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76 Cards in this Set
- Front
- Back
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Removal of case to Federal Court
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Only a D can remove a case to Federal Court-D cannot remove if forum state is his state of residence
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Diversity Jurisdiction
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-Must involve P's and D's that are citizens of different states-must EXCEED 75k-excpetion: Domestic relations and probate Abstention-Fed ct. abstains collusive joinder- parties are improperly joined to get diversity
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Subject Matter Jurisdiction (SMJ)
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the authority to adjudicate and decide a case-must have jurisdition on every claim-fed question or diversity
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Res Judicata
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Claim preclusion- you cant sue for the same issue twice
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Diversity jurisdiction
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the authority of a federal court to hear and determine cases involving more than 75k in which the parties are citizens of different states or in which one party is an alien.
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28 U.S.C. 1391
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Permits venue to be places where a substantial part of theevents giving rise to the claim occured
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service of process
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the communication of reasonable notice of a court proceding to a defendant in order to provide him with an opportunity to be heard
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personal jurisdiction
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a courts power over the parties to a case-in personman-in rem
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in personam
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Jurisdiction in personam is jurisdiciton over the D himself. person has to be served while in the state. (PJ)
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Specific Jurisdiction (min contact test)
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If the claim arose from the contacts even a single or occasional act might suffice
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General jurisdiction (min contact test)
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contact were so "continous and systematic" that jurisdiction over the coorporation might be allowed even if the claim was completely to unrelated to those claims
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Minimum Contact test
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1.Any contact between D and the forum?2.If yes then is it fair**the minimum degree of contact necessary in order to sustain a cause of action within a particular forum consistent w/ the requirement of due process
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In Rem
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technically jurisdiction is not jurisdiction over a person but over a particular item of property owned by a person.
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True In Rem
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main purpose is to adjudicate competing legal interest in the property in question
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Quasi In Rem
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brought for other purposes than competing rights to property
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Awareness Plus test
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mere awareness that defendants good would enter the forum is inssufficient. this could constitute contact only if it was accompanied by other act specifically directedat teh forum (advertising or designing products especially for forum state)
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"Stream of Commerce"
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When a defendant distributes its good nationally through a third party. Does purposefully injecting goods constitute purposeful availment with astute in which one of those goods causes injury?
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Joinder
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the joining of claims or parties in one lawsuit.
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FRCP Rule 26(b)(1)
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Provides a broad scope of discovery
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FRCP Rule 11
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Sets forth the requirements that every pleading or written paper be signed by at least one attorney of record; the representattions made by the attorney to the court upon the signing of document and the sanctions for violations
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FRCP Rule 8
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sets forth the general rules of pleading a claim for releif
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Long arm statute
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a statute confering personal jurisdiction to state courts over a defendent not residing in the statew hen the cause of action arises as a result of activities conducted w/in th estate or affecting state residents
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FRCP Rule 56(c)
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Provides that a court arrive at a pre-verdict disposition on the case at bar when one party fails to prove an essential element to its case
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directed verdict
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a verdict ordered by the court in a jury trial
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FRCP Rule 24
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governs discovery and the production of documents at trial
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levels of court
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State court- trial court of appeals specialized courtsfederal-district court of appeals supreme
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Forum non Conviens
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Convience of the litigantsaccess to the evidence availability of witnesses usually judge will require defendant to waive statue of limitations in order to declare
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Federal courts exclusive jurisdiction
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bankruptcy patents copyright
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Permissive counterclaim
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if someont sues you for something you can sue them for whatever. if its not transactionally related its permissive
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Complulsory counterclaim
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transactionally relatied to whatever case the P brought against D;you bring it or lose it
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Affirmative defense
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independent legal ground on which the defendant can recover. If the plaintiff proves every part of their case by a preponderance of the evidenceand you prove your affirmative defense by a preponderance of the evidenceD still wins.Burden of proof is on D
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Discretionary rule
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where a federal court declines to hear cases that are brought in through supplemental jurisdiction.-presents novel state issue.-state claim domintates.-federal claim has been dismissed or settled.-if the ct feels like it
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cognovit
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a clause in a contract saying that if either party breached the contract a default judgment will be entered against them. Any attack on that judgment will have to be made at the appellate level
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Burdens of Persuasion
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preponderance of the evidence clear and convincing evidence beyond a reasonable doubt
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Jury's Role
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Finder of fact
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Collateral Estoppel
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issue preclusion- if you have lost on an issue in a prior suit you cannot dispute that issue in a separate suit. Requires that teh second case arise from the same case or controversy as the prior suit.
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de Novo Review
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review by appellate level court of both facts and law determined at the lower level
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Summary judgment
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there is no real issue int he case (curtailed adjudication). Moving party can submit evidence that negates as esential element of the non-moving party. Moving party can establish evidence is issufficient to establish an essential element of the claim
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Provisional Remedy
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Releif we are given pending fila adjudication of a dispute
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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
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Petition to Remand
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When case is to be removed to federal court this is what is filed to keep the case in state court
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JNOV
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The judge changes the verdict found by the jury based on a matter of law
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Dicta
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discussion by the judge/justice in a case opinion that has nothing to do with the question before them
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Writ of Prohibition
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extraordinary writ prohibiting the lower court from hearing the case because of a prejudice
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interlocutory appeal
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this lets a case that is currently underway go to the appeals court prior to a final judgment
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Magistrate Judge
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a judge that basically works for a higher level judge and hears pleadings discovery motion ect.
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Duces Tecum
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a subpeona for a non party to appear and produce certain documents at a deposition
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Pro Se
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represent yourself
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Demurrer
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basically states there is no claim for which releif can be granted also called 12(b)(6)
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Tag jurisdiction
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mere presence in the state and service of process is enough to have jurisdiction over them
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contracts of adhesion
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non-negotioable contract
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writ of mandamus
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a special writ that allows a court to look at a specific issue even though there is not a final judgment. Can also be used to make lower officials do something
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American Rule
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where each party pays their own fees
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latches
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the statute of limitations that applies in equity cases. It means the case is stale and it has been too long (plaintiff has taken too long and contructively waived their rights)
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Voir Dire
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Questioning of potential jury members
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Pleas in Suspension
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Challanged hte p's rights to bring the action until some problem was resolved
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Pleas in abatement
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challange various other procedural defects in the complaint including things like incorrectly spelling names
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Dilatory Pleas
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Pleas that took no position on either the fact of law these include pleas in suspension pleas in abatement and challanges of jurisdiction
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Preemptory Pleas
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Pleas that grapple w/ merits fo the claim: demurrer traverse confession avoidance.
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Traverse
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opposite of demurrer concedes the
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Writ of trover replevin ejectment mandamus habeis corpus(removal from land)
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All writs that go to the jury despite legal/equity remedy question (equitable to judge legal to the jury)
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Batson Hearing
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a hearing used to determin there's a ligitimate reason for removing jurors by means of preemptory challanges. Named b/c of a trial where all Afican Americans were removed. Ct said not ok and is a violation of 14th amendment
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comity
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a courtesy extended to others by recognixing their laws and decisions
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Rule 65
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governs injunctions you cannot appeal a temporary restraining order(TRO) it will expire prior to an appeal happenening
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Temporary Restraining Order
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Must attempt to notify the other party and you must notify for the the pre-injunction hearing
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Rule 54 (cost)
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cost to the winner do not include attorney fees the attourney fees can be requested by a motion
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Rule 68 (offer of judgment)
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offer of judgment more than 10 days before the trial you can make the offer for judgment against the defendant. Cost incurred are paid by the P if the D asks to settle.
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Rule 27 (deposition)
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you can take a deposition before filing suit (i.e dying witness)
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Rule 55 (default judgment)
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a default judgment makes a ruling on the case a based on the law. They are generally against the D and involuntary dismissals are generally against the P
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Nunc Pro Tunc
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Retroactive in time to (as it pertains to amending a complaint or pleading)
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English Rule
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Losing party pay both legal fees
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Sua Sponte
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on the courts own motion
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Minimum contact
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the amount of contact required to have PJ over a person. This cannot upset the tradiational notions of fair play and substantial justice
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Can you use Property to get jurisdiction over a person
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it depends- do you own the galleria or jsut a house
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doctrine of abstention
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a federal ct may refuse to hear a diversity case or one of supplemental jurisdiction. -family lawmajor state issue better left fot the state to decide
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Venue in Diversity Cases
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- Any district which a defendant resides if all D's reside in same state.(Resides not domicile). Any district in which a substantial portion of the event occured. If not other option any distict where the D is subject to PJ (only one D needs PJ)
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