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38 Cards in this Set
- Front
- Back
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Does the court have power (Personal Jurisdiction) over the parties?
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In order for a WA court to assert PJ over a D, the court must have jurisdictional basis (power). PJ requires a 2 part analysis: federal constitutional requirements and WA statutory requirements must be met.
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What is power/due process?
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Power: 14th Amendment Due Process - "No state may deprive a person of life, liberty or property without due process of law.
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What are the 4 ways to satisfy due process requirement? How many does the court need?
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Court only needs one of four to meet the test.
1. Consent - Express: Failure to raise lack of PJ as a defense. Implied: Forum selection clause included in K or express appt of agent for service of process 2. Domicile - D has residence in WA and the intent to remain here. Domicile stays until you take up residence elsewhere with the intent to remain there. 3. Presence (Transistory Jurisdiction) - Service of process in W upon a nonresident D is sufficient to confer PJ, except for fraud or by force. 4. Minimum Contacts - In order for a state to have PJ over an absent nonresident D, the D must have "certan minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. |
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What elements must be proved to show that D's contact in WA were sufficient in number and quality?
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1. Purposeful availment - D purposefully availed itself of the benefits, privileges and protections of WA law
2. Reasonably foreseeable - D should have reasonable foreseen being haled into court 3. Fairness - Assertion of jurisdiction must not offend the "traditional notions of fair play and substantial justice" based on a)burden of D litigating in WA, b) interests of P of litigating in WA, c) WA's interest in the litigation, d) interests of other states in the litigation |
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What are general and specific jurisdiction?
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General - Cause of action is unrelated to D's contacts w/ forum state and therefore, need systematic and continuous contacts
Specific - Cause of action arise from D's contacts with the forum state. Only 1 contact needed |
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What is the WA Long Arm Statute? For what actions does it apply?
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Long Arm statue operates as a limit on PJ over foreign corps and non-resident Ds who are served with process outside of WA. 6 actions where it applies:
1. Transaction of any business in WA 2. Commission of a tortous act in WA 3. Ownership, possession, use of property in WA 4. Contracting to insure a person or property in WA 5. Intercourse in WA that produces a child 6. Living in a marital relationship in WA |
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Has the D received proper notice of the lawsuit?
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Notice: 14th Amendment Due Process - Due Process requires that D receives "notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action.
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What constitutes proper service in WA?
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Both summons and complaint must be served at same times, by a person not a party to the action and over the age of 18 or a sheriff/deputy sheriff (no age equirement for sheriff)
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Personal service upon individuals in WA may be by:
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1. In hand to D OR
2. a copy left at D's usual abode with resident of suitable age and discretion OR 3. left with resident, landlord, or agent and a copy sent to the mailing address of D |
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Personal service upon corporations in WA may be by:
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1. In hand to president, registered agent, secretary, or treasurer
2. If no registered agent, then sent to Secretary of State |
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Service by publication in WA requires:
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An affidavit stating that the D cannot be located with reasonable diligence and personally served. Affidavit must also allege that D is a WA resident who's left the state or is hiding (to avoid creditors or service of process)
Notice of action must be published once per week for 6 consecutive weeks in newspaper of general circulation in the county where the lawsuit is brought and mailed to last known address of D |
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Service by mail requires:
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Sames requirements and affidavit as publication, plus allegation that service by mail is just as likely to give actual notice as by publication and 2 copies sent. MUST be authorized by court.
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Proper service outside of WA requires:
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WA Long Arm Statute provides for personal service of process outside of WA on D who committed emnumerated acts. Does not permit mail or publication. Affidavit required.
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How may the D challenge PJ or Service of Process?
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Direct Attack: Defenses of lack of PJ, insufficiency of process or service. Defenses waived if not raised in pre-answer motion or answer
Collateral Attack: D defaults, then challenges PJ or service of process when P tries default judgment |
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What is SMJ? What does it mean?
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Subject Matter Jurisdiction. It refers to the kinds of cases WA courts can decide
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What are the 4 types of courts in WA and their limits/powers?
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1. District Court: Limited Trial Jurisdiction - Amt in controversy cannot exceed $75k and court cannot hear cases involving title to real property
2. Superior Courts: Court of General Trial Jurisidiction = any claim legal or equitable - Amt in controversy must be over $300, unless equity action o rreal property disputes = no amt 3. Court of Appeals - Has jurisidiction over all Superior Court decisions 4. Supreme Court - Has discretionary jurisidiction over appellate courts and reach down power to superior court decisions |
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What are local actions and in what venue should these be brought?
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Local action involve title or possession of real property. All local actions should be in the county where LOCATED
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What are Transitory actions? What venue may the be filed?
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Transitory actions are any action not involving real property. Venue depends on where D is resident or non-resident
1. Resident if 1 D = County where D resides if multiple Ds = county where any of the Ds reside If cases involve personal injury or property damage = any options above or county where all or part of the claim arose 2. Non-resident Ds: Any of the following - County where P resides - County where D served - County in which D committed act that satisfies WA Long Arm Statute - County where all or part of the claim arose (ONLY if PI or property damage) 3. Corporations (WART) - Work: county where work was performed for corp - Agreement: county where agreement was entered into - Reside: County where the corp resides (i.e. main office) - Tort: county where the tort was committed |
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What are the 5 grounds for moving an action from one WA county to another?
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1. Original venue improper
2. Impartial trial unavailable in original county 3. Convenience of witnesses or ends of justice would served 4. Judge is disqualified 5. Stipulation of parties. Parties have discretion, not up to the judge |
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What is forum non conveniens?
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A judge made doctrine. A WA court with PJ, SMJ and proper venue may still dismiss if another state or country is a substantially more convenient or appropriate forum.
Prerequisites for DIsmissal: a) alternate forum has SMJ, b) D waives any defenses relating to PJ or SOLs Balancing Test: WA must be a substantially less convenient or appropriate forum than another state or country based on: 1. availability of witnesses 2. convenience of witnesses 3. interests of the local community in the case 4. burden on D of litigating in WA |
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What are the three elements for a proper complaint?
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1. Parties
2. Statement of claim - Notice pleading - "short and plain statement of the showing that the pleader is entitled to the requested relief" - Particularity: If fraud, must contain factual details of such. Plus, special damages (i.e. medical bill, loss of wages) must be pleaded or will be waived. Not necessary for general damages 3. Prayer for relief - Demand for relief pleader thinks is appropriate. No damages for PI cases can be stated in complaint |
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How many days does the D have to respond to an answer if personally served in WA? Personally served outside of WA? Via mail?
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20 days
60 days 90 days |
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What content should be included in the answer?
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Responses to allegations in complaint - Admit, Deny, or Lack of info
Affirmatives defenses (i.e. SOL, Comparative negligence, Estoppel, Fraud) must be raised in answer or WAIVED. |
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What are the 7 CR12(b) defenses that may be raised in a preanswer motion or answer?
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1. Lack of SMJ
2. Lack of PJ 3. Improper venue 4. Insufficiency of process 5. Insufficiency of service 6. Failure to state a claim upon which relief may be granted 7. Failure to join a necessary party |
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What is Rule 11 and how does it apply?
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Rule 11 deters abuses of judicial system by requiring certification.
Certification - A signature certifies that to the best of the signer's knowledge, info and belief, formed after a reasonable inquiry, the pleading or motion is: well grounded, based on existing law, for proper purpose and denials are based on evidence or lack of info. It applies to everything pleading, written motion, or legal memo filed or served |
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What are 3 objections to pleadings?
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1. CR12(b)6 - Failure to state a claim upon which relief can be granted - Tests the legal defense of a claim
2. Motion for judgment on the pleadings - Same theory as 12b6, but motion raised after D submits answer 3. Motion to strike - Similar to 12b6, but used by Ps to challenge legal sufficiency of D's defense |
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What are the 3 procedural objections?
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1. WAIVED IF NOT RAISED IN ANSWER - Lack of PJ, improper venue, insufficiency of service or process
2. NOT WAIVED IF NOT RAIASED and CAN BE RAISED AT TRIAL - Failure to state a claim and failure to join a necessary party 3. NEVER WAIVED AND CAN BE RAISED AT ANY TIME, even on appeal: Lack of SMJ |
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What is CR 15?
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Amendments of pleadings/ Liberal amendment policy. Burden on opposing party to prove that amendment will show prejudice that cannot be remedied
Timing: 1. Before trial - Complaint: before asnwer served - Answer: w/in 20 days after the answer was served - OR with leave of court 2. During or after trial - ONLY by express or implied consent of adverse party |
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What is SOL Relation Back?
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For a party to add a claim after the SOL has run, the new claim must arise from the same transaction or occurrence as the original pleading. To add a new D, the new D must have received notice and known that an action would be brought against them.
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What is CR 18?
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Original claims = P may assert as many claims (related or unrelated) as they have against D
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What is CR 13?
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Counterclaims = Claim by on eparty against an opposing party, usually D against P. Two types:
1. Compulsory: arises out of the same T or O as P's claim and are MANDATORY 2. Permissive: Doesn't arise out of same T or O as P's claim and may be raised in answer or separate action Cross-claims: Claims by 1 party against a co-party (i.e. D vs. another D). MUST arise out of same T or O and is permissive |
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What is CR 42?
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Severance of Claims: Trial judge has broad discretion to sever claims in furtherance of convenience
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What is CR 20?
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Permissive Joinder: Used to join multiple Ps or by P to join multiple Ds in 1 lawsuit
2 part test: 1. Ps to be joined assert a right of relief arising out of same T and O or series of T and O, OR Ds to be joined asserted against them a right to relief arising out of same T or O 2. AND a common question of law or fact must exist |
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What is CR 19?
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Compulsory joinder: Necessary and indispensable parties. An exception used by D to force P to join another D or dismiss the case. The court will dismiss case if NECESSARY AND INDISPENSABLE party is not joined
2 part test: 1. Necessary party - Party must be joined if court has PJ. Necessary if: a) complete relief cannot be afforded w/o, OR b) person to be joined calims an interest that will be impaired or impeded if not joined, OR c) exisiting party will be subject to multiple/inconsistent obligations if person not injured 2. Indispensable Parties: Indispensable if: a) necessary party AND b) cannot be joined due to lack of PJ, AND c) existing parties will be unavoidably prejudiced by absence of party, AND d) alternate forum exists in which all parties could be joined |
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What is CR 24?
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Intervention: Outside party wishes to join action. Two types
1. Intervention as a right: Test- Outside party claims interest relating to the action AND proceeding w/o that party will impair that interest UNLESS interest is already represented by exisiting parties. If test met, then intervention must be allowed 2. Permissive intervention: Test - Common question of law or fact between original action and intervener's claim AND court considers whether intervention will delay or prejudice. Court has discretion. |
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What is CR 14?
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Impleader (Third Party Practice): Test - D must allege that 3rd party is or may be liable to D for all or part of D's liability to P.
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What is CR 42?
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Severance and Consolidation: Judge has broad discretion to sever or consolidate
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What are the 4 prerequisites for a class action?
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REMEMBER C.A.N.T
1. Commonality - questions of law or fact common to all members of the class 2. Adequacy - rep parties must be fairly and adequately represent the interests of the class 3. Numerosity - the class must be so numerous that joinder of all members is impracticable. Less than 25 = joinder; more than 40 = class action; 25-40 grey area 4. Typicality - claims or defenses of class reps nust be typical of claims or defenses of the rest of the class |
