Civil Procedure

Front 1

What is the definition of subject matter jurisdiction?

Back 1

The power of the Illinois Courts over the subject matter of an action.

Front 2

How do you describe the jurisdiction of Illinois Circuit Courts? What is the exception.

Back 2

They are courts of original and general jurisdiction.

Except if there is exclusive jurisdiction in another forum.

Front 3

When does the Illinois Supreme Court have exclusive and original jurisdiction?

Back 3

1. Issues involving a governor's vacancy
2. Issues involving legislative redistricting.

Front 4

What is the general rule re. Illinois Appellate Courts' jurisdiction?

Back 4

They have jurisdiction only over appeals, only over final orders.

Front 5

What are the exception?

Back 5

1. Partial Final Orders: resolves some claims against some parties. May be appealed if lower court finds no just reason to delay the appeal of the pretrial final order.
2. Significant orders: no final order. Some doubt on controlling legal issue where review would materially advance the litigation. Both courts must agree.

Front 6

When is Illinois Supreme Court appellate jurisdiction mandatory?

Back 6

Any orders declaring federal or state statutes unconstitutional (even if it bypasses Appellate Court).

Front 7

When is Illinois Supreme Court jurisdictional discretionary?

Back 7

Any other case.

Front 8

How do you appeal from an order entered by the Circuit Court?

Back 8

File notice of appeal within 30 days of entry of order, IN LOWER COURT.

Front 9

What is personal jurisdiction?

Back 9

The power of an Illinois court over the defendant's person or property.

Front 10

What two things are needed for personal jurisdiction in Illinois courts?

Back 10

1. Must comply with Illinois law, and
2. the Illinois law must be unconstitutional.

Front 11

How does Illinois law interact with the constitutional requirement?

Back 11

Illinois courts now have personal jurisdiction to the maximum extent allowed by the Constitution.

Front 12

In Illinois, what are the bases for personal jurisdiction?

Back 12

CLAP

C: Consent
LA: Long Arm
P: Presence

Front 13

What are the two forms of consent?

Back 13

1. Express
2. Implied

Front 14

How can a defendant give express consent to personal jurisdiction?

Back 14

1. Defendant expressly authorizes its agent to accept process on its behalf.
2. The parties entered into a contract which stipulates Illinois as the forum.
3. The defendant expressly consents to jurisdiction over it.

Front 15

How can a defendant give implied consent to personal jurisdiction?

Back 15

It is inferred from conduct. The defendant consents by failing to object to personal jurisdiction in the first response to the complaint. (the objection can be joined to other items in the response)

Front 16

When is a response required to a complaint? Exceptions?

Back 16

General rule: 20 days.

Exceptions: 1. where amount is $50,000 or less, response must be filed before a 'specified day.'
2. If you waive formal process, you have 60 days to respond from the date the request was sent to you.

Front 17

What are the three forms of presence giving rise to personal jurisdiction?

Back 17

DDD

Dancing: actually being in Illinois
Domicile: true home is in Illinois
Doing business: regular systematic and continuous business by defendant in Illinois

Front 18

What gives rise to personal jurisdiction under the Illinois Long Arm statute?

Back 18

LIMIT

Land: if it's in Illinois
Injury: if the tort occurred in Illinois
M: Defendant does an act in Illinois from which an action for separation, annulment or divorce derives.
Insurance: The risk that is insured against is in Illinois.
Transaction of business: Single transaction in Illinois by defendant results in the lawsuit

Front 19

When is personal jurisdiction constitutional?

Back 19

When the defendant engaged in such minimum contacts as to not offend traditional notions of fair play and substantial justice.

The issue is whether the defendant purposely availed himself of the benefits of the jurisdiction.

The question is: would the defendant reasonably anticipate being sued in Illinois state court?

Front 20

Who is authorized to serve process in Illinois?

Back 20

Sheriff or deputy or coroner, or any non-party over 18 years old authorized by the court.

Front 21

How long does a summons expire after its issuance?

Back 21

30 days.

Front 22

What happens if the summons runs out?

Back 22

You have to get a new one issued. Watch out for statute of limitations!

Front 23

What are the two rules for service of process?

Back 23

1. Must comply with IL law;
2. Must be constitutional.

Front 24

When is service of process constitutional?

Back 24

If it is reasonably calculated to apprise interested parties of litigation.

Front 25

What are the basic methods of proper service on individuals?

Back 25

PAW

P: Personal, in hand delivery (or "in vicinity" of a reluctant D)
A: Abode: Leave with a 13-year-old, tell him what it's about; and mail it too
W: Waiver. Gives defendant 60 days to respond.

Front 26

How do you serve corporations and partnerships?

Back 26

Personally serve authorized agent or qualified agent or any partner in a partnership.

Test for qualified agent: agent with an appreciation of the need to transmit the process to responsible persons.

Front 27

How do you serve partnerships?

Back 27

If you sue a partnership, serve one defendant personally. Then, you may mail the process to all other defendant partners. However, they must have connection to Illinois (reside in IL or the lawsuit involved Illinois transaction).

Front 28

When is publication okay for service?

Back 28

1. Must involve property in Illinois.
2. Must file affidavit that a. defendant is outside IL or b. after due inquiry D cannot be found.
3. Must mail copy to D's last known address.
4. Publish once a week for 3 weeks in a row, in a newspaper circulating where the action is pending.

Front 29

What is the general rule for proper venue?

Back 29

It's proper where either:
1. any defendant resides (entities reside where doing business, where any office is located, or where a partner resides) or
2. where any part of the claim arose.

Front 30

What are the exceptions to the general venue rule?

Back 30

GRAIL

G: Government entities: venue is proper where its principal office is located.
R: Venue for real property is only where the land is.
A: Absent defendants (no one lives in IL) Venue proper any county
I: For insurance cases, plaintiff's residence.
L: Libel: WHERE ANY DEFENDANT RESIDES OR WHERE THE LIBELOUS ARTICLE WAS COMPOSED.

Front 31

What is the remedy for improper venue?

Back 31

File a motion to TRANSFER.

Front 32

When does the motion have to be submitted?

Back 32

In the first responsive pleading.

Front 33

What is a motion to change venue?

Back 33

When the defendant alleges bias or prejudice of inhabitants of the county where it was filed.

Front 34

What is required for a motion to change venue?

Back 34

1. An affidavit swearing that you fear prejudice.
2. 2 supporting inhabitants from county inhabitants.
3. Must be filed BEFORE ANY SUBSTANTIVE RULINGS.

Front 35

What is a forum non conveniens?

Back 35

A lawsuit is filed in a forum that has subject matter jurisdiction and personal jurisdiction and prope venue, still, it may be dismissed as inconvenient.

Front 36

Can a forum non conveniens order be sua sponte?

Back 36

Yes.

Front 37

What are the five characteristics of a fnc?

Back 37

DIG CD

D: Discretionary to judge
I: Inconvenient to parties
G: grossly so
C: Conditional: defendant must agree to waive objections to SOL and service, if plaintiff files elsewhere in 6 months
D: Dismisses action.

Front 38

Illinois is a ______ pleading state.

Back 38

liberal fact

Front 39

What are several quirks about complaints in Illinois?

Back 39

1. No verified complaints are required. But they may be verified, and if they are, every subsequent pleading must be verified as well.
2. If there is a copy of a written instrument (contract or deed) that is at issue, it must be attached as an exhibit.
3. Complaints may not initially contain a prayer for punitive damages. Must convince judge at a hearing that punitives are warranted.
4. If plaintiff seeks primarily money, plaintiff has a right to trial by jury. Must ask for it in complaint.

Front 40

What do you need to do if you want to claim "I don't know" in response?

Back 40

Have to include an affidavit swearing that after due diligence you still don't know.

Front 41

What is the harsh rule about affirmative defenses?

Back 41

Anything not mentioned in the answer will be waived.

An affirmative defense is one that assumes all the allegations of the complaint are true but something outside the complaint defeats the claim.

Front 42

Can defendant demand a jury?

Back 42

Yes, if the claim is for money. Must be demanded in the answer.

Front 43

What is the general rule re. amendments?

Back 43

They will be liberally granted on just and reasonable terms that serve the merits of a matter.

Front 44

What is the definition of relation back?

Back 44

Amendments to the complaint that add claims or parties which are not timely can nonetheless relate back in time to the date of the original complaint to conform to the SOL.

Front 45

What is required for relation back of claims?

Back 45

New claims relate back if they derive from the same transaction or occurrence as the original, timely filed claim.

Front 46

What is needed for relation back of parties?

Back 46

KISS

Knowledge: new party must have knowledge of the claims so it would not be prejudiced by defense of the lawsuit.
Identity: Named party was a mistake and but for the misteake new party would have been named.
S: New party must acquire knowledge within service of process time frames.
Sameness: claims against new party must derive from same transaction or occurrence.

Front 47

What is the SOL for tort claims?

Back 47

2 years from discovery.

Front 48

When are limitations extended?

Back 48

When plaintiff is under 18, or disabled when claim is discovered. Plaintiff then gets 2 more years.

Front 49

What is the general Illinois policy regarding joinder?

Back 49

It is liberal and permissive.

There is no compulsory joinder. It is encouraged but not mandatory. No compulsory counterclaim and actions will not be dismissed for failure to join.

Front 50

When may claims be joined?

Back 50

You can join as many claims as you have against a defendant, regardless of whether there is any connection between those joined claims.

Front 51

When may parties be joined?

Back 51

Claims by or against parties may be filed or joined by the court if they derive from the same transaction or occurrence, or at least the same series of transactions or occurrences.

Front 52

What is impleader?

Back 52

Third party plaintiff. A defendant may implead a brand new claim against a new 3rd party D so long as the new 3rd party D may be liable to D for all or part of D's liability to P.

Front 53

What is interpleader?

Back 53

Life insurance policy. Holder of common fund, rival claimants.

Front 54

What is intervention? What are the two types?

Back 54

Intervention is a non mparty moving to intervene in an ongoing lawsuit. 2 types:
1. As of right: non party has absolute right to intervene if non party has an interest which will be adversely affected.
2. Permissive: court has discretion if there is a commonality of issues between those in ongoing suit and those affecting intervenor.

Front 55

What are the judicial requirements for a class action suit?

Back 55

1. Judge must grant class certification
2. Judge must order notice reasonably calculated to apprise interested class members.
3. Judge must approve any settlement.

Front 56

What are the class certification requirements?

Back 56

NAACP
Numerosity: class so numerous (over 40) that joinder of all would be impracticable.
Adequacy: Named plaintiff and counsel must fairly and adequately protect the class's interests.
Appropriateness: class action device must be an appropriate method of adjudicating multiple claims.
Commonality: common issues of fact or law
Predominance: common issues predominate over individual issues.

Front 57

What is automatic prompt disclosure?

Back 57

In actions where amount in controversy is less than $50,000, each side must disclose:
1. factual and legal bases for claims and defenses;
2. all witnesses;
3. all relevant documents;
4. computation of damages.
5. relevant insurance coverage.

Front 58

What is the only discovery device that can be used on a non party?

Back 58

Deposition.

Front 59

What types of depositions are there?

Back 59

1. Discovery (presumed): only 3 hours long. Can be used at trial ONLY to impeach, as admission or in court's discretion if deponent unavailable.
2. Evidence: must be designated as such in the notice and on the record; no time limit; used at trial for any purpose if deponent unavailable.

Front 60

What is the IL rule re. pre-trial disclosure of testifying witnesses?

Back 60

Must serve interrogatory; other party has 28 days to respond. 3 types:
1. controlled testifying experts: FULL disclosure; qualifications; full report; full opinions.
2. independent testifying experts (Dr., cop): anticipated opinions and a summary.
3. Lay witnesses: topics of testimony.

Front 61

What is the Illinois rule for work product?

Back 61

Attorney's mental impressions are not discoverable, all otehr forms are.

Front 62

Do parties have a right to move for substitution of judge?

Back 62

Yes, one absolute right. Then, only for cause. Must be filed before the judge resolves any substantial issue going to merits.

Front 63

Can plaintiff move for dismissal without prejudice?

Back 63

Yes, ONCE, before a hearing on the merits and before a counterclaim is filed.

P may refile before SOL or up to 1 year after voluntary dismissal, whichever is later.

Front 64

What is a 2-615 motion?

Back 64

PRETRIAL MOTION attacking the complaint. Waived if there's an answer filed. Strikes any allegations insufficient as a matter of law (punitives in coimplaint, failure to state facts constituting cause of action).

Front 65

What's a 2-619 motion?

Back 65

Can be filed with the answer. Motion to dismiss based on information outside the complaint.

Front 66

What is the standard for directed verdict?

Back 66

After adversary rests, may move for directed verdict if the evidence so overwhelmingly favors the party moving.

Front 67

What is the standard for JNOV?

Back 67

Evidence overwhelmingly favored moving party.

Front 68

What is the standard for new trial?

Back 68

Judge discretion:
1. errors at trial affecting parties' substantial rights;
2. verdict clearly against manifest weight of the evidence.

Front 69

When must motion to vacate default judgment be filed?

Back 69

30 days of judgment.

Front 70

When is petition for relief from a judgment granted?

Back 70

Must be filed b/w 30 days and 2 years after judgment. Requires showing of:
MEND

Merit
Equity (fraud, perjury)
New facts have come to light SINCE the judgment
Due diligence: you couldn't have discovered information earlier.