Civil Procedure

Front 1

What is general jurisdiction?

Back 1

D must have substantial, systematic, continuous contacts with forum state.

Individual - Domicile
Corporation - PPB or Place of incorporation

Front 2

What is fairness?

Back 2

Traditional notions of fair play and substantial justice.

Front 3

What are the fairness factors?

Back 3

1. Burden on D
2. Interest on forum state
3. P's interest
4. Interstate judicial systems interest in efficient resolution of disputes.
5. Public policy (catch all)

Front 4

Statutory limitations on jurisdiction

Back 4

They are statutory limits to personal jurisdiction. Long arm statutes say that just because exercise of jx over person satisfied due process doesn't mean it is permissible.

Front 5

What does the Kansas long arm statute say?

Back 5

Need to use for non-residents if can't serve in state. Jx if cause of action arises out of:
1) Transaction of any business within Kansas
2) A tort in Kansas
3) Ownership, use or possession in KS
4)Contracting to insure in KS
5) K w/KS resident to be performed in KS
6) Acting as a director, manager or officer of a Corp. incorporated in KS or PPB in KS
7)Causing injury in KS with out of state D, if D solicited in KS or products were used in KS in the ordinary course of trade
8)Living in a marital relationship in KS if other party still resides in KS
9) Insuring any person for an act resulting in judgment in KS
10)Sexual intercourse within KS if the claim is for parentage or child support and the other party still resides in KS
11) Contracting with KS corp. about transp. or communications services managed or operated in KS.

Front 6

What does the federal long arm statute say?

Back 6

If state court would have jx based on its long arm statute, then federal courts do too.

Front 7

If a federal court does not have jurisdiction using the state's long arm statute, can a federal court nevertheless assert jx?

Back 7

Yes, through:
1) Bulge rule: If D is joined by impleader or as necessary arty, federal ct has personal jx if service is done within 100 miles of courthouse

2) Per specific federal statutes

3) in federal cases, if no state works any federal court if aggregate contacts suffice for due process

Front 8

SERVICE OF PROCESS: How do we give D a proper notice of lawsuit?

Back 8

As with personal jx, two dimensions:
1) Constitutional: reasonably certain to inform parties


2) Rule/statute in KS

Front 9

SERVICE OF PROCESS: How can you serve process in Kansas?

Back 9

1) Service on individual: (i) by mail with return receipt (ii) on written request to clerk: personal service, (iii) on written request to clerk: residential service, leave summons at home with person of suitable age and discretion.

2) On corporation: same as above, to: (i) officer or agent (ii) person in charge of any business office.

Front 10

SERVICE OF PROCESS: What is the time limit for service of process in Kansas?

Back 10

Within 90 days of filing the complaint.

Front 11

SERVICE OF PROCESS: What is the effect of the statute of limitations in Kansas?

Back 11

SOL are met as long as case is filed on time, as long as service is done within 90 days of filing the complaint.

Front 12

SERVICE OF PROCESS: What happens if service is done within the allowed time but is later deemed defective?

Back 12

Plaintiff has 90 more days to serve and still be within the SOL (if served in good faith)

Front 13

SERVICE OF PROCESS: How can you serve process in federal court?

Back 13

1) Service of individual: (i) any way approved by the state court (or where service is done ) (ii) personal service (iii) leave summons at home iwth person of suitable age and discretion (iv) service on agent of D.

2) Corporation: (i) any way approved by state court or where service is done (delivering to officer/agent of corp.

3) Waiver of service (usually by regular mail)

Front 14

SERVICE OF PROCESS: What are the reasons for D to waive service in federal court?

Back 14

1) I doesn't waive, court will impose costs of service unless good cause for refusal

2) D will have 60 days to file answer instead of 20 days

Front 15

SERVICE OF PROCESS: What is the time limit for service of process in fed. ct?

Back 15

Within 120 days of filing complaint. Note: SOL are met if case is filed on time, even if service is not done until later.

Front 16

VENUE: What is venue?

Back 16

Non-constitutional issue of whether federal district of Kansas county that Plaintiff chose is an appropriate one.

Front 17

VENUE: Can venue be waived?

Back 17

Yes, improper venue is waived if not raised y a Defendant.

Front 18

VENUE: Where will venue lie in Kansas?

Back 18

1) Actions against KS residents venue lies in counties where: (i) D resides (ii) P resides (if D is served there) (iii) D has business or employment (if D is served in this county.

2) Against Non-residents: (i) county where cause of action arose (ii) where P resides (iii) if D is served in that county (iv) D is transacting business in that county.

3) Corporations: (i) where cause of action arose (ii) Ds registered office is in county (iii) D transacts business in that county (if P resides there)

Front 19

VENUE: Where will venue lie in federal court?

Back 19

3 ways:

1) If all of the Ds reside in same state then a district where any D resides is OK

2) Any district where a substantial part of the event occurred.

3) If neither of the above 2 give you a place of venue, then where any D is subject to personal jx, venue is OK.

A corporation resides in any district (state) in which it is subject to personal jx

Front 20

VENUE:What is transfer?

Back 20

Moving the case from one district/county to another one.

Front 21

VENUE: When is transfer appropriate?

Back 21

1) For convenience (keep same substative law of transferor forum)

2) Curing a venue defect (apply new forum's subst. law)

3) Cure a subject matter jx defect (from specialized fed. ct to district ct.)

Front 22

VENUE: When is transfer appropriate in Kansas?

Back 22

1) Because cannot get fair rial in county were brought

2) By stipulation of parties and court and sup. court.

Front 23

VENUE: What is forum non-conveniens in fed. ct?

Back 23

When ct. thinks another country is a more appropriate forum.

Front 24

VENUE: What is forum non-conveniens in Kansas?

Back 24

When ct. thinks that another state or another country is more appropriate forum.

Front 25

SUBJECT MATTER JURISDICTION: What is SMJ?

Back 25

Is about the type of case, not geography.

Front 26

SUBJECT MATTER JURISDICTION: Where do Kansas courts have subject matter jurisdiction?

Back 26

Easy. District courts in each county of Kansas have general original SMJ over all matters, unless otherwise provided.

Front 27

SUBJECT MATTER JURISDICTION: Where do federal courts have subject matter jurisdiction?

Back 27

Limited based on Art. III:
1) diversity
2) federal question

SMJ CANNOT be waived

Front 28

SUBJECT MATTER JURISDICTION: What is the federal question requirement?

Back 28

District courts have original jurisdiction of all civil actions "arising under" federal law, US Constitution, or treaties.

Front 29

SUBJECT MATTER JURISDICTION: How do you decide if action arises under federal law?

Back 29

Usually P's cause of action must be created by federal law.

Exception: if cause of action created by state law implicate significant federal issues, case may arise under federal law.

Front 30

SUBJECT MATTER JURISDICTION: What is the well pleaded complaint rule?

Back 30

In deciding whether "arises under" consider only Ps complaint.

Do not consider Ds answer or any defenses D might have. Do not consider Ps anticipation of Ds answer or defenses.

Front 31

SUBJECT MATTER JURISDICTION: What do you need to meet the diversity jurisdiction requirement?

Back 31

1) Complete diversity

(i) Complete diversity is destroyed if any P is citizen of the same state as D
(ii) Not destroyed by foreign
parties on either side

or complete alienage

(i) destroyed if foreign P and foreign D
(ii) destroyed if US P and US D

2) Amount in controversy over $75K

Front 32

SUBJECT MATTER JURISDICTION: How do you determine citizenship for the diversity requirement?

Back 32

1) Individual: domicile = (1) physical presence plus (2) intent to stay

2) Corporation (1) any state in which incorporated; also (2)state of ppb. (decisions place or assets)

Front 33

SUBJECT MATTER JURISDICTION: What are the factors considered for the 75K requirement?

Back 33

1) Must exceed 75K (in good faith on allegations or complaint not actual result, interest and cost not included, if equitable rlief, courts attempt to value)

2) aggregation
a) single P may aggreg. all claims v. single D
b) single P may not aggreg. claims v. multiple Ds unless joint liability theory
c) multiple Ps v. single D may not aggreg. claims unless Ps are seeking to enforce joint interest.
d) Ds counterclaim cannot be aggregated with Ps claim.

Front 34

SUBJECT MATTER JURISDICTION: What is supplemental jurisdiction?

Back 34

This one depends on diversity or federal question. First needs original jurisdiction over one claim.

Then court has supplemental jurisdiction over all other claims that are so related that they form part of the same case or controversy.

Suppl. Jx cannot be used to circumvent complete diversity

Front 35

SUBJECT MATTER JURISDICTION: If a plaintiff from state A brings an action against a defendant from state B based on a federal question and later joins a D from state A, is there supplemental jx?

Back 35

Yes, because the claim arose out of a federal question so complete diversity is not necessary.

Front 36

SUBJECT MATTER JURISDICTION: If multiple Ps join diversity suit in federal court, do all need to have claims exceeding 75k?

Back 36

No, as long as one P has claim over $75K, other Ps with smaller claims can join as long as they meet the same case or controvesy requirement.

Still needs the complete diversity requirement.

Front 37

SUBJECT MATTER JURISDICTION: Can the federal court nevertheless decline supplemental jx?

Back 37

Yes, if:

1) New claim raises novel or complex issues of state law

2) New claims substantially predominates over claims for which original jx exists.

3) Court has already dismissed claims for which original jx exists.

4) Other compelling reasons

Front 38

SUBJECT MATTER JURISDICTION: When does removal occur?

Back 38

Depends on diversity or federal question and it occurs when the case starts in state court and D decides that he wants to have it in federal ct. If more than one D all have to agree.

You can remove when the case could have been brought by the P in federal court.

Counterclaim cannot be the basis for removal.

Front 39

SUBJECT MATTER JURISDICTION:Where does a case get removed to?

Back 39

To the federal court for the district where the state case is pending.

Front 40

SUBJECT MATTER JURISDICTION: When can D remove?

Back 40

Within 30 days of when you first ascertain that the action is removable.

If basis for removal is diversity, then there is an absolute 1 year limit after filing of complaint.

Front 41

SUBJECT MATTER JURISDICTION: What if P thinks that the case was wrongly removed?

Back 41

Move to remand within 30 days of removal, but if basis for remand is lack of SMJ, anytime.

Front 42

SUBJECT MATTER JURISDICTION: What is the difference between removing a case based on a federal question and removing a claim based on diversity?

Back 42

1) Fed. question cases can be removed regardless of citizenship of parties

2) Diversity cases can be removed only if D is not citizen of forum state.

Front 43

PLEADING: What is necessary to file a proper complaint?

Back 43

1) Statement of Jx (KS NO)

2) Short and plain statement of the claim showing that the pleader is entitled to relief (Fed.&KS)

3) Demand for judgment (ks & fed.) in KS if asking for less than $75K they don't need the amount, if asking for more than 75K, say so w/o specifying; if asking for punitives must get leave of court.

Front 44

PLEADING: What is certification?

Back 44

The idea that everything you put in the complaint has a reason for being there. You as an atty represent that you have done a reasonable inquiry that:

1) Not for improper purpose
2) Legal contentions are warranted by existing law.
3) Facts are warranted
4) Denial of facts is warranted

Front 45

PLEADING: What happens if you violate the certification requirement?

Back 45

Get sanctions imposed including 1) atty's fees and expenses 2) nonmonetary directives (CLEs)

Front 46

PLEADING: How does a violation of the certification requirement occur procedurally?

Back 46

1) Ct can raise issue sua sponte
2) Party has to serve motion to opponent 21 days before filing motion (fed) Kansas has no safe harbor, you can just file.

If court finds violation:
Fed: court may impose sanctions
KS: court shall impose sanctions

Fed & KS: Sanctions go against attorney, party (not for legal stuff.)
Fed: Attorney's firm

Front 47

PLEADING: How do you answer a complaint?

Back 47

a) Answer by:
1) Deny 2) Admit or DLK (Deny lack of knowledge)


b) Raise affirmative defense (SOL, etc)

c) May add counterclaim, cross-claim

Front 48

PLEADING: What is a compulsory counterclaim?

Back 48

D must raise CC that arises out of the same transaction or occurrence.

Front 49

PLEADING: What is a permissive counterclaim?

Back 49

Any claim, even not related to the same transaction or occurrence.

Front 50

PLEADING: What is a cross claim?

Back 50

A permissive cross claim as long as the CC arises out of the same transaction or occurrence. No unrelated CC permitted.

Front 51

PLEADING: What is a pre-answer motion?

Back 51

1) Failure to state a claim (you don't waive it if don't make at the beginning)
2) Lack of SMJ (never too late to raise, even on appeal, can be waived)
3) Lack of personal jx (waived if not raised at 1st chance)
4) Improper venue (waived if not raised at 1st chance)
5)Insufficiency of service of process (waived if not raised)
6) Failure to join a necessary party (waived if not raised)

Front 52

PLEADING: What are pleadings?

Back 52

1) Complaint (fed.) Petition (KS)
2. Answer
3. Reply (D's answer to complaint)
4. Answer to cross-claim
5. 3rd party complaint (fed) 3rd party petition
6. Answer to 3rd party complaint

Front 53

PLEADING: Can you amend a complaint?

Back 53

Yes, once freely before answer is served.

Front 54

PLEADING: Can you amend your answer?

Back 54

Yes, once freely within 20 days of service.

Front 55

PLEADING: If there is no free amendment, can you amend?

Back 55

Yes, but need consent of parties or leave of court (when justice requires, unless delay, bad faith, undue prejudice or futility.

Front 56

PLEADING: What is the most common problem with futility in amendments of pleadings?

Back 56

The statute of limitations, if amended complaint would be time barred, will need to relate back to the earlier date or original complaint.

Amended complaints relate back if the new claim arises from same transaction or occurrence or conduct as claim in original complaint.

Front 57

PLEADING: What if amended complaint tries to bring in a new defendant?

Back 57

Then additional requirements:
1) D must have had notice of original complaint
2) But for mistake in identity the D would have sued the D originally

Idea behind it is that it is not fair to bring in D who was thinking that SOL had passed and did not know of suit against wrong D.

Front 58

DISCOVERY: What are the initial disclosures that a party has to make in federal court?

Back 58

Fed. ct. requirement where party must disclosure information they will use within 14 days of initial conference between parties, such as:
1) Name/address/phone for each witness that will be used at trial
2) Copy of description of doct. and things
3) Computation of damages claimed
4) Copy of ins. agreement

Parties have a continuing duty to supplement or correct as needed.

Front 59

DISCOVERY: What is the general standard for whether info is discoverable?

Back 59

1) Not privileged
2) Relevant to a claim or defense of any party
3) Need not be admissible at trial as long as it's reasonably calculated to lead to admissible evidence.

Front 60

DISCOVERY: What is the work product privilege?

Back 60

Not discoverable work products:

1. Can be the product of a lawyer or party or other representatives of the party

2. To be protected, product has to be prepared in anticipation of litigation or for trial

Front 61

DISCOVERY: Are work product documents and tangible things discoverable?

Back 61

YEs, only if
1) Party has substantial need for materials, and

2) Party is unable without undue hardship to obtain the substantial equivalent through other means

Front 62

DISCOVERY: Are mental impressions discoverable?

Back 62

No, even if party meets standard for documents and tangible things, court will order that documents be redacted to remove mental impressions. Mental impressions will be edited out.

Front 63

DISCOVERY: What if the party from whom info is requested considers that the discovery causes an undue burden or expense, annoys, embarrasses or oppresses him?

Back 63

Party should move for a protective order.

Fed Ct. In so moving, party must certify in good faith that he tried to resolve issue with other party.

Front 64

DISCOVERY: What is the mandatory discovery requirement for discovery about experts?

Back 64

At least 9- days before trial, must disclose:

1) Identity of any person to be used as expert

2) Written report of complete statement of opinions to be expressed by expert and basis for opinion (Fed. ct. also needs a list of publications, compensation and past cases testified in)

Front 65

DISCOVERY: Can experts be deposed?

Back 65

1) Yes, parties may depose opponent's testifying experts after report is provided

2) Parties may depose non testifying experts only:

a) Regarding physical or mental exam

b) Showing of exceptional circumstances making it impracticable to obtain facts or opinions on the same subject by other means

Front 66

DISCOVERY: Explain interrogatories as a method of discovery?

Back 66

1) Only to parties
2) Party must respond with answers or objections within 30 days
3) Fed. no more than 25 interrogatories
4) Parties may use to the extent permitted by rules of evidence

Front 67

DISCOVERY: Explain depositions as a method of discovery

Back 67

1) Usually oral but can be written

2) Only to parties, but may subpoena non parties to take their depo

3) Corporations: requesting party describes the topic and corp,. designates person to testify.

Front 68

DISCOVERY: Can objections be used at depositions?

Back 68

Yes, stated for the record but deponent answers anyway, unless:

1) preserving a privilege
2) enforcing limitation ordered by court
3) presenting motion that opponent is using bad faith (which means risking opponent's attys fees if lose)

Front 69

DISCOVERY: What are the federal limits imposed on depositions?

Back 69

No more than 10 depositions by each party unless leave of court

One depo is one day of seven hours.

Front 70

DISCOVERY: How can a party use depositions at trial?

Back 70

Need live witness to testify, not depo transcript except:

1. To impeach the deponent
2. Deposition of a party
3. Witness is dead or unavailable then we allow transcript

Front 71

DISCOVERY: How can a party make a request for production of documents?

Back 71

1. Only to parties but can get non parties to produce docts through subpoena.

2. Often in conjunction with deposition: duces tecum

3. Kansas: special rule re: subpoenaing business records of non-party:

a) Must notify other party of your intent to subpoena the recs 10 days before issuing subpoena

b) If a party objects, subpoena will not issue w/o leave of court

c) If no party objects, non party has 14 days in which to respond or object

4) Party must respond within 30 days

5) must produce docts as they are kept in the usual course of business or organized to correspond with categories of request.

Front 72

DISCOVERY: Can a party request a physical or mental examination?

Back 72

1. Yes, only available to parties.

2. Physical or mental state must in controversy.

3. Court must order for good cause

4. Party examined has right to get written report of examiner (but in doing so, the party waives the privilege with respect to his own doctor)

Front 73

DISCOVERY: What is a request for admission?

Back 73

You ask the other party to admit something, once admitted that conclusively establishes that point:

1. It's only available to parties
2. Party must respond within 30 days and if not, they are deemed to have admitted it.
3. If party fails to admit, and that things ends up being true, he will be required to pay reasonable expenses or atty's fees.

Front 74

ENDING LITIGATION WITHOUT TRIAL: What is a default judgment?

Back 74

Situation in which the plaintiff files and serves the complaint and nothing happens after that. Any other failure to defend at a later stage can also result in a default judgment.

Is treated as admitting each of the plaintiff's allegations

Front 75

ENDING LITIGATION WITHOUT TRIAL: What are the mechanics for default?

Back 75

P goes to clerk for entry of default (notation of docket)
a) based on Ps affidavit that D failed to defend

b) D can have entry set aside for good cause

Front 76

ENDING LITIGATION WITHOUT TRIAL: When as a plaintiff can you get a default judgment from the clerk?

Back 76

In fed. court you can get default judgment from the court only if three reqs. are met:

1. Ps claim has to be for a sum certain (usually in K cases), and

2. D has failed to appear, and

3. D must not be an infant or incompetent.

2.

Front 77

ENDING LITIGATION WITHOUT TRIAL: How do you obtain a default judgment in Kansas?

Back 77

Only court can enter a default judgment.

Front 78

ENDING LITIGATION WITHOUT TRIAL: What may a D do if faced with a default judgment?

Back 78

1. Move for relief from judgment under: (1) mistake, (2) inadvertence (3) surprise or (4) excusable neglect, (5) catchall basis, any reason justifying relief.

Front 79

ENDING LITIGATION WITHOUT TRIAL: What if the neglect is the attorney's fault, can the D have the default judgment set aside?

Back 79

Usually no, D now has a malpractice cause of action against lawyer.

Front 80

ENDING LITIGATION WITHOUT TRIAL: What is involuntary dismissal?

Back 80

Flip side of default judgment against D.

D can get if plaintiff fails to prosecute; to comply with rules or; any court order then involuntary dismissal may result.

Unless court says otherwise, involuntary dismissals are on merits.

Front 81

ENDING LITIGATION WITHOUT TRIAL: What is voluntary dismissal?

Back 81

When P actually wants to dismiss the case. You can dismiss without prejudice by:

1. Court order
2. Stipulation of the parties
3. Once as a matter of right before an answer or a motion for summary judgment by D.

Note: Just because you file to dismiss w/o prejudice doesn't mean you will not have problems refiling. You will still have to get personal jx and watch for the SOL.

In KS if a case is dismissed w/o prejudice you have 6 mos. to commence a new action even if SOL ran.

Front 82

ENDING LITIGATION WITHOUT TRIAL: Can you voluntarily dismiss with prejudice?

Back 82

Yes, usually when pursuing a settlement.

Front 83

ENDING LITIGATION WITHOUT TRIAL: What is a summary judgment motion?

Back 83

This motion tests the sufficiency of Ps evidence. You need evidence to back up the allegations.

Moving party has to prove that 1) THERE IS NO GENUINE ISSUE OF MATERIAL FACT, 2) MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW

Front 84

ENDING LITIGATION WITHOUT TRIAL: When D moves for summary judgment what does D have to show?

Back 84

D has to show the P lack of evidence of some element of their case. D does not have to show evidence. P the burden of production.

Even if P has no evidence yet, plaintiff will produce an affidavit explaining his lack of evidence. P can ask for time to produce the evidence later.

If P has some evidence, the court will NOT grant summary judgment.

Front 85

ENDING LITIGATION WITHOUT TRIAL: What does the P have to show when moving for summary judgment?

Back 85

That the evidence is so strong that no reasonable jury could find for the D.

Front 86

TRIAL: Is there a right to a jury trial?

Back 86

Yes, if pursuing a legal remedy (monetary but not incidental) but not if equity (i.e. injunction, replevin, ejectment).

Front 87

TRIAL: What is remedy sought is mixed?

Back 87

At federal level the rt. to jury trial attaches to any legal claims. The jury findings on the fact on the legal portion will be binding even on the equitable parts.

In Kansas:
The court assesses whether a claim is predominantly a legal or equitable.

Front 88

TRIAL: What are the mechanics of requesting a jury trial?

Back 88

1. Either party can request it within 10 days of service of last pleading, otherwise waived.
2. Once party requests trial by jury, cannot withdraw w/o consent of parties.

Front 89

TRIAL: What is a directed verdict/judgment as a matter of law?

Back 89

Requesed at trial if no legal sufficient evidentiary basis for a reasonable jury to find for non-moving party, then moving party is entitled to directed verdict.

Court will not consider credibilility of witness, court will make reasonable inferences in favor of non-moving party.

Can be done at any time once non-moving party has been fully heard on issue until submission of case to the jury.

Should move again at the close of all the evidence if moved earlier because it's a pre-requisite for judgment notwithstanding the verdict. JNOV.

Front 90

TRIAL:What is a judgment as a matter of law?

Back 90

Requesed after jury's verdict if no legal sufficient evidentiary basis for a reasonable jury to find for non-moving party, then moving party is entitled to JNOV.

Pre-requisite: may move for JNOV ONLY if moved for directed verdict at the close of all the evidence.

JNOV aka Motion for Judgment as a matter of law.

Effect: Despite jury's verdict, judgment is entered for other party.

Front 91

TRIAL: Motion for new trial

Back 91

Granted if:

1. Flaw in procedure
2. Flaw in verdict (verdict is against the great weight of the evidence)
3. Has to be filed within 10 days of the entry of judgment.

Front 92

TRIAL: What is a combination of JNOV and a new trial?

Back 92

Verdict-looser often moves simultaneously for both. If JNOV granted, court will conditionally grant or deny motion for new trial.

Verdict-winner: can wait to see whether JNOV granted against it. If so, may move trial court for new trial instead. If not and verdict looser appeals verdict winner can argue that court should affirm denial of JNOV, and that if JNOV is granted then flaw in the procedure and new trial instead. Note: verdict winner may make this argument even though it did not move trial court for new trial.

Front 93

JOINDER: When may the P join claims against the D?

Back 93

Always, they don't have to be related to each other.

But proper joinder does not = proper SMJ

Front 94

JOINDER: When MUST D join claims against a single D?

Back 94

There is no compulsory joinder. But claim preclusion may bar later claims related to first one.

Front 95

JOINDER: When may D join claim against plaintiff?

Back 95

Permissive counterclaim: Always allowed to make any claim.

Front 96

JOINDER: When MUST D joint claim against plaintiff?

Back 96

D MUST RAISE A COUNTERCLAIM THAT ARISES OUT OF THE SAME TRANSACTION OR OCCURRENCE AS P'S CLAIM.

Proper joinder does not equal proper SMJ, but if counterclaim is compulsory, SMJ will be proper.

Front 97

JOINDER: When may one D join a claim against another D?

Back 97

You can have a cross claim if it arises out of the same transaction or occurrence as P's claim or a counterclaim by D.

No unrelated cross claims are permitted.

Front 98

JOINDER: When may a plaintiff joint multiple defendants? JOINDER OF PARTIES

Back 98

Two requirements:
1) Claims against each defendant must arise out of the same transaction or occurrence

2) There must be a common question of law or fact

Front 99

JOINDER: When may multiple plaintiffs join together and sue the same defendant?

Back 99

Two requirements:
1) Claims against each defendant must arise out of the same transaction or occurrence

2) There must be a common question of law or fact

Front 100

JOINDER: WHAT IS AN IMPLEADER?

Back 100

This happens when a D joins a third party.

D may sue third party who is or maybe liable to the third party plaintiff for all or part of the plaintiff's claim against the third party plaintiff.

Third party claim must be derivative of original claim. This is an INDEMNIFICATION situation.

Idea is to avoid the risk of inconsistent judgments in separate suits.

Front 101

JOINDER: What is intervention of right?

Back 101

A third party has an intervention of right to join a case without being invited when:

1. when specified by statute
2. when applicant claims interest in property that is subject to action, and
3. action may impair applicant's ability to protect that interest

Front 102

JOINDER: What is a permissive intervention?

Back 102

It's at court's discretion

1. when specified by statute
2. when applicant's claim or defense has a common question of law and fact with main action

Front 103

CLASS ACTIONS: What are the requirements for a class action?

Back 103

1. Numerosity
2. Commonality
3. Typicality
4. Fair and adequate representation of the class by representative parties
5. One of the following must be met:
a. separate actions would risk prejudice to class members
b. Injunctive relief against party opposing class may be appropriate, or
c. Common questions of fact or law predominate over individual questions

Front 104

CLASS ACTIONS: Do you need to have complete diversity for class actions?

Back 104

No, as long as there is some diversity.
a. But the Fed. district court may decline jx if between 1/3 and 2/3 of plaintiffs are citizens of state where filed.
b. The court SHALL decline jx if more than 2/3 of Ps are citizens of state where filed.

Front 105

CLASS ACTIONS: Can a federal question be the basis for bringing a class action suit in federal cout?

Back 105

Yes

Front 106

CLASS ACTION: What is the amount of controversy requirement?

Back 106

Cases without complete diversity: aggregate claims of all Ps class members must exceed 5 million

cass with complete diversity: not all Ps class members need to have claims exceeding $75l, because supplemental jx may be used to include Ps with lower claims (as long as some exceed)

Front 107

EFFECT OF JUDGMENT: What is claim preclusion?

Back 107

Claim preclusion aka res judicata or estoppel by judgment is about whether a plaintiff who has sued once may sue again.

Rule: P cannot relitigate same cause of action between same parties after a final judgment on the merits.

Front 108

EFFECT OF JUDGMENT: What is issue preclusion?

Back 108

AKA Collateral estoppel. It's about whether when a party was a party in a previous lawsuit, the determination of an issue in that lawsuit is binding in the current one.

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EFFECT OF JUDGMENT: What are the four elements of claim preclusion?

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1. Same cause of action: if it arises out of the same transaction or occurrence

2. Final judgment: same as what is required for an appeal.

3. On the merits: generally dismissals for defects in jx, venue, joinder are not considered on the merits.

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EFFECT OF JUDGMENT: What are the elements of issue preclusion?

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Relitigation of an issue is barred if:
1. Same issue of fact or law a. 1st determination case use different standard of proof as long as higher
b. Beware, issue can look the same but not be the same (KS residency or tuition purpose, KS residency for diversity)

2. Issue was actually litigated and determined

3. Final judgment

4. the determination of the issue was essential to the judgment, and

5. the parties were the same (*subject to exception)
KS: Mutuality requirement, same parties in case 1 and case 2

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EFFECT OF JUDGMENT: What does same parties mean in federal court?

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Two ways to determine:

1. Defensive: issue preclusion is permitted: a new D may raise earlier determination of issue against P who lost on issue in first case

2. Offensive issue preclusion is permitted sometimes: a new P may raise earlier determination of issue against D who lost on issue in first case.

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APPEAL: What is the requirement for filing an appeal?

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Must file notice of appeal within 30 days of entry of judgment

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APPEAL: What is the final judgment rule?

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Party may appeal only from final judgments, not interlocutory orders.

Exceptions: (fed & KS)
1. Orders re: injunctions can be appealed
a. Prelim. injunction may be appealed, but
b. TROs may not

2. Certification by trial court for interlocutory appeal

3. Collateral order doctrine: interlocutory issue is separate from main suit.

4. Kansas extra exception: if there is an order re: mandamus or habeas corpus.