MD Civil Procedure

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eastmabl
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MD Civil Procedure
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2015-07-21 02:26:44
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  1. District Court: Original jurisdiction
    • (1) K/tort actions not to exceed $30K, exclusive of interest/cost/fees;
    • (2) replevin;
    • (3) attachments before judgment;
    • (4) landlord/tenant disputes;
    • (5) forfeitures under $20k;
    • (6) “lemon law” actions;
    • (7) temporary/final peace orders;
    • (8) enforcement of local codes;
    • (9) civil penalties by Division of Labor and Licensing under $20K;
    • (10) condemnation of abandoned/distressed property under $25K; and
    • (11) bad checks cases, although the defendant may transfer to circuit court if value is greater than $25K.
  2. District Court: Exclusive jurisdiction
    • (1) K/tort claims not exceeding $5Km exclusive of interest/cost/fees;
    • (2) landlord/tenant actions where rent does not exceed $5K. In such cases, discovery is not permitted.
  3. District Court: No Jurisdiction
    No jurisdiction over (1) equity cases, (2) decisions on the ownership of real property or (3) declaratory judgments.
  4. District Court: Right to a jury trial
    A valid request for a jury trial will divest the district court of jurisdiction over the matter.
  5. Aggregation of claims
    • Plaintiff may aggregate all claims against a defendant to meet amount-in-controversy requirements.
    • Defendant’s counterclaim -– not considered in determining jurisdictional amount in controversy requirements.
  6. Circuit Court - Concurrent jurisdiction with District Court
    • (1) K/tort actions greater than $5K;
    • (2) attachments before judgment greater than $5K;
    • (3) petitions for enforcement of codes where equitable relief is provided; and
    • (4) proceedings for replacement of vehicles under Lemon Law.
  7. Circuit Court - Exclusive jurisdiction
    • A court of common law and equity.
    • (1) Equitable claims and (2) all matters where the amount in controversy exceeds $30K.
    • Transfer to district court permitted when that court has exclusive jurisdiction,
  8. Personal jurisdiction and MD courts.
    • A court may not exercise personal jurisdiction over a defendant unless (1) defendant has minimum contacts with MD, and (2) exercise of jurisdiction would be fair and reasonable.
    • This requires due process, notice and the opportunity to be heard.
    • For a court to exercise jurisdiction over a non-domiciliary defendant, there must be a connection between state, defendant and the case.
  9. General jurisdiction - PJ
    • Individuals are present in MD when they are domiciled there or served with process in MD.
    • Corporations are present when (1) incorporated in MD, (2) registered to do business in MD, (3) their primary place of business is MD, (4) they do systematic and continuous business in MD, or (5) they consent to jurisdiction in MD.
    • When the defendant is not present in MD, personal jurisdiction may only be exercised if the state has a long arm statute and the defendant has minimum contacts with the forum state.
  10. In personam jurisdiction
    • Domicile: the place where an individual has a settled connection for legal purposes -– residence with intent to permanently reside.
    • A domestic corporation has in personam jurisdiction when it is organized under MD law or maintains a principal place of business in MD.
  11. Service of process requirements
    Service effective when defendant is in MD, except when responding to a summons to appear at a judicial proceeding or in MD by court order.
  12. Long Arm Statute
    • MD courts may exercise personal jurisdiction over a non-resident who:
    • (1) transacts business or performs works or services in MD;
    • (2) contracts to supply goods/services in MD;
    • (3) causes tortious injury through acts/omissions in MD;
    • (4) has a real property interest in MD, include use/possession;
    • (5) contracts to insure or act as surety over someone in MD; or
    • (6) causes tortious injury inside/outside the state, by an act or omission OUTSIDE the state, if she regularly does/solicits business in MD.
    • The mere presence of an internet website is insufficient to form the basis of personal jurisdiction over a nonresident defendant.
  13. Conspiracy theory of PJ
    When two or more individuals conspire to do something, the court’s PJ over one conspirator will subject the other conspirators to the court’s PJ.
  14. PJ: Domestic relations
    Nonresident is subject to PJ in MD when (1) plaintiff resides in MD, (2) nonresident was properly served, and (3) matrimonial domicile or some other support agreement.
  15. PJ: Paternity
    MD court may exercise PJ over nonresident father if (1) mother resides in MD when suit is filed, (2) defendant was properly served in MD and (3) conception allegedly occurred in MD.
  16. Tortious Acts Outside MD
    • If tortious act occurs outside MD, long arm statute may be invoked only if defendant (1) regularly does/solicits business in MD, (2) engages in persistent course of conduct in MD or (3) derives revenue in MD.
    • Tortious acts/omissions must have been intentionally and expressly directed towards MD.
  17. Declining a case on Due Process concerns
    • Despite minimum contacts/purposeful availment by the defendant, MD courts may decline jurisdiction when the action would otherwise “offend traditional notions of fair play and substantial justice.”
    • Factors considered include:
    • (1) Interest in MD adjudicating the matter
    • (2) Burden on the defendant of appearing in the case
    • (3) Judicial efficiency
    • (4) Shared interest in states in promoting common social policies
  18. Types of Venue –
    Venue addresses the issue of which county is the proper forum for hearing the case, and may differ on proceeding.
  19. Venue for Divorce
    where the plaintiff lives
  20. Venue for Annulment –
    where plaintiff lives or marriage ceremony took place
  21. Venue for Negligence/Tort –
    in the county where the action/omission arose
  22. Venue for Corporation –
    where the plaintiff lives; if no principal place of business, where the action arose.
  23. Venue for Replevin –
    where property is located.
  24. Venue for Custody/guardianship/maintenance/child support
    where father, mother or child is domiciled
  25. Venue for Breach of contract –
    • the county where the payment was to be made, the creditor’s domicile or place of business.
    • Real property – any suit affecting title to real property
  26. Venue for a possessory interest in the property
    must be brought in the county where the property is located.
  27. Venue for Attachments –
    • action must generally be brought in the
    • country in which the property is located, or where the garnishee resides.
  28. Changes of Venue
    • In MD, changes can be made to venue by a motion to dismiss.
    • Failure to do this results in waiver.
  29. Forum Non Conveniens
    MD has adopted the common law doctrine forum non conveniens which allows a court to (1) transfer for the convenience of the parties, (2) dismiss the action, or (3) remove an action if a fair trial cannot be had in that county.
  30. Statute of Limitations
    • A civil action must be filed within three years from the date it accrues, except for -
    • (1) assault, libel, slander – 1 year
    • (2) medical malpractice – 3 years from discovery or 5 years from the commission of the act.
  31. Tolling for SOL
    Extended three years for minors who reach age of majority and incompetents whose disability is removed.
  32. Parties
    • Every action must be brought in the name of the real party in interest or by a personal representative that is appointed/recognized by law.
    • A guardian or fiduciary may sue on behalf of a disabled individual.
  33. Joinder of Parties
    Mandatory joinder is required for parties to ensure (1) complete relief of the parties, (2) disposition will impede ability to protect interests or (3) substantial risk of multiple inconsistent verdicts. Permissive joinder permitted when all plaintiffs all assert the same right to relief.
  34. Intervention
    • (1) Of right – when a party’s interest in property/action is subject to the action.
    • (2) Permissive – when person’s claim/defense has common question of law/fact with the action.
  35. Interpleader
    When two parties claim the right to the same property, a plaintiff can bring an interpleader action to have the court decide which defendant has the right to the property.
  36. Class Actions
    • Parties may sue on behalf of all plaintiffs only if the class (1) is so large that joinder would be impracticable, (2) shares common question of law/fact, (3) parties’ claims/defenses are typical to the group, and (3) parties will properly represent class and protect rights of class.
    • Court considers (1) interest of class members, (2) prosecution or defense of separate action, (3) extent and nature of litigation, (4) desirability of concentrating litigation in a particular forum, and (5) difficulty encountering managing class.
    • Class action may not be dismissed or compromised without the approval of the court.
  37. Commencement of Proceedings
    In MD, a lawsuit is started by filing a complaint with the court.
  38. Summons
    Upon filing the compliant, the court clerk issues a summons to be served on the defendants by the plaintiff – the defendants must receive notice.
  39. Service of Process
    Process consists of a copy of the summons, complaint and all other documents filed with the complaint to the court.
  40. Serving an Individual
    On individual directly or individual’s agent.
  41. Serving an Individual Under Disability
    – on individual directly and individual’s parent/guardian.
  42. Serving a Corporation –
    resident agent, president, secretary or treasurer. If not possible, then director, vice president, assistant secretary, assistant treasurer or anyone else authorized to receive service.
  43. Serving a General Partnership –
    any partner
  44. Serving an LP, LLP, LLC –
    resident agent; if failure, a general partner.
  45. Serving an Unincorporated Association –
    any officer/member of governing board; if failure, then any member.
  46. Serving State of MD –
    serve the state attorney general.
  47. Serving a Local entity –
    county commissioner/council or city solicitor.
  48. Serving the US –
    US attorney for the district, as well as the US Attorney General.
  49. Process Server
    • Either sheriff or a competent person over the age of 18 who is not a party.
    • An attorney of record may serve another party.
  50. Timing of Service
    • Summons must be served within 60 days of issuance.
    • After this time, a plaintiff may file a request in writing to renew the summons.
  51. Method of Service
    • Service can be made within or outside the state by:
    • Delivering summons, complaint and any other papers filed;
    • Leaving summons, complaint and any additional document at the party’s home with an individual of suitable age; or
    • By mail to the person to be served with a copy of the summons complain, and all additional documents filed by certified mailed with restricted delivery. Service by certified mail is complete upon delivery/receipt, not dispatch.
    • Electronic issuance of Process
  52. Evasion of Service
    If defendant is evading service, the court may order that service of process is completed by mailing a copy of the summons and complaint to the defendant at his last-known residence or personally serving a person of suitable age and discretion at the defendant’s place of business.
  53. Return of Process
    • An individual making service of process by delivery or mail must file proof of service with the court promptly.
    • Return of service must be filed with the court before any response is due.
  54. Complaints Generally
    MD requires that every act have a complaint and an answer, which may also include counterclaims, cross-claims or third-party complaints.
  55. Pleading Requirements
    • Form: all claims and defenses must be separately numbered in paragraphs.
    • Content: each claim or statement in a pleading must be simple/clear/direct and must include (1) fact and law used to support the claim, (2) time/place of the events, and (3) the amount of money sought.
    • All pleadings must be signed by a party/attorney, along with address/telephone number.
    • Service: every pleading filed subsequent to the complaint must be served on the other parties by hand or by mail with a certificate of service attached to the motion.
    • A party has 30 days to cure any deficiency in the pleadings.
  56. Answer
    • Every defense in fact in law must be asserted in the answer.
    • The answer must admit or deny the charges in the complaint. If the answer fails to deny a claim in the complaint, it is deemed an admission.
    • Negative defenses (no) and affirmative defenses (yes but) are anything where the party admits the case but cannot be held responsible because of the defense.
    • An information report must be filed with the answer.
    • Defendant has 30 days to serve an answer after receipt of the summons and complaint.
    • Defendant has 15 additional day to file an answer when it files a preliminary motion to dismiss, strike or more definite statement.
  57. Request for Jury Trial
    • Only available if AIC exceeds $15,000. 
    • Either party can elect a jury trial by filing a Demand for jury trial.
    • If not made within 15 days after service of the last pleading filed by any party, the issue is waived. If request, it may only be withdrawn by consent of all parties.
    • If jury trial is demanded in a District Court matter, it must be transferred to the Circuit Court because there are no jury trials in the District Court.
  58. Cross-claims and Counterclaims
    • A party may file a counterclaim against any opposing party, regardless of whether the counterclaim arises out of the same transaction or occurrence of original complaint.
    • A party may file a cross-claim which must be based upon the same transaction or occurrence as the original complaint.
    • Both claims must be filed within 30 days after the time for filing the party’s answer.
  59. Adding third party complaints
    • A third party plaintiff is a defendant who adds a new party to the lawsuit.
    • Third party defendant is the defendant who has now been added.
    • Third party claims can be made up to 10 days before the court date, or afterwards with plaintiff consent or court order.
  60. Amended Pleadings
    • A party may amend the pleading by the date in the scheduling order or not later than 30 days before the trial date.
    • Within 15 days of filing, the opposing party must respond to the motion.
  61. Response to Party's Motions
    • Motions can be filed by parties asking for the court’s order.
    • The opposing party is not required to respond to the motion, but it must be done within 15 days of service of the motion.
  62. Motions to Dismiss
    • Must be made before the answer is filed or it is waived.
    • Can claim (1) lack of jurisdiction over person, (2) improper venue, (3) insufficient process, or (4) insufficient service of process.
    • Permissive motions to dismiss will not be waived if not filed before the answer for topics such as (1) lack of SMJ, (2) MFSC, (3) failure to join a party, (4) discharge in bankruptcy, or (5) governmental immunity.
    • Amended complaints must be filed within 30 days of the complaint or by the court’s leave, granted freely as justice so requires.
  63. Motion for More Definite Statement
    15 days to comply with this motion if granted.
  64. Motion to Strike
    • Filed when complaint has superfluous fats or insufficient defenses.
    • Filed with 15 days of service of pleading.
  65. Motion for Summary Judgment
    • May be filed at any time before the trial.
    • Granted if (1) no genuine dispute of material fact and (2) the moving party is entitled to judgment as a matter of law. Viewed in the light most favorable to the non-moving party.
  66. Discovery Scope
    Matters are discoverable when they are relevant and not privileged.
  67. Privileges
    MD recognizes eight privileges – (1) marital, (2) a/c, (3) psychiatrist-patient, (4) clergy-penitent, (5) accountant-client, (6) work product doctrine, (7) trade secret, and (8) journalist privilege. Doctor/patient privilege not recognized.
  68. Electronically Stored Information
    • Discoverable unless it is “not reasonably accessible because of undue burden or cost” (burden on party against whom discovery is sought).
    • Then, the party seeking discovery has burden of establishing that the need for information outweighs the burden and cost of locating/retrieving/producing the information.
  69. Insurance Agreements
    Any information regarding the existence of an insurance agreement is discoverable.
  70. Attorney Work Product
    • Generally not discoverable, and will include attorney’s mental impressions, conclusions of law, legal opinions and theories.
    • Underlying facts can be discovered if (1) not privileged, (2) necessary for case preparation and (3) cannot be obtained in substantially equivalent form without undue hardship.
  71. Experts
    A party may request the identity of any expert who will testify at trial or who was retained but not expected to be called as a witness.
  72. Depositions
    • Any party may, without the leave of the court, depose (interview) a person for the purpose of discovery/use in evidence.
    • Need not be a party.
    • Leave of court must be obtained if (1) before defendant’s initial pleading/motion, (2) longer than a 7 hour day, (3) individual confined in prison, or (3) individual already deposed previously.
    • 10 days of notice of deposition; notice also requires date, time and whether it will be videotaped.
    • A subpoena is required for a non-party.
  73. Interrogatories
    • Written questions served on a party which are responded to in writing.
    • District Court – 15 interrogatories; response 30 days after service or 15 days after that party’s initial pleading (whichever is later).
    • Circuit Court – 30 interrogatories; response 30 days after service or 15 days after that party’s initial pleading (whichever is later).
  74. Discovery and Inspection of Tangible Items and Documents
    • A party may request items in possession, custody or control of another party, or to permit the party entry upon land.
    • Response within 30 days of service, within 15 days after the initial pleading/motion is required.
  75. Mental or Physical Examinations
    Only a party and only when at issue; cannot compel examination of a non-party.
  76. Admissions of Fact
    • A party may serve written requests to any other party for the admission of the genuineness of relevant documents or the truthfulness of relevant matters of fact.
    • Response required within 30 days of service or 15 days of motion. Failure to respond means that the matter is admitted.
  77. Motion to Compel
    Once a party makes good faith attempts to engage in discovery, a court may make an order to compel discovery or impose sanctions.
  78. Jury Trial Procedure
    • A party may not demand a jury trial when the amount does not exceed $15K.
    • Must be demanded within 15 days.
    • The jury must consist of 6 persons unless the parties agree to fewer.
    • Unlimited challenges to jurors for cause, and 4 peremptory challenges.
  79. Motion for Judgment
    • At the close of evidence of the opposing party, a party may move for judgment.
    • Viewed in the light most favorable to the non-moving party.
  80. Court Decision and Jury Verdict
    A jury verdict must be unanimous unless stipulated by the parties.
  81. JNOV
    • At the close of evidence, a party may move for a judgment notwithstanding the verdict.
    • This motion challenges the sufficiency of evidence.
    • Must be filed before the verdict and renewed once the verdict is pronounced (within 10 days).
    • Court may set aside judgment.
  82. Motion for a New Trial
    Within 10 days after entry of judgment or 30 days of newly discovered evidence.
  83. Motion to Alter or Amend
    Within 10 days after entry of judgment, the court may receive additional evidence and amend its findings upon motion by any party.
  84. Revisory Power
    Within 30 days after entry of judgment, the court has the power to revise its decisions due to fraud, irregularity, newly discovered evidence or clerical mistakes (nunc pro tunc).
  85. Confessed Judgments
    • Often a result of a debt obligation.
    • Entered by clerk on filing complaint, written instrument authorizing confession of judgment and specifying the amount due. Defendant must be notified by clerk and can challenge the judgment by motion to (1) alter/amend judgment, (2) revise judgment or (3) modify/vacate judgment.
  86. Consent Judgments
    • Judgments entered into by agreement of the parties.
    • District court may enter judgment at any time, while circuit court may enter judgment if (1) for a specified amount or (2) denies all relief and adjudicates all claims.
  87. Default Judgments
    • Entered upon failure of a defendant to respond to the complaint.
    • District Court, defendant does not have to file motion to defend. Plaintiff does not have to file motion – just prove damages.
    • If the defendant never responds, the plaintiff may be granted a default judgment.
    • Upon default, defendant is notified by the clerk, and the defendant has 30 days to file motion that there is an actual controversy.
    • A defendant can move within 30 days after the final entry of default judgment to reopen the case to challenge the amount of relief granted. The court may not, however, reopen the issue of liability.
  88. Res Judicata
    • Claim preclusion stops a party (or one in privity) from re-litigating previous actions.
    • Must show (1) party in privity with original litigant, (2) matter previously litigated, and (3) final judgment on the merits.
  89. Collateral Estoppel
    • Issue preclusion bars re-litigation of issues actually and necessarily decided in a previous action.
    • MD has four requirements – (1) issue previously decided identical to the one presented in the present action, (2) final judgment on the merits, (3) party against whom the plea is asserted a party or party in privity in with a party in the previous adjudication, and (4) party given a fair opportunity to be heard on the issue?
  90. Discovery in aid of enforcement
    • A judgment creditor can use depositions, interrogatories, request for documents, and an examination before a judge in order to aid enforcement of a judgment.
    • A judgment creditor can impose a lien on a defendant’s land.
    • A judgment creditor can issue a writ of execution and levy to levy property to satisfy money judgment. This levy can allow the judgment creditor to request the sheriff to sell the property. Must wait 30 days. Sheriff will take out expenses from the proceeds, which are then given to the judgment creditor. Any balance should be paid to the defendant.
    • A judgment creditor may obtain garnishment of property or wages.
    • Money judgments must be renewed every 12 years or they will expire.
  91. Appeals
    • Generally must be filed from final judgment.
    • Must be filed within 30 days.
    • May seek dismissal, affirmation of judgment, vacation or reversal of judgment, modification or remand.
  92. When can failure to join a necessary party be raised?
    At any time, and at the first time on appeal.
  93. Jurisdiction of Motions Upon Filing a Claim
    A filing of an appeal does not divest the trial court of jurisdiction over motions properly before it.

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