Civ Pro

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in personam jurisdiction

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in personam jurisdiction refers to a court's jurisdiction over a person or entity in an action against that party (b/c you're physically there)

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in rem jurisdiction

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a proceeding in rem determines the status of property within the court's jurisdiction. A court exercising in rem jurisdiction has power only over the property and its disposition; the court lacks power over any of the property's owners.

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quasi in rem jurisdiction

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quasi in rem jurisdiction is a type of jurisdiction that gives a court authority to render judgments against a person but limits recovery in the action to the value of the property owned by that person within court's geographical jurisdiction

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Four ways to get Personal jurisdiction

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in personam jurisdiction

in rem

quasi in rem

consent

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Factors for Minimum Contacts

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1) Profit's made in the forum state
2) Personal availment of the benefits of doing business in the state (quid-pro quo)
3) Regular and systematic contacts with the forum state
4) The cause of action directly relates to the activities/contacts with the forum state.
5) Large volume of interstate
6) The empathy of the court
7) Does exercising jurisdiction comport with "fair play and substantial justice" - i.e. is reasonable for the forum state to exercise jurisdiction
5)

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Factors for "fair plan and substantial justice"

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1) the burden on the defendant

2) the plaintiffs interest in obtaining convenient and effective relief

3) the State's interest in adjudicating the dispute

4) The interstate judicial systems interest in obtaining the most efficient resolution of controversies

5) The shared interest of the states in furthering fundamental substantive social policies

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Policy/Purpose of Minimum Contacts

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The purpose of the minimum contacts test is two fold:

(1) it protects the defendant against the burdens of litigating in a distant or inconvenient, and

(2) it acts to ensure that the State through their Courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal state

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Domicile

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A person is domiciled where he has his current dwelling place, and also has the intent to state in that place indefinitely.

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Pendent Jurisdiction

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The old doctrien tahat allowed state claims to be heard in federal court if the claims derived from a common nucleus of operative fact

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Ancillary Jurisdiction

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In diversity action the old doctrine of ancillary jurisdiction allowed claims against third party defendants as long as the claim was brought by the defendant.

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original jurisdiction

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a courts power to hear and decide a matter before any other court can review the matter i.e - the case could have originally been brought in that court.

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Factors for granting a change of venue

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1) The plaintiff's choice of forum

2) The place of the alleged wrong

3) The availability and convenience of witnesses and parties

4) The cost of obtaining witnesses and other trial expenses

5) The location of counsel

6) The location of books and records

7) The possibility of delay and prejudice if granted

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sua sponte

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[Latin "of ones own accord; voluntarily] sua sponte under sec. 1404(a) allows a judge to transfer venue without a motion by the parties but on "its own accord"

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forum non conveniens

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[Latin "an inconvenient court"] forum non conveniens is a common law doctrine for handling cases that would be better tried in a different judicial forum. Courts have discretion to decline to exercise jurisdiction if it would be more appropriately tried in some other jurisdiction

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Policy rationale for granting forum non conveniens

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1) the parties have an interest in having the litigation conducted in the most convenient locale. (It is generally the defendant whose convenience is being respected)

2) The state has an interest in not burdening its courts with litigation not connected with the state

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Factors for if forum non conveniens should be allowed

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1) is the plaintiff a state resident and tax payer in the forum state? If so he should have the right to the judicial machinery of his state

2) in which forum are the witnesses and sources of proof most available?

3) which forum will be familiar with the state law that must govern the case? conflict-of-laws principles may require a court to apply the law of a different state; it is generally undesirable to have "a court in some other forum untangle problems in conflicts of laws, and in law foreign to itself.

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"outcome determinative test"

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when there is a diversity action, the federal court should use the outcome determinative test to ensure that the federal outcome would not be different had the case been tried in state court.

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Policy rationale for the "outcome determinative test"

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the outcome-determinative test is designed to prevent forum shopping between federal and state courts. The states interest in controlling the outcome is very important as it seeks to protect citizens. Alternatively, the federal interest is relatively weak, and there is very little to be gained from uniformity between federal districts

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Factors for compelling Discovery

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1) The extent to which the request is specifically tailored to discover relevant information;

2) The availability of such information from other sources;

3) The total cost of production, compared to the amount-in-controversy

4) the total cost of production, compared to the resources available to each party;

5) the relative ability of each party to control costs and its incentive to do so;

6) the importance of the issues at stake in the litigation; and

7) the relative benefits to the parties obtaining the information

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Payne Factors for Setting Aside a Default for "Good Cause"

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1) whether the moving party has a meritorious defense;

2) whether the moving party acted with reasonable promptness;

3) The personal responsibility of the moving party;

4) the prejudice to the moving party

5) whether there is a history of dilatory action

6) Availability of sanctions less drastic

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Three ways ADR occurs

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1) the court orders ADR
2) the parties request ADR
3) The parties contract specifies ADR will resolve any disputes arising under the contract.

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res judicata

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an issue that has been definitively settled by judicial decision

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Examples of Common Law Claims

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Trespass

Breach of Contract

Ejectment

Replevin - a legal action to recover possession of items of personal property

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Examples of Equitable claims

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injunctions

specific performance

restitution

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Right to Jury Trial - Tull Test

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First we "comapre the statutory action to the 18th-centure actions brought in the courts of England prior to the merger of courts of law and equity (claims adopted after 1791 combined legal and equitable claims)

Second se derermine the remedy sought and determine if the remedy sought is legal or equitable.

If it is a legal claim that is sought then the party has a right to a jury trial. If it an equitable claim is sought then the party does not have the right to a jury trial.

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The phases of a trial

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1) Jury selection
2) Opening Statements
3) Plaintiff's case in chief
4) Motion for judgment as a matter of law
5) Defendant's case in chief
6) Motions/renewed motinos for judgment as a matter of law
7) Closing Arguments
8) Judge instruct the jury on the law
9) jury deliberations
10) Verdict forum completed and announced in open court
11) Motion for judgment as a matter of law or a new trial
12) Relief from judgment or appeal

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Attachment

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real or personal property that is seized to prevent the defendant from disposing of it pending litigation

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Garnishment

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the defendant's assets in the possession of a third party are turned over to the plaintiff to satisfy an alleged debt

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Replevin

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Wrongfully taken or held property is returned to the plaintiff pending resolution of an ownership dispute

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Sequestration

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Property whose ownership is disputed is taken from the possessor and held by a neutral third party pending resolution of an ownership dispute

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Important Factors for Attachment

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1) Merits of the Petitioners case

2) Petitioners interest in the property

3) Notice and opportunity for pre-attachment hearing

4) Posting of bond.

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Preliminary Injunction Factors

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1) likelihood of success on the merits at trial,

2) a likelihood of irreparable harm,

3) the inadequacy of remedies at law (money damages) to protect against the harm, and

4) the balance of hardships facing the parties favors issuance of the preliminary injunction

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Mandamus

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[Latin: We command] a writ issued by a court to compel performance of a particular act by a lower court or government officer or body, usually to correct a prior action or failure to act.

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Appellate Courts - Types of Review

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De novo - best review (gives the least defference tot he court below) they will ignore what has occurred prior and start the case over. Usually used for issues of law

Clearly erreneous - clearly erroneous is used when you are saying the fact-finder got it wrong. It is much more difficult to win on appeal. Where there are two feasible ways to look at issue it is not clearly erroneous.

Abuse of Discretion. Hardest review to overturn on appeal. It is usually used for issues of procedure. The court gives the lower court high deferential in looking at the appeal. it is usually with regards to admitting evdience, and has to do with how the court was run. Further if there was an abuse of discretion but it was a harmless error then the court will not reverse on appeal.