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| ***MA: service of process |
mostly like fed rules: summons (ID court, parties, req to appear) + complaint
***must be served by civilian appt by ct or officer
***must be served w/in 90 days of filing (fed: 120)
***substituted service: may be left w/ any person residing there (fed: must also be place of abode) |
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Robin Fri, 03 Jul 2009 23:01:38 GMT |
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| ***MA: venue |
Superior Court: appropriate county
District Court: appropriate district (subdivision of county)
- local actions for title/possession of land: where located
- other (transitory): may be brought where either party resides or has a usual place of business (NOT place of empl) |
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Robin Fri, 03 Jul 2009 22:55:21 GMT |
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| Exclusive federal question cases |
- bankruptcy
- patent infringement
- securities
- antitrust |
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Robin Fri, 03 Jul 2009 22:55:21 GMT |
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| ***MA: subject matter jurisdiction |
trial courts:
- Superior Court Dept: civil cases: law and equity
- District Court Dept (and Muni Courts): concurrent jurisdiction over actions at law where $ damages sought
- Supreme Judicial Court (review)
other: land, probate and family, housing, juvenile, small claims |
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Robin Fri, 03 Jul 2009 22:55:20 GMT |
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| ***MA: statutory bases of personal jurisdiction |
- D instate when served w/ process (unless immune b/c present to participate in unrelated litigation)
- D is domiciled/resides in MA
- D has usual place of abode in MA
- D consents (by failing to raise defense of lack of pj or timely, or by permissive counterclaim, or by commercial contract)
- D is incorp. in MA
- long-arm statute
- transacting any business in MA
- contracting to supply services, things in MA
- causing tortious injury by act/omission in MA
- causing tortious injury in MA by act/omission elsewhere
- holding interest in, using, or possession real property in MA
- contracting to insure person, property, or risk in MA
- living as a party to marriage when marital domicile has been in MA for 1+years w/in 2 preceding years (if P still lives in MA, may pursue alimony, etc.)
- nonresident motorist statute
Const. standard:
- minimum contacts (purposeful availment + foreseeability)
- fair play + sub. justice (relatedness, convenience, state's interest) |
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Robin Fri, 03 Jul 2009 22:55:20 GMT |
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| Complex cases: joining parties |
proper parties:
- arise from same T/O
- raise at least 1 common q
necessary and indispensable parties:
- needed for complete relief
- party's interest may otherwise be harmed
- party claims an interest which subjects an existing party to multiple obligations
joint tortfeasors: NOT necessary
IMPLEADER: D wants to bring in someone (third party D) because they owe indemnity of contribution
- right to implead w/in 10 days after serving answer
INTERVENTION: absentee wants to join suit as P or D
- must be timely
- as a right or permissive
INTERPLEADER: one holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency
- person w/ property: stakeholder
CLASS ACTION: requires
- numerosity
- commonality
- typicality (rep's claims/defenses are typical of class)
- representative is adequate
must be a type:
- prejudice would result
- injunction/decl. judgment sought b/c class treated alike by other party (e.g., empl disc)
- damages: common qs predominate AND method is superior (e.g., mass tort) |
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Robin Fri, 03 Jul 2009 22:29:26 GMT |
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| Discovery |
required:
- initial disclosures (info likely to have discoverable info)
- experts
- pretrial (30+ days before trial)
discovery tools:
- deposition
- interrogatories
- requests to produce
- physical or mental exam
- request for admission |
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Robin Fri, 03 Jul 2009 22:29:26 GMT |
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| D's response: Rule 12 |
- by motion OR
- by answer
w/in 20 days of service of process (or else risk default)
MOTIONS:
- for more definite statement
- motion to strike
Rule 12(b) defenses (can be raised by motion or answer):
- lack of smj
** lack of pj
** improper venue
** insufficiency of process
** insufficient service of process
- failure to state a claim
- failure to join a party
(** = waivable: must be in first Rule 12 response)
ANSWER:
- respond to allegations of complaint (admit, deny, state lack of info to admit/deny); failure to deny constitutes admission
- raise affirmative defenses (statute of lim, statute of frauds, res judicata, self-defense); must be plead or waived
COUNTERCLAIM: D v. P
- must be filed w/ D's answer
- compulsory (same T/O) or permissive
CROSSCLAIM: against a co-party
- must arise from same T/O
- never compulsory
AMENDED PLEADINGS:
- P may amend once before D serves answer
- D may amend once w/in 20 days of serving answer |
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Robin Fri, 03 Jul 2009 21:59:28 GMT |
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| Complaint |
requires:
- statement of smj
- short, plain statement of claim showing entitlement to relief
- demand for judgment
Sup. Ct.: P must state facts supporting a plausible claim
special matters (fraud, mistake, special damages) must be pleased w/ specificity |
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Robin Fri, 03 Jul 2009 21:59:28 GMT |
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| Pleadings: Rule 11 |
atty/pro se party must sign all pleadings, motions, papers thereby certifying that to best knowledge no improper purpose, contentions warranted by law, and factual contentions supportable |
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Robin Fri, 03 Jul 2009 21:59:28 GMT |
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| Service of process |
give notice to D:
- summons
- copy of complaint
together: "process"
w/in 120 days of filing or else case is dismissed w/o prejudice (unless P shows good cause for delay)
who can serve: ANY nonparty age 18+
how:
- personal service: anywhere in forum state
- substituted service: left w/ someone at D's abode of suitable age who resides there
- service on D's agent (if w/in scope of agency)
- state law methods
- waiver by mail w/in 30 days
* fed ct can serve process OUTSIDE state ONLY if state law allows (long-arm statute)
* D may NOT be served while instate only as witness/party in another civil case (immunity)
other docs: deliver or mail |
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Robin Fri, 03 Jul 2009 21:14:50 GMT |
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| Venue |
land: district where located
other (transitory): any district where
- all Ds reside OR
- subs. part of claim arose
if Ds reside in diff't districts of same state, P can lay venue in any district where a D resides
"reside":
humans: domicile
corps & assoc: where subject to personal jurisdiction (NOT citizenship)
can only transfer to district where case could have been filed
transferee ct applies choice of law rules of original ct |
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Robin Fri, 03 Jul 2009 14:29:10 GMT |
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| Erie doctrine |
in div case, fed ct must apply state substantive law
- elements of claim or defense
- statute of limitations
- rules for tolling statutes of limitations
- conflict (or choice) of law rules
if fed law (Const, FRCP, FRE) on point that directly conflicts w/ state law: apply fed law (Supremacy Clause)
FRCP is valid if it is arguably procedural
if NO fed law on point, consider:
- outcome determinative (if yes, apply state law)
- balance of interests
- avoid forum shopping |
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Robin Fri, 03 Jul 2009 14:13:14 GMT |
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| Removal |
by D from state to fed ct
must be w/in 30 days after service of first removable doc (NOT after filing) (usually 30 days after service of process, but may only become removable later)
- ALL Ds must agree
- only Ds can remove (NOT P)
- NO removal if any D is a citizen of the forum (does NOT apply to fq cases)
- regardless of when removable, must be done w/in 1yr of filing in div case
if improper, P has 30 days to move to remand (which can be done at any time if fed ct lacks smj)
D who files permissive counterclaim in state ct may waive right to remove, but NOT if D files compulsory counterclaim |
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Robin Fri, 03 Jul 2009 14:09:54 GMT |
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| Supplemental jurisdiction |
ok AFTER case is already in fed ct (through diversity or fed q)--additional claim must have common nucleus of operative fact
EXCEPT: cannot be used to overcome lack of diversity in a diversity case
ok to overcome lack of amount in controversy for a claim in a diversity case
RULE: non-fq, non-div claim may be heard UNLESS
- asserted by P
- in div case
- would destroy complete div |
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Robin Fri, 03 Jul 2009 14:00:07 GMT |
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| Federal question |
right or interest founded subs. on fed law
"properly pleaded" complaint" set forth only a claim and nothing else |
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Robin Fri, 03 Jul 2009 13:52:58 GMT |
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| Diversity of citizenship |
btw citizens of difference states + >$75,000 controversy
complete diversity: NO diversity if any P is citizen of same state as any D
"citizenship":
* human: domicile = presence instate (physical req.) + intent to make it permanent home (mental req.)
* corporations: where incorp. AND 1 state of principal place of business (nerve center)
* unincorp. assoc.: citizenship of members
* decedents, minors, etc.: their citizenship, not of representatives
amount in controversy: aggregation: by same P
EXCLUSIONS: divorce, alimony, child custody, probate |
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Robin Fri, 03 Jul 2009 13:52:58 GMT |
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| Subject matter jurisdiction |
power over the case
federal courts:
- diversity of citizenship
- federal question:
state courts: may hear any case |
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Robin Fri, 03 Jul 2009 13:52:58 GMT |
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| Personal jurisdiction |
power over the parties
assessed: same as in state court |
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Robin Fri, 03 Jul 2009 13:37:06 GMT |
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| Adjudication |
- pretrial
- conferences
- trial |
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Robin Fri, 03 Jul 2009 13:37:06 GMT |
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| Learning about case |
- service of process
- pleadings
- discovery |
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Robin Fri, 03 Jul 2009 13:37:06 GMT |
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| Right court? |
- personal jurisdiction
- subject matter jurisdiction
- venue |
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Robin Fri, 03 Jul 2009 13:37:06 GMT |
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