Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

120 Cards in this Set

  • Front
  • Back
When do Il courts not have SMJ
When there is exclusive jurisdiction in some other forum (fed court)
What does the IL supreme ct have original jurisdiction over?
Issues involving a governor's vacancy and legislative redistricting
Fed Courts: What do they have SMJ over?
Admirality, maritime law and other weird things.
Fed courts other jurisdiction?
Limited jurisdiction, claim is created by fed law, the claim depends on a substantial fed question (constiTUtional)
Fed Courts: What is diversity jurisdiction
Complete diversity: no single plaintiff may be a citizen of the same state as any single defendant, and the claim must exceed 75K.
Fed Court: for diversity element of 75K what governs?
Must exceed 75 K, and the plaintiff's viewpoint of the money governs, and the amount alleged governs
Fed Court: for diversity jurisdiction what qualifies an individual as a citizen of a state?
Individual: Domicile
Corps: State of incorp and principle place of business (where bulk of PHYSICAL activities take place
Unincorp: Every single member counts as a separate domiciled individual party for diversity purposes
Aliens: Pure Alien may not sue pure alien in fed courts
Perm Residents: are citizens of the state where they reside
American citizens domiciled outside of the US cannot be sued in fed courts
Fed Cts: What is supplemental jurisdiction?
If there are two or more claims and there is a primarily jurisdictional basis for one claim, but not the other, the fed cts still have discretion to assert Sup Jur over both claims IF they derive from a COMMON NUCLEUS of operative facts. There is no Sup jurisdiction over diversity cases
Fed court: when can a Defendant remove a case to fed court
only if there is federal jurisdiction over the claim
Fed Ct: Exception to removal?
If the only jurisdictional basis is diversity there can be no removal to fed ct
Fed Cts: Tell me about the erie doctrine!
Fed ct resolved claim that does not arise under federal law;
there is a conflict btwn a provision of state law and a provision of fed law;
State law governs unless fed statute, fed rule, or trial by jury
IL Ap cts: What kind of jurisdiction do they have?
Appellate courts are courts of appellate jurisdiction and therefore only have jurisdiction over appeals.
What can be appealed to an Il app ct?
Only final orders
What is a final order?
An order that leaves nothing left to be decided in the lower ct.
What are the exceptions for appeals?
Partial final orders resolving some claims against some parties, but not a claims against all parties. may be appealed right away if the lower courts find no just reason to delay the appeal
2. Significant orders: Some doubt over the order, Order must involve some controlling legal issue, and appellate review would materially advance the rest of the litigation
Can you appeal if you request to have an action be made into a class action and it is denied
Yes. Always.
IL supreme ct: besides original jurisdiction, what other kind?
Appellate jurisdiction:
Mandatory over any order entered by an IL ct declaring any statute uncon.
Discretionary over any other matter it wants
How do you appeal an order entered in the IL circuit courts?
File a notice of appeal with the circuit court presiding within 30 days of the entry of the order that you are appealing
May a party waive or consent to SMJ in IL courts?
What is personal jurisdiction?
power of a court over the defendant, person, or property
When do IL courts have PJ?
If IL law grants it, and the IL law must be constiTUtional
What is the extent of the PJ of IL courts?
To the maximum extent permitted by the consitution
When do Fed Cts have PJ?
If a fed statute expressly grants it to them, or the fed ct merely borrows the PJ law of the state where it sits
PJ: what are the three bases?
1. Consent by defendant
2. Presence by defendant
3. Long Arm
PJ: What are the two forms of consent?
1. Express: appoints an agent in Il to accept process on his behalf, or D entered into K in Il and in K there was a provision expressly stating that IL had PJ
Or D expressly consents to PJ

Implied: Conduct of D implies consent:
Failure to object to PJ in first response to complaint is an implied consent to PJ
First response must be filed within 30 days of service, or 60 days if service waived
Can PJ be consented to and waived
Yes, always
What are the three forms of presence for PJ?
Dancing, domicile and doing business
1. actual voluntary physical presence in IL (process must be served while in IL, length of presence does not matter)
2. Domicile: not actually present in Il, but true home is Il and D intends to return
3. Doing Business: regular systematic continuous ongoing business in IL
Tell me about Long arm. (and i don't mean your penis)
Five ways: LIMIT
1. Land (owns, possesses land in IL)
2. Injury in IL from D's tort (any breach of duty)
3. Matrimony:
4. Insurance K
5. Transaction of business: can be an single transaction so long as the lawsuit arises out of that transaction.
When is PJ constiTUtional?
If the D engaged in such minimum contacts that it would not offend traditional notions of fair play and substantial justice
Issue is whether D purposely availed himself of the benefits of IL, i.e. could the D reasonably have foreseen being sued in IL
What are the mechanics of proper service in IL?
Sheriff, or deputy, or county coroner, or any non-party over the age of 18 may be authorized by the court in tis discretion
What is the proper amount of time for service in IL
Process server must use REASONABLE diligence in serving process, but the summons will expire after 30 days, but can be renewed
Fed Courts service: what is proper service?
Abode: authorized process server (any non party over 18) may leave it at D's last and usual abode with someone residing there of a suitable age (13)
Waiver: same as IL, but in Fed get 20 days to respond to reg service and 60 days with waiver
Agent service: Personal in hand delivery to authorized or managing agent
State methods: whatever the state the ct is in can use those
What is the standard for personal service in both fed and IL courts:
Reluctant defendant: evidence of reluctance and then have to put it within any place within the wingspan of the D
What is proper service in IL?
Method of process must be proper under IL law, and method must be ConstiTUtional
What are the basic methods of service of an individual in IL?
Personal service: authorized process server makes personal, in hand, delivery to the D
Abode: Authorized Process server may leave proces at D's last usual abode with someone who lives there over 13, informing them of the service contents, and them must mail a copy of the service to the abode
Waiver: P mails copy of complaint to D with a request for waiver of service (of waiver 60 days to respond instead of the usual 30)
IL Courts: Methods of service of process on entities?
Corps or partnerships: Must begin with personal service on an authorized agent, qualified agent, or any partner if suing a partnership
NOTE: qualified agent: agent who has an appreciation of the need to transmit the process to responsible corp or partnership personnel
What is the partnership exception to service of process in IL?
If personal service on one partner you may then mail service to all other D partners if they have a valid connection with IL
When can you serve by publication in IL?
Action must deal with real property of D located in IL
An affidavit must be filed stating that 1. the D is outside of Il, or 2. After due inquiry the D could not otherwise be served.
Process must still be mailed to last known abode
Publish 1 time a week for three weeks in newspaper where action is pending
IL: Where is venue proper?
in a county where either any D resides (for entities this means counties where they are doing business, have any office, or where any single partner resides; or
In a county where any part of the claim arose.
What are the exceptions to the general venue rule?
Gov units: may be sued only where principle office located
Real Property: Only where land is located
Absent Ds: if no Ds reside in IL, venue is proper in any county
Insurance: where the D resides, where the P resides, or where claim arose
Libel action: D resides or where libelous article was composed
What are the mechanics for improper venue?
A motion to transfer venue to a proper venue, and must be filed in first response to the complaint and will be granted at the court's discretion for the convenience of the parties
FED COURTS VENUE: What is the rule?
Venue is proper in any district where either:
1. Any D resides, if all Ds reside in the same state (individuals: domicile; Entities: substantial business)
2. Any substantial part of the claim arose.
What is a motion to Change venue, and how is it different from transfer of venue?
Motion to relocate the action based on the BIAS of the inhabitants where the action was filed. This means that venue was proper, but due to the bias, the case will still be moved
What are the requirements for change of venue
Movant must file an affidavit swearing that it fears bias
and there must be 2 affidavits from county individuals stating that they are biased; and
this motion must be filed before the judge has ruled on any substantial issues going to the merits
What is forum non conveniens?
A lawsuit filed with proper SMJ, PJ, and proper venue may still be dismissed if the following conditions are met:
1. discretion to weigh the relative inconvenience of the forum
2. dismissal
3. gross
4. inconvenience
5. Conditions: d must agree to waive any object it would have to being sued in the alternate forum if P refiles in new forum within 6 months
What is the standard of pleading in FED CT?
Notice Pleading. Complaints generally need not contain facts, merely sufficient information to place the adversary on notice of the plausible claims asserted against it.
What is the exception to notice pleading in Fed cts?
Fraud must be plead with particularity
Which responsive motions will be waived unless they are consolidated together in the first responsive pleading filed within 20 days or 60 if service waived?
Motion to dismiss for lack of PJ
Motion to dismiss for improper service of process
Any motion challenging venue
When can a complaint be amended in fed ct>
Amendments shall be freely given to do justice and serve the merits
When do amendments relate back?
New claims: relates back in time to conform to the limitations period if the new claims derive from the same transaction/occurence as the original timely filed complaint (SAMENESS)
New Parties:
2. New party must have acquired knowledge but for a mistake in name that it would have been sued within 120 days of the filing of the original timely complaint.
NOTE: 120 days is the time for good process in fed court.
For IL complaints, what kind of pleading is required
A liberal fact pleading state, must contain facts constituting a cause of action. Construed liberally to do justice
What is a verified complaint?
A complaint sworn to by someone with personal knowledge on facts alleged. In IL complaints don't have to be verified, but if they are then all other pleadings must be as well
If a complaint is based on a written instrument, must that instrument be attached to the complaint?
yes, as an exhibit
Can a complaint initially contain a request for punitive damages?
No, you must convince the judge that they are warranted, and then he will give leave to amend the complaint and add a prayer for punitive damages
When must plaintiff request trial by jury
In the complaint, if the plaintiff seeks primarily monetary damages
What must answers contain? (in IL)
Precisely admit all allegations that are true and may precisely deny all allegations that are not true. Defendant may state they have insufficient informations from which to admit or deny. (but if that is the case then there must be an affidavit attached that states that they don't know and after due inquiry they still don't know.
When must affirmative defenses be plead?
true affirmative defenses must be plead in the answer, or they are waived
What is an example of an affirmative defense?
most likely is Statute of limitations
When must defendant request trial by jury?
In the answer.
What is the rule for amendments in IL?
A liberal amendment policy and therefore amendments shall be liberally granted on just and reasonable terms to serve the merits of actions.
Do amendments relate back?
yes they do. If an amendment is filed after the SOL has run, but the original complaint was timely filed, then the amendment will relate back to the time of the filing of the complaint
When do new claims relate back?
If they derive from the same transaction or occurence as the original timely filed complaint
What are the requirements for relation back of parties?
Knowledge: the party must have knowledge of the complaint such that it would not be prejudiced by its addition as a party
Identity mistake: Originally named Defendant was a mistake (misnomer)
Service of process time frame: new party must acquire knowledge of that mistake w/in the service of process time frame
Sameness: Claims must derive from original timely filed complaint
What is the SOL for a PI claim??
Two years from the discovery of the PI claim
When will the SOL be extended?
If plaintiff is under 18 or otherwise disabled from filing that plaintiff gets two years from the date when the disability was removed.
When is joinder permissible
It is liberal and permissive. Joinder is allowed, but is not compulsory
When may claims be joined? This is the rule for both IL and Fed
A P may join as many claims as it has against the D regardless of whether there is any connection
When may parties be joined? true in both IL and Fed ct
Parties may be joined to a single lawsuit so long as the claims involving those same parties derive from the same transaction or occurence or at least the same series of transactions/occurences
What is the Federal Multi-party, Multi Forum Jurisdiction act?
All persons having a claim arising from a single accident at a single discrete location at which at least 75 people have died, may join as plaintiffs so long as any single plaintiff is a citizen of a different state than any single defendant. (Note that this is the opposite of Complete Diversity
What is a permissive counter claim?
Does not derive from the same transaction as the plaintiff's claim may be filed, but you don't need to, and can bring it later
What is a compulsory counter claim?
Does derive from the same transaction and must be brought as counterclaim, otherwise cannot bring it later. (use it or lose it)
What is the IL rule for impleader?
Ds may implead a brand new claim against a brand new party so long as that 3rd party may be liable to the D for all or part of the Ds same liability to the P
What is the Fed court rule for impleader?
3rd party claims.
Ds may implead a brand new claim against a brand new party so long as that 3rd party may be liable to the D for all or part of the Ds same liability to the P
What is interpleader?
The holder of a common fund may initiate a suit as a P and interplead all rival claimants to its common fund
What are the two forms of interpleader to watch out for in FED COURTS?
Rule interpleader: diversity must be complete and amount over 75K
Statutory interpleader: Minimal diversity and the amount need only be 500$ or more. If any two of the rival claimants are from different states that is enough for minimal diversity
what is intervention?
The act of a non-party in moving to become a party in an ongoing lawsuit
When are parties allowed to intervene?
As a right: If the party has an interest that will be adversely affected by the suit and not protected by the parties
Permissive: Court has discretion to grant is there is a commonality of issues btwn those in the ongoing suit and those affecting the intervenor
This is the rule in FED and IL courts
What are indespensible parties?
This is FED COURTS ONLY! A non party who cannot be joined to an ongoing suit and whose absence from the suit SOOOOO prejudices the existing parties' right to a full and fair adjudication that the entire action must be dismissed for failure to join an indespensible party
What is a class action suit?
an action in which a named P represents a class of commonlny situated absent Ps
how are class actions granted?
Tremendous judicial involvement
1. judge must grant class action
2. Judge must order notice to the class
3. judge must approve any settlement of the class action
remember: If a judge denies the class action, that decision is immediately appealable to the Appellate courts
What are the five class certification requirements in IL?
1. Numerosity: class so numerous that joinder is impracticable
2. Adequacy: The named plaintiff and class counsel must fairly and adequately represent the class
3. Appropriateness: Class action device must be an appropriate method of adjudicating multiple claims
4.Commonality: common fact or law that pertains to the class
Predominance: The common issues must predominate over the individual isses
What are the four class certification requirements and two needed only if class is seeking money damages? in fed courts?
1. Numerosity
2. adequacy
3. appropriateness
4. Typicality
Money damages:
1. commonality
2. Predominance
When is material discoverable in IL?
When the method of discovery is proper, and the material is within the proper scope.
When is the method of discover proper?
in actions in which the amount in controversy is 50K or less each side must automatically disclose:
1. all factual and legal bases for claims or defenses
2. all potential testifying witnesses
3. damages computation
4. all relevant documents
5. relevant insurance coverage
What are the two kinds of depos and what are the aspects of both?
Discovery: only 3 hours long and may be used at trial only to impeach, as an admission, or in the courts discretion if the deponent becomes unavailable.
Evidence: Must be designated as such in the notice and then it can be used at trial as evidence if the deponent is unavailable or is a health care professional
What must be disclosed pre-trial about the three types of testifying witnesses?
Regular experts: full disclosure of qualifications and opinion
independent experts: topics of their testimony and summaries of their opinions
Lay witnesses: merely the topics of their testimony
When must you supplement prior disclosures?
each side has an automatic, ongoign duty to update its prior disclosures within a reasonable time of discovering new info
When is material within the scope for discovery?
If it is relevant and not privileged
What does relevant mean in terms of proper scope?
Liberal and broad, relevant to any party of any claim or defense and need not be admissible at trial
When is material privileged?
Work product, which is material that is prepared for litigation and not in the ordinary course of business
note that mental impressions of an attorney are never discoverable, but all other types of work product are
When is discovery proper in Fed Courts?
If the method of discovery is proper , and the material is within the scope of discovery
What is the rule for automatic prompt disclosure in Fed Ct?
Each side must automatically disclose:
1. all potential supporting witnesses
2. All relevant supporting documents
3. a damages computation
4. relevant insurance coverage
5. full reports of all testifying experts at least 90 days before trial
6. topics of lay testifying witnesses at least 30 days before trial
What are the presumptive limits on discovery in fed cts?
No other traditional method of discovery may be used until the parties engaged in automatic prompt disclosure, then depos are limited to 10 per side with time limits of 7 hours each.
Is the duty to supplement ongoing in fed courts?
yes. have to provide other side with new info in a reasonable amount of time
When is material within the scope of discovery in fed courts?
If it is relevant and not privileged
Note relevancy defined in fed courts same as Il
When is material privileged in fed cts?
Work product: Attorney's impressions are never discoverable, and everything else is Generally not discoverable unless there is a showing of substantial need for the material.
Note: substantial need means: the party would suffer undue hardship, and the material is not available anywhere else.
When can you make a motion to substitute judges?
IL Court
Can do i once per side as a right and will be granted. has to be before any ruling on substantial merits
When can you file a voluntary dismissal without prejudice?
Must file before a hearing on the merits unless the D has filed a counter claim. Is an absolute right
What is a 2-615 motion attacking the complaint?
pre answer striking allegations or dismissing claims as invalid on their face. No facts outside of complaint allowed
What is a 2-619 motion?
Motion to dismiss, may be filed with answer or as part of answer. it is not based on facial defects but on affirmative matter that defeats the claim.
When will a Motion for summary judgment be granted in IL?
On the eve of trial if there isn't an issue of material fact
When will a motion for Summary Judgment be granted in fed court?
On the eve of trial if there isn't an issue of material fact, but after the motion has been filed the burden transfers to the non-moving party to show that there is a genuine issue of material fact for trial
When will a motion for a directed verdict be granted in IL?
If the evidence so overwhelmingly favors the moving party that no reasonable jury could find for the non-moving party
When will a Motion for Judgment as a matter of law be granted in fed ct?
If there is an insufficient evidentiary basis from which any reasonable jury could find for the non-moving party
When will a JNOV be granted in IL?
Very hard to get, will be granted if the evidence so overwhelmingly favored the moving party that no reasonable jury could have found the way the did
When is a renewed motion for judgment as a matter of law granted in fed courts?
If an original motion for this was made before the jury began to deliberate, this motion may be filed after the verdict and will be granted If there is an insufficient evidentiary basis from which any reasonable jury could find for the non-moving party
When is a motion for a new trial granted in IL?
Granted for substantial errors affecting parties' substantial trial rights, or if the verdict was merely against the manifest weight of the evidence
When will a motion for a new trial be granted in Fed ct?
The fed judge has discretion to grant a new trial if:
1. there were errors affecting the parties' substantial trial rights
2. The verdict was against the manifest weight of the evidence
When will an Il ct grant a motion to vacate a default judgment?
If filed within 30 days of the date the judgment was entered
When will relief from judgment be granted in Il?
Extraordinary remedy for judgments tainted by fraud or perjury.
Time requirement: between 30 days and 2 years after final judgment entered
Must show:
1. merit
2. equity
3. new facts
4. due diligence
When do you have the right to trial by jury in fed courts?
Must file a written demand within 10 days of the service of the last pleading which contains, or responds to, the jury triable claim
And: there is a constitutional right to a trial by jury if the claim seeks primarily monetary damages
What is res judicata?
A claim which has been fully litigated to a final judgment on the merits may not be re-litigated by the parties
What is collateral estoppel?
An issue which has been fully and fairly litigated as part of a final judgment on the merits cannot be re-litigated by the parties
What is the Finality rule in fed cts?
The parties, but only the parties, are barred from re-litigating claims or issues which they have already litigated fully and fairly to a final judgment on the mertis
When do Fed appeal courts have jurisdiction?
Have jurisdiction over appeals.
When can something be appealed to the Fed Appellate ct?
Only final orders are appealable to the appellate court.
1. partial final order
2. Discretionary appeal of interlocutory order if both the district court and the appellate court certify that:
1. There is doubt on a
2. controlling issue such that
3. appellate review would materially advance the litigation
May a party to an arbitration contest the arbitration award?
Yes. Il supreme court rule provides that a party may reject an arbitration award by serving a written notice of rejection on all other parties and filing it with the court. The arbitrator who decided the award may not testify at the trial, and cannot use arbitration proceedings as evidence
What is the court's discretion in voire dire?
Discretion is not limitless; any complete denial of the chance to question the jury in some way is an abuse of discretion.
Can the court not allow attorneys to challenge potential jurors?
No. Such a denial is a denial of the constitutional right to an impartial jury.
IN fed court: What can a judge do when he sanctions people?
should bear some relationship to the violation. Can hold in contempt, strike pleadings, and prohibit the introduction of evidence. On appeal sanctions will be reviewed under the abuse of discretion standard.