Civil Procedure

Front 1

STATE COURT SUBJECT MATTER JURISDICTION

Back 1

The Superior Courts are courts of original and general jurisdiction.

In Arizona, Superior Courts have subject matter jurisdiction over all types of actions unless exclusive jurisdiction is granted elsewhere.

Front 2

FEDERAL COURT SUBJECT MATTER JURISDICTION

Back 2

Federal courts have "limited" subject matter jurisdiction over cases and controversies.

Front 3

ARISING UNDER

Back 3

A claim does arise under federal law if the claim is either:
1) created by federal law, or
2) the claim depends on a substantial federal (constitutional) question.

Front 4

WELL PLEAD COMPLAINT RULE

Back 4

The plaintiff is required to assert the federal claim in the initial pleading in order to establish jurisdiction.

Front 5

DIVERSITY JURISDICTION

Back 5

Federal courts have jurisdiction over claims in which there is complete diversity and in which the amount in controversy is $75,000.

Front 6

COMPLETE DIVERSITY OF CITIZENSHIP

Back 6

The rule of complete diversity means that no single plaintiff may be a citizen of the same state as any single defendant.

Front 7

DOMICILE

Back 7

A person’s state of citizenship is his domicile. The person must have his true home there and intend to remain (if there) or to return (if not there) when the lawsuit is filed.

Front 8

WHERE DOES A CORPORATION RESIDE?

Back 8

Citizenship of a corporation exists:

1. In all states where the corp. is incorporated (usually only one state) AND

2. The one state where the corp. has its principal place of business.

Hint 8

PRINCIPAL PLACE

Front 9

HOW DO YOU DETERMINE THE CITIZENSHIP OF UNINCORPORATED ASSOCIATIONS?

Back 9

Unincorporated associations are citizens of each state of which any member is a citizen.

Front 10

AMOUNT IN CONTROVERSY

Back 10

For the amount in controversy to be over $75,000 the value of relief sought by each plaintiff must be over $75,000. Two or more plaintiffs cannot aggregate their claims.

Front 11

SUPPLEMENTAL JURISDICTION

Back 11

the federal court has discretion to assert jurisdiction over additional claims if they derive from a common nucleus of operative fact.

Hint 11

NUCLEUS
DISCRETION

Front 12

DIVERSITY AND SUPPLEMENTAL JURISDICTION

Back 12

If primary jurisdictional basis is diversity there can never be supplemental jurisdiction.

Front 13

DEFENDANTS AND SUPPLEMENTAL JURISDICTION

Back 13

The defendant can always use supplemental jurisdiction.

Front 14

FEDERAL COURTS JURISDICTIONAL BASIS

Back 14

Federal Courts are courts of limited jurisdiction.

There are two primary jurisdictional basis:

1. Arising under federal law; and

2. Diversity

Front 15

REMOVAL

Back 15

A defendant may remove an action from state court to federal court so long as there is federal subject matter jurisdiction over the removed claims.

Hint 15

DEFENDANT
FSMJ

Front 16

ERIE DOCTRINE

Back 16

If a case is before Federal Court and does not arise under federal law the court applies the law of the state where the federal court sits.

Front 17

CONFLICT OF LAWS

Back 17

If there is a conflict between a provision of state law and a provision of federal law, state law governs unless the conflict involves a

Federal Statute,
FRCP,
FRE or
the issue of Trial by Jury.

Front 18

PERSONAL JURISDICTION

Back 18

The ability of a court having SMJ to exercise power over a particular defendant or item of property.

Arizona courts have PJ to the maximum extent permitted by the constitution.

Front 19

SPECIFIC PERSONAL JURISDICTION

Back 19

Arizona allows PJ over non-residents who perform or cause to be performed certain acts within the state.

Hint 19

IN REM
CAUSED
NON-RESIDENTS

Front 20

ALIENAGE JURISDICTION

Back 20

The Federal Courts have SMJ over cases in which the dispute is between a citizen of a state and a citizen of a foreign country.

A dispute between two foreign citizens would not give the Federal Courts subject matter jurisdiction.

Front 21

PERSONAL JURISDICTION IN ARIZONA

Back 21

Arizona Courts have PJ if Arizona law itself grants PJ and it is constitutional.

Under Arizona law, there are three bases for personal jurisdiction:
1. Consent
2. Presence
3. Long-Arm Statute

Front 22

EXPRESS CONSENT

Back 22

The Arizona courts have jurisdiction if:

1. the defendant expressly appoints an agent in writing to accept process

2. the defendant entered into a contract with a clause consenting to be sued in Arizona Courts.

3. the defendant expressly consented to jurisdiction after service of process (personal jurisdiction rights may be waived.)

Hint 22

AGENT
CLAUSE
WAIVER
AFTER SOP

Front 23

PRESENCE

Back 23

The Arizona courts have jurisdiction if:

Dancing = the defendant is actually, voluntarily physically present in Arizona while served.

Domiciled = the defendant’s true home is in Arizona and he/she intends to return.

DBI = the defendant is conducting regular, systematic and continuous business in the state.

Hint 23

ACTUAL AND VOLUNTARY
REGULAR
SYSTEMATIC
CONTINUOUS

Front 24

LONG-ARM STATUTE

Back 24

Under the Arizona Long-Arm Statute, there is personal jurisdiction if the defendant causes an event to occur in Arizona from which the lawsuit derives.

There must be a specific connection between the event and the lawsuit.

Front 25

WHEN IS PERSONAL JURISDICTION CONSTITUTIONAL?

Back 25

When the defendant engaged in such minimum contact that it would not offend traditional notions of fair play and substantial justice to bring a suit against them.

or

The defendant has purposely availed himself of Arizona laws or its consumers and should have reasonably anticipated being sued in Arizona.

Hint 25

TRADITIONAL NOTIONS
FAIR PLAY
SUBSTANTIAL JUSTICE

Front 26

FEDERAL COURTS AND PERSONAL JURISDICTION

Back 26

Unless a federal statute expressly grants personal jurisdiction, a federal court borrows the same P.J. law of the state where it sits.

Front 27

IMPLIED CONSENT

Back 27

A defendant may waive personal jurisdiction rights by conduct that gives rise to an inference of consent.

A failure to object in the first response is an implied waiver.

Hint 27

CONDUCT NOT WORDS

Front 28

SERVICE OF PROCESS

Back 28

Service of Process is proper if the method of process falls under the forum's own rules and was constitutional.

Front 29

FIVE METHODS OF PROCESS
(A WASP)

Back 29

There are five proper methods of process.
1. Abode Service
2. Waiver
3. Agent
4. State Publication
5. Personal Service

Front 30

ABODE SERVICE

Back 30

When an authorized process server leaves the process at the defendant’s last and usual abode, with someone residing therein, of suitable age and discretion. (12+)

Hint 30

AUTHORIZED SERVER
LAST AND USUAL
SUITABLE AGE
DISCRETION

Front 31

WAIVER

Back 31

When the plaintiff mails the complaint with a request that the defendant waive formal process.

The defendant has 30 days to return the waiver.

If the defendant fails to waive formal service he shall be liable for the cost.

If he waives service he has 60 days to answer compared to 20.

Front 32

AGENT SERVICE

Back 32

When the plaintiff makes personal service on the authorized agent or managing agent of the defendant, or the general partner of a partnership.

Front 33

STATE PUBLICATION

Back 33

If, after due inquiry (and mailing to defendant’s last known address), plaintiff publishes notice with an affidavit swearing that the lawsuit involves property in Arizona.

Front 34

PERSONAL SERVICE

Back 34

Personal Service – a process server makes personal, in-hand delivery on the person of D. Process is proper if it is in the vicinity of a reluctant defendant.

Front 35

CONSTITIONALITY OF SERVICE OF PROCESS

Back 35

Reasonably calculated to apprise interested parties of litigation.

(Service need not actually apprise.)

Front 36

VENUE

Back 36

Venue is proper in the district where:

1. any defendant resides, if all defendants reside in the same state, or

2. where a substantial part of the events took place

Front 37

ARIZONA STATE VENUE

Back 37

Where the claim arose and where the plaintiff resides is irrelevant for the purpose of venue. Venue is proper in Arizona in any county where the defendant is domiciled.

Front 38

OBJECTING TO IMPROPER VENUE

Back 38

The defendant must file an affidavit requesting a transfer.

The court will transfer to a more proper venue for the convenience of the parties and the witnesses.

One cannot ask for a dismissal based on improper venue.

Front 39

NOTICE PLEADING

Back 39

Arizona is a notice-pleading state. Complaints need not generally contain facts, merely sufficient information to place the adversary on notice of claims asserted against him/her.

Exception – Fraud claims must be plead with particularity.

Hint 39

SUFFICIENT INFORMATION
CLAIMS ASSERTED
FRAUD EXCEPTION
PARTICULARITY

Front 40

WAIVER OF RESPONSIVE PLEADINGS

Back 40

If the appropriate filing deadline (20, 30, 60, 90) has passed the following responsive motions to dismiss will be WAIVED:

Personal Jurisdiction
Process,
Venue and

no other motion to dismiss may be filed.

Front 41

AMENDMENTS

Back 41

Amendments to the pleadings shall be granted freely to do justice and to serve the merits thereby.

Amendments must relate back to the original claim to conform with the Statute of Limitations (2 years from the discovery of a personal injury).

Front 42

AMMENDING TO ADD NEW CLAIMS

Back 42

If the amendment involves a new claim it must derive from the same transaction or occurrence as the original, timely filed claim.

Front 43

AMENDING TO ADD NEW PARTIES

Back 43

Claimant must file within 120 days of the original, timely filed complaint.

Claimant must show that the claim against the new party derives from the same transaction or occurrence.

Claimant must show that the new party had knowledge that but for a mistake in name it too would have been sued.

Front 44

EXCEPTIONS TO DOMICILE RULE IN ARIZONA VENUE

Back 44

Divorce – In a divorce claim, the plaintiff’s county of residence is the only choice.

Entity Actions – In an action against a corporation or partnership venue is proper in any county where any of the defendants reside or where the claim arose.

Land Actions – must take place in the county where the land is located.

Transaction Actions – venue is proper where any defendant resides or where the transaction was entered into or was to be performed.

Absent Defendant – If no defendant resides in Arizona then the action is proper in any county.

Hint 44

DELTA

Front 45

JOINDER OF CLAIMS

Back 45

A plaintiff may join as many claims as he/she has against a defendant regardless of whether there is any connection to the claims.

Front 46

JOINDER OF PARTIES

Back 46

a plaintiff may join parties so long as the claims involving those parties derive from the same transaction or occurrence or the same series of transactions or occurrences

Hint 46

SAME TRANSACTION OR OCCURENCE

Front 47

COUNTERCLAIM

Back 47

A defendant may raise a counterclaim against a plaintiff that may or may not arise out of the same transaction.

Front 48

PERMISSIVE COUNTERCLAIM

Back 48

does not derive from the same transaction or occurrence.

A failure to assert the counterclaim at this time does not waive the defendant's right to sue on it in the future.

A permissive counterclaim must have an independent jurisdictional basis and therefore meet the jurisdictional amount requirement.

Front 49

COMPULSORY JOINDER

Back 49

A claim that arises out of the same transaction as plaintiff’s original claim. must be brought with the original or the plaintiff loses his right to sue on it in the future.

If the counterclaim is compulsory, it falls within the ancillary jurisdiction of the court and may be heard regardless of the amount.

Front 50

IMPLEADER

Back 50

A defendant may implead a third party who may be liable for all or part of the plaintiff's claims into a civil lawsuit.

Front 51

INTERPLEADER

Back 51

A plaintiff may initiate a suit in order to compel two or more other parties to litigate a dispute.

An interpleader originates when the plaintiff holds property on behalf of another, but doesn't know to whom the property should be transferred.

Front 52

STATUTORY INTERPLEADER

Back 52

under statutory interpleader, there need only be minimal diversity and the amount need only be $5000 or more.

Front 53

MINIMAL DIVERSITY

Back 53

if any two of the rival claimants are from different states there is enough. The domicile of the plaintiff does not matter.

Front 54

RULE INTERPLEADER

Back 54

in order to file a rule interpleader there must be complete diversity and the amount in controversy must exceed $75,000.

Front 55

INTERVENTION

Back 55

When a non-party makes a motion to the court trying to become a party in an ongoing suit.

Front 56

INTERVENTION AS A RIGHT

Back 56

a person has an absolute right to intervene if you have an interest that will be adversely affected by an ongoing lawsuit and not protected by an existing party.

Front 57

PERMISSIVE INTERVENTION

Back 57

the court has discretion to grant permissible intervention if there is commonality of issues between those in the lawsuit and those of the intervener

Front 58

INDEPSENSIBLE PARTIES ARE THOSE THAT MUST BE JOINED IF:

Back 58

1) "a judgment rendered in the person's absence might be prejudicial to him or those already parties;" and

2) the court cannot "shape relief or other measures" to reduce prejudice; or

3) a judgment rendered without the outsider will not be "adequate"

The court must also consider the costs to the plaintiff of a dismissal for nonjoinder.

Front 59

CLASS ACTIONS

Back 59

a class action is an action in which a named plaintiff represents a class of commonly situated absent parties.

Hint 59

COMMONLY SITUATED ABSENT PARTIES

Front 60

CLASS ACTION REQUIREMENTS

Back 60

In order to file a class action suit there must be:

1. commonality,
2. adequate and fair protection of the class,
3. the class must be so numerous that joinder is impracticable, and
4. the claims of the named plaintiff must be typical of those of the class.

Hint 60

COMMONALITY, ADEQUACY, NUMEROUSITY, AND TYPICALITY

Front 61

CLASS ACTION SUITS ASKING FOR MONETARY DAMAGES

Back 61

There must be common issues that predominate all individual issues.

A class action suit must be the superior method of adjudicating the multiple claims.

Notice and an opportunity must be given to the class members to opt out of the suit.

Hint 61

COMMON ISSUES
SUPERIOR METHOD
NOTICE AND OPPORTUNITY
OPT OUT

Front 62

AUTOMATIC PROMPT DISCLOSURE

Back 62

Requires automatic disclosure of:

1. all factual and legal basis for claims and defenses.
2. all potential lay and expert witnesses and summaries of testimonies.
3. all relevant documents
4. a computation of damages

Hint 62

BASIS FOR CLAIMS,
POTENTIAL WITNESSES,
RELEVANT DOCUMENTS,
COMPUTATION OF DAMAGES

Front 63

DISCOVERY

Back 63

No other traditional method may take place until each party has engaged in automatic prompt discovery.

Front 64

DUTY TO SUPPLEMENT

Back 64

each side must automatically update its prior disclosure within 30 days of there discovery and in any event before 60 days in advance of the trial.

Hint 64

30 DAYS OF
60 DAYS BEFORE

Front 65

SCOPE

Back 65

material is within the scope if it is relevant and not privileged.

Front 66

RELEVANT MATERIAL FOR DISCOVERY

Back 66

related to any part of any claim or defense. Does not need to be admissible at trial.

Front 67

PRIVILEGED MATERIAL

Back 67

Work-product is material that has been prepared for litigation and not in the ordinary course of business.

Mental impressions of an attorney are never discoverable.

Front 68

MOTION TO CHANGE JUDGES

Back 68

Each side has an absolute right to change judges once if the motion is filed:

before the judge resolves any significant right or

60 days before trial.

Front 69

MOTION FOR VOLUNTARY DISMISSAL

Back 69

Plaintiff has the right to motion for voluntary dismissal

once

before the answer is served. 

If granted it is without prejudice and plaintiff may re-file later.

Front 70

SUMMARY JUDGMENT

Back 70

no genuine issue of material fact

and

the moving party is enttitled to judgment as a matter of law.

Summary judgment is not available when the defense of contributory negligence is raised.

Hint 70

NO GENUINE ISSUE
MATERIAL FACT
NO CONTRIBUTORY

Front 71

JUDGMENT AS A MATTER OF LAW (DIRECTED VERDICT)

Back 71

A motion for judgment as a matter of law may be filed after the adversary has rested.

It will be granted if the evidence is insufficient to support a contrary verdict.

Hint 71

INSUFFICIENT EVIDENTIARY BASIS
REASONABLE TRIER

Front 72

RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

Back 72

If the original motion for JMOL was made after the close of ALL evidence, a renewed motion may be made.

Front 73

NEW TRIAL

Back 73

The court may, in its discretion, grant for errors affecting the parties legal rights or if the verdict was against the weight of the evidence.

Front 74

RIGHT TO TRIAL BY JURY

Back 74

Must file a written demand within 10 days of the filing of the complaint or answer in federal court or before the judge sets the trial date. 

If the claim seeks primarily monetary damages there is a constitutional right to a trial by jury.

Front 75

OFFER OF JUDGMENT (BETTER DO BETTER RULE)

Back 75

At any time more than 10 days before trial, a party defending against a claim may serve upon the adverse party an offer to settle. If the offer is not accepted and the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

Front 76

DEFAULT JUDGMENTS

Back 76

When a defendant fails to respond to the complaint in a timely manner a default judgment may be granted against the defendant. 

Front 77

ARIZONA PROCEDURE FOR DEFAULT JUDGMENTS

Back 77

Plaintiff must file an application for default judgment

notice of the application must be given to the defendant

If a default judgment is entered the defendant has ten days to contest the entry.

Front 78

MOTION FOR RELIEF FROM JUDGMENT

Back 78

Must be filed within six months of the judgment.

The person filing must show that:

Merits on their side,  

Equity demands relief

New facts cast doubt on judgment,

Despite due diligence unable to discover

Front 79

FINALITY RULE

Back 79

Parties may not relitigate claims or issues which have been fully and fairly litigated.

Front 80

RES JUDICATA

Back 80

A final judgment on the merits of a claim precludes the parties or their privies from relitigating issues that were or could have been raised in that action.

Front 81

COLLATERAL ESTOPPEL

Back 81

once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.

Front 82

OFFENSIVE COLLATERAL ESTOPPEL

Back 82

a defendant may not relitigate an issue after it has been lost and it is bound by the adverse judgment and any who make a legal claim against the defendant will win on summary judgment.

Front 83

APPELLATE JURISDICTION

Back 83

Appelate courts have jurisdiction over appeals of final orders only, unless the lower court finds no reason to delay an appeal even though more claims are pending or the appeal is of an interlocutory nature.

Front 84

FINAL ORDER

Back 84

a final order is an order that leaves nothing left to be done in a lower court. 

Front 85

APPEALS OF INTERLOCUTORY ORDERS

Back 85

If both the lower court and the appellate court find doubt on some controlling issue such that review would materially advance the litigation, an appelate court may hear.

Front 86

PRELIMINARY INJUNCTIONS

Back 86

A preliminary junction will not be granted without notice and a hearing.

One will be granted based on the likelihood of success on the merits;

irreprable harm to the other

balanced against irreprable harm caused by preliminary injunction; and

public interest considerations

Front 87

FILING DEADLINES

Back 87

If served within the state the defendant has 20 days to answer or otherwise plead.

If served outside the state...30 days.

If service has been properly waived...60 in state

90 days if the defendant's address was outside any judicial district within the United States.