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75 Cards in this Set

  • Front
  • Back
3 kinds of territorial (personal) JDX?
in personum, in rem, & Quasi in rem
in personum
court has power over person
in rem
court has power over rights of all persons about property
quasi in rem
power over individual only to extent of individual's property interest
what type of personal JDX is most common
in personum
What two tests must be passed to have personal JDX?
US constitutional limits, and authorized by state statute
constitutional limits to JDX
Due Process
how is Due Process satisfied?
Contacts, fairness, or consent
what are the two ways to meet the due process requirements of the US constitution
for specific JDX- claim arises out of contacts; for general JDX- claim does not arise from contacts
what must D have for specific JDX?
minimum contacts with forum state
what are the tests for minimum contacts if its close?
purposeful availment to priviledges of conducting activities in forum state; and was it foreseable that D activity would make amenable to suit there?
Stream of Commerce (doing businesss and goods get to forum state)
Unclear whether mere knowledge that item will end up there is enough or whether more purposeful availment needed
S.Ct. Cases for stream of commerce (DAAM)
desigend product for state market; advertised in state; advised customers there; marketing through salesmen there
what must be present for general JDX?
substantial. systematic, and continuous contacts with forum state; domiciled, incorporated, PPB
how does fairness play into JDX?
for either specific or Gen JDX exercise must be consistent with traditional notions of fair play and substantial justice
fairness factors?
burden on D; interest of forum state; P interest in getting convenient relief; interstaet jud system interest in efficiency; pub policy
can personal JDX be waived?
yes
do you need authorization by statute or rule if personally served in state or a resident of state?
no
how to get JDX over out of state D who you can't personally serve in state?
Long-arm statute
what is the recent development in regards to the KS long-arm statute?
If JDX over D meet US Constitutional limits then it meet the KS test for Personal JDX for an out of state D
long-arm, specific JDX; KS courts have personal JDX if cause of action ____ ___ __ one of the following:
(arises out of): transaction of any business w/in KS; Commission of Tort in KS; Ownership, use or possession of real property in KS
other ld possible long arm (specific JDX:
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
Long arm gen JDX
if didn't arise in state, substantial, continuous & systematic contact w state
Forigne corp gen JDX w/ long arm
if filed consent to have Sec of State be agent of service of process
federal long arm statute
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)
what is the bulge rule
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
what is the issue with service of process?
notification of lawsuit
Constitutional limitations to service of process?
due process- notice must be RSB calculated to aprise interested parties abt lawsuit.
constitutional limitations on methods used to give notice, for service?
RSB certain to inform parties, or if there's no method that meets that then not substantially less likely than alternative methods
is publication in newspaper constitutional service?
generally no, but if no way to find D
is mail enough?
not regular mail, but certified in KS is; but if unclaimed then RSB steps after that
KS- service on individual?
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
KS- service on corp?
same as personal to officer or agent; person in charge of any business office
KS- time limit for service
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
Is it ok to serve in Fed ct the same as state?
yes
can you waive service in KS? FED?
ks- no, fed- yes
KS venue- against ks residents?
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)
KS venue- against non residents?
cause of action arose, P resides, D is served, or D is transacting busienss
KS venue- corp.
cause of action arose, D registered office is, or D is transacting business (if P resides there)
Fed venue-
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
fed venue- corp
Corp resides in dist in which it is subject to personal jdx
what is transfer?
is moving the case to a different district/county- not dissmissing
3 types of transfers?
for convenience of parties/witnesses, cure defect in venue or personal JDX, Cure sub matter JDX
2 additional KS possibilities
cannot get fair trial in county, and by stipulation of parties and ct. and supreme ct.
what is forum non conveniens?
dismissal in fed ct where ct thinks foreign country is more appropriate; or in state where antoehr state or country
what is subject matter JDX?
court can hear the case's subject matter, states have general jdx so more a fed issue
how does fed court get subject matter jdx?
diversity, fed question, or removal and supplemental JDX
Can subject matter JDX be waived?
no, and you can claim this at any time throughout the process
Federal Question?
arising under fed law, constitution or treaties
how do you know whether arises under fed law?
well pleaded comlaint: consider comlaint only; usually cause of action crated by fed law
what is the exception?
if cause of action by state law implicates significant fed issues case may arise under fed law- must be substantial
diversity jdx?
complete diversity or alienage; and amt in controversy exceeds $74K
where is PPB of corp for diversity?
headquarters usuallly but also wehre co's assets are
amt in constroversty?
based on good faith allegations, interests and costs not included, if asking for equitable relief court estimates
aggregation
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
supplemental JDX?
need original JDx over one claim then has over claims that are so related form same case/ controversy; common nucleas of operative facts
can supp jdx be sued to circumvent diversity requiremetns
no
cts may decline supp jdx if:
raises novel or comlex state issues; substantially predominates, ct has dismissed original claim; other compelling reason
removal (to fed ct)
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
time limit on removal?
w/in 30 days first ascertain taht action is removable
what if basis for removal is diversity?
absolute 1 year limit after filing of complaint, even if cannot first ascertain removability until later
can federal question cass be removed regardless of citizenship of parties?
yes, but diversity cases can be removed only if D is citizen of forum state
what does a comlaint/petition need?
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)
what if violate R11 certification duties
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)
answer
must deny, admit, or lack knowledge or info sufficient to form a belief as to truth of an allegation; raise any affirmative defenses
compulsory counter claim
must raise if arises out of same transaction or occurence
permissive counter claim
any claim against the P
cross claim
if claim arises out of same trans/occur then may
pre answer motions
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
what pleadings?
answer; answer counter claim (reply- ks) reply to answer (reply); answer to crossclaim; 3rd party complaint (petition); 3rd party answer
when can you amend complaint?
fed- 1 freely w/in 21 days of answer or R 12 motion; KS- bf answer served (new amendment- same as fed)
initial disclosures (fed only)
must disclose info they will use w/in 14 days of initial conf b/t parties w/o being asked
what is included in initial disclosures?
name/address/phone ea individual may use at trial; cpy/description of documents and things may use ; computation of damages; copy of insurance agreement
must parties supplement these?
yes
what is discoverable?
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