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161 Cards in this Set
- Front
- Back
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Federal Court Jurisdiction
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Diversity of citizenship & federal question cases
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Diversity of Citizenship case requirements
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1) The action must be btw citizens of different states (or btw a citizen of a state & a foreign citizen) AND 2) the amount in controversy must exceed 75k.
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Complete Diversity Rule
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There is no diversity of citizenship if any P is a citizen of the same state as any D.
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How do we determine citizenship?
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Human who is a US citizen: domicile. Corporation: (1) all states where incorporated AND (2) the ONE state where the C has its principal place of business. So corps, unlike humans, can have more than one citizenship at a time.
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Domicile of a human
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Domicile is established by two concurrent factors: (a) presence instate (physical) AND (b) the subjective intent to make it her permanent home (mental). On the intent point, crts look to all relevant evidence of intent (instate tuition, voting, etc). Humans cannot have more than one domicile.
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Change in domicile
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The test for complete diversity is at the time the case is filed, a subsequent change that would destroy diversity is irrelevant.
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Citizenship of C: principal place of business
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A C has one ONE PPB. Test: (1) headquarters (nerve center - where decisions are made) OR (2) where the C does more production or service activity than anywhere else (muscle center). Many courts use the nerve center unless ALL activity is in one state.
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Citizenship of unincorporated associations (partnerships, LLCs)
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Use the citizenship of ALL members (including general and limited partners) to determine diversity.
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Citizenship of decedents, minors, and incompetents
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Look to THEIR citizenship, NOT the citizenship of their rep. Exception: class actions.
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SMJ: Amount in controversy
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Must EXCEED 75k exclusive of interest/costs. Whatever the P claims in good faith is ok unless it is clear to a legal certainty that she cannot recover more than 75k (rare - eg statutory ceiling). The amt actually recovered is irrelevant - need good faith allegation exceeding 75k. BUT a P who recovers less than 75k may be liable to D for D's litigation costs EVEN though P won. Costs = filing fees, etc. NOT attorney fees.
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AIC: Aggregation
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Add together two or more claims to meet the AIC - must be ONE P and ONE D - but claims do not have to be related & no limit on number of claims. For joint tortfeasors - use total value of claim against all D.
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AIC: Equitable relief
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P sues D for an INJUNCTION to tear down part of his house that blocks P's view. Two tests, if either is met, most courts say AIC is met:
(1) P's viewpoint: does the blocked view decrease the vlaue of P's property by more than 75k? (2) D's viewpoint: would it cost D more than 75k to comply with the injunction? |
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SMJ Exclusions
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Even if the requirements for diversity of citizenship are met, federal courts will not hear actions involved divorce, alimony or child custody decree, or to probate an estate.
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SMJ: Federal Question Jurisdiction
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Complaint must show a right or interest founded substantially on a federal law. Must "arise under" federal law. Citizenship/AIC NOT relevant. Ask whether the P is enforcing a FEDERAL RIGHT? Simply mentioning a federal law is not enforcing a federal right.
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Well-pleaded complaint rule
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P's claim, properly pleaded, must be based on federal law. Properly pleaded means that the complaint sets forth only a claim, so the court ignores any extraneous stuff that has nothing to do w/the claim itself.
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Supplemental Jurisdiction
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Lets a federal court hear a claim over which there is no diversity of citizenship or FQ jurisdiction. P must set forth at least ONE claim that does meet D/FQ so the CASE is in federal court.
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Supplemental Jurisdiction TEST
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The claim we want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal SMJ. Must arise from the same transaction or occurrence (T/O) as the underlying claim.
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Supp Juris: Limitation for claims by P in diversity cases
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You cannot use Supp Juris to overcome a lack of complete diversity in a diversity case for a claim by a P. BUT you can use supp juris to overcome a lack of diversity for a claim by a P in a FQ case.
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Supp juris: lack of AIC
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Can also use supp juris to overcome a lack of the AIC for claims by P in diversity cases. Ex: claim 1 meets diversity & AIC but claim 2 doesn't meet AIC - can use supp juris to get the 2nd claim in.
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You can use supp juris to overcome either a lack of complete diversity or AIC in any case (diversity or FQ) for...
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claims by anyone but the P. (joinder)
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A non-federal, non-diversity claim can be heard in federal court if it meets the "test" unless...
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It is:
1. asserted by a P 2. in a diversity case AND 3. would violate complete diversity. |
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Removal
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Allows defendants to have case filed in state court removed to federal court. One way: state to federal ONLY. If removal improper, federal court remands to state court.
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What cases qualify for removal?
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Those that could be heard in federal court: diversity or FQ.
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Where can cases be removed to?
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The federal district embracing the state court in which the case was originally filed.
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When can you remove a case?
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Must remove no later than 30 days after SERVICE of the first removable document - usually this means 30 days after the initial service of process. D has 30 days from service of the document that first made the case removable.
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Removal and co-defendants
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Co-defendants must agree on removal. Exception: if there is a "separate and independent" FQ against one defendant, he can remove the whole case, but the court can remand state law issues.
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Removal and counterclaims
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A sues B in state court. B counterclaims against A. Can A remove? NO b/c she is the P in the case.
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Removal and diversity cases
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No removal if ANY D is a citizen of the forum state court (ONLY in diversity cases, not FQ). But if the P dismisses the claim against the state citizen, the other D had 30 days from the service of dismissal in which to remove. But in a diversity case, no removal more than ONE year after the case was filed in state court.
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Procedure for Removal
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D files notice of removal in federal court, stating grounds for removal, signed under Rule 11, attach all documents served on D in state action, copy all adverse parties. Then file copy of notice in state court.
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If removal was procedurally IMPROPER...
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P moves to remand to state court w/in 30 days of removal. But if there is no federal SMJ, P can move to remand anytime - there is no time limit on raising lack of SMJ. Similarly, in a case filed originally in fed crt, the crt must dismiss if there is no fed SMJ.
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A defendant who files a permissive counterclaim in state court...
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probably waives the right to remove. Filing a COMPULSORY counterclaim in state court probably does NOT waive the right to remove.
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Diversity Cases: the ERIE doctrine
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In diversity cases, the federal court must apply state SUBSTANTIVE law.
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Erie: What is substantive law?
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1. elements of claim/defense
2. statute of limitations 3. rules for tolling SOL 4. choice of law If not these... 1. If there is a federal law on point that directly conflicts w/state law apply the federal law (supremacy clause). |
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Erie: Substantive law: if no federal law on point but federal judge wants to do something other than apply state law...
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Analyze the facts per these three tests & come to a reasonable conclusion:
1. outcome determinative: would applying or ignoring the state rule affect outcome of case? if so, prob a substantive law, use state law. 2. balance of interests: does either fed or state system have strong interest in having its rule applied? 3. avoid forum shopping: if the fed crt ignores state law on this issue, will it cause parties to flock to fed crt? if so, apply state law. |
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VENUE
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SMJ tells us we can take a particular case to fed crt. Venue tells us exactly WHICH fed crt. Country divided into federal DISTRICTS. A removed case goes only to the district embracing state crt where action originally filed. The VENUE rules apply when P files in fed crt.
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How many federal districts in GA?
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3: Northern, Middle, Southern.
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Venue: local actions
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Actions re: ownership, possession, or injury (including trespass) to LAND must be filed in the district where the land lies.
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If it's not a local action, there are two basic choices...
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In any case (diversity or FQ) P may lay venue in any district where...
1. ALL defendants reside OR 2. a substantial part of the claim arose. Special rule in cases where all D's reside in different districts of the SAME state, P can lay venue in the district in which any of them resides. |
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Where do defendants reside for VENUE purposes?
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Humans: domicile, so usually same place as citizenship for diversity purposes.
Corp: all districts where it is subject to PERSONAL jurisdiction when case filed. |
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Transfer of Venue
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Sending a case from one federal district court to another federal district court. Can ONLY transfer to a district where case COULD HAVE BEEN FILED. That means to (1) a proper venue which (2) has personal jurisdiction over D.
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If venue in original district is proper, may transfer to another federal district based on...
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convenience for the parties & witnesses and the interests of justice. Crt has discretion to order transfer based upon (1) public factors (which law applies, what community should be burdened by jury service) and (2) private factors (convenience: where parties/witness are located). The court to which case is transferred under this statute applies the choice of law rules of original court. (fed crt CA -- fed crt GA -- apply CA law).
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If venue in original forum is improper...
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crt may transfer in the interests of justice or dismiss.
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Forum non coveniens
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If there is a far more appropriate crt elsewhere, a crt may dismiss (usually w/out prejudice) to let P sue the D there. Why dismiss? b/c the more appropriate crt is one to which transfer is impossible b/c it is in a different judicial system (foreign country).
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Service of Process
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Notice to D: Deliver (1) a summons - formal crt notice of suit and time for response - and (2) a copy of the complaint. Together these are called process. Serve w/in 120 days of filing case or case dismissed w/out prejudice (not dismissed if P shows good cause for delay).
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Who can serve process?
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Any nonparty at least 18 y/o.
Personal service: papers given to D personally - anywhere in forum state. Substituted service: Process is left w/another person...ok if: (1) D's usual abode AND (2) serves someone of suitable age & discretion who resides there. |
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Service on defendant's agent
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OK if receiving service is w/in the scope of agency, eg agent appointed by K or by law or corp's registered agent, managing agent, or officer.
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State law and service
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Can use methods of service permitted by state law of the state where the fed crt sits OR where service is effected.
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Service: waiver by mail
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Process is mailed to D by first class mail, postage paid. OK if D returns waiver form w/in 30 days. By doing so, D waives only formal service of process but nothing else. If she does not return the waiver form, serve her either personally or by substituted service and she may be required to pay the cost of such service.
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Service: geographic limitation
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Process is delivered to D in another state. Ok ONLY if forum state law allows (for example, w/a long arm statute).
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Immunity from service
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D is served while instate to be a W or party in another civil case.
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Formal service of process v. subsequent papers
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Formal service is how a defending party is brought before the crt. For subsequent papers - answer, motions, discovery requests, etc - serve by delivering or mailing the doc to the party's atty. If mailed, add 3 days for required response.
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Notice Pleading
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Documents setting forth claims and defenses. Federal rules adopt "notice" pleading - pleadings are only required to convey enough of one's contentions to put others on notice & to allow a meaningful response.
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Rule 11 requires attorney or pro se party to...
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sign ALL pleadings, motions, and papers EXCEPT discovery docs, (which are treated by another rule), certifying that to the best of her knowledge and belief, after reasonable inquiry: (1) the paper is not for improper purpose (2) the legal contentions are warranted by law (or nonfrivolous argument for law change) (3) the factual contentions and denials have evidential support (or are likely to after further investigation).
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Rull 11 certification effective...
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every time postiion is presented to court - continuing certification.
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Rule 11 sanctions...
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may be levied (discretionary) against attorney, firm, or party. Supposed to deter, not punish. Can be nonmonetary sanctions - monetary sanctions are often paid to crt, not to other party.
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Motion for violation of Rule 11 is served...
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on other parties but is NOT immediately filed w/crt. Party allegedly violating Rule 11 has 21 days (safe harbor) to w/draw the doc or fix the problem. If she does, no sanctions. If not then the motion can be filed w/crt. The court can also raise Rule 11 problems on its own (sua sponte).
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Requirements of complaint
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Principal pleading by P - filing commences an action. Requires:
1. statement of SMJ 2. short and plain statement of claim, showing entitled to relief 3. demand for judgment. Though crts tend to be more lenient w/pro se litigants, these reqs must be met. |
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Special matters that must be pleaded w/particularity or specificity...
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fraud, mistake, and special damages. Special damages are those that do not normally flow from an event. For these types of matters must provide detail in the complaint.
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Defendant's Response to the Complaint: Rule 12 requires...
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the D respond in one of two ways (1) by motion or (2) by answer. Either must be w/in 20 days after service of process (or else risk default).
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Motions: Rule 12
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Motions are not pleadings but requests for a court order.
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12(e) Motion...
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Motion for a more definite statement - pleading so vague D can't frame a response
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12(f) Motion...
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Motion to strike which is aimed at immaterial things e.g. demand for jury when no right exists. Any party can bring.
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Rule 12(b) defenses
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1. lack SMJ
2. lack of personal jurisdiction 3. improper venue 4. insufficiency of process (problem w/papers) 5. insufficient service of process 6. failure to state a claim 7. failure to join indispensable party |
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Rule 12(b) defenses can be raised...
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either by motion or in answer.
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Which 12(b) defenses are waivable?
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Lack of personal jurisdiction, improper venue, insufficiency of process, insufficient service of process. These defenses must be put in the FIRST Rule 12 Response or they are waived.
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The answer (pleading) must be served w/in...
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120 days after service of process if D makes no motions; if D does make a Rule 12 motion, and it is denied, she must serve her answer w/in 10 days after court rules on motion. If D waives service, has 60 days from P's mailing of waiver form in which to answer. Waiver of service does not waive personal jurisdiction or venue.
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D must do the following in her answer...
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Respond to allegations in complaint: admit, deny, state that you lack sufficient info to admit or deny (acts as a denial but can't be used if the info is public knowledge or is in D's control).
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Failure to deny can constitute...
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an admission on any matter except damages. Anything you fail to deny -- you admit!
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D should raise _____ in her answer.
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Affirmative defenses such as SOL, SOF, res judicata, self-defense.
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Counterclaim
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An offensive claim against an opposing party (D v. P) - to be filed with D's answer. Two types: Compulsory & Permissive.
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Compulsory counterclaim
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Arises from the same T/O as the P's claim. Must be filed w/the answer in the pending case or its waived. The claim cannot be asserted in another action.
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Permissive counterclaim
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Does not arise from the same T/O as P's claim. Does not have to be asserted in pending case; can sue in separate action.
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If a counterclaim is procedurally OK, then access whether it has SMJ. If so, it's OK in fed crt. If not what happens?
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B/c compulsory counterclaims meet the supplemental jurisdiction test you can invoke that. They arise from the same T/O AND the limitation on diversity cases does not apply b/c this is not a claim by a P.
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Cross-Claim
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An offensive claim against a co-party. It MUST arise from the same T/O as the underlying action. Not compulsory. Supplemental jurisdiction can also be invoked here.
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Right to amend pleadings
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P has a right to amend ONCE before D serves her answer (no specific day limit). D has a right to amend ONCE w/in 20 days of serving her answer.
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If there is no right to amend...
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seek leave of court; it will be granted if justice requires. Crts usually allow unless there's delay or prejudice. If a claimant amends, D must respond w/in 10 days or remaining 20 days, whichever is longer.
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Variance
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When the evidence presented at trial doesn't match what was pleaded. If opposing party doesn't object, the other party can amend pleadings after trial (we like pleadings to reflect what was tried); if party does object, evidence is inadmissible b/c at variance w/the pleadings.
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Amendment after the SOL has run: relation-back
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Amended pleadings relate back if they concern the same conduct, transaction, or occurrence as the original pleading. Relation back means you treat the amended pleading as if it was filed when the original was filed, so it can avoid a SOL problem.
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Joinder: who MAY be joined?
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Proper defendants and plaintiffs: claims...
1. arise from same T/O AND 2. raise at least one common question. |
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Necessary & Indispensable parties
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This is where an absentee is forced to join in the case.
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Who's necessary?
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An absentee who meets any of these tests:
1. w/out A the court cannot accord complete relief (worried about multiple suits) 2. A's interest may be harmed if he isn't joined (practical harm) or 3. A claims an interest which subjects a party (usu. D) to multiple obligations. *Joint tortfeasors are NOT necessary. |
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If a party is necessary, is joinder feasible?
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Yes if...
1. there is PJ over party AND 2. joining party will not make it impossible to maintain diversity. If joinder is feasible, the absentee is brought into the case and the crt decides whether he's brought in as a P or a D. |
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If joinder is NOT feasible...
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the court has two options:
1. proceed w/out him or 2. dismiss the whole case Factors in deciding: is there an alternative forum available? (state court?); what is the actual likelihood of prejudice?; can the crt shape relief to avoid that prejudice? |
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Impleader (third-party practice)
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A defending party wants to bring in someone new (3PD) for one reason: the 3PD may owe indemnity or contribution to the defending party on the underlying claim.
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Right to implead w/in...
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10 days after serving answer; after that need court permission.
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After 3PD is joined, can P assert a claim against 3PD? 3PD against P?
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Yes, if claim arises from same T/O AND there is SMJ.
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Bulge Rule
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Absentees joined as necessary parties or for impleader may be served outside the forum state (even w.out long arm statute) but ONLY w/in 100 miles of the federal courthouse. Not available to serve process on original D.
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Intervention
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Absentee wants to join a pending suit. She chooses to come in either as P or D. The court may realign her if it thinks she came in on the wrong side.
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Application to intervene must be
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timely.
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Intervention of right
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Absentee's interest may be harmed if she is not joined and her interest is not adequately represented now.
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Permissive intervention
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A's claim or defense and the pending case have at least one common question. Discretionary w/crt; OK unless delay or prejudice.
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Is there supplemental jurisdiction over a claim by or against an intervenor?
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Crts generally say no.
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Requirements for the class action:
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Must demonstrate ALL of these:
1. Numerosity: too many class members for practicable joinder. 2. commonality: there are some questions of law or fact in common to class. 3. Typicality: rep's claims/defense typical of those of class; AND 4. Representative adequate: the class rep will fairly & adequately rep class. |
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Interpleader
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One holding property forces all potential claimants into single lawsuit to avoid multiple litigation & inconsistency. Two types in federal crt: Rule (22) and Statutory.
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After class action requirements are met, must fit the case w/in one of three types:
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1) prejudice: class treatment necessary to avoid harm either to class members or to party opposing class. An example is many claimants to a fund. Individual suits may deplete the fund, leaving some w/out remedy.
2) injunction or declaratory judgment: sought b/c class was treated alike by other party (ex: employment discrimination) 3) Damages: common questions predominate over individual questions AND class action is the superior method to handle dispute (ex: mass tort). |
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The court must determine at an early practicable time whether...
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to certify the case to proceed as class action.
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If the court certifies...
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it must define the class, the class claims, issues, or defenses and appoint a class counsel. Class counsel must fairly & adequately rep the interests of the class.
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Must class members be notified of pending class action?
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Only those in the damages type of class action. Rep pays to give notice (usually by mail) that tells them they can opt out, they are bound if don't, can enter separate appearance through counsel.
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Who is bound by a class action judgment?
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All class members except those that opt out of the damages type class action - there is no right to opt out of the other types of class actions.
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For all three types of class action, settlement or dismissal requires...
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court approval. The crt gives notice to all class members to get their feedback on whether the case should be settled or dismissed.
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Class actions and SMJ
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1) the class can invoke FQ by asserting a claim under fedarl law, then citizenship & AIC are irrelevant.
2) for determining diversity: look only to the reps - NOT the class members. As long as the rep is diverse from all Ds and claim exceeds 75k, its OK. |
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Discovery: Required disclosures
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Must be produced even though no one asks for it: initial disclosures, experts, pretrial.
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Discovery tools
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May not be used until after Rule 26(f) conference unless court order or stipulation allows. Depos (party/non), interrogatories (party only), requests to produce (party/non), physical/mental exam (crt order only), request for admission (party only).
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Every discovery request and response is signed by counsel certifying...
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1. it is warranted
2. not interposed for improper purpose AND 3. not unduly burdensome *Remember Rule 11 doesn't apply to discovery docs so this is a separate certification. |
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Duty to supplement
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If a party learns that its response to required disclosure, interrogatory, request for production or admission is incomplete or incorrect, must supplement its response.
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Scope of discovery
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Can discover anything relevant to a claim or defense -- relevant to something in the pleadings.
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Discovery: relevance means
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reasonably calculated to lead to discovery of admissible evidence. This is BROADER than admissible - thus objecting to discovery w/"this material would be inadmissible in trial" is a bad objection - does not have to be admissible , but reasonably calculated to lead to admissible evidence.
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Work Product
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material prepared in anticipation of litigation - some items are discoverable if opposing party can show substantial need AND not otherwise available but NEVER mental impressions, opinions, conclusions, or legal theories.
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Does Work Product have to be generated by attorney?
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NO- it can be prepared by party or any rep of party.
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Three main ways discovery problems presented to court...
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1. protective order (Rule 26(c)) b/c request is overbudensome, involves trade secrets, etc.
2. partial violation: party answers some and objects to others. 3. total violation: party fails completely to respond to request. |
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Discovery Sanctions
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The party seeks sanctions must certify to the court that she tried in good faith to get the info w/out court involvement.
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Partial violation sanction
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Can get an order compelling the party to answer the unanswered questions plus costs (inc. atty fees) of bringing motion. If the party violates the order - RAMBO sanctions & could be held in contempt.
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Total violation sanction
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RAMBO Sanctions:
1. establishment order (establishes facts as true) 2. strike pleadings of the disobedient party as to issue re:discovery 3. disallow evidence 4. dismiss P's case if bad faith shown 5. enter default judgment for D if bad faith shown |
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Sanction against nonparty
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contempt for violating crt order or subpoena
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Sanction against attorney
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liable for all expenses incurred by the other side if he counseled one of the bad acts
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Voluntary dismissal
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P may file a written notice of dismissal w/out prejudice (claim can be asserted again) ONCE before D serves her answer or a motion for SJ.
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Failure to state a claim
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Under Rule 12(b)(6), D can move to dismiss for failure to state a claim. Testing for whether the facts alleged state a claim that the law would recognize. Only look to face of complaint to determine.
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Summary Judgment
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Moving party must show:
1. there's no genuine dispute as to material fact AND 2. that she is entitled to judgment as a matter of law. Court looks to evidence. Pleadings might be relevant to show an admission but they are not evidence unless verified. Evidence on SJ must be first hand knowledge. Affidavits can be evidence b/c sworn statements. |
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Rule 26(f) Conference
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Unless crt order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses and settlement. Must form discovery plan & present it to court in writing w/in 14 days.
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Pretrial conferences
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The court may hold pretrial conferences as needed to expedite the case & foster settlement. Finial pretrial conference determines issues to be tried & evidence to be proferred. Recorded in pretrial conference order that basically supersedes the pleadings. The final pretrial conference order is an important documents - roadmap of issues to be tried, evidence to be presented, witnesses, etc - no surprises at trial.
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Right to jury trial in federal court
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7th amendment applies only to fed crt & preserves the right to jury trial in civil actions at law but not suits in equity. If a case involves both law/equity, divide by issue & get a jury on law but not equity issues. Must demand in writing no later than 10 days after service of last pleading raising jury triable issues.
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Voir Dire
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Unlimited strikes for cause & three peremptory strikes - must be used in race/gender neutral way b/c selection of jury is a state action.
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Motion for judgment as a matter of law (old name: directed verdict)
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Brought after the other side has been heard: reasonable ppl could not disagree on result.
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Renewed motion for judgment as a matter of law (old name: judgment notwithstanding the verdict)
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motion for judgment as a matte of law is a prereq - judge let the case go to the jury, which returns a verdict for one party & crt enters judgment - party moves & if granted results in entry of judgment for him. Move w/in 10 days after entry of judgment. If granted court is saying: jury reached a conclusion reasonable ppl could not have reached.
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Motion for new trial
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Move w/in 10 days after judgment. Grounds:
1. prejudicial error 2. new evidence that could not have been obtain w/due diligence for original trial 3. prejudicial misconduct of party, atty, 3P, or juror 4. serious error of judgment by jury |
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Final judgment rule
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Can appeal ONLY from final judgments, which means an ultimate decision by the trial crt of the merits of the entire case. File notice of appeal in trial crt w/in 30 days after entry of judgment.
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Crt of Appeals has discretion to review order granting or denying certification of...
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class action. Must seek review w/in 10 days of order. Appeal does not stay proceedings at trial crt unless trial judge or crt of appeals so orders.
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Three types of personal jurisdiction
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in personam
in rem quasi in rem |
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In personam
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power over the D b/c she lives in or is present in the forum or has done something in the forum
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In rem & quasi in rem
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jurisdiction is over the D's property
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Whether there is jurisdiction of any kind is ALWAYS a two-step process
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You must:
satisfy the statute satisfy US constitution |
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General v. Specific jurisdiction
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General: statutory basis in GA need not relate to events giving rise to the claim
Specific: statutory basis in GA must relate to the events giving rise to the claim |
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Presence gives _____ jurisdiction
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General: presence in GA need not relate to the events that gave rise to the claim. Except not valid if lured to state by fraud or served while in GA for unrelated case.
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Domicile gives ________ jurisdiction
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general
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A company incorporated in GA is subject to _______ jurisdiction in GA.
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general
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A foreign C authorized to transact business in GA (GA C Code) is considered a resident of GA & subject to...
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general juris. Thus, juris can be acquired over a C w/out relying on the GA long arm statute.
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GA Long Arm Statute
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suits against nonresidents based on their contacts in GA - ONLY available to sue NONRESIDENTS of GA
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Nonresident defined for GA long arm
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a person who (1) was not a resident when c/a arose OR (2) if a resident at that time, was not a resident when served w/process
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Long arm gives ONLY ______ jurisdiction
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Specific...which means the statutory contacts in GA must relate to or give rise to the claim - claim must arise from D's contacts w/ GA.
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What GA contacts trigger juris under long arm?
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Only need ONE contact:
1) Transacts any business in GA. 2) Commits a tortious act or omission (except defamation) in GA. 3) Commits a tort/omission OUT of state that injuries P in GA. 4) owns, uses, or possesses real property in GA 5) domestic relations |
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Contact basis - commits tort out of state that injures P in GA - is ONLY permitted if D engages in some...
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persistent course of conduct in GA or derives substantial revenues from goods consumed here.
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Nonresident Motorist ACt
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suit against nonresident who has a car accident in GA - only available to sue NONRESIDENTS. Includes someone who WAS NOT a resident of GA when claim arose but DOES NOT include someone who was a resident when claim arose but NOT a resident when case filed. Nonresident definition narrower than in long arm.
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Nonresident Motorist Act gives only ____ juris
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specific, for claims arising from any accident/collision involving the nonresident's use or ownership of a motor vehicle in GA.
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Constitutional standard: if there is a statutory basis for PJ we must consider whether exercise of juris would satisfy due process. Test...
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Does D have "such minimum contacts w/the forum so that exercise of juris does not offend traditional notions of fair play & substantial justice"?
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Factors in minimum contacts analysis
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1) Contact: purposeful availment (purposeful, voluntary act toward the forum) & foreseeability that D could get sued in this forum.
2) Fairness & reasonableness: relatedness btw this contact & the claim, convenience, and state's interest. |
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In rem/quasi in rem
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Statutory power: attachment statute to exercise power over the property.
Con test: minimum contacts test - mere presence of property in state is not enough- probably depend on whether dispute is related to property attached. |
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GA civ pro -- SMJ
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We've decided we have PJ over the D...now what state court to sue in? Superior, State, or magistrate?
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Superior Court
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Every county has one.
Exclusive jurisdiction: felony criminal cases, divorce, suits seeking affirmative equitable relief, cases directly affecting title to land. Can also hear any other CIVIL case except those involving specialized subject matter such as probate/juvenile. AIC of these nonexclusive civil cases does NOT matter. |
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State court
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The 62 most populous counties have these.
Any civil case except the 3 that lie exclusively in Superior crt. |
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Magistrate court
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Each county has one.
Can hear anything the state court can hear in which the AIC does not exceed 15k. Juris not exclusive. No juries. Civil Practice Act does NOT apply although there is a compulsory counterclaim rule (D must assert counterclaim if arises out of same T/O as P's claim). |
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Venue in state court is keyed...
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counties as opposed to federal districts.
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Venue - Local actions (involve title to land)
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County where land lies.
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Venue - transitory actions (anything that is not local action) - If D is GA resident
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1) county in which D resides at time action commenced. Exception: If case is against joint Ds - in county where ANY of them resides when case is filed.
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Vanishing Venue Problem
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GA's 2005 tort reform legislation revives vanishing venue by allowing any non-resident D to require that the case be transferred to a proper venue if all Ds who reside in the county of original venue are discharged from liability, whether before or even upon return of a verdict. If however, the venue would still be proper in more than one county the P may choose among them.
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An unincorporated association resides in all counties in which
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it does business or has a branch or local org.
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A C resides
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in the county in which it has it's registered office as stated in the AIC. Also in a K case, a C resides in any county where the K was made or to be performed bu only if the C has an office & transacts business in that county. In tort cases, a C also resides in the county where the claim arose but only if the C has an office there & transacts business there.
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Venue - transitory actions - D is NOT a GA resident
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1. If nonresident D is served in GA, venue can be laid in the county where service was made.
2. If the nonresident D is brought in under the long arm venue is laid in any county where a substantial part of the claim arose. If one or more Ds is a GA resident, venue is laid in county where GA co-D resides. 3. Nonresident motorist act: if all Ds are nonresidents - either where accident occurred or where P resides; if one or more Ds is a GA resident, county where the GA co-D resides. |
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Service of Process in GA:
Who May Serve |
1. the sheriff or marshal or deputy OR
2. a civilian nonparty who is at least 18 & specially appointed by the crt OR 3. such a civilian appointed by the crt as a permanent process server. NARROWER than the Fed rules. |
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Timeliness of Service and the SOL
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If the action is filed before the SOL expires, the P has a reasonable time thereafter to effect service. While the CPA provides the that service must be made w/in 5 days from time of receiving the summons & complaint, later service is permitted if the P has been diligent & reasonable.
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Pleadings in GA - Complaint must assert...
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1) statement of SMJ
2) short & plain statement of claim showing the pleader is entitled to relief & demand for judgment 3) facts alleging basis of venue |
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In professional malpractice cases, P must file w/her complaint...
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an expert's affidavit setting forth with specificity at least one negligent act/omission and the facts on which the claim is based.
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