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108 Cards in this Set

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W statements made to a lawyer subject to discovery?
Statements of interviews with potential W's are attorney work product and cannot be discovered

UNLESS

opposing counsel can show SUBSTANTIAL NEED and UNDUE HARDSHIP in getting information by other means
motion to amend--π
If the π sues the wrong ∆, π should within 120 days of commencement amend the compl.; add and serve the correct ∆.

-service will conclusively establish that ∆ had notice of mistake within the timeframe.

-if SOL has expired, the amendment relates back to the date the original compl. was filed.


π may add a ∆ after the SOL has run if the new ∆ had actual knowledge of the initial commencement of the lawsuit and knew, or should have known, but for the mistake of the plaintiff that ∆ would have been named an original party.

--freely granted
-if a claim in amendment arose out of the occurrence in the original compl. the amendment relates back to the date of the original compl.
comp. fault savings statute
if ∆ names or identifies a comparative tortfeasor in the answer, π can amend within 90 days to add tortfeasor,

even though SOL has run.
wrongful death
state-owned facilty-->TN claims commision

private ∆--circuit court where ∆ resides or where the action arose
UCC sales
chancery court has jurisdiction to hear cases requesting relief in law and in equity
venue--tort
filed in county where ∆ resides or cause of action arose
Summary Judgment**
no genuine issue of material fact and ∆ is entitled to judgment as a matter of law.
1. ∆ affirmatively negates a π's claim
or
2. ∆ shows π cannot prove an essential element of claim at trial.

-must be filed 30 days before the hearing
-nonmoving party must respond in 5 days.
detainer actions
used to collect unpaid rent
-∆ has 30 days to answer
eviction
landlord must give notice
-civil warrant for eviction are filed in general sessions or circuit court
General Sessions court jurisdiction
claims up to 25,000 including punitive claims, plus attys fees

-can hear case to replevin personal property up to $25,000
appeals--general sessions/circuit court
heard de novo

appeals from general sessions court are heard in circuit court
zoning board decisions
appealed to chancery court

-court should overturn the board's decision only if there is no evidence to support it or the board acted illegally

constitutional challenges can be filed in circuit, chancery, or fed. district court

delclaratory judgment actions usually used to challenge constitutionality of statutes
judgment lien
procured by recording a certified copy in the lien book at the register's office where the land is located.
-enforced by directing sheriff to seize judgment debtor's property.

-executions on liens should be obtained from the court in which the judgment was entered.

perfected for a maximum of 10 years from judgment entry.

if judgment is extended lien is also extended.
How many peremptory strikes is each side entitled to in a jury trial?
Generally, in a jury trial in Tennessee, the prosecution and the defense are each allowed four peremptory strikes per party with a maximum of eight strikes for anyone side. If the case involves a charge punishable by imprisonment for more than one year (a felony), each side is entitled to eight peremptory challenges per defendant.
When may a jury verdict be set aside on appeal?
Only ifthere is no material evidence to support the verdict.
In what court is a divorce and custody action** properly fIled?
Either the circuit or chancery COUIt in the county where the defendant resides or where the plaintiff and defendant resided at the time ofseparation. The same court that grants the divorce may determine custody.
How does a defendant recover from a third party who has not been sued by the plaintiff but from whom the defendant has a right of contribution?
he defendant files a third-party complaint to bring the third party into the action filed by the plaintiff. The defendant does not need court permission to do this if she files the third-party complaint within 10 days after she files her original answer.
Can a plaintiff dismiss her case under the Tenn Rules of Civil Procedure? If so, how would that be accomplished?
Nonsuit is not available as ofright in class actions, receiverships, stockholders' derivative actions, will contests, or any case while the defendant'smotionforsummaryjudgmentispending. Iftherightexists, the right ends only when the court acts on a motion for directed verdict or when the jury retires to consider its verdict. A third nonsuit is now a bar to relitigation.
Under TN RuIe 4 I, a nonsuit before trial is accomplished when the plaintiff files a written notice of dismissal, but during trial, it is accomplished by an oral notice in open court. In any event, an order of dismissal must be entered by the court.
If plaintiff's lawyer intentionally causes delay of prompt service of a summons, what should defendant's attorney do?
Defendant's attomey should file a motion to dismiss for insufficiency ofservice ofprocess coupled with a motion for summary judgment raising the statute of limitations as a defense, if the statute has run. If process is not issued within 90 days of filing, or if it is not served within 90 days ofissuance, the plaintiffcannot rely on the original commencement date to toll the statute unless she "continues" the action by obtaining new process within one year from the issuance of the previous process or, ifthere was no previous process, within one year ofthe filing ofthe complaint and summons. The Federal RuIes generally allow 120 days for service.
What is the limitations period for tortuous inducement of breach of contract?
The applicable limitations period for an economic loss lawsuit is three years.
When a contract claim and a tort are sued upon, does it matter whether the claim is filed in circuit court or chancery court?
Yes. Although the contract claim is within the subject matter jurisdiction of the chancery court, the tort claim cannot be adjudicated in chanceryovertheobjectionoftheadverseparty. Ifobjectionismadeto subject matter jurisdiction by motion or answer, the chancellor need not dismiss the action, however. TIle chancellor may simply transfer the suit to the proper court should that become necessary.
What land of diversity is required for a defendant to remove a matter to federal court?
Complete diversity between all plaintiffs and all defendants is required. Even if complete diversity existed, the removal statute provides that removal is impossible if one defendant is a citizen of the forum state.
With requests for production of documents and interrogatories, which party has the burden and what if the request is for voluminous records?
TIle burden on each party is equal concerning the interrogatory response. When answering an interrogatory requires a party to inspect its business records and the burden of inspecting the records would be no greater for the other party to inspect, the party served may merely allow the other party to inspect its business records.
Are expert reports discoverable in Tennessee?
Expert reports are not discoverable i f the expert is a consultant who will not testify at trial. lfthe expert is to be a witness at trial, written reports are not necessarily discoverable. Discovery of experts to be called at trial is available only by interrogatory (not production of documents) or deposition.
Are trial preparation materials discoverable?
Trial preparation materials are discoverable on a showing of substantial need for preparation and an inability to obtain equivalent material without undue hardship.
where would suit be tiled when the claim falls under the Governmental T ort Liability Act?
there is a statutory right to a jury where a city or county is sued as a comparative tortfeasor (so circuit); otherwise, GTLA suits tried before Claims Commission
SOL-6 months
slander
SOL 1 year
personal injury,
wrongful death,
worker's comp
professional malpractice
libel
malicious prosecution
consumer protection act
false imprisonment
breach of fiduciary duty
Tn civil rights
malicious prosecution
SOL 3 years
property damage, economic loss (from fraud, neglect, misrep), conversion
SOL 6 years
services or realty
forcible entry & detainer
promissory note from due date
venue for actions against state and its officers
the official residence of the officer
venue for governer and ag
davidson county
court for filing actions against gov
circuit or chancery
URLTA
general sessions or circuit court where the property is located
TN long arm statute
PJ can be obtained over a ∆ outside the state by serving summons and complaint on the TN Sec. of State.

PJ is proper if the ∆ purposefully transacted business in TN and cause of action arose out of business transacted

venue typically the county where π resides but can be any county.

includes tort committed outside tn that caused injury in tn.

TN can obtain jurisdiction on any other basis consistent with DP
removal to federal court
diversity of citizenship and value of case in controversy exceeds $75,000
Venue
where accident occurred, ∆ lives or where ∆ can be found/served.

∆ must object in its first answer or motion or the objection will be waived.
Service of process
summons and compl. must be received within 90 days of issuance.

if not served, π cannot rely on original commencment to toll SOL
UNLESS
π continues action by obtaining issuance of new process within 1 year from issuance of previous process or, if no process, within 1 year of filing the complaint.
∆ evading service
service can be effectuated by any person of suitable age and discretion residing in ∆'s dwelling house.

must fill out person's name on the return. persns 13 and up can be served
unliquidated damages
no jurisdiction for chancery court
specific performance
in the circuit court of county where the land is located.
venue-worker's comp
where employee resided or where the injury occurred.
jury demand chancery court
jury trial is available in chancery court if timely made

use of jury is limited to a fact of material dispute

jury must return a special verdict and the verdict is binding
In most civil actions, j is concurrent
suits filed in the wrong court will be transferred, not dismissed
SOL 2 years
will contest must be filed within 2 years from entry of Order admitting will to probate
SOL 4 years
action for breach of K of goods (UCC) within 4 years from initial sale
OR
within 4 years from breach of an express warranty for future performance
STATUTES OF REPOSE
(extinguish COA altogether and discovery rule inapplicable)
Consumer Protection Act claims expire in 5 years

PL COA expire in 10 years (exceptions: asbestos and silicone breast implants)
Statute of Repose 3 years:
medical malpractice
breach of corporate fiduciary duty
"Safe Harbor" provision regarding challenged certification of complaint by atty
offending L must be sent notice w/out court involvement and if challenged paper not withdrawn or amended within 21 days, motion for sanctions filed (which are discretionary)
JOINDER
Discretionary: if claims for relief involve BOTH (1) same transaction/ occurence and (2) comon Qs of law or fact
CLASS ACTIONS
numerosity, commonality, technicality, adequacy (to rep class)
**no class action in Consumer Protection Act**
taxpayers (sep suits may result in inconsistent results)
civil rights (injunctive/ declaratory relief sought)
R.23(b)(3)--common Qs of law or fact, "fair and efficient", potential mbrs given ability to opt out
INTERPLEADER
stakeholder (life insurance co), pays benefist into court and is discharged--leaving competing Cs to fight it out
INTERVENTION
statutorily mandated if property rt may be impaired

permissive in common Q of law/ fact

if constitutionality is at issue, notice to state AG required
MOTION TO DISMISS

(absent waiver of service: 30 days from service)
Grounds:
1. lack of SMJ
2. lack of PJ
3. improper venue
4. insufficiency of process
5. insufficiency of service
6. failure to state a claim upon which relief can be granted (R.7.02)

**if motion served before Anser, inclue all possible gounds, otherwise waived, except SMJ or failure to state**
MSJ

**serve 30 days before motion hearing day**
movant serves affidavits as exhibits with motion; must show affiant is a competent witness having personal knowledge of facts admissible into evidence--citations in Motion to correspond with "issue of material fact"
MSJ standard
SJ granted if (1) no genuine issue of matieral fact and (2) moving party entitled to judgment as a matter of law
MSJ standard changes effective July 1, 2011 (legislative overruling of Hanaan)
moving party shall prevail if either:
submits affirmative ev that negates an essential element of P's claim
OR
demonstrates to the court that P's ev is insufficient to establish an element of P's claim
MSJ in Employment Discrim/ Retaliatory Discharge
(overrules TNSC in Tractor Supply case)
if D produces nondiscriminatory evidence, the presumption of discrim/ retaliation is rebutted, and burden shifts back to P
Conforming to Evidence
if immaterial ev admitted without objection, pleadings treated as amended EXCEPT verdict in TN cannot exceed amount sued for
If D names or identifies a comparative tortfeasor in its Answer
P acn amend within 90 days to add that tortfeasor even if SOL has expired
COUNTERCLAIMS

**compulsory (same transaction/ occurrence as Complaint
Compulsory (same transaction/ occurrence as Complaint)--must be pleaded in Answer or waived
CROSS-CLAIMS
Co-Ds can sue one another on claims related to P's Complaint
IMPLEADER
(i.e., Third-Party Claims)
D can implead a 3P who has contarcted to indemnify D
Rule 26 Disclosures (pertaining to expert witness)
1. identity
2. sm of testimony
3. opinions
4. grounds for opinions
5. qualifications
6. publications
7. other testimony
8. compensation
Expert Witnesses

*TN does not distinguish experts who are not subject to trial subpoena. An expert's depo taken for "discovery" cannot be used as substantive proof at trial under former testimony hearsay exception
Depos can be used to discover info from opposing experts expected to testify at trial

consulting experts not expected to testify need not be identified
Rqsts for Admission

failure results in conclusive admission of requested fact
TN requires discovering party to call to court's attention pretrial in order to use this rule
Objections in Depos
only objections to form fo Qs or conduct of parties must be made at depo; others may be raised for the first time at trial
Use of Depos at Trial
1. former testimony exception if deponent unavailable (including 100+ miles from courthouse)
2. admissions exception if deponent is party
3. impeachment by inconsistent stmt if deponent testifies
Sanctions for Failure to Answer Interrogs or Produce Docs
dismissal of Complaint with Prejudice OR Default Judgment (or can exclude evidence or take facts as established)
NONSUIT (crucial in TN, as can be taken last minute)
Fed Court: before Answer or SJ Motion served
TN: before jury retires/ judge starts dictating opinion from bench; must have judge's permission if sj is pending
Nonsuit in relation to Saving Statute
may commence within one year.

**P can use 1 year saving statute only one time!!**
Sequestration of Witnesses

*request before opening stmts*
Can Remain:
1. parties (including person designated as "party" for corporate or gvt entity)
2. experts (discretionary)
3. rebuttal witnessse MUST be sequestered unless surprise
MOTION FOR DIRECTED VERDICT
(jury trials)

*court construes in P's favor all evidence*

(necessary in order to then file for JNOV)
At cloase of P's proof and, if overruled, renew at close of all proof

granted if reasonable minds could not differ as to conclusion to be drawn from evidence
Interest on Judgments
10% from date jury returns verdict or judge announces decision
Motion for a New Trial

30 days from judgment
condition precedent to appeal and must contain ALL grounds for appeal
Service of Process in TN
requires service by personal delivery or, alternately, to an authorized agent
Interlocutory Appeal

purpose: to prevent needless, expensive, and protracted litigation
appeals from interlocutory orders via joint permission of the Circuit Court and the TN Ct of Appeals
tortious interference with K
treble damages COA in TN
TN has a comprehensive long arm statute that has been liberally construed to extend as far as due process allows
1. per case law, if tortious action in TN or causes injury in TN
2. nonresident does business in TN

*BUT, if party's r'shp with TN is so slight as to offend traditional notions of fair play and substantial justice, no pj
Objection to Venue
waived if not raised in Answer or pre-Answer motion
Compulsory Counterclaims

in TN, cc is not compulsory if based in tort
1. arises out of same tran/ occ
2. does not rqe presence of 3P
Choice of Law for Torts
TN follows 2nd Rstmt: law with most significant rship to occurrence and parties
Choice of law for Contracts
validity in question = law of place of making of k

performance issue = law of place of performance
Diversity Citizenship (for purposes of removing/ filing in federal court)
must exist AT COMMENCEMENT

*"Plaintiff" in a med mal WD lawsuit is SS*
TRCP on process
if counsel for P intentionally causes delay of prompt issuance or service, filing of the complaint is ineffective
Unless evading service, delivery must be personal
If evading service, may leave a copy of summons and complaint at D's home or usual place of abode with an identified resident (place of business/ secretary insufficient)
NONSUIT requirements
must send to all Ds:
1. notice
2. order of dismissal
3. copy of complaint
Procedure for Seeking Punitives:

D moves for bifurcated trial
1. first phase = jury verdict as to liability of D, amt of compensatory dams, whether punitives proper (C&C as stdrd of proof)
2. proof as to punitive amt (PoE as stdrd of proof)
Criteria to be considered in second phase of trial seeking punitives (per TNSC):
D's wealth, effect of D's conduct on your interests, D's awareness, D's profit, D's attempts to settle or mitigate
Procedure in moving for SUMMARY JUDGMENT
(*TNSC recently overruled Hannan and TN now requires P to "put up or shut up"...easier for D*)
The new statute will allow the Defendant to prevail on a Motion for Summary Judgment if he:
1) Submits affirmative evidence that negates an essential element of the nonmoving party’s claim; or (2) Demonstrates to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim (Hannan added "at trial")
effect of new SJ standard:
under the new statute, if a Defendant can show after discovery that the Plaintiff does not have sufficient evidence to establish one of the elements of their claim, the burden will shift to the Plaintiff to “put up” the proof or summary judgment will be granted. Therefore, the new standard will hopefully weed out frivolous claims prior to the trial phase of litigation and deter the filing of the more difficult cases to prove.
Ownership of personal property in TN will not, by itself, establish min contacts with TN for a coa unrelated to ownership of the property)
a tort with regard to that property, however, will
Common County Rule
venue proper when a P and a D reside in same county.
Supplemental Jurisdiction
fed court allowed to decide claims of Ps who are seeking less than 75k (when joined with Ps seeking more) as long as their presence would not destroy complete diversity
TN Long Arm Statute

encompasses a tortious act committed in a foreign state that results in injury in TN
i.e., exposure to mold in CA but illness occurs in TN
in establishing minimum contacts for PJ purposes:
presence coupled with relationship of contact with rise to coa (close connection bt contact and coa)

also, transacting business within the state = purposefully availing self to benefits and protections of TN law
Ownership of personal property in TN will not, by itself, establish min contacts with TN for a coa unrelated to ownership of the property)
a tort with regard to that property, however, will
Common County Rule
venue proper when a P and a D reside in same county.
Supplemental Jurisdiction
fed court allowed to decide claims of Ps who are seeking less than 75k (when joined with Ps seeking more) as long as their presence would not destroy complete diversity
TN Long Arm Statute

encompasses a tortious act committed in a foreign state that results in injury in TN
i.e., exposure to mold in CA but illness occurs in TN
in establishing minimum contacts for PJ purposes:
presence coupled with relationship of contact with rise to coa (close connection bt contact and coa)

also, transacting business within the state = purposefully availing self to benefits and protections of TN law
ERIE DOCTRINE
in diversity cases, fed cts required to apply substantive law of state in which they sit (including that state's choice of law rules)
Choice of Law as to SOL:
forum always applies its own procedural law
Choice of Law as to Substantive Law:
TNSC held that in PI claims, subst law of the state having the most significant relationship to the occurrence AND the parties
In COL questions, explain procedural v. substantive distinction, then
argue each point under both theories according to party's interests (factual analysis for "most sig rshp")
Procedural Laws:
purpose is to promote the fair, efficient and reliable conduct of litigation
Substantive Laws:
concerned with issues such as the extent of a party's liability
"most significant relationship" for CoL purposes =
TNSC has held that, as a general rule, state where injury occurred is the state of the most sig relationship to occurrence and parties