RI Civil Procedure

Question 1

How can a party challenge a RI court’s SMJ and until when is such attack available?

Answer 1

Subject to collateral attack, even through appeal.

Question 2

What is the SMJ of RI Superior Court?

Answer 2

1. Original j/x over equity and title to real property, except for actions for possession (e.g., landlord tenant)
2. Exclusive j/x over cases >$10k

Question 3

What is the SMJ of RI District Court?

Answer 3

1. Exclusive j/x over
   (a) cases <$5k
   (b) landlord-tenant
   (c) replevin goods
2. Concurrent j/x with Superior Court for $5k-$10k

Question 4

What is the SMJ of RI Small Claims Court?

Answer 4

Civil cases <$2.5k

Question 5

Can RI Small Claims Court cases be appealed?

Answer 5

Can’t be appealed by Plaintiff; only D

Question 6

What is the SMJ of RI Probate Court?

Answer 6

Wills, estates, guardians, conservators, adoptions

Question 7

What is the SMJ of RI Family Court?

Answer 7

Divorce, alimony, child support and custody, and related matters

Question 8

Where does venue lay for suits between RI residents?

Answer 8

County or division where one of the parties resides.

Question 9

Where does venue lay for suits by in-state P against an OOS D?

Answer 9

In county where P resides.

Question 10

Where does venue lay for suits against an in-state corporation?

Answer 10

Where corporation is located by charter

Question 11

Where does venue lay for suits involving land or tenancies?

Answer 11

In county where land or tenancy located

Question 12

Where does venue lay for suits involving two OOS residents?

Answer 12

any county

Question 13

Will a court respect parties’ consent to venue by contract?

Answer 13

Yes, if court agrees and provided not procured by fraud.

Question 14

What is notice pleading and when is it insufficient?

Answer 14

No details needed in compliant, just adequate to give D notice type of claim and relief sought

Fraud or mistake pleadings must be made with particularity: who, what, where, when, and why

Question 15

What does Rule 11 provide and what are the penalties for violating it?

Answer 15

Every pleading must be signed by attorney certifying that

1. has read the pleading
2. after conducting a reasonable inquiry, believes that there are grounds to support the pleading
3. not filed for improper purposes

Violation can result in sanctions which a court can raise sua sponte or by a party

Question 16

What is a Rule 12(b)(6) motion and when is it granted?

Answer 16

D’s motion to dismiss for failure to state claim on which relief can be granted.

Judge will grant if:

1. Based upon 4 corners of complaint (no extrinsic evidence)
2. Assuming all allegations in the complaint to be true and
3. Resolving all factual disputes in favor of P

beyond a reasonable doubt, P not entitled to relief under any circumstances.

Plausibility of the allegations in the complaint is not the standard in RI.

Question 17

What happens if D attaches extraneous materials to a Rule 12(b)(6) motion?

Answer 17

Judge should ignore those materials; however, if it does consider those materials it’s treated as motion for SJ and P will be given opportunity to present own evidence (Rule 56)

Question 18

What’s a Rule 12(c) motion and how’s it different from a 12(b)(6) motion?

Answer 18

Rule 12(c) is a motion for j/m on pleadings, with the same legal standard as a Rule 12b6 motion (no extraneous materials, all doubts resolved in favor of P, etc.) except that it’s filed following D’s answer.

Question 19

If service of process wasn’t made on an individual by putting in hand, how do courts determine whether it was left “at last place of usual abode” and who is “a person residing therein” who is of suitable age?

Answer 19

Usual place of above: how often visits, where showers and dresses, where receives mail.

Person residing therein: trusted member of household and nexus between person and D

Even if not strict compliance with rules, if D gets actual notice it’s a facts that usually means there was process.

Question 20

How is SOP made on a partnership?

Answer 20

Partnership service is made on individual partners

Question 21

What happens if P can’t make SOP on first attempt and SOL runs?

Answer 21

Savings statute

Question 22

When are amended pleadings to add another D allowed following elapse of SOL?

Answer 22

If SOL runs and want to add another D, can if D had notice and D knew or should have known that P would have brought D in if not for inadvertence

Question 23

What discovery information can be obtain from opposing party’s experts?

Answer 23

1. Non testifying: can’t get any info unless exceptional circumstances and can’t get information any other way.
2. Testifying: can get who, what, and opinions from other party’s expert through interrogatories, but court permission needed to depose.

Question 24

Can a D remove an order of default and a default j/m?

Answer 24

1. Default
   D can move to remove default by showing good cause for failure to answer.
   Upon motion, court resolves doubts in favor of D and court will grant D’s motion if
   (a) D’s failure to answer was not a result of gross negligence;
   (b) D has a meritorious defense; and
   (c) P (nonmoving party) won’t be substantially prejudiced.
2. Default J/m
   D can move to remove default j/m by showing mistake, inadvertence, or excusable neglect.
   Court will only grant if extenuating circumstances.

Question 25

How is a voluntary dismissal granted, is it with or without prejudice, and what’s the result for estoppel purposes?

Answer 25

If before response by D, then P files a signed written notice of dismissal agreement.

If after filing of response, both parties sign.

W/o prejudice unless otherwise provided by ct or parties.

Not considered a final adjudication on the merits.

Question 26

Under what circumstances is an involuntary dismissal granted, is it with or without prejudice, and what’s the result for estoppel purposes?

Answer 26

Two types

1. Lack of prosecution
   Either (a) court raises sua sponte for P’s lack of prosecution (5 years); or (b) upon D’s motion for lack of prosecution.
2. At bench trial following P’s evidence, if P hasn’t presented sufficient evidence to show that entitled to relief

Dismissal is with prejudice and considered full adjudication on merits for estoppel purposes.

Question 27

In evaluating whether to grant a motion for summary judgment, what evidence of the moving and nonmoving parties must the court consider?

Answer 27

MSJ that no genuine issues of material fact and that movant entitled to j/m as a matter of law must be supported by discovery.

If movant uses affidavit in support, (a) must be made on personal knowledge (no information and belief), (b) be admissible under evidence rules, and (c) must show that affiant is competent to testify.

Nonmoving party can’t rest on allegations in pleadings but must produce own discovery evidence that demonstrate genuine issue of facts for trial.

Question 28

What is Judicial Estoppel?

Answer 28

Equitable device to prevent litigants from having inconsistent testimony in other proceedings

Question 29

What’s an offer of j/m?

Answer 29

D can offer a settlement before trial; if rejected by P and jury or judge awards less than the offer amount, P must pay D’s costs and atty fees incurred following the offer.

Question 30

What is the separate document rule?

Answer 30

Requires that every j/m of court be set on separate document

Question 31

How many days does the losing party in District Court have to file an appeal and where is the appeal taken?

Answer 31

District Court judgments are appealed to Superior Court within 2 days and result in trials de novo.

Question 32

What does RI savings statute provide?

Answer 32

An action can be recommenced within one year of a dismissal if the original action was timely commenced and terminated for any reason other voluntary dismissal or for failure to prosecute.

Question 33

Against which parties can res judicata and issue preclusion be asserted?

Answer 33

A party to the suit and those in privity (commonality of interests and sufficiently represent others’ interests, like parent-sub)

Question 34

A plaintiff seeking to replevy in Rhode Island must make a showing that:

Answer 34

Personal property may be replevied by the owner following the filing of a complaint and summons and when

1) there is a motion made showing that there is a probability that the plaintiff will prevail and
2) that there is a substantial need for the transfer of the personal property.

Question 35

What are the grounds for relief from a final judgment or order under Rule 60 ?

Answer 35

1. a showing of mistake, inadvertence or excusable neglect.
2. clerical error in the judgment or order.
3. other party engaged in fraud, misrepresentation or other misconduct.
4. newly discovered evidence which could not be discovered in time to move for a new trial.

Question 36

At trial the deposition transcript of a witness may be used for what purposes?

Answer 36

1. Impeach or contradict the testimony of a witness.
2. Read into the record when the deponent is dead, or unable to testify because of age, sickness, infirmity or incarceration.
3. Party offering the deposition is unable to procure the attendance of the witness by subpoena, or
4. If exceptional circumstances exist to make it desirable to allow the deposition to be used.

Question 37

A lawsuit is dismissed by the court because the plaintiff failed to serve process on the defendant within the applicable time limits under Rule 4. After the case is dismissed, the statute of limitations for the plaintiff’s cause of action expires. The plaintiff files the suit again. When ruling on a motion to dismiss based on the expiration of the statute of limitations, a court should_________

Answer 37

Deny the motion to dismiss because the action was not voluntarily dismissed.

RI “savings statute” allows a new action to be commenced within one year after the expiration of the SOL if the original case was filed before the expiration of the time limits and it was terminated in any fashion other than by voluntary dismissal, dismissal for failing to prosecute, or for a judgment on the merits. A dismissal for failing to make service within 120 days of filing the complaint is not a voluntarily dismissal, nor is it a failure to prosecute, and it is not a final decision on the merits of the case. Therefore, it can be refilled under the “savings statute.”

Question 38

Does an amendment to a complaint which seeks to change a party under Rule 15 relate back?

Answer 38

Yes, will relate back to the date of the original filing if the new party being brought in receives notice of the action so that he is not prejudiced and he knew that but for the mistake the action would have been brought against him.

Question 39

Can a valid RI affidavit under Rule 56 contain a clear statement that it is made on information and belief?

Answer 39

No. Under Rule 56 affidavits must be made on personal knowledge; they cannot be made just on information and belief. They must also contain statements of fact that are ultimately admissible at trial. Finally, the affiant must be competent to testify.

Question 46

When does the time period in which a party may file an appeal begin to run?

Answer 46

Under the “separate document rule” in Rule 58, the “appeals clock” begins ticking when the clerk of courts enters a final judgment on a separate document. While the granting of a motion for summary judgment might sound the death knell to a case, there still must be a final judgment entered on a separate document by the clerk,