Study civil procedure Flash Cards
log in to save your progress
Pile Management Card
civil procedure
civil procedure
| ***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) |
| ***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) |
| Exclusive federal question cases |
|
- bankruptcy - patent infringement - securities - antitrust |
| ***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 |
| ***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) |
| 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) |
| 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 |
| 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 |
| 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 |
| 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 |
| 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 |
| 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 |
| 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 |
| 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 |
| 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 |
| Federal question |
|
right or interest founded subs. on fed law "properly pleaded" complaint" set forth only a claim and nothing else |
| 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 |
| Subject matter jurisdiction |
|
power over the case federal courts: - diversity of citizenship - federal question: state courts: may hear any case |
| Personal jurisdiction |
|
power over the parties assessed: same as in state court |
| Adjudication |
|
- pretrial - conferences - trial |
| Learning about case |
|
- service of process - pleadings - discovery |
| Right court? |
|
- personal jurisdiction - subject matter jurisdiction - venue |
Place this card into pile:
Copyright © Jadence, LLC 2007 - 2012. All Rights Reserved.