Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
189 Cards in this Set
- Front
- Back
article III + federal judicial power
|
(1) interpretation of the constitution, federal laws, treaties, and admiralty/maritime laws
(1) disputes between states, states + foreign citizens, and citizens of diverse citizenship |
|
judicial review
|
supreme court may review the constitutionality of acts of other government branches
|
|
supreme court + original jurisdiction
|
all cases affecting ambassadros, public ministers, consuls, and those in which a state is a party
** lower federal courts has concurrent jurisdictions UNLESS dispute = between states ** |
|
supreme court + appellate jurisdiction + writ of certiorari
|
supreme court has complete discretion
(1) cases from state courts where (a) the constitutionality of a fed. statute, treaty, or state statute is at issue, or (b) state statute allegedly violates fed. law (2) all cases from federal courts appeal (3) MUST hear cases on appeal from 3-judge panels that grant/deny injunctive relief |
|
justiciability = case or controversy
|
complainants must show that they have engaged in (or wish to engage in) specific confuct and that the challenged action poses a real + immediate danger to their interests
|
|
advisory ops = no dice
|
federal courts will not determine the constitutionality of the a statute id it has never been enforced and there is no real fear that it ever will be
|
|
justiciability
|
(1) standing
(2) ripeness (3) mootness (4) political question |
|
ripeness = super duper necessary
|
immediate threat of harm
P not entitled to review before statute's enforcement unless the P sill suffer some harm or immediate threat of harm |
|
mootness
|
must exist at all stages of review
exception = capable of repetition, yet evading review -- abortion -- defendant who voluntarily stops the being bad but could resume exception = class action so long as other class members claims are viable |
|
standing = super duper necessary for justiciability
|
(1) injury = P must show that she has been or will be directly and personally injured
-- need not be economic injury (2) causation (3) redressability = decision in P's favor must be capable of eliminating grievance |
|
enforcing government statute + standing
|
P may have standing if in "zone of interest"
|
|
3rd party standing
|
generally, no dice
exception = difficult for 3rd party to assert her own rights -- association may attack law requiring disclosure of membership lists exception = special relationship -- doctor + patient's right re: abortion |
|
organization standing
|
(1) injury gives members a right to sue on their own behalf
(2) injury = related to the organization's purpose AND (3) individual member participation in the suit = not necessito |
|
taxpayer standing
|
generally no dice
cannot challenge government expenditures b/c interests too remote exception = establishment clause |
|
abstention
|
if unsettled question of state law --> temporarily abstain from resolving a constitutional claim
|
|
political question doctrine
|
no dice b/c issues = constitutionally committed to another branch of government, or inherently incapable of judicial resolution
examples = "republican form of government," how congresses ratifies con. amendments, whether person elected to congress meets reqs,, Prez's conduct of foreign policy |
|
doctrine of sovereign immunity + fed courts
|
no dice if suit = against a state government in a state court, even on a federal claims, UNLESS express + unequivocal consent
** can bring cases against state officials ** |
|
congress + "necessary and proper" clause
|
power to make all laws necessary + proper for executing any power granted to any branch of the federal government
** clause standing alone cannot support federal law ** |
|
congress + taxing power
|
most taxes upheld so long as some reasonable relationship to revenue production or if allowed to regulate the activity
** tax on export = no dice ** |
|
congress + spending power
|
may spend to provide for common defense + general welfare
** nonspending regulations cannot be supported by the "general welfare clause" ** |
|
congress + commerce power
|
exclusive power to regulate all foreign + interstate commerce
interstate commerce = (1) channels of interstate commerce (2) instrumentalities, persons, or things involved in interstate commerce (Mann Act) (3) activities that have a substantial effect on interstate commerce |
|
congress + regulating intrastate commerce
|
okay only if it is of economic or commercial activity + the court can conceive of a rational basis on which congress could conclude that the activity in aggregate substantiall affects interstate commerce
|
|
congress + war
|
power to declare war
power to raise + support armies power to provide for + maintain a navy |
|
congress + economic regs during war
|
totally allowed during the war + in the postwar period to remedy wartime disruption
|
|
military courts + tribunals
|
judicial review = no dice in regards to court-martial proceedings
enemy civilians + soldiers may be tried by military courts military courts = jurisdiction over ALL offenses committed by persons in the armed services both at the time of the offense and when charged civilians + military tribunal only if war forces the federal courts to shut down |
|
detention of enemy combatants
|
if held in the US, detainee = due process requires meaningful opportunity to contest the factual basis for detention in front of a neutral decisionmaker
|
|
congress + investigatory power
|
power to investigate = implied
|
|
congress + property power
|
power to dispose of + make rules for territories and other properties
takings (eminent domain) must be for the purpose of effectuating an enumerated power |
|
congress + police power
|
NO DICE
unless law re: D.C. federal lands, military bases, and Indian reservations |
|
congress + bankruptcy power
|
not exclusive
states can do what they want as long as no conflict with federal law |
|
congress + postal power
|
exclusive
may validly classify and place reasonable restrictions on use of the mails ** no deprivation of general mail privilege ** |
|
congress + power of citizenship
|
may establish uniform rules of naturalization
aliens = no right to enter US aliens can be refused due to political beliefs exclusive power over naturalization ** cannot take away citizenship w/o consent ** |
|
deportation + resident aliens
|
entitled to notice + hearing before deportation
|
|
congress + admiralty power
|
exclusive
|
|
congress + money power
|
power to coin $$ and fix stds. for weights + measures = exclusive
|
|
congress + patents
|
exclusive power to issue patents + copyrights
|
|
can congress delegate legislative power?
|
totally. congress can delegate power to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to congress.
** generally, everything is intelligible standards ** |
|
congress + "speech and debate" clause
|
immunity = for all conduct that occurs in the regular course of the federal legislative process
** does not cover bribes, speechs outside congress, or republication of defamatory statements ** |
|
legislative vetoes = constitutional?
|
no way jose! need to be bicameralism + presentment
|
|
executive + appointment power
|
executive appoints
(1) ambassadors (2) other public ministers + consuls (3) supreme court justices + advice and consent of senate ** congress itself may not appoint members of a body with administrative or enforcement powers ** |
|
executive + removal powers
|
without congress interference = high level, purely exec. officials
congress may remove exec. officers only through impeachment |
|
presidential pardons
|
for all federal offenses
exceptions = impeachment + contempt |
|
president's veto power
|
totally allowed
override = 2/3 vote in each house pocket veto = 10 days to exercise veto. if congress is not in session --> automatically vetoed; if congress in session --> becomes law line-item veto = unconstitutional |
|
president's power over internal affairs, generally
|
express or implied authority of Congress --> height of authority + actions most likely valid
congress = silent --> action likely upheld unless stepping on another branch's toes against congress's express will --> little authority + likely invalid |
|
president + war
|
totally cannot declare war
may act militarily in actual hostilities against the U.S. w/o congressional declaration of war |
|
president + foreign relations
|
paramount power to represent the US in day-to-day foreign relations
|
|
treaties
|
power to enter into treaties w/ consent of 2/3 vote from senate
treaties = supreme law of the land -- state law = invalid if conflict -- federal law = "last in time prevails" -- constitution = no dice, duh? |
|
executive agreements
|
totally like treaties but no need for senate consent
state law = invalid if conflict federal law = prevails over exec. agree. |
|
executive privilege
|
can keep secrets b/c national security given great deference
until executive breaks the law, then his ass is grass --> communications will be available to the prosecution where a need is demonstrated |
|
executive immunity
|
before office = no dice buddy. keep your hands to yourself!
civil damages during office = untouchable! |
|
impeachment
|
president, vice president, and all civil officers of the U.S. = subject to impeachment
why? treason, bribery, high crimes + misdemeanors how? majority vote in the House to impeach, then 2/3 vote in senate to convict + remove from office |
|
exclusive state powers
|
all powers not delegated to the federal government are reserved to the state
** federal powers = expansive interpretation --> little state power = exclusive ** |
|
supremacy clause + federalism
|
federal law may supersede or preempt local laws
if conflict --> state law invalidated if prevent achievement of federal objective (regardless of intent) --> state law invalidated preemption = federal statute or regulation may expressly or impliedly "occupy" the entire field, thus precluding state/local regulation factors to consider -- (a) comprehensiveness of the fed. scheme, and (b) creation of an agency to administer the law |
|
interstate compact clause
|
if the agreement increases the state's power at the expense of federal power --> need congressional approval
|
|
full faith + credit clause
|
final judgments must be recognized in other states
only if (1) court had personal + subject matter jurisdiction over the parties (2) judgment = on the merits (3) judgment = final |
|
suits by US against states
|
sure thing, no need for consent
|
|
suits by the state against US
|
no dice, public policy forbids a state from suiting the US without its consent
|
|
federal officer as defendant
|
judgment = satisfied out of the public treasure or would interfere w/ pub. administration? then, no way jose!
officer went beyond scope of his authority? then, totally dude! |
|
establishment clause, three requirements
|
Lemon Test
(1) have a secular purpose (2) neither advance nor inhibit religion (3) not foster excessive government entanglement of religion |
|
fines + eighth amendment
|
statute can violate the eighth amendment if the penalty is excessive and unreasonable
|
|
when must private conduct must comply with the constitution?
|
(1) private entity = performing tasks traditionally, exclusively done by the federal government
(2) entanglement exception = government authorizes, encourages or facilitates unconstitutional activity -courts cannot enforce racially restrictive covenants -government leases property to an entity that racially discriminates -books to schools that racially discriminate -state action when a private entity regulates interscholastic sports within a state -NO state action when a private club with a license from the state racially discriminates -NO state action when a private school that is over 99% funded by the government fires a teacher because of her speech -NO state action when the NCAA orders the suspension of a basketball coach at a state university |
|
rights not incorporated via the 14th Amendment
|
-2d amendment right to bear arms
-3d amendment right to not have soldier quartered in your home -5th amendment right to grand jury indictments -7th amendment right to jury trial in civil cases -8th amendment right against excessive bail |
|
rational basis
|
law upheld if it is rationally related to a legitimate government purpose
-P bears the burden of proof -super duper deferential to the government b/c only need to have one legitimate purpose; that purpose does not have to be the actual outcome |
|
intermediate scrutiny
|
law upheld if its substantially related to an important government purpose
-government bears the burden of proof -focused on the actual purpose |
|
strict scrutiny
|
law upheld if the law is necessary to achieve a compelling actual purpose
-government bears the burden of proof -if law race-neutral, then need to show (1) discriminatory impact + (2) intent to discriminate |
|
procedural due process
|
the procedures a government must follow to take away someone's life, liberty, property
(1) has there been the deprivation life, liberty, or proper? (2) if there has been deprivation, what procedures are required? -individual's interest -risk of an erroneous decision -government interests in costs + efficiency |
|
liberty deprivation
|
loss of a significant freedom provided by constitution or statute
-except in an emergency before an adult can be institutionalized, there must be notice + hearing -harm to reputation by itself is not a liberty -prisoners rarely have a liberty interest |
|
government negligence = due process deprivation?
|
not sufficient for a deprivation of due process
- must be intentional governmental action, or at least reckless government action for liability to exist -in emergency situations, the government is liable under due process ONLY IF its conduct "shocks the conscience" |
|
government's failure to protect people from private conduct = due process deprivation?
|
generally, not a deprivation
UNLESS government literally creates the danger OR government custody |
|
example of procedural due process
|
-welfare benefits termination = notice + hearing
-termination of parental rights = notice + hearing -social security terminaton = post-termination hearing -punitive damages = requires jury instructions to guide jury's discretion + judicial review to ensure that any award is reasonable |
|
substantive due process
|
analysis has been used in two areas (1) economic liberties, and (2) private property rigths
-constitution provides only minimal protection for economic liberties |
|
5th Amendment, Takings Clause
|
the government may take private property for public use ONLY IF it provides just compensation
-do not apply strict scrutiny (1) is there taking? -possessory taking = government confiscation or occupation of property is always a taking -regulatory taking = government regulation is a taking if it leaves no reasonable economically viable use of the property; not about a decrease in property value NOTE: government conditions on the development of property must be justified by a benefit roughly equal to the burden imposed otherwise it is a taking. NOTE: a property owner may bring a takings challenge to regulations that existed at the time the property was acquired NOTE: temporarily denying an owner use of property (developing property) is not a taking so long as the government’s action = reasonable (2) is it for a public use? - property = for public use so long as the government has a reasonable use that the property will be used by the public (3) is just compensation paid? -measured in terms of loss to the owner in reasonable market terms; gain to the government is irrelevant |
|
privacy fundamental right protected under substantive due process (always apply strict scrutiny)
|
-right to marry
-right to procreate (cannot impose involuntary sterilization) -right to custody of one's children -right to keep family together -right of parents to rear children -right to purchase + use contraceptives -right to abortion = undue burden test -right to engage in private consensual same-sex activity -right to refuse medical treatment = clear + convincing evidence that a person wanted treatment terminated UNLESS competent adult, who can refuse at any time |
|
abortion + undue burden
|
prior to viability, states cannot prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions
-24 hour wait requirement = NOT undue burden -prohibition of partial birth abortions = NOT undue burden after viability, states may prohibit abortions UNLESS necessary to protect the mother's life + health spousal consent + notification laws = unconstitutional parental notice + pregnant minors - state may require parental notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure (mature-minor doctrine) |
|
classification based on race + national origin
|
apply strict scrutiny
if law = race-neutral, then needs to demonstrate (1) discriminatory act, AND (2) discriminatory intent discriminatory use of peremptory challenges based on race denies equal protection |
|
affirmative action
|
-apply strict scrutiny
-numerical set-asides requires direct proof of past race discriminations. -generally, quota systems disfavored -educational institutions may use race as one factor in admission decisions to benefit minorities + enhance diversity -public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met |
|
gender classifications = intermediate scrutiny
|
(1) how is the existence of gender classification proven?
-if the law is facially neutral, providing a gender classification need to demonstrate (1) discriminatory impact + (2) discriminatory intent *cannot be used as a basis for peremptory challenges |
|
gender classifications benefiting women
|
-if based on role stereotypes, then no dice
example: women get alimony, dudes get nada = constitutionally bad news bears -gender discrimination benefiting women that are designed to remedy past discrimination in opportunity = a-ok |
|
alienage classification
|
apply strict scrutiny
-no access to welfare = no dice -cannot get civil service jobs = no dice certain privileges may be reserved just for citizens, then apply rational basis -voting -serving on a jury -being a police officer, notary public, or a probation officer when Congree discriminates, then apply rational basis undocumented alien children, apply intermediate scrutiny |
|
bastard children
|
intermediate scrutiny
laws that deny a benefit to all non-marital children, but grant it to all marital children = unconstitutional |
|
rational basis review
|
applies to all other classification
- age - disability - wealth - government economic regulations - sex orientation |
|
fundamental rights protected under equal protection
|
(1) right to travel
-durational residency requirements (requiring a person to live in a jurisdiction for a specified amount of time to get a benefit) must meet strict scrutiny: 50-days to vote = okay (2) right to vote - one-person, one-vote must be met for all state + local elections = voting districts need to be roughly equal in size -at-large elections are constitutional UNLESS there is proof of a discriminatory purpose -the use of race in drawing election district lines (for the purpose of benefiting minorities) must meet strict scrutiny (3) right to education = NOT fundamental right |
|
free speech: content-based v. content-neutral restrictions
|
content-based restrictions must meet strict scrutiny
-subject matter restriction = application of the law depends on the topic of the message -viewpoint restriction = application of the law depends on the ideology of the speech content-neutral laws burdening speech generally need only meet intermediate scrutiny |
|
prior restraints
|
stopping speech before it occurs
-court orders suppressing speech must meet strict scrutiny + must comply with order until overturned/vacated gag orders = not allowed to prevent pre-trial press government can require a license for speech ONLY IF there is an important reason for license + clear criteria leaving no discretion to the licensing authority. -must be procedural safeguards (a) prompt determination of requests, and (b) judicial review of license denials |
|
free speech: vagueness + overbreadth
|
no dice
vagueness = unconstitutional if a reasonable person cannot tell what speech is prohibited + what is allowed overbreadth = unconstitutional if it regulates more speech than the constitution allowed to be regulated fighting words laws = always unconstitutional |
|
symbolic speech
|
government regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on the communication is no greater than necesssary to achieve the government's goal
examples -flag burning = a-ok -draft card burning = bad news bears -nude dancing = bad news bears -burning a cross = a-ok UNLESS done with the intention to threaten another -contribution limits in election campaigns = constitutionally protected; can limit how much you give to a particular candidate, but not how much you give to an entire party |
|
what types of speech = unprotected?
|
(1) incitement of illegal activity - must be a substantial likelihood of inciting + directed to causing imminent illegality
(2) obscenity + sexually-oriented speech (3) commercial speech (4) defamation |
|
obscenity
|
standard
(1) material must appeal to the prurient interests, or a shameful/morbid interest (2) material must be patently offensive under the law prohibiting obscenity (3) taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value as determined by a NATIONAL standard -may use zoning ordinances to regulate the number or location of adult stores -child porn can be completely banned UNLESS people over 18 who look like they are kids (yuck) -government may not punish private possession UNLESS kiddie porn |
|
profane + indecent speech
|
generally protected
UNLESS (1) free, over-the-air broadcast media (2) schools |
|
commercial speech
|
advertising for illegal activity, and false/deceptive ads are not protected
true commercial speech that inherently risks deception can be prohibited -states may prevent professionals from advertising or practicing under a trade name -states may prohibit attorney + accountant, in-person solicitation of clients for profit otherwise, apply intermediate scrutiny government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative |
|
defamation
|
if the P = public official or running for public office, the P can recover for defamation only by proving with clear + convincing evidence the falsity + actual malice, meaning that the D knew the statement was false or acted with reckless disregard of the truth
if private figure + matter of public concern, then state may allow the P to recover compensatory damages by proving falsity of the statement + negligence by D |
|
privacy + first amendment
|
no liability for truthful reporting of information that was lawfully obtained from public records
media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call, so long as the media did not participate in the illegality and it involves a matter of public concern government may restrict its own dissemination to protect privacy speech by government employees on the job in performance of their duties is NOT protected speech |
|
public forums
|
government properties that the government is constitutionally required to make available for speech
-regulations must be subject matter + viewpoint neutral regulation must be a reasonable regulation that (1) serves an important government purpose, AND (2) leaves open adequate alternative places for communication can regulate, time, place, use need not use the least restrictive alternative fees = unconstitutional if city officials have discretion |
|
limited public forum
|
same rules as public forum
|
|
non-public forum
|
government can and does close these off to speech
can regulate so long as the regulation is reasonable (rational basis) + viewpoint neutral examples -military bases -areas outside prisons -advertising space on city buses -sidewalks in front of post-office -airports |
|
freedom of association
|
laws that prohibit or punish group membership must meet strict scrutiny
to punish membership (1) person = actively affiliated with the group (2) person has knowledge of the group's illegal activities, AND (3) has the specific intent of furthering those illegal activities + objectives laws that require disclosure of membership of it would chill association = strict scrutiny |
|
freedom of association + right to discriminate
|
does not protect a right to discriminate UNLESS
its a private organization where the discrimination is integral to an express activity examples -intimate associations like a dinner party -KKK -Nazis -boy scouts |
|
freedom of religion + free exercise clause
|
cannot be used to challenge a neutral law of general applicability (peyote)
government may not deny benefits to individuals who quit their jobs for religious reasons |
|
freedom of religion + establishment clause
|
(S)ecular purpose for the law
(E)ffect neither advances nor prohibits religion (X)cessive government entanglement w/religion = bad news bears government cannot discriminate against religious speech or amoung religions UNLESS strict scrutiny |
|
government-sponsored religious activity in public school
|
bad news bears BUT
religious student + community groups must have the same access to school facilities as non-religious groups school prayer even if voluntary = prohibited government may give assistance to parochial schools. so long as it is not used for religious instruction -may provide parents vouchers which they use to send kids to parochial schools |
|
four bases for in personam jurisdiction
|
(1) consent
(2) domicile = living in MD + intent to remain in MD indefinitely (3) presence (4) long-arm statute |
|
consent + in personam jurisdicution
|
- need to consider scope of the consent; appointed registered agent consents to PJ ONLY IF the problem occurred in MD
-forum clauses in contracts = acceptable UNLESS (1) contract induced by fraud (2) selected forum = unfair or inconvenient (3) enforcement would violate MD public policy |
|
domicile + in personam jurisdiction
|
elements
(1) living in MD, AND (2) intent to remain in MD indefinitely; determined by an objective test -where does D live? vote? pay taxes? have a driver's license? -can be sued for anything you did anywhere. - determined as of the date of commencement of the lawsuit corporation's domicile = incorporated in MD + principal place of business in MD partnership domicile = principal place of business |
|
presence + in personam jurisdiction
|
general rule: if D is physically present in MD, he can be sued in MD on unrelated claims
exceptions (1) D in MD to testify, prosecute, or defend an action (2) D passing through MD pursuant to a subpoena to testify |
|
long-arm statute + in personam jurisdiction
|
cause of action must arise from one of the following activities
(1) transacts any business, performs services in MD (2) contracts to supply products in MD (3) causes a tortious injury in MD (4) causes a tortious injury inside OR outside MD + - regularly does business in MD - derives substantial revenue from goods/services used in the state (5) interest in, uses or possesses real property in the state (6) insures risks in MD (7) D in a domestic relations cases for child support, alimony, or attorney's fees |
|
general personal jurisdiction
|
can be sued in MD for anything you did anywhere
- domicile - presence - explicit consent |
|
specific personal jurisdiction
|
claim arises from conduct in MD
-consent -long-arm statute |
|
due process = minimum contacts
|
minimum contacts
(1) purposeful availment? = D's voluntary action, he reaches out to MD (2) foresee a lawsuit in MD? = reasonably anticipate he would get sued in MD fair play + substantial justice -related of suit to the forum - convenience = MD must not be grossly unfair or place D at a serious disadvantage -state's interest |
|
why is personal jurisdiction so awesome?
|
because it ensures that the judgment is given full faith + credit in other states
|
|
in rem or quasi in rem
|
bringing an action against property owned by the D that is located in MD
- judgment only good for the worth of property in rem = adjudication against the rights of all owners quasi in rem = adjudication of the rights of a particular owner |
|
is personal jurisdiction waivable?
|
you bethcha.
|
|
is subject matter waivable?
|
no way jose. not ever.
|
|
if subject matter = problem, when can the issue be raised?
|
anytime by any party
|
|
district court
|
amount in controversy = $5000 or less
exclusive jursdiction -replevin -landlord-tenant actions for possession of the premises UNLESS jury trial advantage of district court - limited discovery - less restrictive evidentiary rules |
|
circuit court
|
amount in controversy = $30,000 or more
(between $5k + $30k, up to the P) exclusive jurisdiction -equity actions, i.e., injunctions -declaratory judgments -ownership of real property -domestic relations actions jury trial on demand if amount exceed $10,000 |
|
medical malpractice cases + arbitration
|
applies in actions against health care providers (doctors, nurses, hospitals, psyches, and social workers)
(1) P must file a certificate by a medical expert attesting to D's departure from the standards of care (2) if D contests, he must file a counter-certificate stating the opposite effect of arbitration = non-binding -admissible as a rebuttable presumption of negligence challenge to the decision = fraud in the decision itself |
|
aggregation
|
-single P may aggregate claims against a single D
- single P may NOT aggregate against multiple Ds UNLESS Ds = owners of a joint interest -multiple Ps may NOT aggregate against a single D UNLESS seeking to enforce a single right or judgment in which they have a common or undivided interest, OR Ps in a class action |
|
venue + waiver
|
D must assert this defense in a preliminary motion before his answer
if venue = improper, court may (1) dismiss the action (2) transfer action to the proper county if it would be in the interest of substantial justice |
|
venue + local actions
|
partition of real estate, mortgage foreclosures, trespass to land, waste must be brought in the county where the property lies
|
|
identifying venue = two-step process
|
(1) location of Ds
- individual D = resides, carries on a regular business, employed, habitually engages in a vocation - corporate D = principal in-state office or carries on regular business - non-resident D = any ocunty in MD - out-of-state corporate D= county where P resides - multiple Ds = (a) in a county where venue = proper for all Ds, or (b) if no common county, then any county in which any one of the Ds can be sued, or where the cause of action arose additional venues = specific actions - negligence - where injury first occurred - replevin = where the property is located - divorce = where P resides - annulment = where P resides + location of marriage ceremony - custody = where M, F, or child resides |
|
transfer of venue
|
- improper venue based on preliminary motion
- inconvenient venue: (a) must be on party's motion (never sua sponte); (b) to a preferred venue where the case could have been brought; (c) if it would be in the interest of substantial justice - unfairness = cannot receive a fair + impartial trial in the county - forum non conveniens = another non-MD court is proper + FAR more convenient NOTE: won't transfer if the statute of limitation will toll soon |
|
process
|
process = complaint + summons issued by clerk
|
|
timing of service
|
must be served w/in 60 days
after 60 days, summons becomes dormant + P must file written request to renew |
|
who can serve
|
any adult over 18 who is not a party, including P's attorney
|
|
who can accept service
|
the D or the D's agent
-adult D: give it to him personally, or give it to a person of suitable age + discretion at the D's dwelling or usual place or abode -child or person w/disability: serve D + D's parent, guardian, or fiduciary -corporation (follow pecking order): (1) resident agent or president, secretary, treasurer; (2) if no resident agent or if good faith effort to serve is unsuccessful, then manager, any director, vice president, any other person impliedly authorized to receive service -partnerships: any general partner -limited liability company: attempt to serve the resident agent first -unincorporated association = any officer or member of the board; if none, then any member of the association -state of MD: attorney general |
|
how to serve
|
(1) personally hand to D or agent anywhere you find him
(2) certified mail, restricted delivery, return receipt requested (3) substituted service = leave process at D's dwelling or usual place of abode w/ person of suitable age + discretion (4) out-of-state methods - in a manner approved by the court or permitted by the local law but only if it is calculated to give actual notice (5) evasive D = violence + threats or process server is prevented from entering premises except through force or personal risk - deliver to responsible person at the premise -nail it as near the premises as practicable |
|
challenging service
|
must be asserted by preliminary motion to dismiss otherwise it is waived
insufficient process = (1) dormant summons, or (2) defect in papers insufficient service = (1) failure to serve, (2) wrong party, or (3) improper service |
|
form of pleadings
|
cause of action must be set out in separate distinct counts
numbered paragraphs = one allegation per paragraph defenses must be numbered separately pleading in the alternative= ok must not argue or unnecessarily refer to law or evidence |
|
filing + service of pleadings
|
must be filed with the clerk
must be served on the parties timing = super duper important -complaint, time runs from date of actual receipt + D has 30 days to file response (preliminary motion or answer) -all other pleadings (1) personal service = time runs from date of actual receipt, or (2) mailed service = posting + 3 days if due date = weekend or holiday, then bump the date to the end of next business day late filing = party may move to strike pleading; if the tardy movant proves no prejudice from delay, then motion to strike denied |
|
complaint
|
must include
(1) amount in controversy satisfies jurisdiction (2) clear statement of the facts necessary to constitute a cause of action action (include time + place if material to the claim/defense) (3) types of relief demanded, especially if asking for punitive damages |
|
preliminary motions
|
preliminary motion = optional
-mandatory defenses must be filed before answer or waived forever and ever, amen. (a) personal jurisdiction lacking (b) venue = improper (c) service of process = insufficient (d) process = insufficient -permissive defenses = may be presented in preliminary motion or answer (a) failure to state a claim (b) discharge in bankruptcy (c) required person not joined (d) immunity for government defendants (e) subject matter jurisdiction lacking only one preliminary motion = allowed response to motion = w/in 15 days (if mail, w/in 18 days) |
|
D's response to complaint + filing
|
must be filed
- if in MD, then 30 days - if outside MD, 60 days - if outside country, 90 days |
|
answer
|
in district court, known as "notice of intention to defend"
timing - 30 days if no preliminary motion - denied preliminary motion = 15 days post-denial required contents (1) responses to allegations of the complain = admit, deny or state lack of sufficient information -failure to deny = admission! -specific denial - necessary if challenging (a) legal capacity, (b) authority of the legal representative, (c) execution of a written contract, (d) ownership of a motor vehicle; burden of proof on P (2) leftover defenses (3) affirmative defenses - res judicata, statutue of limitations, assumption of the risk, consent, accord + satisfaction NOTE: failure to plead an affirmative defense = waiver |
|
counterclaims
|
back across the v.
not mandatory! do not have to bring if the cause of action is unrelated to the proceeding |
|
cross-claim
|
an offensive claim against a co-party
must arise from the same transaction or occurrence permissive, not compulsory |
|
amending pleadings
|
liberally allowed until 30 days before trial
-then, need leave of court OR consent of all parties time = must respond w/in 15days role of SOL = if SOL ran, a new claim is deemed to have been asserted ina timely manner if it is part of the same cause of action as the original pleading;s claim of action as the original pleading amendment of pleadings to add claims against new parties -relation back only allowed if (1) amendment merely corrects a misnomer, AND (2) new party had notice of the action w/in SOL period, AND (3) new party would not be prejudiced in having to defend |
|
attachment available when
|
(1) quasi in rem
(2) any breach of contract or tort action if debtor = particularly sketchy dude - out-of-stater = debtor is a nonresident individual or corporation w/no registered agent - aspiring out-of-stater = debtor is leaving with intent to defraud creditors - fly-by-night home contractor = debtor must be licensed + bonded under MD (3) breach of contract action for liquidated action - evasive in-stater = D trying to evade service - in-state property hider = trying to remove property from MD w/intent to defraud creditors -con man = D fraudulently contracted the debt that is subject to the action -out-of-state heir |
|
writ of attachment
|
(1) file a request for an order issueing writ
(2) file an affidavit - verifying that the facts in the proposed complaint = true, AND - P = valid grounds for attachment after issuance of writ, P must (1) post a bond in amount determined by the court to cover costs if attachment = unjust (2) serve the complaint w/in 60 days of the attacment |
|
writ of attachment, what can D do?
|
- post a bond ensuring P will get paid if judgment answered
- move to release writ because claim is bogus, dude |
|
writ of attachment, end of case
|
- if D wins, then writ dissolved and D may sue for loss of property
- if P wins, then property sold to satisfy judgment |
|
joinder of parties + claims in MD
|
MD hearts joinder because it is more efficient to join all related claims ) interested parties in a single suit.
if suit gets too complicated, court can order separation of trials |
|
permissive joinder
|
two or more Ps/Ds may be part of the same action if the claims asserted
(a) arise out of the same T/O, AND (b) share a common question of law and fact |
|
necessary joinder
|
party = necessary if w/o him
(1) court may not be able to accord complete relief among the existing parties (2) disposition of the action may impair absentee's ability to protect an interest involved in the suit (3) disposition of the action may leave existing parties subject to a risk of incurring multiple or inconsistent obligations NOTE: joint tortfeasors are not necessary parties |
|
indispensable party
|
if party = necessary but cannot be joined, then the court can decide whether or not to go on w/o him
- if dismiss the action, the party is indispensable |
|
intervention = "let me in, let me in"
|
intervention as of right
(1) absentee gien an unconditional right by law to intervene, OR (2) disposition of the action may impair absentee's ability to protect an interest involved in the action permissive intervention = absentee's claim/defense has a question of law or fact in common with the action - intervention = matter of court discretion |
|
impleader
|
claims involving a 3d party D
usually in vicarious liability situations claim = derivative after 3d party added, -3d party may raise defenses against P that D could have but failed to raise against D -3d party D may assert claims against P that arise from the same T/O -P MUST assert ALL claims against 3d party D that arise from the same T/O (compulsory claim) |
|
interpleader
|
device by which one holding $$ or other property can force all potential claimants into a single law suit
stakeholder does not need to have an interest in the $$ or property |
|
joinder of claims
|
P's claims against D = transactionally related not required
D's claims against P = transactionally related not required cross claims = must be transactionally related 3d party counterclaim = transactionally related not required -any claim against another 3d party = transactionally related required P + 3d party D = must assert any claims that are transactionally related to the P's claim against the D |
|
class action
|
representative of the class sues on behalf of the group
(1) initial requirements -numerosity -commonality of question or fact -typicality -adequacy = representative will fairly + adequately represent the class (2) must fit the case w/in one of these three types - prejudice: class treatment is necessary to avoid harm to class members or non-class members (ex: individuals may deplete fund, and people may be left w/o remedy) -injunction or declaratory judgment (ex: fat stewardesses) -common questions > individual questions (3) subject matter jurisdiction = aggregate all claims (4) notice to the class -class representative pays all these costs -must inform them of (a) opt-out option, (b) bound by judgment if they do not opt-out, and (c) they may enter a separate appearance in the case through counsel |
|
class action dismissal
|
no allowed without court approval + notice to all members
|
|
statute of limitations starts running
|
on the date that the cause of action accrues
- P knew or should have known of the injury, breach, or from the entry of judgment giving rise to to the indemnity claim |
|
statute of limitations
|
generally 3 years
exceptions (1) breach of contract under UCC = 4 years (2) medical malpractice = shorter of either (a) 5 years after the wrong, or (b) 3 years after discovery (3) contract claims against State = 1 year -UNLESS P = State, then no limit |
|
tolling for disability
|
mental incompetence = toll until removal of the disability
-disability arises after toll = no tolling -when disability = removed, SOL runs the longer of (a) three years from the date of the removal of the disability, OR (b) the remaining period of the SOL if SOL less than 3 years, then SOL runs for the same amount of time as the prescribed SOL |
|
tolling for minors
|
toll until kid reaches the age of majority
age of majority = day BEFORE 18th birthday |
|
tolling for fraud
|
statute of limitations tolls until opponent discovers or should have discovered the fraud
|
|
relation back
|
allowed if the expired claim relates back to the original claim
|
|
procedure for asserting statute of limitations
|
assert the affirmative defense and move for summary judgment
|
|
substantive scope of discovery
|
anything, not privileged, that is relevant, including materials reasonably calculated to lead to admissible evidence
|
|
privileged matter + discovery
|
not discoverable
list of privileged materials (1) 5th amendment right against self-incrimination (2) attorney-client privilege (3) communications to a spouse (4) accountant-client privilege (5) psychiatrist-patient privilege NOTE: there is no doctor-patient privilege (6) clergy member-patron privilege (7) trade secrets |
|
work product + discovery
|
tangible material generated by a party or a party's representative in anticipation of litigation
-never have to give up opinion work product (MD almost always completely protects it from disclosure UNLESS the opinion itself is at issue) exception (a) substantial need for it, AND (b) not otherwise available w/o undue hardship |
|
discovery + expert witness
|
a party may depose any expert expected to present her opinions at trial, as well as obtain information about her qualifications + compensation via interrogatories
exception no discovery of a nontestifying expert UNLESS expert=super duper unique + awesome (one-of-a-kind) |
|
protective orders
|
on motion of any party on good cause shown, the court may limit the scope, timing, amount or manner of discovery
- good cause = embarassment, undue borden or expense > benefit |
|
discovery tools
|
(1) depositions = officially recorded + sworn statements of opponents or witnesses
- if party = compel with notice of deposition - if nonparty = subpoena or subpoena duces tecum -leave of court required for (a) prisoners, depos longer than 7 hrs, later deposition unrelated to changes in the first (2) interrogatories = limited to 30 questions - district court = limited 15 questions - "i don't know" = acceptable only after reasonable investigation of the collective knowledge + information available; there is a duty to supplement with further material information (3) requests to produce (4) physical/mental examination = only available by stipulation or leave of court upon showing that specific aspect of person's health is actual controversy (5) requests for admissions - must be signed by the party or his attorney -conclusive |
|
objections during deposition
|
dude, you gotta do it
- objections that can be cured at the deposition must be made there or else WAIVER -other objections = preserved |
|
enforcement of discovery
|
work it out amongst yourself
if that does not work, then - oppose protective order - motion to compel the withheld discovery + costs of litigating the motion -sanctions: (a) disallow evidence from disobedient party, (b) strike pleadings of disobedient party, (c) establish facts as true, (d) dismiss P's case, or (e) default judgment - false denial of admission --> recover costs of proving the issue at trial -contempt, only remedy if nonparty |
|
voluntary dismissal
|
always without prejudice
allowed if (1) parties stipulate, OR (2) opposing party has not filed an answer or a motion for summary judgment |
|
involuntary dismissal
|
most likely without prejudice
when does it happen? (1) no personal jurisdiction (2) failure to prosecute = lapse of a year |
|
default judgment
|
(1) ask clerk in writing to enter the default + give notice to the D at last known address
(2) wait 30 days or until motion to vacate = denied (3) entry of judgment - court will do this so long as (1) personal jurisdiction over D, (2) proper service, and (3) notice of default = properly given if amount is not a sum certain --> determined by a hearing family law matters = default judgments do not matter, everyone still gets to admit evidence |
|
summary judgment
|
can be filed at any time during proceeding
movant must prove (1) no genuine issue of material fact, AND (2) movant entitled to judgment as a matter of law - more likely D will get summary judgment because P bears the burden of proof -partial summary judgment = totally allowed - evidence viewed in the light most favorable to the non-movant |
|
jury trial
|
no right to jury trial in equity actions
typically 6 jurors to obtain jury trial, there must ba written demand within 15 days of the last pleading raising a jury-triable issue withdrawal of demand only allowed if all parties consent choosing jurors -unlimited strikes for cause - 4 peremptories, must be used in a race + gender neutral fashion |
|
judgment
|
good for 12 years
- can be renewed by filing notice of renewal with the Clerk |
|
motion for judgment
("directed verdict") |
common BUT rarely granted
D can move twice - close of P's case-in-chief - close of all evidence P can move once -close of all evidence standard = resolve all doubts against the movant, then grant if there's insufficient evidence upon which a jury could have reached a verdict |
|
JNOV
|
made within 10 days of the judgment
losing party asks the court to discard the jury verdict + enter judgment for the movant - rarely granted motion for directed verdict = required; if no DV, then JNOV waived |
|
motion to alter/amend judgment
|
alleges errors in the trial process
|
|
motion for a new trial
|
must be made within 10 days after judgment entered
- error at trial, then court must find error prejudicial -newly discovered evidence, then court must prejudice + loser was diligent in attempting to discover evidence by trial -jury got it wrong, then court decides if the verdict is wrong against the weight of the evidence |
|
remittitur
|
adjustment of the jury award
|
|
motion to revise judgment
|
catchall
made within 30 days then only if extrinsic fraud = collateral to the issues tried in the case, jurisdictional mistake, irregularity, or clerical error |
|
appeal + final judgment
|
must be a final judgment on the merits
must be filed w/in 30 days of the judgment - time limit = strictly enforced - JNOV, amendment, or new trial = effect of extending time because the judgment is no longer final |
|
appealable interlocutory orders
|
certified partial judgment
collateral orders = appealable if (1) it is distinct from the merits of the case (2) an important legal question (3) has been conclusively determined (4) effectively reviewable on appeal orders made appealable by statute |
|
res judicata
|
claim preclusion, need to assert all possible claims arising out of the same T/O
three requirements (1) privity = mutual or successive relationship (2) final judgment on the merits (3) same cause of action = encompasses all claims + defenses that were or could have been litigated based on the same transacation - includes claims for property damage + personal injury if same occurrence |
|
collateral estoppel
|
issue preclusion, way narrower than res judicata
five requirements (1) same issue must be in the first + second lawsuit (2) issue was actually litigated and determined the first case (cannot be addressed in dicta) (3) issue = essential to the first judgment (4) asserted against someone who was a party to the prior suit or in privity with a prior party (5) preclusion may only be assert by - mutuality: only by one who was a party to the prior case, OR - nonmutuality: the party against who preclusion is asserted had a full + fair chance to litigate the issue in the prior action |
|
procedures for invoking claim or issue preclusion
|
(1) affirmative defense, AND
(2) prove prior judgment or issues previously litigated by attaching a record copy of the prior action |
|
remittitur
|
adjustment of the jury award
|
|
motion to revise judgment
|
catchall
made within 30 days then only if extrinsic fraud = collateral to the issues tried in the case, jurisdictional mistake, irregularity, or clerical error |
|
appeal + final judgment
|
must be a final judgment on the merits
must be filed w/in 30 days of the judgment - time limit = strictly enforced - JNOV, amendment, or new trial = effect of extending time because the judgment is no longer final |
|
appealable interlocutory orders
|
certified partial judgment
collateral orders = appealable if (1) it is distinct from the merits of the case (2) an important legal question (3) has been conclusively determined (4) effectively reviewable on appeal orders made appealable by statute |
|
res judicata
|
claim preclusion, need to assert all possible claims arising out of the same T/O
three requirements (1) privity = mutual or successive relationship (2) final judgment on the merits (3) same cause of action = encompasses all claims + defenses that were or could have been litigated based on the same transacation - includes claims for property damage + personal injury if same occurrence |
|
collateral estoppel
|
issue preclusion, way narrower than res judicata
five requirements (1) same issue must be in the first + second lawsuit (2) issue was actually litigated and determined the first case (cannot be addressed in dicta) (3) issue = essential to the first judgment (4) asserted against someone who was a party to the prior suit or in privity with a prior party (5) preclusion may only be assert by - mutuality: only by one who was a party to the prior case, OR - nonmutuality: the party against who preclusion is asserted had a full + fair chance to litigate the issue in the prior action |
|
procedures for invoking claim or issue preclusion
|
(1) affirmative defense, AND
(2) prove prior judgment or issues previously litigated by attaching a record copy of the prior action |