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
Reading...
Front

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

image

Play button

image

Play button

image

Progress

1/73

Click to flip

73 Cards in this Set

  • Front
  • Back
Mimimim Contacts
The defendant must have had such minimum contacts with the forum state that requireing her to defend there would not offend traditional notions of fair play and substantial justice.
Transient (personal) Jurisdiction
Missouri will have transient jurisdiction over an individual D if D was SERVED in the state, UNLESS D was: (a) tricked, (b)extradited into the state or (c) summoned to testify in a criminal hearing or before a grand jury. The caus of action does not have to arise out of D's contact with MO.
Domicile (personal) Jurisdiction
MO will have domicile personal jurisdicion if D is domiciled in MO. The cause of action does NOT have to arise out of D's contacts with MO.
Consent (personal) jurisdiction
MO has consent based personal jurisdiction if (a) D as appeared without properly raising a defense, or (b) D has contractualy agreed to jurisdiction. Missouri enforcese forum selection clauses unless they are unreasonable.
Long Arm (specific) jurisdicion
MO has long arm jurisdiction over D is two requirements are met (a) Missouri's long arm Statutes are satisfied and (b) Federal Constitutional requirements are satisfied.
The MO long arm statute (Bacteria Sex and Marriage)
(1) Transacting business in MOl (2) Making a contract in MO (3) Committing a Tort in MO (4) Possessing real Estate in MO (5)Insuring a MO risk (6) Act of sex in MO near time of conception of a child (7)Living in Marriage in MO
The MO long arm statute (Bacteria Sex and Marriage)
Even if these requirements are met, P can only assert causes of action that rise out of the conduct which satisfies the statute.
The MO long arm statute: Constitutional Limit
If you have satisfied the MO statute, you will have satisifed the constitution. o
The MO long arm statute: Constitutional Limit
To satisfy the constitutionhal requirement (1) D must have purposefully availed himself of the benefits of the forum state (MO) which means (a) D's contact with the state must have proximitly resulted from defendants own conduct (b) The contat must not be the result of unilateral acts of a third party of the plaintiff. (2)The cause of action must arise outof or relate to those contacts.
General Jurisdiction
MO will have general jurisdiction over a corporation D (or other entity)if D's contact with the state are systematic and continuece, at least if D can be served within the state.
If you have a really long answer personal urisdiction question, remeber this sentnece too: Never Quickly Reject Missouri Courts
(1)Nature and quality of contancts (2) Quantity of contacts (3) Relationship between cause of action and contacts (4) Missouri's interest in providing a forum (5) Convenience of the parties.
Personal Jurisdiction Is Waived If D:
(a) files a pretrial motion without raising it or (b) files an answer without raising it or (c) requests affirmative relief. D must raise the personal jurisdiction defense at the first opportunity,
When do general venue ruesl apply?
They apply if no count alleges a tort?
What is the general venue rule?
Under the general venure statute, venue is proper where any Defendant resides.
What is the meaning of residence for venue purposes?
Individuials can have more than one residence. A corporations residence is its registered office, NOT just any ofice for doing business.
Where is the residence of an unregistered foreign corporation?
An unregisted foreign corporation nas noresidence in Missouri.
If no Defendant is a MO resident, where is the proper venue?
If no Defendant is a MO resident, venue is proper in any county.
If Defendant is a Missouri resident, where is venue also proper?
(a) the ccounty where the plaintiff resides (b) But only if the defendant can be served there.
When do special tort venue rules apply?
Special tort venue rules apply if any count alleges a tort.
What are the basic special tort venue rules?
(a) If plaintiff was first injured in Missouri, venue is only proper in the county where the plaintiff was injured? (b) If platiff was first injured outside of Missouri, and defendant is a corporation, venue is proper an either the county in which (a) defendant's registered agent is located or (b) where Plaintiff's principal place of residence in MO (if any) was located at that time when plaintiff was first injured.
If plaintiff was first injured outside of MO and defendant is an individual, where is venue proper?
If plaintiff was first injured outside of MO and defendant is an individual venue is proper in either the county in which (a) defendants principal place of residence in MO was located at the time P was injured or (b) plaintiffs
What is the effect of adding and dropping parties and pretensive joinder?
The court must re-evaluate venue and transer to a proper venue if (a) before the commencement of trail (b) plaintiff eihther (1) adds a party to the petition (2) removes a party gtom the petition (3) Amends the petition to assert a claim against a third-party defendant added by the defendant.
What should the court do if a oarty is added without the Plaintiff's consent?
The court may need to reevaluate venue if a party is added without P's consent.
When MUST the court re-evaluate venue without considering the claims against a particular Defendat?
If plaintiffs joinder of a dendant is found to be pretensive , the court must re-evalute venue without considering the claims against that defendant.
In what two situations is joinder pretensive?
(1)Frivolous legal theory: no nonfrivolous argument that the argument states a cause of action or (2) Baseless factul allegations: no objectievly reasonable basis for believing the allegations are true.
What shoud the defendant do if venue is improper?
The defendant should file a motion to transfer venue. The court should transfer to the correct venue. The court should not dismiss the case.
How is a motion to transfer venue treated unless denied within what period of time?
A motion to transfer venue is deemed granted unless denied within 90 days, unless the deadline is waived by all parties.
When should change of venue for cause be granted?
Change of venue for cause wioll be granted if the inhabitants (not the judge) are prejudiced against the movant or in favor of the other side
When do you have an absolute right to change of venue without cause?
You have an absolute right to change of venue without cause if the case is to be tried by jury in a county with with less than 75,000 inhabitants except in tort cases.
Under what circumstances can a party request a change of judge?
Each class of parties is entitled to 1 automatic change of judge. Change of judge will be granted for cause for any reason that would satisfy recusal of the judge.
What must a party do if they are asking for both a change of venue and a change of judge?
If a party is asking for both a change of venue and a change of judge, they moth combine both requests in a single motion.
Define: Forum Non-conveniens
If a party makes an adequate showing of inconvenience, the principle of forum non conveniens allows a judge to decline to hear, or to tranfer, a case even though the court is an appropriate court for the case.
How does Missouri deal with Forum Non-conveniens?
Missouri does not rcognize in-state forum non-conveniens, but does recognize inter-state (MO to other state) forum non-conveniens.
Who can serve process in Missouri?
Sherrif; court appointed special process server; anyone who is over 18 and is not a party.
Who can serve process on a defendant outside of Missouri?
A person authorized by the state in which D is served; a person appointed by the missouri trial court
To prove that service has been efectuated, what must the person effectuating service do is he is not the sherrif?
The person effectuating service must file a return of service. Anyone other than the Sheriff must file an affidavit showing exact compliance with the rules.
What are the tree ways that an individual can be served?
You can serve a summons on an individual (a) in hand (b) abode (c)agency.
What happens if a defendant refuse to accept service?
The sheriff notes that on the return and process is deemed to have been served.
What process is required for abode service?
Abode service requires that the process (a) be left at Defendant's home, (b) with a family member over 15 (c) which includes butler, rooomate, or maid.
How can coporations and other non-government entities be served?
(1) Officer Service (PResident, partner, CEO) (2) Office service at the office with the person in charge (3) Registered Agent Service (4) Other Authorized agent Service.
When is service by registered or certified mal proper?
Service by registered or certified mail is proper on in In Rem or Qusi- In Rem. It can only be used if defendant cannot be served in Missouri. Service by mail or publication only authorizes in-rem or Quisi in-rem not in personaom jurisidcion--only binds property
What is acknowledgement service?
Following the acknowledgement procedure does not efectuate service unless D signs and returns the acknolegement.. Government entitities are not subject to acknowledgement service. Acknolegement service authorizes in personom jurisdiction
Besides its caption and heading, what other part may be inclded in an answer?
(a)admissions and denials of plaintiff's allegations
What are four basic parts of an answer?
(1)admissions and denials of P's allegations (2) affirmative defenses (3)couterclaims (4)prayer for relief D wants
What are the requirements for submitting an affirmative defense?
If a defendant want to assert an affirmative defense, defendant must plead it as fully as a petition.
In what three situations must P file a reply?
(1) If the court orders (2)if the defendant has filed a counter claim designated as such (3) If the defendant aserted a defense which is an affirmative avoidance.
What are the affirmative avoidance defenses?
(1)statute of limitations (2) release (3)duress (4)estoppel (5) ant defense that alleges new facts that prevent D from liable even if plaintiff proves the elements of this case.
When can pre-trial amendments be filed?
Amendments may be made (1) before a reposinsive pleading or (2) if no responsive pleading is required, within 30 days after pleading to be amended is filed. Otherwise amendments will be permitted if (1) other parties consent or (2)the court grants leave.
When can pleadings be amended to conform to the eviedence?
Pleadings will be amended to conform to the evidence if the other party has explicitly or implicitly consented to trial of the unpled issues. If opponent objects to evidence as outside the pleadings court may permit amendment if the merrits will be served and other side will not be prejudiced.
Explain the concept of relation back when no new parties are added.
When an amendment to a pleading is filed outside the statute of limitations, if no new parties are added, an amendment will relate back if it ariese out of the same CONDUCT, TRANSACTION, or OCCURENCE as the original pleading.
Explain the concept of relation back when new parties are added.
When an amendment to a pleading is filed outside the statute of limitations, if new parties are added, the amendment will relate back if (1) the basic rule is satisfied and (2) the omitted party receives notice before the statute of limitations and the time of service of notice run that (a) the action has been filed and (b) but for a mistake, the new larty would have been joined as a party. (3) The notice must have been adequate to prevent prejudice (4) it will not relate back of Plaintiff found out about mistake in time to amend before the statute ran and fained to do so.
When must motions to transfer be filed?
Motions to transfer must be filed within 60 days ater service on the party seeking transfer.
What is the effect of failing to file a motion to transfer?
Failure to file a motion to transfer waives improper venue.
If a timely motion is filed, can any other action in the case waive the claim of improper venue?
If a timely motion is filed, no other action in the case waives the claim of improper venue
How long does a plaintiff have to reply to a motion to transfer?
The plaintiff may reply within 30 days after the motion is filed
What must a plantiff's reply to a motion to transfer contain?
The reply must state the basis for venue in the forum. The court will not consider any basis for venue omitted from the reply.
How long does it take for a motion to transfer for improper venue to be deemed granted if it has not been denied?
A motion to transfer for improper venue is deemed granted unless denied within 90 days of its filing
If a case is transfred to a county with less than 7500 inhabitants, how should subsequent motions to transfer be treated?
A motion to transfer for improper venue does not deprive parties of the right to change venue if the case is transfered to a county less than 7500 inhaditants and is to be tried to a jury
What are Missouri's extra pre-answer motions?
Plaintiff should post security for costs (2) Plaintiff lacks capacity to sure (3) Other action pending (4) Improper joinder of claims, cross-claims, or counter claims.
What will the trial judge do on a motion to dismiss for failure to state a claim?
(1) Treat all well pleaded ultimate facts as true (2) draw all reasonable inferences favorable to the plaintiff (3) disregard any legal conclusions pleaded by the plaintiff.
What should be done if the pleading does not comply with MO's fact pleading rules?
If the question involves a pleading that dos not comply with MO's fact pleading rules, you will file a motion to dismiss for failure to state a claim and also (1) file an alternative motion for more definite statment because (2) if you fail to do so the trial judge may hold that you have waived plaintiff's failure to plead ultimate facts.
Why are motions for a more definte statement important in MO?
Motions for a more definite statment are more important in MO because (a) MO is a fact pleading state (b) requiring plaintiff to be more specific withh restict plaintiff's discovery (c) failure to file a motion for more definite statement may be deemed to waive plaintiffs failure to plead ultimate facts.
How is a motion to strike used?
A motion to strike is used to (a) eliminate an insufficient defense or (b) eliminate scandalous, redundant, or immaterial matter.
On what basis can a judge decide a pre-answer motion?
A judge can decide on a pre-answer motion (1) based on the pleadings or (2) based on afidavits and or oral testimony pretrial (3) or by deferring decision to the trail.
What should a judge do if a party files a motion to dismiss for failure to state a claim, but presents matters outside of the pleadings?
If a party files a motion to dismiss for failure to state a claim, but presents matters outside of the pleadings, the judge may treat it as a motion for sumary judgment after giving all parties notice and an opportunity to respond. It may require the party to refile the motion on proper summary judgment form.
When should a motion for summary judgment be granted?
Motions for summary judgment should be granted if the motion and responce show that (a) ther is genuine dispute about the material facts and (b) those facts give movant the right to win as a matter of law.
ITT Commercial Finance Approach If Movant is the defendant
If movant is the defendat (a) show that plaintiff cannot prove at least 1 neccesary element of P's prima facie case by (1) attaching an affidavit or similar that negates element or (2)showing that plaintiff has no evidence to support that element or (b) show that there is no genuine dispute that you can prove every elemet of at least 1 affirmative defense by attaching affidavits or similar matieral supporting each element.
ITT Commercial Finance Approach If Movant is the plaintiff
(a) Show that there is no genuine dispute that you can prove every element of your prima facie case by attaching afidavits or similar material supporting each element and (b) show that D canot prove at least 1 neccessary element of a properly pled affirmative defence.
What is step two(the responding parties job) of the ITT Financial Approac to Summary Judgment motions?
(1)Show that there is really a genuine dispute about one of movants undisputed facts (2) By attaching affidavits or similar material (3)that demonstrate that thre are two plausible but contradictoet versions of what really happened?
What should a motion for summary judgement contain to be in proper form?
To be in proper from a motion for summary judgment should (1) set fourth each allegedly undisputed fact in a seperate paragraph. Each fact should be supported by reference to the recorda and (2) should be accompanied by (a) affidavits (b) memorandum of law.
How must facts alledef in summary judgment motions be supported?
Facts alleged in summary judment motions must be supported by (1) affidavits or (2) discovery which must have been filed or (3) the other sides admissions or pleadings but (4) it cannot rely on parties own pleadings.
What must an affidavit show in order to be considered?
Affidavits will not be considered unless they show that (1) they are based on personal knowledge (2) the affiant is competant to testify (3) they contain admissable facts
What should be contained in the non-movants responce?
The non-movant's responce should (1) respond to each fact listed by movant, stating whether non-movant admits or denies that it is undisputed and may (2) set fourth additional facts that non-movant claims are undisputed. (3) Each should be supported by citations to the record.