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69 Cards in this Set

  • Front
  • Back
general concepts of SMJ
1. Every ct has jurisdiction to determine jurisdiction
2. parties can't consent to improper SMJ
3. Fed cts = ltd SMJ. State cts = general jurisdiction
contesting SMJ
1. Direct attack - SMJ defects can be raised at any time even for the first time on appeal. Remedy = dismissal in fed ct and in MI transfer is possible
2. Collateral attack - generally prohibited in fed ct absent "exceptional circumstances".
In MI cases with "want of jurisdiction" may be collaterally attacked but mistake in jurisdiction = not collateral attack
Constitutional limitations on jurisdiction
*Fed cts are courts of limited jurisdiction
- generally fed SMJ is concurrent with state courts
- Supreme Ct has original jurisdiction over cases involving ambassadors, other public ministers, or consuls and those in which a state is a party
pleading jurisdiction
Fed courts - Plaintiff must plead jurisdiction
state courts - Defendant must plead lack of jurisdiction
four categories of fed dist ct SMJ
1. Diversity of citizenship
2. Federal question
3. special statute conferring jurisdiction
4. supplemental jurisdiction
Federal Diversity Jurisdiction
1. P and D are citizens of different states
2. One party is a citizen of a state and opposing party is an alien not admitted for permanent residency
* RULE OF COMPLETE DIVERSITY: every plaintiff must be diverse from every defendant.
*Note: Plaintiffs can be same citizenship as other plaintiffs and same w/ defendants.
place of domicile
Domicile is the place chosen to be home by:
1. being physical present (even for a moment)
2. with intent of making that place her home indefinitely
"citizenship" of corporations
1. A corp is a citizen of state where incorporated and of state of principal place of business. (nerve center)
Federal Interpleader Statute diversity
1. only requires that there be "two or more adverse claimants of diverse citizenship". So only need diversity between any two claimants.
Special diversity situations
1. Association or partnership = treats each member in individual capacity
2. class actions - citizenship of named representatives controls
3. suit by trustee - citizenship of trustee controls
amount in controversy
1. Must exceed $75,000 (except Federal Interpleader Act which = $500 or more)
-P's claim controls
-place $ value on nonmonetary relief
-single P may aggregate claims against single D
-single P may aggregate against several D's if D's are jointly liable
-several Ps against one D can aggregate if common undivided interest
-claims and counterclaims can't be aggregated
Federal Question jurisdiction
case must arise "under federal law"
-federal statute provides cause of action and a remedy
-WELL PLEADED COMPLAINT RULE - fed question must appear in complaint not in answer
-no AIC requirement
Pendent jurisdiction
When ct has fed question jurisdiction, the ct can determine state law claims BY THE P based on same transaction
1. both claims derived from common nucleus of operative facts
2. the plaintiff would ordinarily be expected to try them in a single proceeding
Ancillary jurisdiction
-automatic rather than discretionary
-in both diversity and fed question
1. whether there is a logical relationship between the jurisdictional claim and the ancillary claim
2. whether the ancillary claim is defensively asserted
Removal jurisdiction generally
-D has right to remove from state to fed ct if fed ct has SMJ
-All defendants must join to remove if multiple Ds
-venue = embracing place where state action is pending
*action must be removed from state court within 30 days after date removable but if based on diversity may not be removed more than one year after it was commenced
Procedure for removal
1. D files notice of removal containing short statement of grounds for removal in fed dist ct where action is pending. Copies to parties and state ct.
-D must file notice w/in 30 days of receipt of initial pleading.
Removal - demand for jury trial
1. Right to jury trial is waived unless timely demand for a jury trial filed within 10 days after notice of removal.
2. Don't need to demand if made prior to removed in state court
Removal - remand
1. P can file a motion to have case remanded based on defect other than SMJ. Must file with 30 days of removal.
Michigan Court system
State judicial power vested in supreme ct, ct of appeals, circuit cts (trial cts of general jurisdiction), probate courts, and those cts of limited jurisdiction established by legislature
Appellate procedure in MI Supreme Court
1. issue - substantial question as to the validity of a legislative act
2. significant public interest and case is by or against the state
3. issue involves legal principles of major significance
4. delay will case substantial harm
5. ct of appeals decision is clearly erroneous
6. decision of Atty Discipline Board is clearly erroneous
Three types of personal jurisdiction
1. In personam - forum has power over a particular defendant
2. In rem - jurisdiction exists when court has power with respect to a particular item of property with respect to all people
3. Quasi In Rem - court has power to determine rights of particular individuals with respect to specific property within court's control
In personam jurisdiction under MI long arm (general)
MI court will have general jurisdiction (i.e., jurisdiction over ALL CLAIMS involving the D) when the D:
1. is domiciled in MI
2. is a corporation, partnership, or association formed or incorporated under MI law
3. carries on a "continuous and systematic part of its general business" within MI; or
4. consents to jurisdiction
In personam jurisdiction under MI long arm (specific)
MI court will have specific jurisdiction (i.e., jurisdiction over only the suit related to conduct below) when the D:
1. transacts any business in MI
2. does any act or causes any act to be done in MI resulting in a tort
3. owns, uses, or possesses any real or tangible personal property situated in MI
4. contracts to insure any person, property or risk located in MI at time of contracting
5. enters into a contract for services to be rendered or materials to be furnished in MI
6. serves as director, trustee, or other officer of any domestic or foreign corporation having its principal place of business in MI
7. maintains a domicile in MI while subject to a martial or family relationship that is the basis of a claim for divorce, alimony, child support, custody, etc.
Constitutional limitations on in personam jurisdiction
*must be sufficient contacts between D adn the forum so that the maintenance of suit does not offend "traditional notions of fair play and substantial justice"
Sufficient contacts exist if:
1. physical presence in state at time of service
2. domicile in state
3. systematic and continuous activity in forum state
*must also be reasonable method to notify D
consent to jurisdiction
D may consent to jurisdiction by:
1. voluntary appearance
2. contract, provided terms of the consent clause are reasonable
3. implied consent under the nonresident motorist statutes
service of process
1. direct personal service on individuals
-hand delivery or mail
-MI: mail is registered mail
-fed rule: P may mail to D and request to waive formal service. If D does not return waiver in 30 days he pays for process. If waives, answer is due 60 days after mailed complaint
2. substituted service - available where impracticable to serve by personal delivery or mail
3. service on corp - any officer or resident agent by mail or in person.
4. partnership - personal service by serving any general partner
5. association - serving any officer, director, trustee, etc.
6. publication - permitted if in personam not required and (i)D resides outside state; (ii) whereabouts of D are unknown or (iii) summons has been returned showing service cannot be made
Objections to personal jurisdiction
1. Direct attack occurs when party challenges by motion or pleading filed in case
2. collateral attack occurs when a person does not enter the case but allows a default judgment to be entered against him and then claims jurisdiction improper
general rules for statutory venue in fed cases
venue is proper in:
1. district where any D residents if all Ds reside in same state
2. judicial district where substantial part of the events or omissions giving rise to the claim occurred
If no district satisfies above then:
1. for actions based solely on diversity, a judicial district where any D is subject to personal jurisdiction
2. not on diversity, a judicial district where any D is found
Statutory venue in state cases
Generally brought in the county where any D resides, conducts businesses or has a registered office.
Effects of improper venue
1. waiver - venue is waived unless raised at earliest opportunity. In fed ct venue must be raised in first responsive pleading. In MI, a motion for change of venue must be filed before or at the time D files an answer
2. Transfer to proper venue. In fed ct may dismiss or transfer. A state ct may change venue on mtn of D or own initiative.
3. Transfer to more appropriate forum - transfer to another court where action could originally have been brought. State law - unlimited transfer "in the interest of justice"
4. Forum non conveniens: a state court with proper jurisdiction and venue may conditionally dismiss and requires P to reinstitute case in another state where trial is more appropriate. Based on litigants, matters of public interest, and reasonable promptness in raising the doctrine.
Eric doctrine (choosing between fed and state law)
1. Is there a federal law on point? If so, it should be applied.
2. If no fed directive, is issue substance or procedure?
-some issues clearly substantive: statutes of limitations, tolling SOL, choice of law, elements of claim or defense
Test for substantive or procedure:
1. outcome determination
2. balance of interests
3. forum shopping deterrence
Eric doctrine (choosing between fed and state law)
1. Is there a federal law on point? If so, it should be applied.
2. If no fed directive, is issue substance or procedure?
-some issues clearly substantive: statutes of limitations, tolling SOL, choice of law, elements of claim or defense
Test for substantive or procedure:
1. outcome determination
2. balance of interests
3. forum shopping deterrence
Pleadings (generally)
1. Must state claim or defense
2. Every pleading must be signed by atty (or party if own atty)
MI: signature certifies that atty has read the pleading, it's well-grounded in fact and law and not interposed for improper purpose. Affirmative duty to conduct inquiry into facts and law before filing
Fed rule 11 governs fed pleadings
the complaint
Must have:
1. caption naming court and parties
2. statement of the claim
3. prayer for relief
4. signature or vertification in accordance with local regulation.
In fed ct complaint must state grounds for SMJ and must be served on D with 120 days of filing (91 days in MI)
Notice pleading v. fact pleading
Notice pleading (fed rules) - requires only a short and plain statement of claim showing pleader is entitled to relief
Fact pleading (MI): complaint, counterclaim, cross-claim or third-party complaint must contain:
1. statement of facts creating c/a
2. demand for judgment for relief
pleading damages
1. special damages must be pleaded to be recovered
2. medical expenses are special damages as are loss of wages or profits
3. punitive damages
the answer - timing
1. Under Fed rules D has 20 days after service to serve answer. If waives service 60 days from date waiver request was mailed.
2. IN MI D has 21 days to answer after being served w/ complaint or 28 days where service is made outside MI or by registered mail
What must an answer contain?
1. state an explicit admission or denial
2. plead no contest (MI only)
3. state that the pleader lacks knowledge or info to form a belief as to truth of an allegation
*Failure to deny means you're admitting.
*Defense not asserted in answer is waived except SMJ and failure to state a claim on which relief can be granted
*Affirmative defenses must be stated in responsive pleading.
challenging the pleadings
Most disfavored (waived if not raised in preanswer motion): more definite statement, striking procedurally improper allegations or pleadings
Disfavored grounds (waived unless raised in first responsive pleading): lack of jurisdiction; insufficient process or service; improper venue.
Favored grounds (raised at any time through trial): failure to join an indispensable party and failure to state a valid claim or defense
Most Favored Ground (any time including first time on appeal): Lack of SMJ
Effects of rulings on challenges to pleadings
1. When motions denied - D may answer complaint, proceed to trial and appeal or seek immediate interlocutory appeal.
2. When motion granted: trial court will determine if P can amend. If not judgment of dismissal
When amendments are permitted
Fed ct: pleading may be amended once as a matter of course w/in 21 days of serving or if responsive pleading required, w/in 21 days after service of responsive pleading.
MI: amendment 14 days after service of responsive pleading responding to one sought to be amended or within 14 days after serving pleading if doesn't require a response.
*In both courts pleadings can be amended by leave of court which is "freely given when justice so requires".
Real party in interest rule
An action must be brought by a real party in interest.
*Person must have capacity
Substitution of parties:
1. death
2. transfer of interest
3. substitution may be ordered at any stage
Permissive joinder
P&D - Parties may be joined if:
(i) right to relief jointly or severally is asserted
(ii) same transaction or series of transactions
(iii) common question of law or fact
(iv) under MI rules convenient administration of justice will be promoted
Impleader of third party defendants
Enables D to bring into a suit a third party who may be liable for all or party of P's claim against D. Not compulsory
Compulsory joinder
Person whose absence would prevent complete relief or would subject to prejudice.
Permissive intervention
A person may intervene when:
1. a statute provides a right to intervene or
2. applicant's claim or defense and the main action have a question of law or fact in common
Intervention of right
Right to intervene when:
1. statute provides an unconditional right to intervene
2. by stipulation of all partise in a MI court
3. when the applicant may be bound by the judgment and his interest may not be adequately represented
Interpleader
A stakeholder who holds property subject to conflicting claims by two or more claimants may bring those claimants into court to decide the matter in a single action.
Requirements: any diverse claimants and AIC of $500 or more
Prereqs for class actions
1. class must be numerous that joinder is impractical
2. common question of law or fact
3. claims or defenses of representative parties must be typical of claims or defenses of the class
4. representative parties fairly and adequately protect interests of the class
5. Action meets requirements of rule 23(b)
Types of class actions in fed ct
1. actions where individual suits could lead to inconsistency and injustice
2. actions where relief applies to entire class
3. actions where class suit is fairest and most effecient way to adjudicate
Class action procedural issues
1. Court must make pretrial decision if class action is proper. In fed ct can appeal this decision within 14 days.
2. Fed action notice to all members is required only in "common questions". Notice must state: nature of action, definition of class, class claims, issues, defenses, binding effect of a class judgment
3. at any time before a decision on merits ct may determine a class is inappropriate or too broad
4. All class member representatives must be diverse from all other representatives
Class Action Fairness Act
Under CAFA, fed SMJ is established if:
1. any class member is diverse from any D
2. AIC in the aggregate exceeds $5 million
3. there are at least 100 members in the class.
ANY D may remove from state to fed ct
Class actions in MI
requirements generally the same as fed ct. Court must also find the class action device is "superior to other available methods of adjudication". Notice is mandatory in all MI state court class actions.
Initial discovery disclosures
Disclosures must be made within 14 days after meeting of the parties required by Rule 26(f).
Without waiting for request, party must provide to other parties:
1. names, addresses and phone numbers of individuals likely to have discoverable information
2. copies or descriptions of docs, etc in disclosing parties' possession
3. computation of damages claimed
4. copies of insurance agreements under which an insurer might be liable
Disclosure of expert testimony
Party must also disclose the identities of expert witnesses expected to be used at trial. Must include report prepared and signed by expert witnesses stating qualifications, opinions, basis for opinions. Made at time directed by the court of at least 90 days before trial. If made to rebut other party's expert testimony, made within 30 days after disclosure of the evidence being rebutted.
Pretrial disclosures
At least 30 days before trial party must disclose:
1. all witnesses expected to call
2. witnesses he will call if the need arises
3. witnesses whose testimony will be presented by deposition
4. list of documents or exhibits that will be offered
*within 14 days of disclosure, party may serve objections to depositions and documents. Objections are waived if not made at that time.
Production of docs and other items
Party may be required to produce and permit inspection by any other party of any relevant papers or objects. In fed ct must depose and subpoena. In MI, liberally permitted but service of process if required on the nonparty.
Interrogatories of parties
Set of written questions by one party to answer party that must be answered under oath.
*No limit on # of questions in MI
*In fed ct may not serve more than 25 interrogatories without leave of ct.
In MI ct order is required if interrogatories served on:
1. P before commencement of action
2. D before he receives summons and complaint
Must answer in 28 days (MI) or 30 days (fed)
Depositions
-Examination of witness under oath in presence of a court reporter.
-Sends notice to other parties giving time and place. In MI P must obtain ct order only if D hasn't had reasonable time to obtain an atty. In fed ct, party may not take more than 10 depositions or depose same person more than once.
-If witness to be deposed is not a party, he should be subpoenaed. If party fails to attend, other party may obtain costs including atty fees.
-Objections made at deposition must be noted on record.
Scope of discovery
-Only relevant material (if it would tend to lead to evidence admissible at trial)
-Protective orders (granted when necessary to protect from annoyance, embarrassment, oppression or undue burden or expense)
Exceptions to broad scope of discovery
1. Privilege - under MI rules must be asserted at deposition or lost
2. Work product of an atty (unless substantial need that won't cause due hardship)
Duty to supplement or amend discovery
1. Duty to supplement a discovery response if it addresses the identity and location of persons having knowledge of discoverable matters or identifies an expert witness and his subject matter
2. Duty to amend a prior discovery response if it is incorrect.
3. If a party fails to amend or supplement the court may enter an order including sanctions.
Completion of discovery
In MI the time for completion of discovery is set by a scheduling order, and must not exceed one year after filing of the answer unless the court orders otherwise.
Conferences before trial
-Under MI law an atty may seek a discovery conference for the purpose of curing discovery abuse.
-Federal Rule 26(f) requires parties to meet to discuss their claims and defenses, settlement, initial disclosures and a discovery plan.
-MI and feds allow the trial judge to hold a pretrial conference.
sanctions for failure to comply with discovery rules
1. Refusal to respond - ct may order the party to respond.
2. Refusal to comply with a ct order or subpoena - sanctions in court's discretion including an order that the matters in question be taken as established
3. Failure to appear at deposition, answer interrogatories or respond to request for production - ct may dismiss action, enter a default judgment or strike all or part of the pleadings.
Use of discovery at trial
1. Depositions - admissible against any part who was present or represented at the deposition if they conform wit rules of evidence. Impeachment, adverse party, any purpose if expert witness (MI) or unavailable.
2. Interrogatories - answers may be placed into evidence by an adverse party
3. Admissions of one party can be relied on by an adverse party.
Summary judgment (fed rules)
Will grant when there is no genuine issue a to any material fact. Affidavits generally accompany the motion.
Summary disposition (MI)
Grounds/Timing
1. ct lacks jurisdiction, process insufficient, service of process insufficient = must be raised in a party's first motion or in responsive pleading, whichever is filed first, or waived.
2. Claimant lacks capacity to sue, another action initiated between same parties involving same claim or claim is barred b/c of release, pymt, prior judgment, immunity, statute of limitations, or Statute of Frauds = must be raised in a party's responsive pleading unless grounds are stated in a prior motion
3. party has failed to state a claim, party failed to state a valid defense, no genuine issue as to any material fact = may be raised at any time unless the period for filing dispositive motions under a scheduling order has expired, in which case the ct has discretion to consider the motion
4. Lack of SMJ or application of governmental immunity = may be raised at any time even after the expiration of the period for filing dispositive motions under a scheduling order
Default and default judgment
Default = if party has failed to plead or otherwise defend, clerk must enter default.
Default judgment = may be entered if D has failed to appear
Notice = must be given.
Separate notice = D has appeared, relief sought is more than in the pleadings (MI) or complaint does not state a specific amount (MI).
Setting aside = "good cause shown" (fed ct) or meritorious defense and good cause (MI)
Relief= may not be different or exceed relief demanded in the pleading