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36 Cards in this Set
- Front
- Back
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Types of Jurisdiction
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Subject Matter Jurisdiction
Personal Jurisdiction In Rem |
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Subject Matter Jurisdiction
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Type of topic/case
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In Personam "Personal Jurisdiction"
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-Jurisdiction over the person
-Residence or Domicile Requirement -Plaintiff submits to jurisdiction of the court by filing lawsuit - Court can excercise personal jurisdiction over defendant 3 ways: - where defendant resides - where defendant is served with papers or process - where defendant does "enough stuff" |
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In Rem Jurisdiction
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-Jurisdiction "over the thing"
- Focused on property |
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Venue
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- Court can only hear cases that arose where its located
- Typically in case: -where defendant resides or - where crime occured - change of venue examples |
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Standing
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- need sufficient stake in controversy
- need a harm/damage to sue - taxpayer standing *just because you pay taxes doesn't mean you can sue |
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Pleadings
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Complaint, answer
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Complaint
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- filed by plantiff
-must include: *facts showing that the court has jurisdiction; and *facts establishing basis for relief *remedy plantiff is seeking |
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Answer
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- response filed by defendant (20 days)
- either admit/deny each of Plantiff's allegations - may set forth defenses or make counterclaims - failure to respond - default judgment |
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Methods of Service
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- Federal Rules of Civil Procedure or state rules
*personal service *publication *corporations |
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Personal Service
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*personal service
**process server or someone over 18 and non party **serve defendant in hand or leave at residence or place of business |
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Corporations
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Officer, registered agent
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Motions
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motion and pre-trial motions
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Motion
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-procedural request submitted to court
-has to be served/given to other party too |
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Pre-trial motion
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-motion to dismiss
*failure to state a claim for which relief can be granted -Motion for summary judgment *no material facts in dispute when evidence is viewed in light most favorable to the non-moving party -can provide evidence (affidavits, documents) to support -Motion for judgment on the pleadings *decide issue on pleadings without a trial *sole issue is a question of law |
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Discovery
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-process of obtaining information from opposing party
-includes gathering information from witnesses -statutory/procedural rules require sharing of information -purpose is to prevent unfair surprises -Includes: *depositions, interrogatories, document production, requests for admissions, electronic discovery |
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Ways to enforce judgement
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-Exempt property, writ of execution, writ of attachment, and garnishment
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Foreign Corrupt Practices Act
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- Regulates international business dealings
- Prohibits US corporations from bribing officials to secure beneficial contracts *strictly prohibited the bribery of most officials of foreign gov'ts if the purpose of the payment is to get the official to act in his or her official capacity to provide business opportunities -does not prohibit substantial sums to minor officials whose duties are ministerial. *just intended to accelerate administrative services |
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Sole Proprietorships
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-Anyone who does business wihtout creating a seperate business entity
-no formal requirements, except busienss license |
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Advantages of Sole Proprietorships
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- Proprietor owns business outright
- recieves all profits - no legal formalities - flexible more than other forms -pays only personal income taxes *no double taxation |
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Disadvantages of Sole Proprietorships
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-Bears the burden of any losses/liabilities
-Unlimited liability and legal responsibilities -Creditors can go after teh personal assets -owner dies, business dies -raising of capital - limited to personal funds/personal loans |
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Formalities of Partnerships
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Partnership agreement and duration
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Partnership agreement "Articles of Partnership"
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governs - if silent/no agreement - then law fills in blanks
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Duration
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-agreement can specify time period "for term"
- no time fixed - "partnership at will" |
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Rights of Partners
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-Management
-Interest of partnership -compensation -inspection of books -accounting -property rights |
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Fiduciary duties
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duty of care and duty of loyalty
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Duty of Care
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-Limited to refraining from "grossly negligent or reckless conduct, intentional misconduct or knowing violation of the law"
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Duty of Loyalty
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- accountable to partnership for "any property, profit, or benefit" derived by partner during conduct of partnership business
-breached by self-dealing, misusing property, disclosing trade secrets or usurping opportunity |
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Authority of Partners
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- statement of partnership authority
*may be filed to clarify scope of authority - scope of implied powers -authorized vs unauthorized actions *scope of authority - legally bound to honor partner's commitment to third party |
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Liability of Partners
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Joint Liability and Joint &Several Liability
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Joint Liability
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third party must sue all of the partners as a group, but each partner can be liable for full amount
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Joint & Several Liability
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-third party has the option of suing all the partners together or one or more seperately
-judgement recovery |
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Dissolution
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- can be brought about by acts of partners, operation of law and by judicial decree
-Winding up *includes collecitng/presering partnership assets, paying debts and accounting to each partner for value of interest in partnership -fiduciary duties still exist -partner gets compensation for services in winding up -asset distribution to creditors |
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LLC (Limited Liability Companies) Formation
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- Articles of organization must be filed with secretary of state
- required info: -name of business -principal address - name & address of registered agent - names of owners - info on how LLC will be managed - business name must have LLC in the name - newspaper publication in some states |
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Nature of LLC
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- must be formed and operated within compliance within state law
-Owners of LLC=members -members enjoy limited liability - LLC can sue/ be sued, enter into contracts and hold title to property |
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LLC advantages & Disadvantages
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- choice to be taxed as partnership or company
- foreign investors allowed to be LLC members - members are not personally liable for debts of LLC - risk of loss is limited to the amt of their investments - LLC exists beyond illness or death of members - LLC with one member - automatically taxed as sole proprietor - LLC with 2 or more members can be taxed as partnership or corporation *unless indicate otherwise LLC taxed by IRS as partnership |
