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87 Cards in this Set
- Front
- Back
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Personal jurisdiction requirements |
Satisfy state statute; AND
Satisfy the Constitution |
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A court has personal jurisdiction over The D when the D is
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Minimum Contacts is satisfied when |
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The Court has general PJ over the D when the D is Individual / Corporation |
Individual: domiciled Corporation: state of incorporation, principal place of business |
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Cases a state court can hear and cases a federal court can hear |
State: Everything except cases arising under certain federal laws (patent, bankruptcy, some federal securities and antitrust claims)
Federal: cases where there is
In every claim (or supplemental jurisdiction) |
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Diversity of Citizenship Requirements - green card? - US Citizen domiciled abroad? |
- There is no SMJ if a party holding a green card resides is in the same state as an opposing party
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In which state is a person a citizen for purposes of diversity jurisdiction? - how does it change? |
Where the person is domiciled. A person can establish citizenship/domicile in a new state by
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In which state is a corporation a citizen? |
State in incorporation; AND State of principal place of business |
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Where is the principal place of business? |
"Nerve center"; where managers direct, coordinate, and control corporate activities |
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In which state state is an unincorporated association (partnership/LLC) a citizen |
In every state that one of the associations members is a citizen |
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Diversity 75k rules - |
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Federal Question SMJ Requirement |
P's claim itself must arise under federal law. In other words, P must be enforcing a federal right |
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Supplemental Jurisdiction |
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Removal - deadlines |
D sued in state court can remove to the "embracing" federal court if
Deadlines:
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Remand |
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Erie Doctrine Does Fed Ct apply state or federal law? |
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Federal courts can make common law |
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Venue Where is proper? What if improper? |
P may lay venue in any district where:
If the original venue is improper, the court may transfer or dismiss |
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Where does a D reside for venue purposes |
Human: in the district where domiciled Business (corp or not): in all districts where the D is subject to PJ for the case |
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Transfer of Venue |
- The court will consider public (what law applies, what community should be burdened with jury service, local controversy in local court) and private factors (convenience of the parties and witnesses). - If there is a forum selection clause, the court will almost always transfer to that court - the burden is on the Party seeking transfer
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What is the proper venue when the D is a nonresident of the US? |
The nonresident may be sued in any district. |
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Forum Non Conveniens |
If the proper venue is in a foreign country then transfer is impossible. If the judge decides this is the case he will either dismiss or stay the action - the other court must be available and adequate |
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Who can serve process |
any non party who is at least 18 years old |
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Methods of service |
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Service of other documents |
- Serve these documents by delivering or mailing the documents to the party's attorney - can be by email if otherside agrees - can receive extra time to respond if the documents were mailed |
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Complaint requirements |
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Matters that must be pleaded with particularity or specificity |
Fraud / mistake / special damages |
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Defendant's response to complaint |
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Which 12b defenses can be brought at any time and which can be waived |
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What to put in answer |
- admit, deny, DKI (must investigate things in your control) - affirmative defenses - counterclaim |
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P's response to counterclaim |
Respond under R12 in 21 days |
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Compulsory Counterclaim |
A counterclaim is compulsory when it arises from the same transaction or occurrence as Ps claim. - court must have SMJ over the counterclaim |
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Crossclaim |
Can only be brought when it arises from the same transaction or occurrence as the underlying action, but it is never compulsory |
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Additional claims |
Once you file any claim you can join an additional claim to it - even if that claim has nothing to do with the others, so long as there is SMJ |
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Right to amend Pleadings - P and D |
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Amending w/o right |
- Must seek leave of court. Will be granted if justice so requires. Court will consider delay, prejudice, futility, of amendment |
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Variance |
At or after trial, P can move to amend the complaint to conform to the admitted evidence |
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Amendment after the SOL has run (relation back) |
- If, after filing a timely complaint, the SOL expires, and you want to amend to add a claim, the amended pleading will be considered timely if it "relates back" - Amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading |
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Amending to change a D after the statute has run |
The amendment will relate back if
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Supplemental pleadings |
These are used to update the pleadings (i.e. adding a claim) after they have been filed |
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Rule 11 Sanctions - what does it require? - against whom? |
- applies to all docs except discovery - When an attorney signs a doc, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
- Rule 11 sanctions may be ordered against the party, the attorney, or the firm |
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Initial disclosure |
W/in 14 days of the rule 26(f) conference, each party must disclose
- provide name, number, and subject on which they have information - if you fail to identify you cannot use that party as a witness
- must produce the documents or a description - if you fail to disclose you cannot use the materials in the case
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Required disclosure: Expert Witness |
- At a time directed by the court, each party must identify expert witnesses who may be used at trial and provide a written report prepared by the expert - Written report must include opinions the expert will express, bases for the opinions, facts used to form the opinions, expert's qualifications, and how much expert is being paid |
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Pretrial required disclosure |
No later than 30 days before trial, parties must give detailed info about trial evidence, including identity of witnesses to testify live or by deposition, and things to be introduced at trial |
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Depositions - files? nonparties? bring documents? travel? |
- Deponent testifies under oath, from present recollection (does not need to review) - to depose a party, serve notice of deposition - To depose a non party, subpoena the entity - To require the deponent to bring docs, issue a subpoena duces tecum - Deponent can be required to travel up to 100 miles from where she resides or is employed |
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Interrogatories |
- party only - respond w/in 30 days of service - Must respond w/ info reasonably available to you - Maximum number of interrogatories = 25 Qs |
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Requests to Produce |
- Must respond in writing w/in 30 days of service - Can be made to non party but use subpoena - Requesting party specifies the form of the production |
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Discovery: medical exam |
- Must get a court order( requires showing that the person's health is in actual controversy and good cause) - Can only be used to examine a party or someone in the party's custody or legal control (not employees) |
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Request for admission |
- Written request that someone admit things - parties only - Responding party can DKI only if she states that she made reasonable inquiry and cannot find enough info |
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Duty to supplement discovery |
If information you provided through discovery is no longer correct, you must supplement your response |
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Scope of discovery |
- Anything relevant to a claim or defense is discoverable - Relevant = reasonably calculated to lead to the discovery of admissible evidence - |
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Work Product |
= material perpared in anticipation of litigation - protected from discovery - Work product, or a portion of the work product, is discoverable if the requesting party can show
- Not work product: identity of people with discoverable info, the requesting party's own statements |
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Court involvement in discovery |
- party must certify that she tried in good faith to get the info w/o court involvement
- if the court does not respond at all, or if the party objects and then ignores a motion to compel, it will face sanctions |
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Multiple Ps and Ds |
A case may include multiple Ps or Ds if the claim
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Necessary and Indispensable parties |
A party is necessary if
- joint tortfeasors are never necessary |
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- When is joinder of a necessary party feasible? - What happens if it is not feasible? |
- there is PJ over the necessary party; - Joining the party will not ruin diversity jurisdiction
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Impleader |
-D can implead a Third party D if the D intends to shift to shift the liability it owes to P to the third party (indemnity) - never compulsory - D must file a third party complaint and serve the TPD. Must serve w/in 14 days of serving answer, or get court permission |
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Intervention |
- a nonparty brings herself into the case - A party may intervene as of right if the party's right is not joined and is not adequately represented - A party may be permitted to intervene if the party has a claim that has at least a common question with the original case |
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Class Action Requirements |
Types
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Money Damages Class Action |
Additional requirements: - common questions predominate over individual questions; AND - class action is the superiour method to handle the dispute The court must notify class members that they are in a class. Must tell them that they can opt out, that they will be bound if they don't, and that they can enter a seperate appearance through counsel |
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Class action - opting out |
In a common question class action, a judge may refuse to approve the settlement of a class action unless the class members are given a second opportunity to opt out (first opportunity came when class was certified) |
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Diversity SMJ in Class Actions |
The rep must be diverse from all defendants and have a claim that exceeds 75k |
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Temporary Restraining Order |
- May be obtained to maintain status quo until preliminary injunction hearing - Applicant must show that he will suffer immediate and irreparable harm if he must wait until the hearing |
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Preliminary Injunction |
(1) He is likely to suffer irreparable harm if the injunction is not issued;(2) He is likely to win on the merits of the underlying case;(3) The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and(4) The injunction is in the public interest. |
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Voluntary dismissal
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- P has a right to voluntarily dismis by filing a notice of dismissal if done before the D serves an answer or motion for SMJ - Can only be done w/o prejudice once. |
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Default |
-- D made no response at all; -- The claim itself is for a sum certain in money; -- Claimant gives an affidavit (sworn statement) of the sum owed; AND -- D is not a minor or incompetent.
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Motion to set aside default judgment |
D may move to have the court set aside a default or default judgment by showing good cause for the default AND a viable defense |
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12b6 |
- Court looks to P's allegations of fact in the complaint and asks, if these facts are true, would P win a judgment - The facts alleged must support a plausible claim |
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Motion for a judgment on the pleadings |
- same as 12b6 but made after answer is filed |
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Motion for Summary Judgment |
Movant must show: (1) There is no genuine dispute on a material fact and (2) That she is entitled to judgment as a matter of law - Can only look to evidence based on first hand knowledge |
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Rule 26f Conference
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- hearing to discuss discovery schedule - 21 days before scheduling conference, parties meet and confer. - At hearing must present a detailed discovery plan |
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Pretrial Conferences |
Final pretiral conference will determine the issues to be tried and evidence to be proffered at trial. Supersedes the pleadings |
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Seventh Amendment |
- Preserves the right to jury in civil actions at law, but not in suits at equity (if both then jury decides the at law claim) - Does not apply in state court - must demand the jury in writing w/in 14 days after service of the last pleading raising jury triable issue |
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Jury Selection - strike? # of jurors? How many need to agree? |
- Parties may strike potential jurors - Parties may strike jurors for cause an unlimited number of times - Parties may make 3 peremptory strikes (without stating a reason) per side - 6-12 jurors - Unanimous Decision required, unless parties stipulate otherwise |
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Motions for Judgment as a matter of law (JMOL) |
- Judge rules for one side once the trial has already began. The other side must have been heard - It will be awarded when reasonable people could not disagree on the result - should be made before the case is submitted to the jury |
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Renewed Motion for Judgment as a matter of law |
- Same as JMOL but comes after jury has reached a verdict. - Movant must have moved for JMOL at a proper time |
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Motion for a new trial |
Judgment is entered but a non harmless error at trial requires that we should start over. Party moves for this w/in 28 days after judgment |
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Remittitur and Additur |
- Judge offers the D/P to accept a lower/higher amount or have a new trial - Can be done when the damages figure shocks the conscience - Additur is unconstitutional in fed ct |
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Motion for Relief from Order or Judgment |
1. Clerical error (Anytime) 2. Mistake, excusable neglect (Reasonable time ,never more than 1 year) 3. New evidence that could not have been discoveredwith due diligence for a newtrial motion (Reasonable time ,never more than 1 year) 4. Judgment is void (e.g., no SMJ) (Reasonable time) |
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How to appeal - Final Judgment Rule |
- Generally, you can appeal only from final judgments (= an ultimate decision by the trial court of the merits of the entire case) - File notice of appeal in trial court w/in 30 days after entry of final judgment |
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Interlocutory Appeals - exceptions to Final Judgment Rule |
interlocutory appeal act: allows appeal if
Collateral Order exception: Appellate court has discretion to hear ruling on an issue if it
- When there are multiple parties/claims, the trial court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay - CoA has discretion to review class cert ruling |
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Extraordinary writs |
- An original proceeding in appellate court to compel the trial judge to make or vacate a particular order - available only if hte lower court is violating a clear legal duty |
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Choice of law: preclusion |
If case 1 and case 2 are in different judicial systems, the court in case 2 applies the preclusion law of the judicial system that decided case 1
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Claim Preclusion (res judicata) |
Requirements:
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Issue Preclusion (same parties) |
Requirements
- Issue preclusion can only be used against someone who was a party to case 1 |
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Non mutual Issue Preclusion |
- Non mutual defensive use of issue preclusion: allowed if the P had a full chance to litigate in case 1 - Non mutual offensive use of issue preclusion:Most courts do not allow. Some will allow if:
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In which state is the executor of a decedents state a citizen? |
The state that the decedent was a citizen |
