MD Civil Procedure Flashcards
(91 cards)
1
Q
Civ Pro: Complaints What should a pleading for a claim contain?
A
A pleading for a claim must: 1. Allege that the amount in controversy satisfies Jurisdiction 2. Contain a clear statement of the facts necessary to constitute a cause of action. Allege times and places if they are material to the claim or defense 3. If P is claiming a $ judgment, generally include the amount sought. Other forms of relief may also be demanded 4. If seeking additional relief, specifically plead that the P is seeking such relief to give D notice.
1
Q
Civ Pro: Trial & Post-Trial Motions Affecting the Judgment Motion to Alter or Amend Judgment
A
Must be made 10 days after entry of judgment Only in bench trials (counterpart to JNOV) The court may reopen the case to take evidence, alter its findings or enter a new judgment
1
Q
Civ Pro: Trial & Post-Trial Motions Affecting the Judgment Motion for a new trial
A
Can be made after jury or bench trial alleging errors in the trial process or verdict. Must be made w/in 10 days after entry of judgment. Can be made on several grounds: - Error at trial- ct. must find error that was prejudicial - Newly discovered evidence- ct. must find prejudice and that the loser was diligent in attempting to discover the evidence by the trial - jury got it wrong- ct. must decide verdict is against the weight of the evidence
2
Q
Civ Pro: Judgments Judgment Procedure
A
The Clerk of the Court records judgments, enters them onto the case docket with a formal judgment date and sends copies to all parties Judgments may be enforced by lien, levy and sale, garnishment, or other means provided by rule or statute
3
Q
Civil Procedure: Personal Jurisdiction When are corps/p’ships subject to PJ in MD?
A
Corps: Incorporated in MD or PPB P’ships: PPB
3
Q
Civ Pro: Discovery Tools Requests for admission
A
Other party must admit, deny, or state reasons why the information is unavailable after reasonable inquiry, or why the request is improper
3
Q
Civ Pro: Enforcement of Judgments Stay of Enforcement
A
Enforcement of $ judgment is automatically stayed for 10 days to give D time to file a post-judgment motion (like a JNOV). If filed the ct. can stay enforcement, and can stay enforcement pending appeal
4
Q
Civil Procedure: Personal Jurisdiction What are the 7 bases for long-arm statute jurisdiction?
A
- D transacts any business or performs any work or service in MD 2. D k’s to supply goods, food, services, or manufacture products in MD 3. D causes a tortious injury in the state by an act/omission in MD 4. D causes a tortious injury in the state (or outside of it) by an act/omission outside of MD, PLUS minimum contacts w/in MD 5. D has an interest in/uses/possesses real property in the state 6. D contracts to insure risks in MD 7. D is a D in a domestic relations case for child support, alimony, or attorney’s fees, and (i) the P resides in MD, (ii) the couple’s domicile immediately before their separation was in MD, or (iii) the payment obligation arose under MD law/an agreement was executed by one of the parties in MD.
4
Q
Civil Procedure: Pleadings and Preliminary Motions Time for Responding to Complaint
A
Time runs from the date of ACTUAL RECEIPT, whether by personal service or certified mail D has 30 days to file a response with the court
4
Q
Civil Procedure: Pleadings and Preliminary Motions Time for Responding to Papers Served Subsequent to the Complaint
A
If personally served, time runs from the date of receipt If mailed, service is technically deemed complete upon posting, however, time to respond runs from the date mailed plus 3 days.
4
Q
Civ Pro: Pleadings and Preliminary Motions When is a D required to file an Answer?
A
If the D does not file a preliminary motion, or if D’s preliminary motion is unsuccessful. In Dist. Ct. this is called a notice of intention to defend. If no prelim motion must be filed w/in 30 days of in-state service of process. If a preliminary motion has been filed the answer must be filed w/in 15 days after the court denies the motion (no mailbox rule).
4
Q
Civ Pro: Parties and Claims What is the procedure for beginning an interpleader action?
A
- Deposit $/property in court and request issuance of an order of interpleader 2. If the order is issued (after a hearing), the stakeholder may be released from the action and the parties realigned. The court decides who gets the property.
5
Q
Civ Pro: Attachment What happens to the property when the case ends?
A
If D wins, attachment is dissolved and D may sue for loss of use of property If P wins, property gets sold to satisfy judgement
7
Q
Civ Pro: Attachment When may property be attached?
A
- In a quasi in rem action 2. In any breach of contract or tort action, IF - Out of state D -Absconding D - Unlicensed Home Contractor 3. In a breach of contract action for liquidated damages, IF - D evades process - D fraudulently transfers property - D defrauded P - Deceased D has an out-of-state heir
8
Q
Civil Procedure: Personal Jurisdiction How does presence in MD impact PJ?
A
If D is a natural person and is present in MD when served, s/he can be sued in MD on unrelated claims, UNLESS s/he is in MD to testify/prosecute/defend an action or is passing through MD to testify in another state subject to subpoena.
8
Q
Civ Pro: Discovery Tools When are objections waived during deposition?
A
Objections that can be cured at the deposition must be made there, or they are waived and cannot be raised later at trial.
9
Q
Civil Procedure: Personal Jurisdiction What is the 2-step process for considering whether personal jurisdiction exists?
A
- Authorized under MD law? 2. Allowed under the U.S. Constitution?
9
Q
Civ Pro: Discovery Are trial prep materials discoverable?
A
It depends. Generally not, unless a party can show (a) a substantial need for it; AND (b) it is not otherwise available without undue hardship (remember distinctions between FACTUAL and OPINION work product here!)
10
Q
Civ Pro: Discovery Tools What are requests to produce?
A
Requests made between parties, to make available for review and copying various documents or things in his possession, custody or control, or to permit entry upon designated property for inspection, measuring, etc.
12
Q
Civ Pro: Attachment What is the process for a Writ of Attachement?
A
- Request Writ by filing the request and filing an affidavit verifying the facts are true and that P has valid grounds for attachment 2. Following Issuance P must: - post a bond - serve the complaint w/in 60 days - file a lien D can post bond or move to release writ.
13
Q
Civ Pro: D’s Response to the Complaint
A
D can Answer or make motions. Response must be filed w/in 30 days if service was made in MD, or 60 days to an out of state D, or D is a Corp served via a State Agency, 90 days if served outside of the US.
13
Q
Civ Pro: Parties and Claims What is the compulsory nature of the legal relationship btwn the P and a TPD?
A
P MUST assert all claims against TBD that arise from the t/o that is the subject matter of P’s claim against D. This is the only type of COMPULSORY claim that exists!
14
Q
Civ Pro: Discovery Discovery Basics
A
- Party-driven: Discovery conducted by the parties generally w/out court intervention. 2. Discovery requests/responses are served by the parties on each other. Notice of service filed with the court. 3. All discovery is against parties only with the exception of depositions which can be against non-parties via a subpoena. 4. Time limit for responses: 30 days (mailbox rule may apply) 5. In MD, parties are REQUIRED to supplement all discovery responses (except depos) with any further info. 6. Standard: Anything not privileged that is RELEVANT to the subject matter is subject to discovery, even if not admissible in court. Includes matters reasonably calculated to lead to admissible evidence.
15
Q
Civil Procedure: Jury Trials What is the threshold amount for a jury trial?
A
$15,000 Only available in CC
15
Civ Pro: Appeal Path of Appeals in MD
Can appeal final judgment once as a matter of right. 30 days after entry of judgment or final ruling on a post-verdict motion. After that can appeal by petitioning by writ of cert to COA. See chart pg. 85 of notes
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Civ Pro: Parties and Claims What is the 2-step process for determining necessary and indispensable parties?
Step 1: An absent party is necessary if, without absentee, (1) the court may not be able to accord complete relief among the existing parties; (ii) disposition of the action may impair absentee's ability to protect an INTEREST involved in the action; or (iii) disposition of the action may leave existing parties subject to a risk of incurring multiple or INCONSISTENT obligations ("you can't do it all"). Step 2: If the party is NECESSARY but cannot be joined (not subject to PJ, etc.), then consider whether, despite this, the party is INDISPENSABLE to the litigation. If the party is indispensable, the court decides whether to go on without her or to dismiss the case.
16
Civ Pro: Trial & Post-Trial Motions Affecting the Judgment Motion to Revise Judgment
Must be made w/in 30 days after the entry of judgment if it is based on newly discovered evidence or any grounds other than: extrinsic fraud, jurisdictional mistake or other irregularity or clerical error (these can be made beyond the 30 days). Unless made w/in 10 days after entry of judgment, this motion doesn't toll the time for noticing an appeal. Ct. can't revise a default judgment w/o fraud, jurisdicitional mistake or other irregularity, but can revise the relief granted.
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Civ Pro: Termination of Case Without Trial How does a person obtain a Default Judgment?
1. P asks the clerk to enter an order of default and give notice to the D at his last known address 2. Wait 30 days for D to move to vacate the default 3. If D fails to make a motion to vacate, then the P asks the court to enter a default judgment 4. Court will enter the default judgment if it is satisfied that: --(i) it has personal jurisdiction over the D; --(ii) proper service was made; --(iii) notice of the default entry was properly given
18
Civ Pro: Discovery Tools Deposition - When can it be used at trial?
When the other party had notice of the deposition and; a) used to impeach the deponent; or b) used as an admission against an adverse party-deponent c) a deposition of a deponent now unavailable to testify d) A videotaped deposition of an expert or physician, when notice of the deposition provided it could be used at trial Look to see if the testimony itself can be admitted
19
Civ Pro: Parties and Claims What is the process for impleader?
1. Original D files a third-party complaint against the TPD. 2. Serve process on TPD (normal process rules apply). Must have PJ over TPD. 3. Time frame: Right to implead within 30 days of answer; after that at court's discretion. 4. After TPD is joined, TPD may raise defenses against the P that D could have (but failed to) raise against P, and TPD may assert claims against P (if the claims arise from same t/o as underlying case).
20
Civ Pro: Appeal Interlocutory (non-final) review
Certified partial summary judgment- if judge certifies their decision on one claim among several, can appeal that decision if hardship or unfairness would result from delay in the appeal. Exception for collateral orders- appellate ct. can hear an issue that is an important legal question, has been conclusively determined and is effectively unreviewable on appeal Orders made appealable by statute.
22
Civil Procedure: Transfer Procedure for Removal
1. Clerk notifies the parties of the date the case is docketed in the CC 2. D must respond within 30 days by motion or answer
23
Civ Pro: Statute of Limitations Defense When does the SOL clock start to run?
On the date that the cause of action accrues. This is when the action matures, which is when the P knew or should have known of his injury/the breach/entry of judgment giving rise to an indemnity claim.
24
Civ Pro: Jury & Bench Trials How to obtain a jury trial?
Maryland Constitution guarantees it in an eminent domain case or where the amount in controversy exceeds 15k Party must make a written demand for a jury trial within 15 days after service of the last pleading raising jury-triable issues [10 days to demand in District court] Demand for jury trial can only be withdrawn by consent of all the parties
26
Civ Pro: Res Judicata and Collateral Estoppel Collateral estoppel (issue preclusion)
Precludes relitigation of a particular issue previously litigated and determined. Issue is deemed established in the 2nd action. Five Requirements: 1. same issue in both suits 2. issue was actually litigated and determined in first case 3. issue was essential to the first judgment 4. may only be asserted against someone who was a party to the prior suit (or in privity) and who had litigated the issue before 5. May be mutual or non-mutual
27
Civil Procedure: Venue Additional Venues?
1. Negligence tort - where P's injury first occurred 2. Replevin - the county where at least part of its located 3. Divorce - where P resides 4. Annulment - where P resides and location of marriage ceremony 5. Custody - where father, mother, or child reside
28
Civil Procedure: Subject Matter Jurisdiction May a P aggregate claims for purposes of determining the amount in controversy?
It depends: 1. Multiple D's: May aggregate claims against the same D, but may not do so against multiple D's unless they are being sued as owners of a joint interest or as joint tortfeasors. 2. Multiple P's: May not aggregate claims against a single D unless P's are (i) seeking to enforce a single right or judgment in which they have a common/undivided interest, or (ii) are P's in a class action suit.
30
Civ Pro: Discovery Is material related to expert witnesses discoverable?
Yes, unless expert witness will not be testifying (unless showing that expert is one-of-a-kind).
31
Civ Pro: Trial & Post-Trial Motions Affecting the Judgment JNOV 1. Procedural Predicate 2. Standard
1. Can't make motion if fail to make a motion for judgment at close of all the evidence 2. No reasonable jury could decide this way
32
Civ Pro: Discovery Tools What are interrogatories?
Questions in writing by a party to another party to be answered in writing under oath Limited to 30 questions in Circuit Court
33
Civ Pro: Parties and Claims What is the 2-step process for getting certified as a class action suit?
1. Must meet all of the following: (a) Numerosity (too numerous for practical joinder); (b) Commonality (some q's of law or fact common to class); (c) Typicality (rep's claims/defenses typical of those in class); and (d) Adequacy (rep's will fairly and adequately protect the class) 2. Must fit within on of 3 "case types": (a) Class members are "necessary parties" (same analysis); (b) Injunctive or declaratory relief sought (no damages); (c) Common q of law or fact predominate over individual q's
33
Civ Pro: Termination of Case Without Trial Aftermath of entry of a default judgment?
A court cannot revise the liability, only the relief granted
34
Civil Procedure: Personal Jurisdiction What factors should we consider in a minimum contacts analysis for a long-arm statute?
1. Does D regularly do business in MD? 2. Does the D derive substantial revenue from goods/services used or consumed in MD?
35
Civil Procedure: Personal Jurisdiction What are the five bases of personal jurisdiction in MD (Can Dan Please Push Lauren)?
1. Consent to PJ in MD (scope limited to claims arising in MD) 2. Domicile (can be sued on unrelated claims as well- general personal jurisdiction applies) 3. Domestic Corporation or Partnership 4. Presence in MD 5. Long-Arm Statutes
37
Civ Pro: Pleadings and Preliminary Motions Responding to preliminary motions
If opposing party wants to respond, they must do so within 15 days after service of the motion. The mailbox rule applies.
38
Civil Procedure: Service of Process Timing?
Summons must be served within 60 days or else it becomes dormant and P must file a written request to the court to renew it
40
Civ Pro: Res Judicata and Collateral Estoppel Procedures for invoking claim or issue preclusion
1. Plead claim preclusion as an affirmative defense; ct. may also raise 2. Prove prior judgment or issues previously litigated by attaching a record copy of the prior action
42
Civil Procedure: Service of Process What is service?
Providing notice by serving the complaint and the summons
43
Civ Pro: Parties and Claims What is interpleader?
This is a device by which one holding $ or other property can force all potential claimants into a single lawsuit, with the goal being to avoid multiple litigation and the possibility of inconsistent results. The stakeholder (person with the $/prop) may or may not claim to be entitled to the property.
44
Civil Procedure: Personal Jurisdiction How is domicile determined?
Domicile is determined when there is actual transfer of residence + intent to remain perm/indef. Factors to consider: Where D lives, votes, pays taxes, has driver's license, etc.
44
Civ Pro: Pleadings and Preliminary Motions Responding to late papers
If a pleading or motion is filed beyond the allowed time, a party may move to strike the pleading. However, if the tardy movant can show there is no prejudice from the delay, the ct. will deny the motion to strike.
45
Civ Pro: Parties and Claims What are the 2 types of intervention rights available for parties outside of the lawsuit?
1. As of right: Absentee party has a right to join when (i) given an unconditional right by law to intervene in the action; or (ii) disposition of the action may impair absentee's ability to protect an interest involved int he action (use same standard for necessary parties) 2. Permissive: Absentee party may be allowed to join if the absentee's claim or defense has a q of law or fact in common with the action. Allowed at court's discretion.
46
Civ Pro: Pleadings Relation back of claims added by amendment
If the party seeks to amend the pleading to assert a new claim after the SOL has expired the new claim is deemed to have been asserted in a timely manner if it is part of the same cause of action as the original pleading's claims.
48
Civil Procedure: Service of Process Persons to be served? 1. Adult 2. Child or Person under disability 3. Corporation 4. Partnership 5. Unincorporated Association 6. State of Maryland
1. Serve D 2. Serve D and his parent, guardian or fiduciary in manner set out above 3(a). Initial Choices - Resident Agent, President, Secretary, or Treasurer 3(b). Secondary choices made after a good faith effort - any Director, VP, Assistant Secretary or Assistant Treasurer, or any other person authorized to receive service 4. Any general partner 5. Any officer or member of the board 7. AG, or person appointed by the AG
50
Civil Procedure: Subject Matter Jurisdiction What is subject matter jurisdiction?
SMJ defines the types of cases that can be brought in a particular court. Defined by state Constitution and statutes. Cannot be waived and may be raised at any time, by the courts or the parties.
51
Civ Pro: Answers Can a D amend an answer?
Yes, may amend to add an affirmative defense w/o leave of the court for up to 30 days before trial.
53
Civil Procedure: Venue Unfairness
If a party cannot receive a fair and impartial trial in the county, he may move for "removal" to any county Court must find reasonable grounds
54
Civ Pro: Trial & Post-Trial Motions Affecting the Judgment Motion for Judgment 1. When moved? 2. Standard
(formerly Directed Verdict) Based on evidence presented at trial 1. Defendant can move twice, at the end of plaintiff's case and at the close of all the evidence; Plaintiff moves at the close of all evidence 2. Judge decides the case because no reasonable jury could find otherwise
55
Civ Pro: Termination of Case Without Trial Summary Judgment 1. Standard 2. Initial burden of proof 3. Respondent's burden
1. Moving party must show that: --a) there's no genuine issue of material fact; and --b) the movant is entitled to judgment as a matter of law 2. On the moving party as to why he is entitled to judgment as a matter of law by demonstrating factual evidence in the forms of: --a) authenticated documents; --b) deposition testimony; --c) other discovery --d) affidavits ---extra: Complaint may be treated as an affidavit if "verified" [movant swears that the allegations are made on personal knowledge] 3. Burden has 15 days to produce evidence that creates a dispute of material fact or to show the movant is not entitled to judgment as a matter of law
56
Civil Procedure: Service of Process How to serve?
1. Personal Service - personally hand the process to the person to be served 2. Personal Service on Another - if to an individual, deliver it to a PERSON OF SUITABLE AGE AND DISCRETION, who is RESIDING at the INDIVIDUAL'S DWELLING HOUSE or USUAL PLACE OF ABODE 3. Certified Mail - Send it by certified mail, restricted delivery, return receipt requested 4. Out-of-State Methods - By a manner approved by the court or permitted by local law, but must be REASONABLY CALCULATED TO GIVE ACTUAL NOTICE 5. Special Methods for Evasive Ds - ---A) Substitute Service: deliver to a responsible person at the premises: or ---B) Nail it: Post process as near the premises as practicable [only used when D resists service by threats, violence, or force] 6. Court-Ordered Methods - Court may order service by other means reasonably calculated to give notice if other methods have been unsuccessful
57
Civ Pro: Res Judicata and Collateral Estoppel Claim preclusion
Party is entitled to one and only one full and fair opportunity to litigate (look for subsequent cases). Three Requirements: - Same Parties (or in Privity)- same P against same D - Final judgment on merits- includes default judments - Same Cause of Action
59
Civil Procedure: Service of Process Who can serve?
The Sheriff or any adult who is not a party to the case
60
Civ Pro: Parties and Claims What is the right of impleader?
Claims involving a third-party D (TPD) brought in, usually by the D, in a vicarious liability situation. The claim against the TPD is derivative (for indemnity or contribution).
61
Civ Pro: Pleadings and Preliminary Motions What defenses are mandatory and must be presented by preliminary motion?
Personal jurisdiction lacking Venue improper Process insufficient Service of Process insufficient
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Civ Pro: Discovery Tools Deposition: 1. Whom? 2. Where? 3. How? 4. When?
1. Party or non-party 2(a). Non-party: ---(i) if a resident of MD, in the county where she lives or works --(ii) if not a resident of MD, in the MD county where served the subpoena or within 40 miles of the place of service, or if served out-state according to the laws of that forum, or --(iii) Where the court orders 2(b). Party --(i) The county where the action is pending, --(ii) anywhere the party could be deposed if he were a non-party 3. Serving a notice of deposition if a party; if non-party then serve with a subpoena 4. Notice of deposition must be served 10 days prior to the date of the deposition; 30 days notice is required for production of documents
64
Civ Pro: Answers What should an Answer include?
For each allegation in the Complaint, D must admit, deny or state that they lack sufficient info to admit or deny. D should assert defenses (negative, leftover and affirmative). Failure to plead an affirmative defense waives the defense.
65
Civil Procedure: Personal Jurisdiction What is Quasi In Rem Jurisdiction?
In some cases (including those where MD has no PJ over the D), the P may commence an action by bringing an action against property owned by the D that is located in MD. NOTE: Claim MUST be related to the property seeking to be attached!
66
Civ Pro: Pleadings and Preliminary Motions Time for Responding to Court Rulings
Measured from the day the ruling is issued and the mailbox rule does not apply.
67
Civil Procedure: Venue Inconvenient Venue
On a party's motion, the court may transfer a case to a preferred venue where the case could have been brought --Look to see if it is in the interest of "substantial justice"
68
Civ Pro: Termination of Case Without Trial What is voluntary dismissal?
Claimant decides not to continue the claim and it is dismissed without prejudice if: 1) the parties stipulate to dismissal; or 2) the opposing party has not filed an answer or a motion to dismiss the claim
69
Civ Pro: Enforcement of Judgments Liens on the Property of the Judgment Debtor
Once judgment is rendered, the P (creditor) must take steps to ensure that his judgment becomes a lien on the property of the D (debtor). Real Property: Once a $ judgment has been recorded by court clerk it becomes a lean on real property of the D located in the forum county. Can index w/ court clerk in another county to get a lien on property in that county. Personal Property: $ judgment becomes a lien on personal property only when the P obtains a writ of execution against the property and the sheriff levies upon it.
70
Civ Pro: Pleadings When can you amend a pleading?
A party can amend a pleading w/o leave of the court until 30 days before trial. After that leave of court or consent by all parties is required. If new matters are raised by the amended pleading, no response is needed and all new matters will be deemed denied.
71
Civil Procedure: Pleadings and Preliminary Motions Service of Pleadings
The first time a party is served with process, the party must be served normally. Thereafter, the party can typically be served by personal or mail delivery to the party or party's attorney
72
Civ Pro: Pleadings and Preliminary Motions What kinds of motions can a party make based on matters of form?
Motion for a more definite statement- if pleading is too vague or ambiguous to answer. If motion is granted and a corrected pleading isn't filed w/in 15 days, the court can strike the vague pleading. Motion to Strike- A party can file a motion to strike w/in 15 days after service if a pleading contains improper material, is late, or violates the rules.
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Civ Pro: Parties and Claims Transactional relatedness of joinder of claims for P's, D's, cross-claims, and TPD's?
1. P's claims against a D need not be transactionally related. 2. D's counterclaims against a P need not be transactionally related. 3. Cross-claims must be transactionally related. 4. A TPD's counterclaim against a TPP need not be transactionally related. 5. A TPD's cross-claims against co-TPD's must be transactionally related. 6. A TPD's claims against the P must be transactionally related.
75
Civil Procedure: Venue Which venue is proper? 1. Individual D 2. Corporate D 3. Non-resident individual defendant Out-of-state corporate defendant
1. County or counties where D resides, carries on a regular business, is employed, or habitually engages in vocation 2. County where a corporate D maintains its principal in-state offices or carries on a regular business 3. Any county in MD 4. The county where P resides
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Civ Pro: Discovery Tools What are physical or mental examinations?
Only available by stipulation or on leave of court ---Only available against a party
78
Civil Procedure: Personal Jurisdiction What is the constitutional analysis for PJ within MD?
Does D have such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? Mnemonic: My Parents Frequently Read Funny Children's Stories M inimum contacts btwn D and forum P urposeful availment of benefits of forum F oreseeability of being sued in forum R elatedness of cause of action and forum F air play & substantial justice C onvenience (not grossly unfair to D) S tate's interest
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Civil Procedure: Personal Jurisdiction When are forum selection clauses unenforceable?
1. K induced by fraud 2. The selected forum is unfair/inconvenient 3. Enforcement would contravene strong public policy of MD
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Civ Pro: Appeal Final Judgment Rule
Can appeal only from a final judgment.
81
Civ Pro: Statute of Limitations Defense How do we determine when the clock stops running/when it tolls for purposes of a disability?
The SOL clock tolls at the removal of the disability. We determine this on the basis of the longer of (i) 3 years from the date the disability is removed; or (ii) the remaining period of the SOL, running from the day of the accrual (if SOL less than 3 years, the statute runs for the period provided from the date the disability is removed).
82
Civ Pro: Termination of Case Without Trial What is Involuntary Dismissal?
Court may dismiss without prejudice 1. If the D has not been served within 120 days from the issuance of original process; or 2. Claimant fails to take a docketed act for one year from the last docketed entry
83
Civil Procedure: Personal Jurisdiction When is domicile determined for purposes of a lawsuit?
As of date of commencement of lawsuit, NOT at date claim arose.
84
Civil Procedure: Venue What is the effect of improper venue?
The court may dismiss the action, or it may transfer the action to the proper county if it would be in the interest of substantial justice
85
Civil Procedure: Subject Matter Jurisdiction What are the general guidelines for amount in controversy?
$5k or under: Generally District Court $30k or above: Generally Circuit Court Concurrent with in between amounts, generally
86
Civ Pro: Discovery What does a protective order do?
A party against whom discovery is sought - it limits the scope, timing, amount or manner of discovery Also, if a showing of good cause to prevent annoyance, embarrassment, oppression, and undue burden or expense in comparison to the beneft
87
Civ Pro: Discovery What privileges does MD recognize?
Spousal communications; A/C, accountant, psychiatrist, journalist, clergy, trade secrets. MD does NOT recognize MD-patient privilege!
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Civ Pro: Pleadings and Preliminary Motions Are parties required to make preliminary motions?
No, preliminary motions are optional, but certain defenses must be presented by preliminary motion or they are waived forever. BUT if you do make a preliminary motion, parties must consolidate alternative defenses into a single preliminary motion
89
Civ Pro: Termination of Case Without Trial What is a motion to dismiss on the pleadings?
Motions to dismiss for failure to state a claim can be made in a preliminary motion, an answer, or by motion through trial Court only considers the allegations in the claim, not real world facts
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Civ Pro: Parties and Claims What is the permissive joinder of proper parties?
2 or more P's (or D's) may be part of the same action if the claims asserted by (or against) them (i) arise out of the same t/o and (ii) share a common q of law or fact.
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Civil Procedure: Venue Proper venue for Multiple Ds?
General rule, common venue for all Ds If no common venue then either: 1) Any county in which any one of the Ds could be sued; or 2) Where the cause of action arose
