1 Az Civil Procedure

Front 1

Federal Subject Matter Jurisdiction
Generally

Back 1

Federal Courts are courts of limited SMJ. Generally, P's cause of action must be based in federal question, or in diversity of citizenship + $75K (excluding costs + fees) at issue.

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Personal Jurisdiction:
Generally

Back 2

PJ is the power of the AZ court over the D. Jurisdiction may constitutionally be acquired by:
1) Voluntary, non-privileged presence in the state at the moment of service.
2) Voluntary, non-privileged appearance by D.
3) Express or implied consent (express by K, or implied by statute)
4) Sufficiency of contacts out of which the cause of action arose: doing business, owning property, committing tort, etc.
5) Domicile in forum state

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Long Arm Statute:
Generally

Back 3

AZ allows PJ over non-residents who perform or cause to be performed certain acts within the state. D must have caused event to occur in AZ from which suit derives.

Front 4

Subject Matter Jurisdiction:

Back 4

AZ State Ct: Original and general J. Superior courts have J over all actions.

Fed.Ct:Limited J over actions arising under federal law.
1) Claim arises under fed. law if the claim is either created by fed law, or P is asserting in his complaint a right or interest founded substantially on the Q, laws or treaties of the U.S.
Fed. law must provide for a private right of action and P must be trying to vindicate a federal right rather that merely citing a federal law.
2) Diversity of Citizenship: Parties must all be citizens of different states (no single P may be a citizen of same state as any single D), minimum amount in controversy is $75K.

Front 5

Diversity of Citizenship:
Citizenship Defined:

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1) Individual: Citizenship is individual's domicile (a) True home, (b) Where she intends to remain or return at time lawsuit is filed.
2) Corporate: Citizen of state where incorporated, and/or where primary place of business is located, where bulk of physical activity occurs (muscle center.)
3) Unincorporated Associations: Citizens of each state where a member is a citizen.
4) Aliens: Aliens may sue a non-alien, and non-aliens may sue an alien, however non-alien may not sue non-alien. Americans domiciled outside US may never sue or be sued in fed. ct.

Front 6

Supplemental Jurisdiction

Back 6

Where there are two claims, and there's a primary jurisdictional claim for one but not the other, fed ct. nonetheless has discretion to assert supplemental J over both IF they derive from common facts. IF the only basis is diversity, there can NEVER be supplemental J over additional claims brought by P.

Front 7

Removal:

Back 7

D removes an action filed in state court to fed. ct.
FRCP requires D to seek removal within 30 days of receipt of P's complaint.
Case may be removed if it could properly have been filed in Fed. Ct, and all D's join in motion for removal. IF the only basis for fed. J is diversity, there can be NO removal if ANY single D is a citizen of the state where the action is filed.
** Venue in Removal cases: AZ court MUST be the proper place for trial. Venue for an action removed to fed. ct lies in the jurisdiction where P's complaint was originally filed. AZ has ONLY one district--U.S. District Ct., therefore District of AZ is the proper venue.

Front 8

Personal Jurisdiction:

Back 8

Power of AZ ct. over D. AZ courts have PJ if AZ law grants PJ and AZ law is constitutional

Front 9

PJ: Generally may be acquired by

Back 9

1) D's voluntary, non-privileged presence in the forum state at the moment of service.
2) Voluntary appearance of D
3) Express or implied consent (D expressly appointed agent for svc, agreed to J in K, failed to object to personal J in a timely manner
4) Sufficiency of contacts out of which claim arose
5) Domicile in forum state

Front 10

AZ Long Arm Statute

Back 10

AZ allows PJ over non-residents who have performed or caused to be performed certain acts within the state. D must have caused an event to occur in AZ from which the suit derives.

Front 11

Q Issues of Stat. J:

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Even if AZ law grants PJ, exercise of J must still meet traditional notions of fair play and substantial justice to be Q.
1) D's conduct in connection w/ forum state,
2) Whether D should anticipate being haled into state to defend
3) Inconvenience of exercising jurisdiction over D
4) Systematic and continuous activity in or w/ AZ
5) Purposeful availment of AZ.
EVEN where D's activities are performed outside state, D will be subject to PJ for consequences in state where he knows or reasonably should know his activities could give rise to cause of action in the J.

Front 12

Service of Process:

Back 12

Serves the function of notifying D of the pendency of the action. Service must be by method reasonably calculated to apprise interested parties. Several methods of service are permitted:
1) Personal Svc: To D's hand, or delivery to his wingspan if he attempts to refuse to accept.
2) Abode Service; Service to a person of suitable age and discretion presently resident in D's usual place of abode/dwelling. Suitable age usu = 12 or older. Suitable discretion = Person understanding the nature and importance of process being served.
3) Waiver: D mailed a copy of the complaint and a request for waiver. If D returns waiver, he gets 60 days to respond from the time the request was sent.
4) Agent Service: Personal service to any authorized agent or managing agent for defendant or partner.
5) Service by Publication: If D's last known residence was in AZ, and D is either avoiding service or cannot be located, an affidavit swearing this may be filed, and then publication of the complaint can be made once a week for four successive weeks in the newspaper where the action is pendant, and in the location of the D's last known residence.

Front 13

Venue:

Back 13

Fed: General venue stat. requires case be brought where any D resides if all Ds reside in the same state, or where a substantial part of the claim arose.
State: ARCP state that venue is proper in any county where a D lives. If no D resident in AZ, then venue is generally proper in any county. EX:
1) divorce (P's county)
2) real property (county where property's located)
3) Corporations (where any D lives, or where the cause of action arose)
4) Breach of K: (where any P lives and where K was made or intended to be performed.)

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Pleadings:

Back 14

Pleading must state specific claims (enough to give D adequate notice of grounds)
Pleading may be amended once prior to responsive motion being filed.
MOTION is NOT responsive pleading.

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Joinder: Compulsory Counter-Claims

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D must assert any claim against a P which arises out of the same transaction or occurrence at the time of filing a responsive pleading, or waive his claim.
Permissive counterclaim is any claim that D has against P that does NOT arise out of the same transaction or occurrence. D may join it or file a separate complaint at a later time.

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Impleader:

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If 3rd party may be liable to D for all or part of D's liability to same P, then 3rd party may be impleaded for indemnification or contribution. NOT for full defense--that person must be joined as a party rather than merely impleaded for indemnification or contribution.

Front 17

Interpleader:

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Holder of a common fund (e.g. an insurance policy) may go to court where the rightful distribution of the fund is not clear, and interplead the rival claimants as to the common fund.

Front 18

Intervention:

Back 18

Act of a non-party to intervene to become a party.
Of right: P has legal standing to be joined as a party.
Permissive: At court's discretion to join.

Front 19

Class Action: Requirements:

Back 19

Common issues of law or fact pertaining to the class, Adequacy of named P and her atty's to represent the class, numerosity (impractical to join all parties--usu. 40+), typicality (named P's claims are typical of the class). If money damages are sought: show: 1) Predominance of common issues over individuals issues, 2) Superiority of class action as method of adjudicating claims.
Judge must grant class certification, order notice to class in actions seeking money, and approve any settlement of a class action.

Front 20

Discovery:

Back 20

Material is discoverable if it is in teh scope of discovery and the method of discovery is proper.
AZ has an automatic prompt disclosure rule (Zlaket).
Material is discoverable if it is relevant and not privileged. It is relevant if it relates to some part of the lawsuit, although it does not have to be admissible to be discoverable.
Material is privileged if it falls within an evidentiary privilege, or if it is mental impressions of atty. Work product and materials prepared in anticipation of litigation are only discoverable on showing of substantial need and undue hardship in obtaining materials in any other way.
Presumptive limits on numbers of depos, interrogatories, requests for admission, expert witnesses.

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Jury Trial and Related Motions:
Renewed motion for JMOL

Back 21

Can only be made if JMOL made at close of evidence to preserve right to have court consider renewed motion. Moving party must specify the judgment sought and the law and facts that entitle it to JMOL.

Front 22

Timing for Renewed JMOL

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Must be made between between verdict and 15 days after judgment. Day in which event occurred not included in calculation. If final day falls on weekend, or legal holiday, due next day that is NOT weekend or legal holday.

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Renewed JMOL: On the Merits

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Moving party must establish that the non-moving party failed to establish all the essential elements of her cause of action.
Standard: Can reasonable minds differ on the verdict?

Front 24

Motion for New Trial

Back 24

Must be made within 15 days after judgment.
Merits: Must be based on error creating unfair judgment, new evidence, prejudicial misconduct, or serious error of judgment by jury.

Front 25

Judgments: Default Judgment Procedure

Back 25

After proper service of complaint and summons, D has 20 days to file a response--answer, motion to dismiss or combination. D must raise and consolidate all defenses in these two pleadings, or the defenses may be waived. If NO response is filed, P may file application for default judgment.

Front 26

Default Judgments: Requirements

Back 26

D fails to respond or to defend an action against them.
Strict compliance with statutory requirements necessary.
D may move to set aside entry of default or default judgment if he can establish good cause.
To secure default judgment, moving party must go through several steps:
1) After time to file response expires, file application for default with Clerk of the Court.
2) Moving party must give notice to non-moving party of application by mailing her notice of application for entry of default judgment.
3) Clerk of court will enter default judgment, and D has 10 days to defend against entry.

Front 27

Motion to Set Aside Entry

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Court favors resolution of cases on their merits rather than on procedural technicalities.
Preference weighs into determining whether good cause exists to set aside entry of default or set aside default judgment.

Front 28

Finality and Appellate Review: Res Judicata

Back 28

Res Judicata: Claim litigated to final judgment on merits cannot be relitigated. 3 elements:
1) Final judgment on the merits
2) Parties in second suit (in which RJ is claimed) must be the same as first suit or in privity with them.
3) Both suits must involve the same matter or cause of action.

Front 29

Finality and Appellate Review: Collateral Estoppel

Back 29

Makes the prior determination of an issue of fact conclusive if issue was litigated and determined on the merits in the prior action. Collateral estoppel requires:
1) issue of fact actually litigated and decided in first case.
2) Issue of fact essential to judgment

Actually litigated means that a trial must have been held and the judgment must have depended on the way that the common issue was decide. Traditionally, the parties in the second case must be the same as in the first, or their privies.