Flashcards in RI Civil Procedure Deck (40)
How can a party challenge a RI court's SMJ and until when is such attack available?
Subject to collateral attack, even through appeal.
What is the SMJ of RI Superior Court?
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
What is the SMJ of RI District Court?
1. Exclusive j/x over
(a) cases <$5k
(c) replevin goods
2. Concurrent j/x with Superior Court for $5k-$10k
What is the SMJ of RI Small Claims Court?
Civil cases <$2.5k
Can RI Small Claims Court cases be appealed?
Can’t be appealed by Plaintiff; only D
What is the SMJ of RI Probate Court?
Wills, estates, guardians, conservators, adoptions
What is the SMJ of RI Family Court?
Divorce, alimony, child support and custody, and related matters
Where does venue lay for suits between RI residents?
County or division where one of the parties resides.
Where does venue lay for suits by in-state P against an OOS D?
In county where P resides.
Where does venue lay for suits against an in-state corporation?
Where corporation is located by charter
Where does venue lay for suits involving land or tenancies?
In county where land or tenancy located
Where does venue lay for suits involving two OOS residents?
Will a court respect parties' consent to venue by contract?
Yes, if court agrees and provided not procured by fraud.
What is notice pleading and when is it insufficient?
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
What does Rule 11 provide and what are the penalties for violating it?
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
What is a Rule 12(b)(6) motion and when is it granted?
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.
What happens if D attaches extraneous materials to a Rule 12(b)(6) motion?
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)
What's a Rule 12(c) motion and how's it different from a 12(b)(6) motion?
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.
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?
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.
How is SOP made on a partnership?
Partnership service is made on individual partners
What happens if P can't make SOP on first attempt and SOL runs?
When are amended pleadings to add another D allowed following elapse of SOL?
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
What discovery information can be obtain from opposing party's experts?
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.
Can a D remove an order of default and a default j/m?
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.
How is a voluntary dismissal granted, is it with or without prejudice, and what's the result for estoppel purposes?
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.
Under what circumstances is an involuntary dismissal granted, is it with or without prejudice, and what's the result for estoppel purposes?
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.
In evaluating whether to grant a motion for summary judgment, what evidence of the moving and nonmoving parties must the court consider?
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.
What is Judicial Estoppel?
Equitable device to prevent litigants from having inconsistent testimony in other proceedings
What's an offer of j/m?
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.
What is the separate document rule?
Requires that every j/m of court be set on separate document
How many days does the losing party in District Court have to file an appeal and where is the appeal taken?
District Court judgments are appealed to Superior Court within 2 days and result in trials de novo.
What does RI savings statute provide?
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.
Against which parties can res judicata and issue preclusion be asserted?
A party to the suit and those in privity (commonality of interests and sufficiently represent others’ interests, like parent-sub)
A plaintiff seeking to replevy in Rhode Island must make a showing that:
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.
What are the grounds for relief from a final judgment or order under Rule 60 ?
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.
At trial the deposition transcript of a witness may be used for what purposes?
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.
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_________
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.”
Does an amendment to a complaint which seeks to change a party under Rule 15 relate back?
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.
Can a valid RI affidavit under Rule 56 contain a clear statement that it is made on information and belief?
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.