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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