State & Federal Practice

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SMJ

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SMJ is the POWER of state or fed ct over subject matter of ANY action.

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MI Circuit Courts

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Courts of original and general jurisdiction. As a rule, circuit courts have SMJ over all types of actions (hence are courts of general jurisdiction), UNLESS there is EXCLUSIVE jurisdiction in another forum or federal court.

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Fed Courts have exclusive jurisdiction over specific matters of

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Admiralty, maritime, boat cases, ambasaddors, public ministers, consuls

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Federal courts are courts of...

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LIMITED jurisdiction and thus, there must be a JURISDICTIONAL BASIS for EACH claim filed in federal court.

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Two primary jurisdictional bases

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(1) Arising Under FEderal Law
(2) Complete Diversity

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Arising under federal law

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Claim arises under federal law if the claim is created by federal law/statute, or claim merely depends on a substantial federal question (i.e. constitution)

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Well pleaded complaint rule

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Federal issue must appear on fact of P's well-pled complaint as part of P's own cause of action and NOT MERELY BY WAY OF DEFENSE.

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Federal court jurisdiciton under DIVERSITY

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Complete diversity and amount in controversy EXCEEDS $75,000

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Complete diversity

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No single P may be citizen of same state as any single D.

Have to determine CITIZENSHIP of individuals (parties), corporations, unincorproated associations, aliens

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Citizenship of INDIVIDUALS for diversity purposes

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DOMICILE - place of true home PLUS intent to remain there or to return when lawsuit filed.

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Citizenship of CORPORATIONS for diversity purposes

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(1) state of incorproation and (2) principal place of business is located (builk of its physical activities - not where Board sits)

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Citizenship of UNINCORPORATED ASSOCIATIONS for diversity purpsoes

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Every single member of assoc. as a separate domiciled party. Every partner, member, individual counts. Line them up!

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Citizenship of ALIENS for diversity purpsoes

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(1) Not permanent resident (Pure Aliens) - may not sue another pure alien based on diversity, but can sue a non-alien and there will be diversity and vice versa

(2) Permanent Resident - no deemed alients for diversity purpsoes and domicield in state of permanent residence

(3)American ctizien domiciled outside America can never sue or be sued based on diversity

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Amoutn in controversy requirement for diversity purposes

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MUST EXCEED $75,000. P's viewpoint governs (value of relief sought to at lesat one P must exceed $75k. P cant' jsut sue for injunction or specific performance, but if he attaches at least a $75,000 value it might be ok).

Amount alleged governs (if in good faith - not the amount that might be recovered down the road)

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Supplemental Jurisdiction

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If there is a primary jurisdictional basis for 1 claim, but not for the other claim, federal ct has discretion to assert SJ over both claims if they derive from COMMON NUCLEUS OF OPERATIVE FACT

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Exception to Supplemental Jurisdiction

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If the only primary jurisdictional basis is DIVERSITY - there can be NO SJ over add'l claims brought by P against new non-diverse parties.

This narrow exception will not apply if there are 2 primary jurisdictional bases and therefore court has discretion to asser SJ if they derive from common nucleus of operative fact.

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REMOVAL

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D may remove from state to federal if there is federal SMJ over the removed claims (have to establish arising under, diversity, SJ)

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Exception to removal

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If the only jurisdictional basis is DIVERSITY - NO REMOVAL if any single D is citizen of state where action was filed.

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ERIE Doctrine

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Arises if (1) federal court resolves a claim based on diversity or supplemental jurisdiction (not arising under federal law) and (2) there is a conflict btwn state law and federal law.

State law governs, unless federal statute, rule of civ pro, evidence or trial by jury is the underlyign conflict.

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ERIE Doctrine cont. - If conflict involves a: (1) Federal Statute, (2) Federal Rule of Civ Pro, (3) Federal Rule of Evidence, or (4) Issue of trial by jury....

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FEDERAL LAW GOVERNS!

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ERIE Doctrine cont. - If conflict does NOT involve: (1) Federal Statute, (2) Federal Rule of Civ Pro, (3) Federal Rule of Evidence, or (4) Issue of trial by jury....

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STATE LAW GOVERNS where the difference btwn state and federal law would naturally alter outcome of case.

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PERSONAL JURISDICTION

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PJ is the power of court over D's person or property (to compel D to appear in MI state court)

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MI has PJ if 2 things are true...

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(1) MI law grants PJ, and (2) the law is constitutional

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Three bases for PJ under MI law

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(1) D consents, (2) D present in MI, (3) MI long arm

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Two forms of CONSENT to PJ in MI

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(1) Express or (2) Implied

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Express consent to PJ

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(1) D expresly appoints an agent in MI to accept service of process on its behalf in writing, (2) D enters into K with a provision expressly agreeing to be sued in MI state court, (3) express consent to PJ in MI (not SMJ)

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Implied consent to PJ

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Fail to object to PJ in first responsive pleading (thus a WAIVER of right to contest PJ).

In MI - must respond to complaint within 21 days of personal service, but if served outside of MI (reistered mail), 28 days

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Presence as a bases for PJ in MI

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(1) actual physical presence of D in MI while served w/ process (even if for millisecond - Dancing hypo)
(2) Domicile - D's true home PLUS intent to remain (or return if not actually there thus constructive presence is ok)
(3)Doing business in MI - reular systematic and continuous in-state business

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MI long arm as basis for PJ

5 forms of condcut that gives SPECIFIC PJ over D

Hint: LIMIT

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LAND - D owns/uses/posseses land in MI from which lawsuit derives

INJURY - in MI from D's tort from which lawsuit derives

MATRIMONIAL - Rlshp in MI from which lawsuit derives (divorce, annulment, separation, child custody)

INSURANCE K - D enters into K for a risk located in MI, from which lawsuit derives

TRANSACTION OF BIZ IN MI - from which lawsuit derives (a single, isolated, sporadic occasional casual transaction is ok - not same as for presence requirement)

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REMEMBER even if MI law grants PJ, MI law must also be

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CONSTITUTIONAL as well!

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PJ jurisdiction is constitutional if

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it comports with Due Process: D engaged such minimum contacts that it woudl not offend traditional notions of fair play and substantial justice

Issue becomes whether D purposefuly availed himself to benefits of MI. Put another way, could D reasonably anticipate being sued in MI

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For PJ to be constitutional, must have...

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minimum contacts + fairness (purposeful availment)

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Service of Process is Proper if...

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(1) the method of process is proper under forum's rules and (2) constitutional as well

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FEDERAL methods of process

Hint: AWASP

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1. ABODE - authorized service of process at D's last and usual abode with someone residing therein of suitable age and discretion

2. WAIVER - P may mail complaint to D w/ request to waive formal process and if D does so, has more time to respond in federal court - 60 days

3. AGENT Service - to serve a corporation or partnership on authorized or managing agent of D

4. STATE Methods - Fed ct may always borrow any available process method of state in which it sits

5. PERSONAL SERICE - in-hand delivery of complaint and summons on person of D (VICINITY- wing span rule - can stuff it up his ass if D truly RELUCTANT)

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MICHIGAN methods of process

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1. REGISTERED MAIL + return receipt + affidavit filing swearing that mail was sent

2. IN-HAND DELIVERY - same as personal service (vicinity if D reluctant)

3. PUBLICATION - rare - If D owns property in MI, you file affidavit swearing D is outside of MI or cannot be found, you send by registered mail to D's last known address and PUBLIC once a week, 4 wks in a row notice

4. For corporations - either (1) PERSONAL SERICE upon registered agent or officer, (2) DIRECTOR-trustee or personal in charge of principal office PLUS registered mail to prinicpal office

5. For partnerships - (1) personal service on any general partner or (2) personal service on a person in charge of principal office PLUS registered mail to any general partner

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MI service of process on CORPORATIONS (review)

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(1) PERSONAL SERICE upon registered agent or officer, (2) DIRECTOR-trustee or personal in charge of principal office PLUS registered mail to prinicpal office

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MI service of process on PARTNERSHIPS (review)

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(1) personal service on any general partner or (2) personal service on a person in charge of principal office PLUS registered mail to any general partner

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FEDERAL RULE on VENUE

note: Venue has NOTHING to due with jurisdiction or constitutionality

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Proper in DISTRICT WHERE EITHER (1) any D resides if all Ds reside in same state (if individual - domicile, if entity - where they have contacts)

OR

(2) where any substantial part of claim arose

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Venue NOT proper in federal court if based on where...

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P resides

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MICHIGAN venue

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Proper in COUNTY where any D resides (individuals - domicile, entity - contacts), but if no D resides in MI, then where any P resides

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EXCEPTIONS to MI Venue

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If action invovles LAND, venue is where land lcoated.

If action against GOVT units, then whereunit in fact uses its authority.

Tort Actions

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Venue for TORT actions

Hint: 4 options

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1. Where both D resides and claim arose (i.e. county), but if not...
2. Where both P resides and claim rise, but if not....
3. Both P and D reside, but if not...
4. Where any D resides.

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Object to improper venue?

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Same for Fed and State - Must appear in FIRST RESPONSIVE PLEADING and request TRANSFER TO PROPER VENUE for the convenience of the parties and witnesses and in interests of justice.

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Pleading in Fed v. State cout

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Fed - NOTICE pleading (no facts unless fraud in which cause facts must be pled with particularity)

State - FACT pleading - complaint must contain specific allegations of fact constiuting cause of action

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Amendments - General Rule

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In Fed and State ct, pleadings shall be amended FREELY IN INTEREST OF JUSTICE so taht the merits of action will be served. LIBERAL AMENDMENT policies.

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Relation Back of Amendments to conform to SOL

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discretionary in MI but Fed Court has certain requirements

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elation Back of Amendments to conform to SOL in federal court

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1. New Claims - will relate back if derive from same transaction or occurence as original timely filed claims. Must have SAMENESS

2. New Parties - Yes if 2 thins are true (1) claims against new parites derive from T or O as original timely field claims hence SAMENESS and (2) new party must have knowlede that but for mistake in time it would've been sued within 120 days of original complaint filed.

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Need to file motion fo rleave to amend complaint to...

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add new claims or bring in a new party.

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If you file motion for leave to amend complaint to add new claim or party AFTER SOL HAS RUN thus not TIMELY....

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MI courts have DISCRETION, but FED COURTs require sameness

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JOINDER of CLAIMS

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P may join as many claims as it has against D, regardless of whether there is any connection btwn the joined claims.

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Joinder of PARTIES

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May join parties to a single lawsuit so long as the claims involving those parties DERIVE FROM SAME TRANSACTION OR OCCURRENCE

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JOINDER

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IN fed and state court, we encourage joinder of claims and parties. Liberal joinder policy b/c it is more economical to litigate.

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JOINDER OF COUNTERCLAIMS

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A counterclaim is a claim filed by D against P. Two types:

1. Permissive
2. Compulsory

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PERMISSIVE joinder of counterclaims

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A counterclaim that does not derive from same T or O as P's claim may be filed (but not required) or in separate, independent action.

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COMPULSORY joinder of counterclaims

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A counterclaim that DOES derive from same T or O as P's claim and you MUST file it and cannot file in later independent action

Use it or lost it rule!

DOES NOT EXIST IN MI.

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Compulsory Joinder of CC in MI

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DOES NOT EXIST - Michigan has permissive joinder.

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JOINDER DEVICES

Hint: 2 C's, 4 I's

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1. Counterclaim
2. Impleader
3. Interpleader
4. Intervention
5. Indispensable Parties
6. Class Action

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Impleader

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Third party claim. D may implead a brand new CLAIM against a new, third party if that new third party may be liable to D for all or part of D's liability to P (i.e. indemnity, contribution).

Must have a tight connection.

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Interpleader

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Holder of COMMON FUND may file action as a P and interplead (bring into suit) as Ds all RIVAL CLAIMANTS to the common fund.

Must have jurisdictional basis for interpleader actions (arising under, diversity)

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IL Insurance Co issues a $10,000 life insurance policy on life of A. After A dies, B from Illinois and C from Missouri each claim to be beneficiary of policy. May Insurance Company file action against B and C in FEDERAL COURT?

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First under rule interpleader, ther emust be complete diversity and amount exceeds $75,000. Here, Illinois P against 2 rival cliamants, 1 from Missouri and 1 from IL. Only $10,000 involved thus no complete diversity.

But alternative basis for diversity - minimal diversity and $500+ invovled. Here, any 2 rival caliamants are from different states.

Thus under STATUTORY interpleader, case may be file din federal court

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RULE Interpleader v. STATUTORY Interpleader

Hint: 2 alternative bases for diversity to have interpleader in federal court

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Rule interpleader - complete diversity and amount must exceed $75,000

Statutory - minimal diversity and amount exceeds $500

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Minimal diversity under statutory interpleader

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Any 2 rival claimants are from different states. So if you have 49 claimants and 2 are from FL, this is still ok. Need TWO different people from different states.

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Intervention

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Act of non-party moving to intervene in ongoing lawsuit in a Motion to Intervene. Issue whether Judge should grant it, if in state or federal court.

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Two types of Intervention in federal and state court

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1. AS OF RIGHT - In both state and federal, non party has RIGHT TO INTERVENE if he has an INTEREST in lawsuit that will be ADVERSELY AFFECTED and not protected by existing parties. If can't show this, then have to show permissive

2. PERMISSIVE - Court has DISCRETION to grant permissive intervention if there is COMMONALITY of issues btwn them in ongoing lawsuit and those affecting the intervenor. Fallback argument.

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Indispensable Parties

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An indispensable party is a non-party who cannot be joined as a party and whose ABSENCE from the lawsuit is so PREJUDICIAL to the party's right to full and fair adjudication that the entire suit should be dismissed for failure to join him.

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CLASS ACTION definition

hint: CANTS

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A class action is action in which a named P represents a class of commonly situated absent Ps.

5 general requirements: Commonality, Adequacy, Numerosity, Typicality, Superiority

ALso need NOTICE and OPT OUT RIGHTS in federal and state courts.

Federal court also requires PREDOMINANCE if money damages being sought.

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CLASS ACTION FAIRNESS ACT (2005)

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COngress enacted it where federal courts now have automatic SMJ over class actions involving 100+ Ps, $5 million in aggregate, and any P is from different state than any D (minimal diversity).

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Class Action Certification Requirements in MI STATE COURT

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1. Commonality - commonality of issues of fat or law pertaining to class
2. Adequacy of representation by named P and lawyers to protect and represent interests of class
3. Numerosity - class must be so numerous that joinder of all impracticable (usually 40)
4. Typicality - claims of named Ps are typical of the class
5. NOTICE - reasonably calculated to APPRISE class members for all actions in MI and
6. OPT OUT RIGHTS - class members or Ps must have chance to OPT OUT from the class
7. SUPERIORITY - judge must find that class action is superior method of adjudicating the multiple claims

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Class Action Certification Requirements in FEDERAL COURT

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SAME as MI with additional 8th requirement of PREDOMINANCE - if asking for money damages, common issues must predominate over individual issues

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"Is this discoverable?"

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"The material id discoverable if 2 things are true: (1) method is proper and (2) the material is within proper scope.

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Federal automatic prompt disclsure

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Each side must automatically (without waiting for any request) disclose, swap, exchange:

1. All potential supporting Ws
2. All relevant supporting docs
3. Damages computation
4. Relevant insurance coverage

In federal ct, no other method can be used until parties have first engaged in this automatic prompt disclosure.

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Duty to Suppelment - in both state and fed court, each side must update its prior disclosures within a reasonable time of discovering any new information - automatic ongoin duty.

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In fed court, duty to update prompt disclosures

In state, ongoing duty to update any response to any discovery method

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Scope of material

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Material is within scope of discovery if RELEVANT and NOT PRIVILEGED

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Relevant material to be within scope of discovery

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Liberal, broad relevance to any claim or defense (dont have to be admissible at trial).

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Material that is not privielged

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Privileged materials are not discoverable.

Work Product - Material prepared for litigation and not in usual oridnary course of business.

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Work product privilege

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Same standard for fed and state - Material that has been prepared for litigaiton and not in ordinary course of business. Two types:

1. Atty's mental impressions thoughts strategies are never discoverable.

2. Everything else - other forms of material prepared for litiation generally not discoverable UNLESS there is SUBSTANTIAL NEED FOR THE MATERIAL and would suffer UNDUE HARDSHIP (i.e. W died and need his deposition).

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Motion for Voluntary Dismissal

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P in btoh fed and state court has absolute right to take ONE VOLUNTARY DISMISSAL withotu prejudice to re-file later on.

MUST file BEFORE response to complaint is filed.

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MOTION TO DISMISS

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Can move to dismis for (1) lack of PJ, (2) insufficient process, or (3) venue and must file in FIRST RESPONSIVE PLEADING otherwise WAIVED.

If move for FAILURE TO STATE CLAIM, will be granted if, assuming all allegations in complaint are true, complaint nonetheless fails to state claim for which law provides relief

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Two testable issues in Motions to Dismiss

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1. Waiver (PJ, Venue, Service)
2. Motion to dismiss for failure to state claim

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Motion for summary judgment in FEDERAL COURT

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Granted if there is no GENUINE ISSUE OF MATERIAL FACT such that judgment is proper as matter of law.

But, once motion is filed in federal court, BURDEN is on non-moving party to show genuine issue of material fact for trial and provide evidence.

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Motion for summary judgment in STATE COURT

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All pretrial dispositive motions are SUMMARY DISPOSITION motions in MI - need to say why - for lack of venue, SMJ, PJ, Bad process, or good old fashion summary judgment (genuine issue of material fact)

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JML - judgment as matter of law

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Directed Verdict.

After adversary has rested its case, can move for directed verdict and grante dif there is INSUFFICIENT EVIDENTIARY BASIS from which a reasonable jury could find for the non-moving party.

If denied and jury deliberates nad makes a verdict, loser can (1) make a RENEWED motion for JML (J.N.O.V. in MI) or (2) move for new trial

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J.N.O.V. in MI or Renewed JML in fed

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After verdict rendered, loser may file this motion and granted if there was insufficient evidentairy basis ffrom which any reasonable jury could've found the way they did. Same motion.

If you want to make renewed motion for JML in federal court, MUST have first made original motion before jury deliberated otherwise you WAIVE it after jury verdict.

WAIVER does NOT apply in MI with respect to JNOV

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Motion for new trial by losing party

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Judge has DISCRETION to grant a new trial if (1) there were errors that materially affected parties' substantial rights (i.e. forgot to impanel a jury, rules of evidence violated, excuse jurros in voir dire for bias, etc) or (2) verdict merely against manifest weight of evidence.

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Right to jury trial - 2 steps

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1. Must file WRITTEN DEMAND
2. Must have CONSTITUTIONAL RIGHT to jury trial in frist place

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Written demand for jury trial in federal versus state court

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Fed - P must file this demand with complaint or within 10 days thereafter and D must file in answer to complaint or 10 days after.

State - 28 days after answer filed.

But just b/c you make timely written demand, you still need constitutional right to jury trial.

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Constitutional right to jury trial

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If claim seeks primarily money damages, there is right ot jury trial.

Demand + Money Damages = jury trial

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Default Judgment

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If D fails to respond to complaint in timely manner, gets a default. But D can try to make a motion to vacate default judgment OR motion for relief from judgment

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Timeline for responding to complaint in MI v Federal court

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Fed - 20 days from date of service or 60 days if waived formal process

State - 21 days from service or 28 days if out of state

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Motion to vacate Default Judgment

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Fed - must make motion within reasonable time of judgment and usually liberally granted (federal courts dont like default judgments)

State - must file within 21 days of judgment with an AFFIDAVIT showing merit to your defense (i.e. very sick) and good cause and likely to win.

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Motion for Relief from Judgment

Hint: MEND

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Must file within 1 year from prior judgment but very hard to get relief. Need to show 4 things in federal and state court:

1. Merit to your claim/defense
2. Equity demands relief (i.e. it woudl be inequitable to let judgment stand in wake of fraud or perjury)
3. New fats have come to light that cast doubt on prior judgment (i.e. fraud)
4. Despite due diligence, you are unable to discover new facts until after judgment

MEND: Merit, Equity, New Facts, Diligence

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Res Judicata

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Claim which has been litigated to FINAL JUDGMENT ON MERITS cannot be relitgated by the parties

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Collateral Estoppel

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Issue which has been litigated as part of final judgment of merits cannot be relitigated

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FINALITY RULE

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The parties, but only the parties, are bound by claims or issues which have been litigated agains tthem on the merits.

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Offensive Collateral Estoppel

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Doesnt exist in MI state courts.

In federal court - think of hypo where Corp lost securities fraud action brought by SEC and then class of private investors file class action against Corp. Corp bound by first judgment as it had full and fair oppty to litigate in prior suit.

Parties, but only parties, cannot relitigate. The private class of investors were not in first suit thus not bound. THey will win on summary judgment b/c no longer genuine issue of material fact

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Appellate courts

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Courts of appellate jurisdiction and have jurisdiction only over APPEALS.

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Rule of appellate jurisdiction

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Only final orders may be appealed and a final order is one that leaves nothing left to be done in lower court UNLESS 2 Exceptions apply: (1) partial final order, (2) discretionary appeal of interlocutory orders

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Two exceptions to rule of appellate jurisdiction

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1. Partial Final Order
2. Discretionary appeal of interlocutory orders

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Partial final order exception to appellate jurisdiction

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In fed and state court, an order resolving some claims against some parties, but not all claims against all parties, may be appealed IF lower court finds no just reason to delay the appeal.

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Discretionary appeal of interlocutory orders as exception to appellate jurisdiction

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If both trial and appellate court find (1) Doubt whether the order is right on a (2) controlling legal issue such that (3) appellate review would materially advance litigation.

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Interlocutory order cont.

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A non final order entered by lower court and not even partially final. Court has discretion to allow instant appeal of these orders if 3 things are true. Need to have doubt on controlling issue such that appellate review would materially advance litigation.