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147 Cards in this Set

  • Front
  • Back
Personal Jurisdiction Inquiry
2-step
Is the state statute satisfied (ie long arm)
Is the Constitutional Due Process requirement satisfied?
Constitutional Analysis: PJ
International Shoe: Does the D have such minimum contacts with forum state such that exercise of PJ would not offend traditional notions of fair play and substantial justice?
Con'l analysis factors
Minimum Contact:
- purposeful availment (D reach out to forum?)
- foreseeability (foreseeable that D might defend a suit in forum)
Fairness:
- relatedness (does P's claim arise from D's contact w/ the forum)
- convenience (forum ok unless D at severe disadvantage)
- state's interest
My Parents Frequently Forgot to Read Childrens' Stories
Minimum Contacts
Purposeful availment
Foreseeability
Fair play and substantial justice
Relatedness
Convenience
State's interest
Subject Matter Jurisdiction
Which court will hear the case? State? Federal?
Federal courts hear:
Diversity cases
Federal Question cases
Complete diversity rule
No diversity if ANY P is a citizen in the same state as ANY D
Determine domicile by:
Presence in state and intent to make that state home
Corporation's domicile?
State where incorporated AND the one state where the corporation has its principal place of business (thus they can have two citizenships)
Partnership domicile?
Use citizenship of all of its members (thus can have multiple citizenships)
Federal courts will not decide...
child custody, divorce, alimony or probate proceedings
The test for diversity is made at the time...
that a case if FILED
A corporations PPB is...
where the managers direct corporate activity occurs (usually headquarters)
Decedents, minors, incompetence citizenship
Use their residence, not the residence of their representatives
Amount in controversy
Must exceed 75,000 for diversity cases
Watch out for statutory ceilings
Aggregation of claims
All the claims (related or not) of one plaintiff v. one defendant will be aggregated
What about equitable relief for diversity cases?
OK, if either:
- the P's viewpoint, the decrease in value w/o the injunction exceeds 75k OR
- from the D's viewpoint cost of compliance exceeds 75k
Federal Question cases
Complaint must show a right or interest founded subsantially on a federal law
Well pleaded complaint rule
P'ls claim itself must arise under federal law, not enough that some federal issue is raised by the complaint
Supplemental jurisdiction
Does not get the case itself into federal court; can only be used if the case is already in federal ct and brings additional claim that does not meet diversity or FQ
Supplemental JX test
The claim must share a common nucleus of operative fact w/ the claim invoking federal SMJ
Limitation of supplemental JX
In a diversity case, the P cannot use supplemental JX to overcome a lack of diversity
BUT can overcome amnt in controversy
AND in FQ case no diversity ok (b/c diversity doesn't matter anyway)
A non-federal, non-diversity claim can be heard in federal court if it meets the supplemental JX test UNLESS
It is asserted by the P
In a diversity of citizenship case AND would violate complete diversity
Supplemental JX discretion to not hear case
May decline if
- federal question dismissed early
- state law claim complex
- state law issues predominate
Removal
A D sued in state ct might remove to federal court
Timing of removal
W/in 30 days of service of first doc that makes case removable
Location of removal
Only to federal district embracing state ct
General test for removal
D can remove if case would invoke diversity or FQ
Special removal rule for diversity cases
No removal if one of the D's is a citizen of the forum
Who can remove a case?
The D, NEVER the P
Erie Doctrine
In a diversity case, federal court must apply state substantive law
Erie Doctrine - is there a federal law on point (ie FRCP) that directly conflicts with state law?
If so, apply federal
Erie Doctrine - no federal law on point?
Look for the "easy" substantive federal law on point:
Elements of a claim or defense
SOL
Tolling rules re SOL
Conflict or Choice of Law rules
Erie Doctrine - if no federal substantive law on point (three tests):
Outcome determinative
Balance of interests
Avoid forum shopping
Venue
Decides exactly which federal court
Venue - Local Action
Must be filed where the land lies
Deals with ownership, possession or injury (including trespass) to LAND
Transitory case (diversity or FQ) may lay venue
In any district where:
- all D's reside (note exception)
- a substantial part of the claim arose
Special rule re venue where all D's reside
Where all D's reside in different districts of the same state, P can lay venue in the D in which ANY of them resides
Where do D's reside for venue
In district where domiciled
Where do D corporations reside for venue?
In all districts where subject to PJ when case filed (ie co might have two citizenships but reside in every district)
Transfer
Fed dist ct may transfer from its court to another federal district
Where can it transfer?
To another federal district where the case could have been filed
Facts re transfer
Discretionary decision based on:
convenience for the parties and witnesses and the interests of justice based on:
- public factors
- private factors
Who can serve process
Any NONparty who is at least 18
Basic service of process
Deliver to D a summons and a copy of the complaint
How is process served
Personal service
Substituted service (ok if 1: D's usual abode; 2: served on someone of suitable age/discretion who resides there)
Service on D's agent
State law (ie publication)
Waiver by mail
Waiver by mail
D will be penalized if D did not have good cause for failing to return waiver
Rule 11
Requires atty or pro se party to sign all pleadings, written motions and papers (not discovery)
Signature on docs means that
The paper is not for an improper purpose
Legal contentions warranted by law
Factual contentions and denials of factual contentions have evidentiary support
If other party violates rule 11
you must give other party 21 days to fix problem (file but not serve motion)
Complaint must include
Statement of grounds of SMJ
Short and plaint statement of claim, showing entitled to relief
Demand for relief sought
In complaint must state facts...
...supporting a plausible claim
What 3 matters must be pleaded with even more detail
Circumstances of fraud
Mistake
Special damages
Complaint - special damages
Must be included in complaint
Defendant's response to complaint
Rule 12 requires D to respond either by a motion or by an answer
Timing - answer/motion to complaint
W/in 21 days of being served
Rule 12 defenses
Issues of form
Rule 12(b) defenses
Issues of form
motion for more definite statement
motion to strike
Rule 12(b) defenses
- lack of SMJ
- lack of PJ
- improver venue
- insufficiency of process
- insufficiency of service of process
- failure to state a claim
- failure to join indispensable party
Waivable defenses
Lack of PJ
Improper venue
Insufficient process
Insufficient service of process
Can't say you lack information to admit or deny when...
the information is public knowledge or in D's control
Failure to deny...
can constitute an admission
When are affirmative defenses plead?
In the answer or else you risk waiving
Counterclaim
Claim against an opposing party
Types of counterclaims
Compulsory
Permissive
Compulsory counterclaim
Arises from the same transaction or occurrence as P's claim. MUST be filed in the pending case or its waive
Permissive counterclaim
Does not arise from same T/O as P's claim and can be filed in a separate case or in answer
Crossclaim
A claim against a co-party
Permissive
P's right to amend
w/in 21 days after the D serves his first Rule 12 response
D's right to amend
ONCE w/in 21 days of serving answer
If right to amend gone...
party may seek leave from the court "if justice so requires"
Factors of "if justice so requires"
- delay
- prejudice
- futility of amendment
Variance
Where the evidence at trial does not match what was pleaded
Amendment of pleading after SOL
It relates back to date of original filing of pleading
Discovery - required disclosures
Initial disclosures
Experts
Pretrial
Discovery - tools
Which can be used to get information from a non-party?
Depositions (w/ subpoena)
Requests to produce (w/ subpoena)
Depositions
Can depose party or non-party
BUT need subpoena for non-party
Interrogatories
Questions in writing to another party
Physical or mental examination
ONLY available through court order
Requests for admision
Only to another party to admit the truth of any discoverable matter
What can you discover?
Any relevant to a claim or defense
What does "relevant" mean?
reasonably calculated to lead to discovery of admissible evidence
Are privileged matters discoverable?
No
Work Product or trial preparation materials
Generally protected from discovery
W/P can be discoverable if:
asker can show
- substantial need AND
- not otherwise available
Exception to discovery based on "need"
If it is
- mental impressions
- opinions
- conclusions
- legal theories
W/P must be generated by...
CAN be generated by any representative of a party
3 ways discovery problems presented to court
- protective order
- partial violation
- total violation
Partial violation steps
1. order compelling party to answer questions + atty fees
2. RAMBO sanctions (ie contempt, costs, atty fees)
Electronically stored information not produced
OK if lost in good faith, routine operation
Total violation steps
Only 1: RAMBO plus costs. No need to get an order compelling answers.
RAMBO sanctions
Establishment order
Strike pleadings of disobedient party
Disallow evidence
Dismiss P's case (if bad faith shown)
Enter default judgment against D (if bad faith shown)
Proper Ds and Ps
Folks who may be joined
Co-plaintiffs may be joined if:
- the claims arise out of the same T/O
- raise at least one common question
Co-defendants may be joined if:
same test as for plaintiffs
Necessary and indispensable parties
Forced to join the case when:
When is a party necessary?
- without A the court cannot accord complete relief
- A's interest may be harmed if he isn't joined
- A claims an interest which subjects a party to a risk of multiple parties
Are joint-tortfeasors necessary?
NO - never necessary
Is joinder feasible?
Court looks for:
- personal jx and
- whether joining him will not make it impossible to maintain diversity
If A cannot be joined...
The ct must either:
- proceed w/o A or
- dismiss the case
How to decide whether to dismiss or proceed?
- is alternative - is there alternative forum?
- what is the actual likelihood of prejudice?
- can the ct shape relief that prejudice?
Impleader
Occurs when a D wants to bring a thrid party D (TPD) for purposes of indemnity or contribution
Timing of right to implead
Within 14 days of serving answer
Process for impleader
File a TP complaint and servie process on TPD (thus need PJ too)
Intervention
Intervention of right
Permissive intervention
Class Action requirements
Numerosity
Commonality
Typicality
Representative adequate
Types of CA cases
- prejudice: where prej would occur to either Ps or Ds
- injunction or declaratory j
- damages: common questions PREDOMINATE over individual questions AND class action is the superior method to handle the dispute
Certification of class
Must occur at an early practicable time, and must define the class and class claims, issues, or defenses
Type 3 CA notice
Individual notice telling class
- they can opt out
- they'll be bound if they don't
- they can enter a separate appearance through counsel
What else must ct do if it certifies?
Appoint class counsel
Who pays for the CA notice?
The CA representative
Who is bound by a CA
All those who do not opt out; you can't opt out of type 1 or 2 (prejudice or injunctive)
How does CA settle or dismiss?
ONLY w/ ct approval, after notice to members requesting feedback. If type 3, option to opt out.
SMJ requirements for diversity CA
For citizenship, you consider ONLY the rep's citizenship.
Amount? Rep's claim must exceed 75k.
CAFA
Will hear if any P is diverse with D; the aggregated claims exceed 5 mil; and there must be at least 100 class members
Pretrial adjudication
Failure to state a claim
Summary Judgment
Failure to state a claim
12(b) claim - tests only the sufficiency of the P's allegation
If all facts were true -- would the P win a judgment
Failure to state a claim - evidence?
Evidence is not examined--only the face of the complaint
Failure to state a claim, if made after D has answered
Known as a motion for judgment on the pleadings
Summary Judgment requirements
there is no genuine dispute as to material issue of fact AND
that she is entitled to judgment as a matter of law
Summary Judgment - evidence
Ct will look at evidence when deciding motion
Pleadings - evidence or not?
NO - document must be sworn under oath
Rule 26(f) Conference
Unless ct order says otherwise, at least 21 days before scheduling conference parties must discuss claims, defenses, and settlement
Final pretrial conference
Roadmap of issues to be tried
Supersede the pleadings
Jury trial - equity claim
Jury decides the facts of the damages claim but not the equity claim
7th Amendment
applies only in federal court
preserves the right to jury in civil actions at law but not in equity
Demand for jury trial
Must be made in writing, w/in 14 days after service of last pleading raising jury triable issue
Voir Dire
No limit on strikes for cause
Each side gets 3 preemptory stikes, which MUST be used in a race and gender neutral way (bc its state action)
Judgment as a matter of law
Takes case away from jury, brought after other side has been heard at trial
Standard for JMOL
View the facts in the light most favorable to non-moving party
Renewed motion for judgment as a matter of law
RMJOL - losing party after jury decision will move for RMJOL.
Standard for RJMOL
Judge finds that jury has reached a decision that reasonable could not have reached
RJMOL requirements
Must move for JMOL at trial, otherwise waive
Motion for new trial
Must move w/in 28 days after judgment
Grounds for motion for new trial
- prejudicial
- new evidence that could not hav been obtained w/ due diligence
- prejudicial misconduct of party or attorney
- judgment is against the weight of evidence
Final judgment rule
You can only appeal from final judgments, which mean an ultimate decision by the trial ct of the merits of the entire case
- must be filed w/in 30 days after entry of final judgment
Claim preclusion
Res Judicata
RJ requirements
Cases must be brought by the same claimant against the same defendant
Case 1 ended in a valid final judgment on the merits
Judgment is not on the merits if
it was based
JX
Venue
Indispensable parties
Same claim - split of authority
Majority - yes where both cases involve same T/O
Minority - no, because the ct looks at primary rights (ie personal injury and property damage)
Issue preclusion
collateral estoppel
CE - how different from RJ?
Narrower -- looks at issue
CE requirements
- case 1 ended in a valid, final judgment
- same issue was litigated and determined (must have been litigation)
- issue was essential to case 1
- can only be asserted against someone who was a party to case 1
- Who can assert CE? (see next flashcard)
Who can assert issue preclusion (CE)
Only by one who was a party to case 1 (mutuality)
Nonmutual defense issue preclusion
Means the one using it was not a party in Case 1 and is D in Case 2
Nonmutual offensive issue preclusion
Means that the one using it was not a party in Case 1 and is the plaintiff in Case 2
Trend for nonmutual offensive issue preclusion
Clear trend in law allow mutual offensive if it is not unfair, which means:
- full and fair opportunity
- foresee multiple suits
- P could not easily have joined
- no inconsistent judgments on record