Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/87

Click to flip

87 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
STATE COURT SUBJECT MATTER JURISDICTION
The Superior Courts are courts of original and general jurisdiction.

In Arizona, Superior Courts have subject matter jurisdiction over all types of actions unless exclusive jurisdiction is granted elsewhere.
FEDERAL COURT SUBJECT MATTER JURISDICTION
Federal courts have "limited" subject matter jurisdiction over cases and controversies.
ARISING UNDER
A claim does arise under federal law if the claim is either:
1) created by federal law, or
2) the claim depends on a substantial federal (constitutional) question.
WELL PLEAD COMPLAINT RULE
The plaintiff is required to assert the federal claim in the initial pleading in order to establish jurisdiction.
DIVERSITY JURISDICTION
Federal courts have jurisdiction over claims in which there is complete diversity and in which the amount in controversy is $75,000.
COMPLETE DIVERSITY OF CITIZENSHIP
The rule of complete diversity means that no single plaintiff may be a citizen of the same state as any single defendant.
DOMICILE
A person’s state of citizenship is his domicile. The person must have his true home there and intend to remain (if there) or to return (if not there) when the lawsuit is filed.
WHERE DOES A CORPORATION RESIDE?
Citizenship of a corporation exists:

1. In all states where the corp. is incorporated (usually only one state) AND

2. The one state where the corp. has its principal place of business.
PRINCIPAL PLACE
HOW DO YOU DETERMINE THE CITIZENSHIP OF UNINCORPORATED ASSOCIATIONS?
Unincorporated associations are citizens of each state of which any member is a citizen.
AMOUNT IN CONTROVERSY
For the amount in controversy to be over $75,000 the value of relief sought by each plaintiff must be over $75,000. Two or more plaintiffs cannot aggregate their claims.
SUPPLEMENTAL JURISDICTION
the federal court has discretion to assert jurisdiction over additional claims if they derive from a common nucleus of operative fact.
NUCLEUS
DISCRETION
DIVERSITY AND SUPPLEMENTAL JURISDICTION
If primary jurisdictional basis is diversity there can never be supplemental jurisdiction.
DEFENDANTS AND SUPPLEMENTAL JURISDICTION
The defendant can always use supplemental jurisdiction.
FEDERAL COURTS JURISDICTIONAL BASIS
Federal Courts are courts of limited jurisdiction.

There are two primary jurisdictional basis:

1. Arising under federal law; and

2. Diversity
REMOVAL
A defendant may remove an action from state court to federal court so long as there is federal subject matter jurisdiction over the removed claims.
DEFENDANT
FSMJ
ERIE DOCTRINE
If a case is before Federal Court and does not arise under federal law the court applies the law of the state where the federal court sits.
CONFLICT OF LAWS
If there is a conflict between a provision of state law and a provision of federal law, state law governs unless the conflict involves a

Federal Statute,
FRCP,
FRE or
the issue of Trial by Jury.
PERSONAL JURISDICTION
The ability of a court having SMJ to exercise power over a particular defendant or item of property.

Arizona courts have PJ to the maximum extent permitted by the constitution.
SPECIFIC PERSONAL JURISDICTION
Arizona allows PJ over non-residents who perform or cause to be performed certain acts within the state.
IN REM
CAUSED
NON-RESIDENTS
ALIENAGE JURISDICTION
The Federal Courts have SMJ over cases in which the dispute is between a citizen of a state and a citizen of a foreign country.

A dispute between two foreign citizens would not give the Federal Courts subject matter jurisdiction.
PERSONAL JURISDICTION IN ARIZONA
Arizona Courts have PJ if Arizona law itself grants PJ and it is constitutional.

Under Arizona law, there are three bases for personal jurisdiction:
1. Consent
2. Presence
3. Long-Arm Statute
EXPRESS CONSENT
The Arizona courts have jurisdiction if:

1. the defendant expressly appoints an agent in writing to accept process

2. the defendant entered into a contract with a clause consenting to be sued in Arizona Courts.

3. the defendant expressly consented to jurisdiction after service of process (personal jurisdiction rights may be waived.)
AGENT
CLAUSE
WAIVER
AFTER SOP
PRESENCE
The Arizona courts have jurisdiction if:

Dancing = the defendant is actually, voluntarily physically present in Arizona while served.

Domiciled = the defendant’s true home is in Arizona and he/she intends to return.

DBI = the defendant is conducting regular, systematic and continuous business in the state.
ACTUAL AND VOLUNTARY
REGULAR
SYSTEMATIC
CONTINUOUS
LONG-ARM STATUTE
Under the Arizona Long-Arm Statute, there is personal jurisdiction if the defendant causes an event to occur in Arizona from which the lawsuit derives.

There must be a specific connection between the event and the lawsuit.
WHEN IS PERSONAL JURISDICTION CONSTITUTIONAL?
When the defendant engaged in such minimum contact that it would not offend traditional notions of fair play and substantial justice to bring a suit against them.

or

The defendant has purposely availed himself of Arizona laws or its consumers and should have reasonably anticipated being sued in Arizona.
TRADITIONAL NOTIONS
FAIR PLAY
SUBSTANTIAL JUSTICE
FEDERAL COURTS AND PERSONAL JURISDICTION
Unless a federal statute expressly grants personal jurisdiction, a federal court borrows the same P.J. law of the state where it sits.
IMPLIED CONSENT
A defendant may waive personal jurisdiction rights by conduct that gives rise to an inference of consent.

A failure to object in the first response is an implied waiver.
CONDUCT NOT WORDS
SERVICE OF PROCESS
Service of Process is proper if the method of process falls under the forum's own rules and was constitutional.
FIVE METHODS OF PROCESS
(A WASP)
There are five proper methods of process.
1. Abode Service
2. Waiver
3. Agent
4. State Publication
5. Personal Service
ABODE SERVICE
When an authorized process server leaves the process at the defendant’s last and usual abode, with someone residing therein, of suitable age and discretion. (12+)
AUTHORIZED SERVER
LAST AND USUAL
SUITABLE AGE
DISCRETION
WAIVER
When the plaintiff mails the complaint with a request that the defendant waive formal process.

The defendant has 30 days to return the waiver.

If the defendant fails to waive formal service he shall be liable for the cost.

If he waives service he has 60 days to answer compared to 20.
AGENT SERVICE
When the plaintiff makes personal service on the authorized agent or managing agent of the defendant, or the general partner of a partnership.
STATE PUBLICATION
If, after due inquiry (and mailing to defendant’s last known address), plaintiff publishes notice with an affidavit swearing that the lawsuit involves property in Arizona.
PERSONAL SERVICE
Personal Service – a process server makes personal, in-hand delivery on the person of D. Process is proper if it is in the vicinity of a reluctant defendant.
CONSTITIONALITY OF SERVICE OF PROCESS
Reasonably calculated to apprise interested parties of litigation.

(Service need not actually apprise.)
VENUE
Venue is proper in the district where:

1. any defendant resides, if all defendants reside in the same state, or

2. where a substantial part of the events took place
ARIZONA STATE VENUE
Where the claim arose and where the plaintiff resides is irrelevant for the purpose of venue. Venue is proper in Arizona in any county where the defendant is domiciled.
OBJECTING TO IMPROPER VENUE
The defendant must file an affidavit requesting a transfer.

The court will transfer to a more proper venue for the convenience of the parties and the witnesses.

One cannot ask for a dismissal based on improper venue.
NOTICE PLEADING
Arizona is a notice-pleading state. Complaints need not generally contain facts, merely sufficient information to place the adversary on notice of claims asserted against him/her.

Exception – Fraud claims must be plead with particularity.
SUFFICIENT INFORMATION
CLAIMS ASSERTED
FRAUD EXCEPTION
PARTICULARITY
WAIVER OF RESPONSIVE PLEADINGS
If the appropriate filing deadline (20, 30, 60, 90) has passed the following responsive motions to dismiss will be WAIVED:

Personal Jurisdiction
Process,
Venue and

no other motion to dismiss may be filed.
AMENDMENTS
Amendments to the pleadings shall be granted freely to do justice and to serve the merits thereby.

Amendments must relate back to the original claim to conform with the Statute of Limitations (2 years from the discovery of a personal injury).
AMMENDING TO ADD NEW CLAIMS
If the amendment involves a new claim it must derive from the same transaction or occurrence as the original, timely filed claim.
AMENDING TO ADD NEW PARTIES
Claimant must file within 120 days of the original, timely filed complaint.

Claimant must show that the claim against the new party derives from the same transaction or occurrence.

Claimant must show that the new party had knowledge that but for a mistake in name it too would have been sued.
EXCEPTIONS TO DOMICILE RULE IN ARIZONA VENUE
Divorce – In a divorce claim, the plaintiff’s county of residence is the only choice.

Entity Actions – In an action against a corporation or partnership venue is proper in any county where any of the defendants reside or where the claim arose.

Land Actions – must take place in the county where the land is located.

Transaction Actions – venue is proper where any defendant resides or where the transaction was entered into or was to be performed.

Absent Defendant – If no defendant resides in Arizona then the action is proper in any county.
DELTA
JOINDER OF CLAIMS
A plaintiff may join as many claims as he/she has against a defendant regardless of whether there is any connection to the claims.
JOINDER OF PARTIES
a plaintiff may join parties so long as the claims involving those parties derive from the same transaction or occurrence or the same series of transactions or occurrences
SAME TRANSACTION OR OCCURENCE
COUNTERCLAIM
A defendant may raise a counterclaim against a plaintiff that may or may not arise out of the same transaction.
PERMISSIVE COUNTERCLAIM
does not derive from the same transaction or occurrence.

A failure to assert the counterclaim at this time does not waive the defendant's right to sue on it in the future.

A permissive counterclaim must have an independent jurisdictional basis and therefore meet the jurisdictional amount requirement.
COMPULSORY JOINDER
A claim that arises out of the same transaction as plaintiff’s original claim. must be brought with the original or the plaintiff loses his right to sue on it in the future.

If the counterclaim is compulsory, it falls within the ancillary jurisdiction of the court and may be heard regardless of the amount.
IMPLEADER
A defendant may implead a third party who may be liable for all or part of the plaintiff's claims into a civil lawsuit.
INTERPLEADER
A plaintiff may initiate a suit in order to compel two or more other parties to litigate a dispute.

An interpleader originates when the plaintiff holds property on behalf of another, but doesn't know to whom the property should be transferred.
STATUTORY INTERPLEADER
under statutory interpleader, there need only be minimal diversity and the amount need only be $5000 or more.
MINIMAL DIVERSITY
if any two of the rival claimants are from different states there is enough. The domicile of the plaintiff does not matter.
RULE INTERPLEADER
in order to file a rule interpleader there must be complete diversity and the amount in controversy must exceed $75,000.
INTERVENTION
When a non-party makes a motion to the court trying to become a party in an ongoing suit.
INTERVENTION AS A RIGHT
a person has an absolute right to intervene if you have an interest that will be adversely affected by an ongoing lawsuit and not protected by an existing party.
PERMISSIVE INTERVENTION
the court has discretion to grant permissible intervention if there is commonality of issues between those in the lawsuit and those of the intervener
INDEPSENSIBLE PARTIES ARE THOSE THAT MUST BE JOINED IF:
1) "a judgment rendered in the person's absence might be prejudicial to him or those already parties;" and

2) the court cannot "shape relief or other measures" to reduce prejudice; or

3) a judgment rendered without the outsider will not be "adequate"

The court must also consider the costs to the plaintiff of a dismissal for nonjoinder.
CLASS ACTIONS
a class action is an action in which a named plaintiff represents a class of commonly situated absent parties.
COMMONLY SITUATED ABSENT PARTIES
CLASS ACTION REQUIREMENTS
In order to file a class action suit there must be:

1. commonality,
2. adequate and fair protection of the class,
3. the class must be so numerous that joinder is impracticable, and
4. the claims of the named plaintiff must be typical of those of the class.
COMMONALITY, ADEQUACY, NUMEROUSITY, AND TYPICALITY
CLASS ACTION SUITS ASKING FOR MONETARY DAMAGES
There must be common issues that predominate all individual issues.

A class action suit must be the superior method of adjudicating the multiple claims.

Notice and an opportunity must be given to the class members to opt out of the suit.
COMMON ISSUES
SUPERIOR METHOD
NOTICE AND OPPORTUNITY
OPT OUT
AUTOMATIC PROMPT DISCLOSURE
Requires automatic disclosure of:

1. all factual and legal basis for claims and defenses.
2. all potential lay and expert witnesses and summaries of testimonies.
3. all relevant documents
4. a computation of damages
BASIS FOR CLAIMS,
POTENTIAL WITNESSES,
RELEVANT DOCUMENTS,
COMPUTATION OF DAMAGES
DISCOVERY
No other traditional method may take place until each party has engaged in automatic prompt discovery.
DUTY TO SUPPLEMENT
each side must automatically update its prior disclosure within 30 days of there discovery and in any event before 60 days in advance of the trial.
30 DAYS OF
60 DAYS BEFORE
SCOPE
material is within the scope if it is relevant and not privileged.
RELEVANT MATERIAL FOR DISCOVERY
related to any part of any claim or defense. Does not need to be admissible at trial.
PRIVILEGED MATERIAL
Work-product is material that has been prepared for litigation and not in the ordinary course of business.

Mental impressions of an attorney are never discoverable.
MOTION TO CHANGE JUDGES
Each side has an absolute right to change judges once if the motion is filed:

before the judge resolves any significant right or

60 days before trial.
MOTION FOR VOLUNTARY DISMISSAL
Plaintiff has the right to motion for voluntary dismissal

once

before the answer is served. 

If granted it is without prejudice and plaintiff may re-file later.
SUMMARY JUDGMENT
no genuine issue of material fact

and

the moving party is enttitled to judgment as a matter of law.

Summary judgment is not available when the defense of contributory negligence is raised.
NO GENUINE ISSUE
MATERIAL FACT
NO CONTRIBUTORY
JUDGMENT AS A MATTER OF LAW (DIRECTED VERDICT)
A motion for judgment as a matter of law may be filed after the adversary has rested.

It will be granted if the evidence is insufficient to support a contrary verdict.
INSUFFICIENT EVIDENTIARY BASIS
REASONABLE TRIER
RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
If the original motion for JMOL was made after the close of ALL evidence, a renewed motion may be made.
NEW TRIAL
The court may, in its discretion, grant for errors affecting the parties legal rights or if the verdict was against the weight of the evidence.
RIGHT TO TRIAL BY JURY
Must file a written demand within 10 days of the filing of the complaint or answer in federal court or before the judge sets the trial date. 

If the claim seeks primarily monetary damages there is a constitutional right to a trial by jury.
OFFER OF JUDGMENT (BETTER DO BETTER RULE)
At any time more than 10 days before trial, a party defending against a claim may serve upon the adverse party an offer to settle. If the offer is not accepted and the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
DEFAULT JUDGMENTS
When a defendant fails to respond to the complaint in a timely manner a default judgment may be granted against the defendant. 
ARIZONA PROCEDURE FOR DEFAULT JUDGMENTS
Plaintiff must file an application for default judgment

notice of the application must be given to the defendant

If a default judgment is entered the defendant has ten days to contest the entry.
MOTION FOR RELIEF FROM JUDGMENT
Must be filed within six months of the judgment.

The person filing must show that:

Merits on their side,  

Equity demands relief

New facts cast doubt on judgment,

Despite due diligence unable to discover
FINALITY RULE
Parties may not relitigate claims or issues which have been fully and fairly litigated.
RES JUDICATA
A final judgment on the merits of a claim precludes the parties or their privies from relitigating issues that were or could have been raised in that action.
COLLATERAL ESTOPPEL
once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.
OFFENSIVE COLLATERAL ESTOPPEL
a defendant may not relitigate an issue after it has been lost and it is bound by the adverse judgment and any who make a legal claim against the defendant will win on summary judgment.
APPELLATE JURISDICTION
Appelate courts have jurisdiction over appeals of final orders only, unless the lower court finds no reason to delay an appeal even though more claims are pending or the appeal is of an interlocutory nature.
FINAL ORDER
a final order is an order that leaves nothing left to be done in a lower court. 
APPEALS OF INTERLOCUTORY ORDERS
If both the lower court and the appellate court find doubt on some controlling issue such that review would materially advance the litigation, an appelate court may hear.
PRELIMINARY INJUNCTIONS
A preliminary junction will not be granted without notice and a hearing.

One will be granted based on the likelihood of success on the merits;

irreprable harm to the other

balanced against irreprable harm caused by preliminary injunction; and

public interest considerations
FILING DEADLINES
If served within the state the defendant has 20 days to answer or otherwise plead.

If served outside the state...30 days.

If service has been properly waived...60 in state

90 days if the defendant's address was outside any judicial district within the United States.