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47 Cards in this Set
- Front
- Back
Main issues in SC / main issue in federal court |
SC - Personal jurisdiction
Federal Court - subject matter jurisdiction (every claim must have independent SMJ - diversity, federal question, or supplemental) |
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Venue - Federal District Courts |
Venue can be waived if not timely asserted
Fed ct - Action may be brought in any district where: - any defendant resides - a substantial part of the vents or omissions giving rise to claim occurred - substantial part of the property subject to litigation is situated Residence for defendants: - individuals = domiciled = physical presence + intent to remain - Corporations - any district where corporation is subject to personal jurisdiction = --General jdx = principal place of business (nerve center) or incorporated state, and substantial contacts -- specific jdx = long-arm statute = claim of action arises from |
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Venue - South Carolina
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Resident defendant individuals = venue appropriate in county where:
- defendant reisdes or - substantial part of act or omission occurred Nonresident defendant individuals - substantial part of act/omission or - PLAINTIFF resides, principal place of business AT the time action arose Multiple defendants - where any one of the defendants resides (domiciled=physical presence + intent) Real property at issue - county where real property located |
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Change of Venue |
Transfer within same court system
- court may transfer, or Defendant may transfer Transfer appropriate if: - "no fair or impartial trial may be held" - convenience of witnesses and promotion of justice |
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Forum non conveniens
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transferring between court systems (federal / state)
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Forum selection clauses
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Generally UNenforceable in SC
Arbitration clauses are enforceable if arbitration must occur within the state |
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Notice and Pleading - service of process
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Procedure by which a copy of Summons and Complaint are served to Defendant to obtain personal jdx
Service = 2 part test - does the service: - Meet statue statutory requirements of state + - satisfy Due Process - is the notice reasonably calculated, under the circumstances, to apprise defendant of the pending action |
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Notice and Pleading - federal court service of process
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Waiver - most common
- if the defendant waives personal service > gets 60 days for Answer - No waiver > pay costs - No waiver > actual service required Actual service - Required 30 days after request for waiver and no response - Personal delivery - person or residence w/ suitable person (age, discretion, residing at dwelling) - Corporations - delivery to officer or agent |
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Notice and pleading - federal service of process - territorial limits |
Comply with STATE long-arm statutes - UNLESS
Bulge rule - JOINED or IMPLED defendant within 100mi of courthouse or Federal statute authorizes nationwide service |
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Notice and Pleading - SC service of process |
Serve summons + complaint
Summons - directs defendant to Serve an Answer - default judgment without a timely response (entry of default > judgment) Persons to be served - individuals who are neither incompetent or under 14 - officers / agents - attorney general Manner - personal delivery or certified mail - long-arm statute - personal delivery, cert. mail, compliance with state where service is made - No service on sunday Service by publication - publication most like to give notice |
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Pleadings - Complaint - notice and fact pleading
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Requires
- statement of subject matter jurisdiction - Allegations Allegations shown by NOTICE pleading (FEDERAL) or FACT pleading (SC) - Notice pleading - short, plain statement of the claim > enough information to allow opponent to formulate a meaningful response - Fact pleading - short, plain statement of the FACTS showing that pleader is entitled to relief - facts for each element of claim |
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Pleadings - Pre-Answer motion or Answer |
Timing
- Fed - 21 days after service, 60 days if service waived - SC - 30 days after service Rule 12 Pre-answer motions - Form - more definite statement, motion to strike - 12(b) - technicalities -- no subject matter jurisdiction -- no personal jdx -- improper venue -- insufficiency of process (bad document) -- insufficiency of service (bad delivery) -- SC RULE - no double claims - another action pending between same parties for same cause (kind of an early form of res judicata) 12(b) defenses - on the merits - summary judgment - failure to state a claim - judgment on the pleadings Timing and waiver of Rule 12 - all must be in single motion - not in first response - waived |
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Pleadings - Answer
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Timing
- Fed - 21 days / 60 days waiver of service - SC - 30 days after service with no Pre-answer motions or 15 days after ruling on motion Contents - Responses to allegations - admit, deny , lack suff info - Affirmative defenses - SC fact pleading - affirm defenses must be plead like allegations |
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Pleadings - Amendment
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Relation back - amended pleadings treated as if original
Of right - Fed - can amend up to > 21 days after serving pleading if no response required > 21 days after service of a response to a pleading -SC - 30 days either way - with leave of court Response to amended pleadings - SC - 15 days - Fed - 14 days |
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Joinder of Parties and Claims - Permissive
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Rule 20 - requires
- same transaction or occurrence, shared common question of law or fact Federal - subject matter jdx over each claim -either by - independent SMJ for each claim or - independent over one and supplemental over the rest |
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Joinder - persons
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Persons needed for just adjudication - people need to be joined b/c of relations
Necessary parties - joined if feasible when - complete relief cannot be afforded w/o - absentee interest will be harmed - absentee claims interest Indespensible parties - absentee joinder not feasible - court must determine in equity and good conscious the action can proceed among existing parties |
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Joinder of claims
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Rule 18 - freely allowed
Fed - need SMJ |
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Counterclaims
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permissive - any claim defendant has against plaintiff may be asserted
fed - need independent smj grounds compulsory - any counterclaim which arises from same transaction or occurrence as plaintiff's claim MUST be filed in pending case |
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Cross-claims
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not compulsory - supplemental jdx will exist for a cross-claim meeting Rule 13
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Impleader -
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derivative liability - if I am liable so is x
- As of right - 10 days after serving answer in SC, 14 in fed - Bulge rule applies - If D impleads 3rd party - supplemental jdx exists - If 3rd P impleads a plaintiff - supplemental jdx exists - If Plaintiff impleads 3p - need independent grounds or claim arose out of same transaction or occurrence |
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Intervention
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Absentee wants to join pending suit
- of right when interest in property or transaction, action will impair that right, and interest not currently and adequately represented by parties (plaintiff needs independent grounds, Defendant only needs supplemental grounds) Permissive - common question between pending claim and absentee's claim (independent grounds need) |
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Interpleader
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consolidating several claimants so as to not be subject to multiple liability
Fed court - - complete diversity required, normal limits on service of process - Statutory impleader - minimal diversity - one claimant must be diverse from another claimant + $500 min |
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Class actions
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SC requires:
- numerosity - too many parties for practical joinder - commonality - same question of fact or law - typicality - claims/defenses are typical of class members - representations - will fairly and adequately represent class - min $100 for each class (b)(1) prejudice action (b)(2) injunction or declaratory action (b)(3) damages action |
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Discovery - generally |
Meetings
- fed required - sc not required Required disclosures (fed only) - identity of individuals, docs, supporting stuff - expert witnesses - pretrial disclosures - no later than 30 days before trial |
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Discovery - substantive scope
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SC - any information relevant to the subject matter involved in the pending action
Fed - any info relevant to the CLAIMS OR DEFENSES |
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Discovery - work product doctrine |
Docs, esi, tangible things, prepared in anticipation or preparation for trial gives a qualified immunity
must show substantial need or no substantial equivalent |
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Discovery - timing
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SC - depositions may not be taken less than 30 days after service, unless Defendant starts first
Interrogatories and RFPs- may be served along with complaint |
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Discovery - depositions
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SC - must have claim of $10k or more
Fed - always allowed Must serve - written notice for parties, notice + subpoena for nonparties subpoean duces tecum for non-party to bring doc/tangible thing |
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Discovery - depositions - objections
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Preserved unless waived
Waived if not raised during deposition - form of question, qualified reporter preserved - relevance, competency |
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Discovery - depositions - counseling witness
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SC - cannot counsel witness except to assert privilege
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Discovery - interrogatories
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SC standards
- witness infor - photos/sketches/prepared docs - (personal injury) all doctor/treatment/hospital info (costs) - insurance - statement of damages - expert witness info - summary of facts known to or observed by witnesses listed SC - if case is over 25k - get standards + 50 otherwise just standard 7 Fed - 25 max |
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Discovery - requests for production
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Party - 30 days, 45 days if included in service
Non-party - subpoena duces tecum |
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Injunctive relief - preliminary injunction
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Court order to stop some action, with hearing and notice. Must show: |
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Injunctive relief - temporary restraining order
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Emergency preliminary injunction that does not provide for hearing or opportunity to be heard
Lasts for 10 days in SC, 14 days in Fed Must show: - substantial likelihood of success on the merits - irreparable harm before hearing will be held - balance of hardships - public policy - notice efforts have been made - give security bond |
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Pretrial disposition - voluntary dismissal
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Of right - once without prejudice before defendant answers
Court can dismiss by order or stipulation |
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Pretrial disposition - involuntary dismissal
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Grounds: failure to prosecute, failure to comply with rules/orders, rule 12 motions
Effect - with prejudice - unless court orders otherwise but Rule 12 dismissals are always with prejudice |
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Pretrial disposition - default judgment
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Step 1: entry of default by Clerk on the docket that party has failed to plead or otherwise defend
Step 2: default judgment - fed - clerk of court enters if Defendant did not appear and case was for a sum certain - by judge if Defendant appeared and not for sum certain - SC - must be done by Judge |
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Getting out of default judgment
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Setting aside
- entry of default - motion requires good cause and viable defense - default judgment - mistake, inadvertence, excusable neglect, AND meritorious defense |
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Summary judgment
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Timing of motion |
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Consolidation and Bifurcation
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court may do so by discretion
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Trial by jury
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Case in equity - no jury trial
Case in law - jury trial 7th amendment - if claim existed in 1790's you have a right to jury trial Demand for jury - must make a demand or else waived - parties must file demand: -SC - 10 days after service of last pleading addressing jury triable issues - Fed - 14 days |
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Jury selection - voir dire
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Challenges to jury selection
- for cause - unlimited, just convince judge - preemptory - any reason, 3 per side - no gender or race based challenges |
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Motions challenging sufficiency of evidence
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Directed verdict
-In fed it's a "Judgment as a Matter of Law" JML - evidence will permit only one conclusion - raise at close of plaintiff evidence or close of all evidence Motion for non-suit - court may dismiss action at close of plaintiff evidence if judge would not find for plaintiff on that evidence |
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Jury verdict |
Fed and SC require UNANIMITY
Form - general - no rationale given - general + interrogatory - jury must answer questions and give verdict - special - give specific instructions, court then applies law to facts jury finds |
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Post-trial motions
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JNOV - judgment notwithstanding the verdict (Renewed JML / directed verdict motion)
- Evidence is so one-sided that no rational jury could have given the verdict they did - SC- motion made at close of all the evidence - Fed - motion at end of plaintiff evidence or all evidence Motion for new trial - Error during trial; prejudicial misconduct of party or juror - judgment against weight of evidence --Fed - serious error by juror --SC - 13th juror - trial judge has great discretion to grant new trial whenever the trial judge would have reached a different result than jury SC - 10 days after jury discharge Fed - 28 days after judgment Motion for relief from judgment - clerical mistakes |
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Appellate Review
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Filing
- 30 days after judgment or - with post-trial motions --Fed- notice 30 days after motion ruled on --SC - 15 days after motion ruled on Reviewable orders - Final judgment rule - trial court must make decisions on merits of entire action before appeal allowed - "after making the order, does the trial court have anything left to do on the merits of the case?" |
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Preclusion |
Claim preclusion (res judicata)
- same parties/privity with parties - same claim - final judgment on the merits > new action will be precluded Issue preclsuion (collateral estoppel) - same issue - actually litigated and decided - final judgment - determination was essential to the prior judgment - - if determination would have been different > outcome would have been different SC - does not require mutuality for collateral estoppel - aka Non-mutual issue preclusion |