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59 Cards in this Set
- Front
- Back
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Basis for personal jurisdiction
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1. Statutory basis: Present when served, consent, domiciled, or long-arm statute. Most states have a long-arm statute authorizing jurisdiction for anyone who committed a COA in state. Example – jurisdiction over one who commits a tort in State X. If out-of-state mfg, argue tort out of state but injury in state.
2. Constitutional basis (due process): Minimum contacts: Purposeful availment, reasonable anticipation, continuous activity. Fairness; notice. |
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Basis for personal jurisdiction
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1. Statutory basis: Present when served, consent, domiciled, or long-arm statute. Most states have a long-arm statute authorizing jurisdiction for anyone who committed a COA in state. Example – jurisdiction over one who commits a tort in State X. If out-of-state mfg, argue tort out of state but injury in state.
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Factors in determining minimum contacts
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Contact: *Purposeful availment* (debatable if TP sent product into forum; but yes if D makes $ in forum or put in stream of commerce); *foreseeability* of suit in forum (satisfied if product foreseeably ends up in forum).
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In rem / Quasi in rem jurisdiction
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In rem: Basis for jurisdiction is property (COA relates to property). Court has power to adjudicate rights of all persons in the world.
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Forum non conveniens
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Court may dismiss case if other forum, with personal jurisdiction, is far more convenient and appropriate. Transfer not possible b/c it’s in a different judicial system. Decision based on public factors and private factors (location of witness, evidence). Not granted if P is resident of present forum.
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Subject matter jurisdiction
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Determines state vs. federal court. Must be met for every single claim.
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Diversity of citizenship
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Complete diversity required when suit commenced. No P can be same citizen as any D.
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Amount in controversy
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Only applies for diversity of citizenship.
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Federal question
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P must be suing to vindicate federal right.
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Supplemental jurisdiction
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* Allows fed court to hear claims w/o subject matter jurisdiction
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Removal
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* Allows D (not P) to have state court case removed to federal court in that jurisdiction, if the case could have originally been filed in that federal court. If improperly removed, fed court remands to state.
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What law applies in diversity cases?
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Erie doctrine: In diversity cases, fed court applies state substantive law and federal procedural law.
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Venue
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Determines which location within the judicial system is proper. Improper venue may be waived.
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Transfer of venue
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Only transfer to court where case could have been filed:
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Service of process
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Process: Summons + copy of complaint, served by a nonparty.
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Pleadings
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Federal rules uses "notice" pleading – no great detail needed, just enough to allow meaningful response.
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Rule 11
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Attorney or pro se litigant to sign all pleadings, written motions and papers, certifying that to the best of his knowledge and belief, after reasonable inquiry:
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Complaint
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Principal pleading by P, commences suit. Must include:
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Response
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D must respond with motion or answer within 20 days after service of process.
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Answer
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If motion is denied, answer required 10 days after denial. If D waives service, answer within 60 days after waiver. Otherwise, w/in 20 days after service of process.
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Counterclaim
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Filed with D’s responsive pleading (answer).
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Cross-claim
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Claim against a co-party. Must arise from same transaction or occurrence as underlying action, but it’s not compulsory.
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Amending pleadings
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* P has a right to amend once before D serves answer, or if no answer served, w/in 20 days after serving pleading.
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Joinder of claims
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Once a party asserts a claim by complaint, cross-claim, counterclaim or impleader, the party may then join any claims, even transactionally unrelated, that he has against an opposing party, subject to SMJ requirements.
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Joinder of parties: Permissive
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Who may be joined:
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Joinder of parties: Mandatory
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Who must be joined: Necessary and indispensable parties. Court may order. Joint tortfeasors are not necessary parties.
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Impleader
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Joinder of a new third party, usually by D, in vicarious liability case for indemnity or contribution. D has right to impled w/in 10 days of serving answer, otherwise court permission needed.
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Bulge rule
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Absentees joined as necessary party or impleaded may be served out of state, within 100 miles of coursehouse.
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Intervention
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Absentee wants to join pending suit, either as P or D. Must be made in a timely manner.
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Interpleader
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Stakeholder holding the property or money in dispute forces all potential claimants into single lawsuit to avoid multiple litigation and inconsistency.
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Requirements for class action
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* Number of parties too numerous for practicable joinder
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Types of class action
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Damages: Common questions predominate, and class action superior method to handle dispute (efficiency). Examples: Mass tort. Class rep pays to give individual notice to all reasonably identifiable members telling them: (1) they can opt out; (2) they will be bound if they do not opt out; (3) they can enter separate appearance through counsel.
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Discovery: Required disclosures
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Must be produced even though no one asked for it, within 10 days after discovery meeting.
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Depositions
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Oral/written.
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Interrogatories
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Questions in writing by party to another party. Must be answered w/in 30 days. No more than 25 interrogs.
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Request to produce
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Requests party (or non party with subpoena) to make documents available for review of documents or things.
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Physical or mental examination
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Only available with court order upon showing that party’s health is in actual controversy and good cause exists.
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Request for admission
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Must respond w/in 30 days. Used to authenticate documents.
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Discovery tools
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Deposition
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Duty to supplement
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If party learns that its response to required disclosure is incomplete or incorrect, it must supplement.
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Substantive scope of discovery
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Can discover anything relevant: Reasonably calculated to lead to admissible evidence.
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Expert witness
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Required disclosures of name, report.
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Enforcement of discovery rules
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Motion to compel discovery. If party doesn’t comply with order, court may: Award costs/fees; order matters treated as admitted; prohibit party from sing claims/defenses; strike pleadings; dismiss action; render default judgment; contempt.
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Voluntary dismissal
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P can dismiss before D serves answer or moves for summary judgment. Dismissal without prejudice. If D already served answer, D has to agree to dismissal or court must order
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Default judgment
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Entry of default first by court clerk, then entry of default judgment by clerk.
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Dismissal for failure to state a claim (demurrer)
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12b6 motion. Tests the sufficiency of P’s allegations in complaint, without looking at evidence. Assumes P’s complaint is true, and asks "if P proves everything in complaint, is P entitled to judgment." Granted if no COA exists.
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Summary judgment
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Moving party must show (1) no dispute as to material issue of fact, and (2) moving party is entitled to judgment as a matter of law. Court examines (but doesn’t weigh) evidence proffered by parties (affidavits, but not pleadings). Motion denied if dispute of fact.
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Pretrial conferences
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Court may hold as needed to expedite case and encourage settlement.
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Jury trial
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Must demand in writing no later than 10 days after service of last pleading.
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Judgment as a matter of law (directed verdict)
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Takes case away for jury. Standard is if reasonable people could not disagree on the results. Evidence viewed in light most favorable to nonmoving party.
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Judgment notwithstanding the verdict
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Jury returns verdict, and court enters judgment. Losing party files renewed motion for judgment as a matter of law, within 10 days after entry of judgment.
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Motion for new trial
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Judgment entered, but errors at trial require new trial. Move 10 days after entry of judgment.
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Summary judgment
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No genuine issue of material fact moving party entitled to judgment as a matter of law. May be supported by pleadings, affidavits, discovery materials.
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Final judgment rule
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Generally, party can appeal only from final judgment. If the trial court has anything left to do on the merits, no appeal available.
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Interlocutory review
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Allows court of appeals to review matter before final judgment.
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Res Judicata
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Affirmative defense: You can only sue on a cause of action once.
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Collateral estoppel
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Precludes relitigation of particular issue previously litigated and determined. Narrower than res judicata.
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Timing of Rule 12 defenses
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Raised anytime:
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Class action requirements
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Numerous class members; common questions; typicality; fair and adequate representation
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