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75 Cards in this Set
- Front
- Back
3 kinds of territorial (personal) JDX?
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in personum, in rem, & Quasi in rem
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in personum
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court has power over person
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in rem
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court has power over rights of all persons about property
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quasi in rem
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power over individual only to extent of individual's property interest
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what type of personal JDX is most common
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in personum
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What two tests must be passed to have personal JDX?
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US constitutional limits, and authorized by state statute
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constitutional limits to JDX
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Due Process
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how is Due Process satisfied?
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Contacts, fairness, or consent
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what are the two ways to meet the due process requirements of the US constitution
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for specific JDX- claim arises out of contacts; for general JDX- claim does not arise from contacts
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what must D have for specific JDX?
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minimum contacts with forum state
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what are the tests for minimum contacts if its close?
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purposeful availment to priviledges of conducting activities in forum state; and was it foreseable that D activity would make amenable to suit there?
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Stream of Commerce (doing businesss and goods get to forum state)
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Unclear whether mere knowledge that item will end up there is enough or whether more purposeful availment needed
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S.Ct. Cases for stream of commerce (DAAM)
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desigend product for state market; advertised in state; advised customers there; marketing through salesmen there
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what must be present for general JDX?
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substantial. systematic, and continuous contacts with forum state; domiciled, incorporated, PPB
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how does fairness play into JDX?
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for either specific or Gen JDX exercise must be consistent with traditional notions of fair play and substantial justice
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fairness factors?
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burden on D; interest of forum state; P interest in getting convenient relief; interstaet jud system interest in efficiency; pub policy
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can personal JDX be waived?
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yes
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do you need authorization by statute or rule if personally served in state or a resident of state?
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no
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how to get JDX over out of state D who you can't personally serve in state?
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Long-arm statute
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what is the recent development in regards to the KS long-arm statute?
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If JDX over D meet US Constitutional limits then it meet the KS test for Personal JDX for an out of state D
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long-arm, specific JDX; KS courts have personal JDX if cause of action ____ ___ __ one of the following:
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(arises out of): transaction of any business w/in KS; Commission of Tort in KS; Ownership, use or possession of real property in KS
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other ld possible long arm (specific JDX:
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K to insure KS, K w/ KS resident to perform in KS; act as corp w/ inc. or PPB in KS; executor of estate in KS; marital if party resides; insuring someone who gets jdg in KS; sex w/in ks IF claim is prentage or child support and other parent lives here; K w/ KS company abt transportation/communicatino servs
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Long arm gen JDX
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if didn't arise in state, substantial, continuous & systematic contact w state
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Forigne corp gen JDX w/ long arm
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if filed consent to have Sec of State be agent of service of process
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federal long arm statute
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if state ct in forum state would have JDX then fed ct does there; if not may still have it: bulge rule, specific fed statute; fed question case- if no state works (foreigner)
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what is the bulge rule
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if D is joined by impleader or as necessary party, fed ct has Personal JDX if service is done 100 miles from court house even if over state lines
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what is the issue with service of process?
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notification of lawsuit
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Constitutional limitations to service of process?
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due process- notice must be RSB calculated to aprise interested parties abt lawsuit.
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constitutional limitations on methods used to give notice, for service?
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RSB certain to inform parties, or if there's no method that meets that then not substantially less likely than alternative methods
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is publication in newspaper constitutional service?
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generally no, but if no way to find D
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is mail enough?
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not regular mail, but certified in KS is; but if unclaimed then RSB steps after that
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KS- service on individual?
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mail w/ return receipt; or with written request to clerk personal service or residential service by leaving summons, petition w/ person of suitable age and discretion
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KS- service on corp?
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same as personal to officer or agent; person in charge of any business office
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KS- time limit for service
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w/in 90 days of filing complaint; SOL met if filed on time- then service w/in 90 days- if service later deemed defective then 90 more days to serve and still w/in SOL
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Is it ok to serve in Fed ct the same as state?
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yes
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can you waive service in KS? FED?
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ks- no, fed- yes
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KS venue- against ks residents?
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venue lies in counties where: cause of action arose, D resides, P resides (if D served there) or D has business/employed (if D served there)
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KS venue- against non residents?
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cause of action arose, P resides, D is served, or D is transacting busienss
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KS venue- corp.
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cause of action arose, D registered office is, or D is transacting business (if P resides there)
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Fed venue-
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if all D's reside in same state then in dist where any D resides, dist where substantial part of events occurred, catchall- if neither then where D personal JDX
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fed venue- corp
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Corp resides in dist in which it is subject to personal jdx
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what is transfer?
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is moving the case to a different district/county- not dissmissing
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3 types of transfers?
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for convenience of parties/witnesses, cure defect in venue or personal JDX, Cure sub matter JDX
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2 additional KS possibilities
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cannot get fair trial in county, and by stipulation of parties and ct. and supreme ct.
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what is forum non conveniens?
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dismissal in fed ct where ct thinks foreign country is more appropriate; or in state where antoehr state or country
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what is subject matter JDX?
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court can hear the case's subject matter, states have general jdx so more a fed issue
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how does fed court get subject matter jdx?
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diversity, fed question, or removal and supplemental JDX
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Can subject matter JDX be waived?
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no, and you can claim this at any time throughout the process
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Federal Question?
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arising under fed law, constitution or treaties
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how do you know whether arises under fed law?
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well pleaded comlaint: consider comlaint only; usually cause of action crated by fed law
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what is the exception?
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if cause of action by state law implicates significant fed issues case may arise under fed law- must be substantial
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diversity jdx?
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complete diversity or alienage; and amt in controversy exceeds $74K
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where is PPB of corp for diversity?
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headquarters usuallly but also wehre co's assets are
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amt in constroversty?
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based on good faith allegations, interests and costs not included, if asking for equitable relief court estimates
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aggregation
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sing P may aggregate all claims v single D (not multiple); multiple P v sing D may not unless joint interest (property); no counter claims
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supplemental JDX?
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need original JDx over one claim then has over claims that are so related form same case/ controversy; common nucleas of operative facts
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can supp jdx be sued to circumvent diversity requiremetns
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no
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cts may decline supp jdx if:
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raises novel or comlex state issues; substantially predominates, ct has dismissed original claim; other compelling reason
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removal (to fed ct)
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only D can; if multiple all must agree; when case could have been brought in fed court; counter claim can't be basis for; brings case to place where st ct case is pending
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time limit on removal?
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w/in 30 days first ascertain taht action is removable
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what if basis for removal is diversity?
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absolute 1 year limit after filing of complaint, even if cannot first ascertain removability until later
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can federal question cass be removed regardless of citizenship of parties?
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yes, but diversity cases can be removed only if D is citizen of forum state
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what does a comlaint/petition need?
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statement of JDx (fed only); short plain statement of claim showing entitled to relief and demand for jdgment (ks- must specify amount if equal to or less than 75K; if more than no specifs unless contract case; must ask for leave to request punitive damages)
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what if violate R11 certification duties
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parties may move for sanctions but must serve 21 days bf filing in fed ct; no safe harbour in ks; also court may impose (ks used to be shall)
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answer
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must deny, admit, or lack knowledge or info sufficient to form a belief as to truth of an allegation; raise any affirmative defenses
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compulsory counter claim
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must raise if arises out of same transaction or occurence
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permissive counter claim
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any claim against the P
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cross claim
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if claim arises out of same trans/occur then may
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pre answer motions
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failure to state a claim upon which relief can be granted; lack of sub matt jdx; lack pers jdx; improper venue; insuff of process; insuff of service of process; failure to join nec party
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what pleadings?
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answer; answer counter claim (reply- ks) reply to answer (reply); answer to crossclaim; 3rd party complaint (petition); 3rd party answer
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when can you amend complaint?
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fed- 1 freely w/in 21 days of answer or R 12 motion; KS- bf answer served (new amendment- same as fed)
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initial disclosures (fed only)
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must disclose info they will use w/in 14 days of initial conf b/t parties w/o being asked
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what is included in initial disclosures?
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name/address/phone ea individual may use at trial; cpy/description of documents and things may use ; computation of damages; copy of insurance agreement
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must parties supplement these?
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yes
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what is discoverable?
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not priv; relevant to claim or defense of any party; need not be admissible at trial as long as it is RSB calculated to lead to discovery of admissible evidence
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