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137 Cards in this Set

  • Front
  • Back

Three items to determine whether the case is in the right court?

1. Personal Jurisdiction

2. Subject Matter Jurisdiction

3. Venue

Personal Jurisdiction is about the court's power over what?

The parties

Two Step Personal Jurisdiction Analysis

1. Satisfy a state Statute AND

2. Satisfy the Constitution

Traditional Bases of Personal Jurisdiction

PJ is clearly constitutional if Defendant is:

1. Domiciled in the forum OR

2. Consents OR

3. Is voluntarily present in the forum when served with process

If traditional bases do not apply for Personal Jurisdiction, what do we test?

1. Contacts then

2. Relatedness then

3. Fairness

Contacts test - PJ

1. The contact must result from purposeful availment

2. It must have been foreseeable that defendant could be sued in this forum

Relatedness Test - PJ

1. Specific Personal Jurisdiction - The plaintiff's claim arise from the defendant's contact with the forum.

2. General Personal Jurisdiction - The defendant must be at home in the forum

When is a defendant at home in the forum?

A human is at home where domiciled (only one domicile

What is a person's domicile?

1. Physical Presence

2. Intent to stay and make the place their home

Where is a corporation domiciled?

1. Where incorporated

2. Where the principal place of business is

How does the court test fairness in PJ?

Assessed only in specific jurisdiction cases:

1. Burden on Defendant and witness. Defendant must show severe disadvantage in the litigation in order to show it is not fair.

2. State's interest in protecting citizens of the state

3. Plaintiff's interest

Other types of Personal Jurisdiction

1. In Rem

2. Quasi in Rem

Two ways to show Subject Matter Jurisdiction

1. Federal Question Cases

2. Diversity of Citizenship cases in excess of $75,000

What is the complete diversity rule for SMJ?

Diversity is no good if ANY Plaintiff is a citizen of the same state as ANY Defendant

What is the US State of a citizen? - SMJ

Her domicile

What is the citizenship of a corporation? - SMJ

1. Principal place of business (The nerve center)

2. State or Country where incorporated

Alienage for diversity cases - SMJ

A diversity claim may be brought between a citizen of a state and a citizen of a foreign country if the amount in controversy exceeds $75,000

What is the citizenship of an LLC or partnership?

Citizenship of all its members or partners

What is the citizenship of decedents, minors or incompetents when suit is through a representative?

Use citizenship of decedent, minor or incompetent person

Aggregation (Diversity SMJ)

Adding two or more claims to meet the amount requirement

When can we aggregate claims?

We can aggregate claims of 1 plaintiff vs. 1 defendant.

Even if Subject Matter Jurisdiction is met, what cases are automatically excluded from federal court?

1. Divorce

2. Alimony

3. Child custody

4. To probate an estate

Test for Federal Question claims - SMJ

Is plaintiff enforcing a federal right?

1. If yes, the case can go to federal court

2. If no, the case cannot go to federal court under federal question

Once a claim is in federal court, what are the tests for additional claims to arise under federal court?

1. Diversity of citizenship OR

2. Federal Question OR

3. Supplemental Jurisdiction

What is the test for supplemental jurisdiction?

1. The claim we want to get into federal court must share a common nucleus of operative fact with the claim that invoked federal subject matter jurisdiction (same transaction or occurrence)

2. Plaintiff's in diversity cases cannot raise supplemental jurisdictions to overcome a lack of diversity

Summary of Supplemental Jurisdiction

A non-federal, non-diversity claim can be heard in federal court unless it is:

1. Asserted by a plaintiff

2. In a diversity of citizenship case AND

3. Asserted against a citizen of the same state as the plaintiff

What happens when you remove a case?

The case transfers from a state trial court to a federal trial court. If improper, the federal court remands back to the state court

How long does a defendant have to remove a case to federal court?

Within 30 days of service of process.

Note: The 30 days restarts when a new defendant is added

Who must join in the removal?

In order to remove a case, ALL defendants who have been served must agree to the removal from state court to federal court

What cases may be removed to federal court?

1. Generally, all diversity or federal question cases

2. EXCEPT: in diversity cases

a. no removal if any D is a citizen of the forum AND

b. no removal more than one year after the case was filed in state court

When a case meets diversity and the Defendant is a citizen of the forum when can the case be removed?

When/If that defendant is dismissed from the case and less than one year has passed since the case was filed in state court.

Removal Procedure

1. P sues D in state court. D wants to remove.

2. D files notice of removal in federal court

3. D attaches all documents that were served on her and serves a copy of the notice of removal to adverse parties

4. D then files a copy of the notice of removal in state court

What doctrine do we use to tell us whether to apply federal or state law?

Erie Doctrine

What is the test of the Erie doctrine?

1. Is there a federal law on point that directly conflicts with state law? (if so, apply federal - Supremacy Clause)

2. If no federal law, the federal judge must apply state law if the issue is substantive

3. If no fed law and not clearly substantive, the judge must determine whether the issue is substantive.

What issues under Erie Doctrine are clearly substantive (STEP 2)

1. Elements of a claim or defense

2. Statute of Limitations

3. Rules for tolling statute of limitations

4. Conflict of law rules

How does the federal judge weigh factors to determine substantiveness of a law under Erie Doctrine (STEP 3)

1. Outcome determinative

2. Balance of Interests

3. Avoid forum shopping

What does Venue tell us?

Venue tells us which federal court we are in

Where may a plaintiff lay venue?

Any district where:

1. All defendants reside OR

2. A substantial part of the claim arose

Where the case is removed from state court to federal court, venue is set in the district that embraced the state court

What happens when all Defendants reside in the same state, but are all from different districts when setting venue?

Venue may be any district where any of the Defendants reside

Where do defendants reside for venue purposes?

Where domiciled

For business, all districts where PJ would apply

Where may a federal court transfer venue?

To another federal court where the case could have been filed.

Must have had proper venue and PJ over the defendant from the beginning

Transfer statutes

1. When venue is proper, the court may transfer for convenience of parties and witnesses

2. When venue is improper, court may transfer in the interest of justice or Dismiss

Forum Non Conveniens

When there is another court that is the center of gravity that makes more sense than the present court, the court will dismiss or stay.

This happens often when the more convenient court is a foreign jurisdiction as long as the court is adequate

Who may serve process?

A nonparty at least 18 years of age

How may process be served?

1. Personal Service - Anywhere

2. Substituted Service - At defendant's usual abode with someone of suitable age who resides there

3. Defendant's agent

4. In accordance with state statutes

5. Waiver by mail

What types of pleadings are there?

1. Complaint

2. Defendant's Response

3. Counterclaim

4. Crossclaim

5. Additional Claims

6. Amended Pleadings

7. Supplemental Pleadings

8. Rule 11

What are the requirements in a plaintiff's complaint?

1. Statement of grounds of SMJ

2. Short and Plain statement of the claim, showing entitled to relief (must plead facts supporting a plausible claim)

3. Demand for relief sought

What three matters must a plaintiff plead with extra detail in his complaint?

1. Fraud

2. Mistake

3. Special Damages

What two ways may a defendant respond?

1. Motion

2. Answer

How long does a defendant have to respond before he defaults when he has not waived service?

21 days after service of process?

How long does a defendant have to respond before he defaults when he has waived service?

60 days from when Plaintiff mailed the waiver form to defendant

What are the 12b Defenses?

1. Lack of SMJ

2. Lack of PJ

3. Improper Venue

4. Improper process

5. Improper service of process

6. Failure to state a claim

7. Failure to join an indispensable party

What are the waivable 12b defenses?

1. Lack of PJ

2. Improper Venue

3. Improper Process

4. Improper Service of Process

What does it mean to be a waivable 12b defense?

If the defense is not mentioned in the defendant's first response to the plaintiff (motion or answer), the defendant has waived that defense.

When may a defendant assert the court lacks Subject Matter Jurisdiction?

Any time

When may a defendant move to dismiss for failure to join an indispensable party or failure to state a claim?

Any time through trial

How may a defendant respond in an answer?

1. Admit

2. Deny

3. State that you lack sufficient information to admit or deny


What are the two types of counter claims a defendant may raise?

1. Compulsory - Must be filed in the pending case or claim is waived because it arrises from the same Transaction or Occurrence

2. Permissive - does not arise from same Transaction or Occurrence and is not required to be filed in this case.

When may a cross claim be filed?

When is arises from the same transaction or occurrence.

Not compulsory.

When may a plaintiff amend a pleading?

Within 21 days after defendant serves her first rule 12 response

When may a defendant amend a pleading?

Within 21 days of serving his answer

What factors do courts look for when granting no right to amend if justice so requires?

1. Delay

2. Prejudice

3. Futility of Amendment

Is evidence admissible at trial when the evidence does not match what was pleaded?

Generally, no unless not objected to. Then the pleadings should be amended after trial to match the arguments and evidence

When may an amendment be made after the statute of limitations has run?

1. To join a new claim - Amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading. Treat amended pleadings as though it was filed when original was filed.

2. To change a defendant after statute has run. P sued the wrong D, but the right D knew about it

What documents does Rule 11 apply to?

All documents except discovery

Under Rule 11, when the lawyer or pro se party signs documents, what does she certify?

To the best of her knowledge and belief, after reasonable inquiry

1. the paper is not for an improper purpose

2. legal contentions are warranted by law

3. factual contentions and denials of factual contentions have evidentiary support

If there is a violation of Rule 11, who may sanctions be ordered against?

1. Party

2. Attorney

3. Firm

When can you make a motion for sanctions under Rule 11?

You may serve the motion on the other parties but the other party has safe harbor of 21 days in which to fix the problem and avoid sanctions

What are the Required Discovery Disclosures?

1. Initial Disclosures

2. Expert Witnesses

3. Pre-trial disclosures

What are the required initial discovery disclosures?

1. Identities of persons you may use to support your claims or defenses

2. Documents and things you may use to support claims or defenses

3. Computations of monetary relief

4. Insurance coverage detail

When must you identify expert witnesses?

At a time directed by the court, the parties must identify expert witnesses WHO MAY BE USED AT TRIAL

What must each party disclose to the other parties regarding expert witnesses?

The identity and a written report including (i) opinions EW will express; (ii) bases for opinions; (iii) Facts used to form opinions; (iv) Ew's qualifications and (v) how much EW is being paid

When must pretrial required disclosures be made during discovery?

No later than 30 days before trial

What discovery tools may be used?

1. Depositions

2. Interoggatories

3. Requests to Produce

4. Medical Examinations

5. Request for admission

Which discovery tools may be used on non-parties?

1. Depositions (should subpoena)

2. Requests to produce (Should subpoena)

What is the farthest a non-party is required to travel for a deposition unless she otherwise agrees?

100 miles from where she lives or where she is employed

What is the maximum number of depositions permitted?

10 depositions and cannot depose same person twice, absent court approval.

What are uses of depositions at trial?

1. Impeach deponent

2. Any purpose if deponent is an adverse party

3. Any purpose if deponent is unavailable, unless that absence was procured by party seeking to introduce the evidence

How long does a party have to respond to interrogatories?

30 days from service

What is the maximum number of interrogatories that can be asked?

25 questions

What is unique about discovery for medical exams?

You must get a court order.

Who may be ordered to undergo a medical exam?

A party or someone in the party's custody or legal control.

How do you get court order requiring a party to have a medical exam?

Show good cause and the person's health is in actual controversy

What is the standard for the scope of discovery?

You can discover anything relevant to a claim or defense.

What does relevant mean in terms of discovery?

It means things that are reasonably calculated to lead to the discovery of admissible evidence

When may the court limit something relevant from being discovered?

Where there is a lack of proportionality. Meaning if the request is so burdensome or outweighs the importance of the issue

What is work product?

Material prepared by anyone (does not have to be a lawyer) in anticipation of litigation

If a document was deemed work product, when can a party overcome that and be able to discover it?

Qualified Work Product

When there is substantial need and it is not otherwise available

What is absolute work product?

Work Product that can never be discovered

Mental Impressions, Opinions, conclusions, legal theories

If you withhold discover or seek a protective order on privilege or work product you must claim the protection expressly where?

In a Privilege Log

Three ways courts get involved in discovery disputes:

1. Protective Order

2. Partial Response to discovery request

3. No response to discovery request

What must a party certify to obtain a protective order?

She tried in good faith to beth the info without court involvement and she asked the other side to meet and confer

Court may deny, limit or permit discovery on certain terms

What is a partial response to discovery?

Responding party answers some questions but objects to others. Requesting party makes a motion to compel answers and court will decide whether objections are legitimate.

If you receive order compelling answers and party violates, then sanctions against that party

What is No response to discovery request?

Responding party fails to respond at all. Here there is no need to get an order to compel answers. Immediate sanctions

When may co-plaintiffs sue or co-defendants be sued?

1. When the claims arise from the same transaction or occurrence and

2. raise at least one common question

Who is a necessary party to a case?

1. Without the party, the court is worried about multiple suits on this issue

2. Where that party's interest may be harmed if she is not joined

3. That party claims an interest that subjects another party to a risk of multiple obligations

What are the elements to determine if a party may be joined into a claim?

1. Is that party necessary?

2. If yes, Is it feasible to join that party?

3. If not feasible then proceed without or dismiss

4. If feasible, then court orders joinder

When is joinder feasible?

1. There must be PJ over the joined party

2. Joining will not mess up diversity jurisdiction

What are the steps for impleading a defendant?

1. D files a third party complaint naming the third party defendant and

2. Serve process over TPD (Must have PJ)

3. SMJ

What are the two types of Intervention?

1. Intervention of right - Non-party's interest may be harmed if she is not joined and is not adequately represented now

2. Permissive Intervention - Non-party's claim or defense and the pending case have at least one common question (Court discretion)

What are the initial requirements to bring a class action suit?

1. Numerosity - Too many members for joinder

2. Commonality - Common issue to all members

3. Typicality - Rep's claims are typical of class

4. Representative adeqaute

If the initial requirements are met, what type of case may a class fit in to bring a class action suit?

1. Prejudice - class treatment is necessary to avoid harm either to class members or non-class party

2. Injunction or declaratory judgment

3. Damages

What is necessary for a damages case in a class action suit?

1. Common questions predominate over individual questions

2. Class action is superior method to handle the dispute (Mass Tort)

A case is not a class action suit, despite having all the elements, until what happens?

The court must certify the class

Who appoints counsel in a class action suit to the class?

The court

How does a court provide notice to a class in a damages case?

Individual notice (usually mail) is sent to all reasonably identifiable members telling them:

1. They can opt out

2. They'll be bound if they don't opt out and

3. they can enter a separate appearance through counsel

Representative covers costs of notice

How do you establish SMJ in diversity cases of class action suits?

Use the Rep's citizenship state and the defendant's citizenship state(s).

An order that maintains the status quo until trial is called?

Preliminary Injunction

Prior to receiving a preliminary injunction, the maintain the status quo until the hearing on the preliminary injunction you seek what?

Temporary restraining order (good for 14 days)

Ex parte OK if Applicant files paper under oath that he will suffer immediate and irreparable harm and applicant's lawyer certifies his efforts attempting to give notice to other party

If court issues a TRO, what may the defendant do?

Move to dissolve or modify

When can a preliminary injunction be granted ex parte?


What must applicant show to obtain preliminary injunction?

1. Likely to suffer irreparable harm

2. Likely to win on the merits of the case

3. The balance of hardship favors him

4. Injunction is in public interest

What does it mean if P files a timely notice of dismissal and the case is dismissed without prejudice?

Plaintiff may refile the case

If the plaintiff files a notice of dismissal a second time, what does it mean that the case is with prejudice?

Plaintiff may not refile

When does a plaintiff default?

When D does not respond after 21 days after being served with process or 60 days from mailing of waiver if waived process

How do you get a default judgment?

After a D has failed to respond within specified time, the clerk of the court can enter judgment if:

1. D made no response at all

2. Claim is for a sum certain in money

3. Claimant gives an affidavit of the sum owed

4. D is not a minor or Incompetent

If clerk is unable to issue default judgment where does the plaintiff go?

TO the Court

What does a court look at in a motion to dismiss for failure to state a claim?

Only at the Plaintiff's allegation of facts in the complaint.

Party moving for summary judgment must show what?

1. There is no genuine dispute of material fact AND

2. That she is entitled to judgment as a matter of law

Discretionary - court can still deny sum judg

What does the court consider in a motion for summary judgment?

Anything sworn under oath may be considered as evidence here.

When is there a right to a jury trial in federal court?

In civil actions at law, NOT equity

How many jurors in federal court case?

Minimum 6, Maximum 12

How many voir dire challenges do you get

Unlimited for cause

3 Peremptory

What is a motion for judgment as a matter of law and when is it made?

When reasonable people could not disagree on the result a judge may grant the motion.

The motion may be made after the other side has been heard at trial

When may a Renewed motion for judgment as a matter of law be made and granted?

Because the jury reached a conclusion that reasonable people could not have reached AND a JMOL was already made by that party earlier in the case, a judge may grant the RJMOL.

When is a remittitur available?

To avoid a new trial from a jury finding on damages that shocks the conscience, the judge may offer a plaintiff a choice of a lesser amount or a new trial.

OK in Federal and State Courts

When is additur available

To avoid a new trial from a jury finding on damages that shocks the conscience, the judge may offer a defendant a choice of a more damages or a new trial.

Only permitted in State Courts

When can you file a motion for relief from order or judgment?

1. Clerical Error - Anytime

2. Mistake, Excusable neglect - reasonable time (1 year or less)

3. New evidence that could not have been discovered with due diligence for a new trial motion - reasonable time (1 year or less)

4. Judgment is void - reasonable time

What is the Final Judgment Rule?

As a general rule, you may only appeal from final judgments and must file notice of appeal within 30 days after entry of final judgment?

What is the standard of Review for questions of law?

De novo

Findings of fact will be affirmed on appeal unless

The findings are clearly erroneous in a non-jury trial


Reasonable people could not have made that finding in a jury trial

Review of the trial judge's decision whether to give a particular instruction is reviewed on what standard of review?

Abuse of Discretion

Res Judicata

You only get to sue on a claim once

What are the requirements for Res Judicata (claim preclusion)

1. Case 1 and Case 2 were brought by the same claimant and against the same defendant

2. Case 1 ended in a valid final judgment on the merits

3. Case 1 and Case 2 asserted the same claim arising from the same transaction or occurrence

What are the requirements for Issue Preclusion (Collateral Estoppel)

1. Case 1 ended in a valid final judgment on the merits

2. The same issue was actually litigated and determined in Case 1

3. The issue was essential to the judgment in Case 1. The finding on this issue is the basis for judgment

4. Issue preclusion may only be asserted against someone who was a party to Case 1

5. Issue preclusion may be asserted by a non mutual defender or non mutual offensive

In collateral Esoppel, who can assert issue preclusion?

1. Nonmutual defensive issue preclusion - Asserted by a D in Case 2 against a party from Case 1 and the party from case 1 had a full chance to litigate the issue in case 1

2. Nonmutual offensive issue preclusion - Asserted by P in Case 2 against party in Case 1

General Rules regarding Nonmutual offensive issue preclusion:

Mutuality Rule says NO, but today there is a clear trend to allow it if:

1. Original party had a full and fair opportunity to litigate in Case 1

2. That party had incentive to litigate strongly in case 1

3. You could not have joined easily in Case 1

4. No inconsistent findings on this issue