element of its claim or defense.
Summary judgment is unlikely when intent or knowledge of a party is in issue. [Always add this to your essay.]
- Is there a pretrial conference?
- Pretrial Conference. There is no Rule 26(f) conference or scheduling order (as there are in federal court). But there is the pretrial conference, to be held in the judge’s discretion.
- Evidence-wise, what’s a master?
- Masters. A master is a person appointed to hear evidence and report facts. He is not a judge, but acts as an adjunct to the judge.
- What’s the role of the master?
- Role of master. The master is used to conduct evidentiary proceedings. Usually, he is asked to make findings of fact and conclusions of law. The master files his findings and conclusions with the court in a “report.”
- How is the master’s report used?
- Use of master’s report. In a non-jury case, the court accepts the master’s findings of fact unless they are clearly erroneous. To contest them, a party must file written objections within 10 days of the filing of the master’s report.
- What happens with the master’s report in a jury case?
- It’s read to the jury and is prima facie evidence.
- What about the evidence that went before the master? When can a master be used?
- In a non-jury case, a transcript of the evidence produced before the master is produced to the court.
When can a master be used? In any case, by consent of parties or court order. But if the case is in district court, a master can only be used if all parties agree.
- Does the MA Constitution guarantee a jury trial?
- Jury Trial. Although the Seventh Amendment to the U.S. Constitution does not apply to the states, the Massachusetts Constitution preserves the right to jury trial in the same basic way. So there is a right to a jury on legal (not equitable) issues. (Remember, though, basically no jury in district court unless statute grants it.)
- How does one get a jury trial? Can a party change his mind after demanding a jury trial? Can there be a jury in an equity matter?
- 1. Written demand required, as in federal court.
3. Advisory jury in equity cases. The court can empanel an advisory jury in an equity case, upon motion of a party.
- What size is the jury? What if 12 are empaneled and two are unable to finish? Does the verdict have to be unanimous?
- 1. Jury size. Unlike federal court, 12 jurors in superior court. Parties may stipulate to fewer. What if 12 are empaneled and two are unable to finish?
B Trial can proceed before as few as ten jurors.
2. Verdict. Unlike federal court, need not be unanimous. What is required? 5/6th of jurors (so 10 of 12)
- What happens if you object to jury instructions?
- Object outside jury's presence
How party would be prejudiced
- How do the objections to jury instructions differ between MA and the Federal Courts?
- -- Massachusetts: objection must be made known to judge sometime before jury begins deliberations. Once done, do not have to repeat the objection immediately before the jury retires.
-- Federal court (1st Circuit rule): Must object immediately before the jury retires (even if you objected earlier)
- How does motion for directed verdict work? How does Motion judgment not withstanding the verdict work?
- Motion for Directed Verdict. Same as Motion for Judgment as a Matter of Law in federal practice.
Motion for Judgment Notwithstanding the Verdict (JNOV). Same as Renewed Motion for Judgment as Matter of Law in federal practice.
- How does a motion for a new trial work in MA?
- Motion for New Trial. Basically the same as Motion for New Trial in federal practice, with a couple of differences.
- What is the timing of a motion for a new trial?
- Timing. Must be served within 10 days after entry of judgment.
- What are the grounds for a motion for a new trial?
- The grounds for granting new trial are the same as in federal court. But when damages are excessive or inadequate, the court might try a different procedure.
- -- Suppose liability is clear but the court is convinced that the damages awarded by the jury are so excessive as to be manifestly against the weight of the evidence. The court may order a new trial. What else might the court do?
In the alternative, the court may order remittitur, which tells P that she may accept a lower amount (which the court sets) or else face the new trial.
- P proves that D was negligent in driving his car. P proves that the resulting wreck sprained P’s wrist and totaled P’s bike (worth $75). The jury returned a verdict for P for $15,000. The court orders remittitur by giving P the choice of accepting $3
- Remittitur is OK in Massachusetts AND federal courts.
Remittitur can be granted on motion or sua sponte (on the court’s own).
- Suppose liability is clear and damages are so inadequate that the court is convinced the damages finding is against the manifest weight of the evidence. Here, the court might order a new trial. What else might the court do?
- Additur. That order would tell the defendant that he could pay a higher figure in damages (which the court sets) or face a new trial.
- P proves liability of D for their car wreck. P proves serious physical injuries, medical bills, pain and suffering. There is no doubt the jury is correct in finding D liable. But its verdict of $4,500 is plainly inadequate. With additur, the court tells
- Massachusetts: yes.
Federal court: No – Additur is unconstitutional b/c of the 7th Amendment, which does not apply to the states.
- How does a motion to alter or amend judgment work?
- Serve on all parties. 10 days after judgment.
To have the court rehear, reconsider, or vacate its judgment.
- Is the time in which to appeal tolled pending disposition of this motion?
- Yes – w/in 30 days of the ruling.
- How is the motion to set aside judgment handled in MA?
- H. Motion to Set Aside (Vacate) Judgment. Same as federal practice.
- Fourteen months after judgment was entered against him, D moves to set aside the judgment on the basis of newly discovered evidence. Even though it is clear that this evidence could not, with due diligence, have been discovered before, the motion must be
- A motion on this basis cannot be brought more than 1 year after the judgment.
- How does the final judgment rule work in MA?
- Final Judgment Rule. Works as in federal practice. There is a general right to appeal from a final judgment of the superior court to the intermediate appeals court. Beyond that, review by the supreme judicial court is discretionary. (Some cases can go directly from superior court to the supreme judicial court, but only in extraordinary circumstances, e.g., two justices of the supreme judicial court order direct review and the case involves constitutional questions or questions of first impression, or appellate court could certify direct review in the pubic interest.)
- How does one file an appeal? When must one file for an appeal? What happens in the appellant files in the wrong court?
- File with the clerk of the trial court a notice of appeal within 30 days after final judgment.
(60 days, though, if Commonwealth or a state agency is a party.)
-- If appellant files in the wrong court (e.g., appellate court), the clerk of that court must note when the notice was filed and transfer it to the proper court. Deemed filed on the date noted by the clerk of the improper court.
- What happens after the appellant files an appeal?
- Clerk serves notice of appeal on other parties, who can then file appeals within14 days from appellant’s filing notice of appeal or original 30 (or 60) days, whichever is later.
- What tolls the time for filing notice of appeal?
-- If appellant wrongly files during pendency of JNOV, etc., what happens?
- Timely filing of motion for new trial, JNOV, or to amend the judgment tolls the time for filing notice of appeal. That period runs from ruling by the trial court on those motions. (Motion to set aside does not toll the appeals period.)
-- If appellant wrongly files during pendency of JNOV, etc., what happens? His filing is of no effect, he has not notice of appeal.
- Is there a way for the appeals court to hear an appeal before a final appeal?
- Interlocutory Review by Report. The trial court can “report” an interlocutory (non-final) order to the appellate court if, in its opinion, the matter ought to be reviewed before further proceedings in the trial court. The trial court must either have made findings of fact or the parties stipulated to facts. (Trial court here does not include district courts.) In addition, a single justice of the supreme judicial court can report a case to the appeals court or the supreme judicial court.
- -- Suppose a judgment is entered in small claims court on property damages from a motor vehicle crash case. Does it have preclusive effect on a case involving personal injuries from the same crash?
- No – there’s no collateral estoppel or res judicata for small claims court judgments.
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