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Civil PRO
| Term | Definition |
|---|---|
| Essentials for SMJ | Federal question; Diversity Jurisdiction; or supplemental jursidiction |
| Federal questions: Two part test | Potential federal ingredient; AND Well pleaded complaint rule |
| Potential federal ingredient | Creation test: a case arises under federal law if AND ONLY IF federal law creates the cause of action (American well works) Essential fed ingredient: state law creates the claim which includes FI; FI is actually disputed; FI is important or substantial |
| Merrel Dow (essential federal ingredient) | two couples filed almost identical claims against merrel dow pharmaceuticals for mothers giving birth to children with birth defects after taking same drug. Court lacked SMJ because claim arose out of federal statute w/o private right to sue |
| Well Pleaded Complaint rule (definition) | Judicially created doctrine to ensure that plaintiff's claim for relief alone determines the presence or absence of statutory arising under jurisdiction |
| Well pleaded complaint rule (rule) | Allegations that anticipate a defense will be ignored in the jurisdictional determination. You can't disguise a federal claim to avoid jurisdiction (artful pleading). The fact that D's con claim may arise under fed law will not provide SMJ over P's claim |
| Louisville v. Mottley (well pleaded complaint rule) | Mottley's injured in RR accident, RR gave them life passes to ride for free. Later congress banned free passes. Mots sued RR. Got dismissed for lack of SMJ because it predicted D's would raise federal statute in their defense |
| Diversity Jurisdition | Constitution extends the judicial power of the US to controversies between citizens of different states or aliens |
| complete diversity | No one plaintiff can be from the same state as no one defendant. Amount in controversy must exceed $75,000 |
| Diversity of citizenship (people) | Means domicile- where you are physically located with the intent to stay there indefinitely |
| Mas v. Perry (diversity of citizenship) | Jean paul Mas (french) married Judy (MS) were living in LO when their land lord had two war mirrors in apartment. Even thought couple lived in LO they were in school and did not intend to stay there permanently so court decided suit had DJ |
| Diversity of corporations | Domiciled in state of incorporation and the state where they have their principle place of businmess |
| Diversity of LLC/ Partnerships | diversity depends on domicile, domiciled in every state that one of the partners is domiciled |
| Diversity of Aliens | Anoyone from a state outside the united states is considered an alien. Two aliens from different countries are not diverse |
| Aggregation Rule | SINGLE P/D- P may aggregate claims SINGLE P/MULTIPLE D- when claims are separate and distinct claim against each D must meet AIC MULTIPLE P/ SINGLE D- permitted if claims are based on common undivided interest |
| Supplemental Jurisdiction | in any civil action that district courts have original jurisidiction then they shall have supplemental jurisdiction over all other claims that arise out of the same case or controversy as the original action |
| Pendant Claim jurisdiction (historical approach) | P with valid FQ claims may bring along state based claims when: they derive from a common nucleus of operative fact, it is up to courts discretion to hear pendant claims |
| Court consideration for pendant claim | Judicial economy, convenience, and fairness to litigants |
| United Mine Workers v. Gibbs | case between two labor unions over representation of mine workers. Gibbs lost job and couldn't get another from what he thought of as a union conspiracy. Had state and federal claims court decided claims came from common nucleus of operative fact |
| Ancillary Jurisdiction (modern approach) | When a party injects a claim lacking independent jurisdiction basis by way of: Counterclaim, crossclaim, or third party claim |
| Personal Jurisdiction | power of a state or federal court over the person or property of the defendant |
| Types of Personal jurisdiction | In Personam In Rem Quasi In rem |
| In Personam jurisdiction | when a court asserts power over the person of a defendant who is present in the forum state. |
| In Rem Jurisdiction | when the defendant's property is located in the forum state and the property is at issue in litigation. The court has the power to adjudicate all aspects of the property itself |
| Quasi in rem jurisdiction | when the defendant has property in the forum state which os brought under the control of the court but the property is sued to satisfy an unrelated judgment against the defendant. Courts power to effectuate any judgment is limited to property itself |
| Tradition basis of Personal jurisdiction | Physical presence, domicile, consent, |
| Physically presence (PJ) | if the defendant is voluntarily present in the forum state and is served with process while there, the state will have PJ over defendant unless they are fraudulently brought there or passing through state for other judicial proceedings |
| Domicile (PJ) | a state can have PJ over a person who is domiciled within the state , even if the person is temporarily absent from the state |
| Express Consent (PJ) | Express: agreed in advance by contract/ person authorizes agent to accept service or process |
| Implied Consent (PJ) | Implied: state enacts a statute which requires non-residents who perform certain activities in the state to appoint state official to accept service of procession their behalf. OR defendant fails to object to PJ in a proper timely manner |
| Voluntary Consent (PJ) | defendant may consent to jurisdiction by voluntary appearance by consenting to the case without challenging PJ |
| Long arm-statute (when tradition PJ does not work) | a statute that empowers the state to reach outside its territory to compel the appearance of non-resident defendants who perform a particular act in the state |
| Three types of Long-Arm Statute | 1. To the maximum extent of the constitution; 2. Specific activities related to a lawsuit; 3. Hybrid- combo of both specific and maximum extent of constitution |
| Purposeful Availment | Defendants contact with forum state must be result of their purposeful availment, contacts can't be accidental 1. In state activity; 2. Contract; 3. Stream of commerce (pure/plus); 4. Internet |
| World Wide Volkswagen (purposeful availment) | In state activity :P's bought care in NY and were involved in crash in OK. P sued distributor in OK state court of injuries. D moved for dismissal for lack of PJ. Court decided D must purposefully avail himself. Foreseeability not enough. |
| Burger king (Purposeful availment) | Contract: P entered into franchise contract with BK to open store in MI. BK incorporated in FL. All financial obs. sent to FL D trained in FL. Court ruled PJ was proper. D's reached out to BK in FL |
| Stream of Commerce | Pure: the movement of goods from manufacturers through the distribution to consumers Plus: Need to movment of goods from manufacturers through distribution to consumers + add.action; designing product for market in FS or advertising in the FS |
| McIntyre v Nicastro (purposeful availment) | P cut off fingers using scrap metal machine. British co made machine and sold it though US distributor. Court held putting something in the SOC does not open yourself up to PJ in every state the product ends up in. co must avail to protection of FS laws |
| Internet (purposeful availment) | website must be active and be targeted towards the forum state |
| Effects test | intentional act expressly aimed at the forum state; and causing harm that the defendant knows is likely to be suffered in the forum state |
| Relatedness to claim for PJ | General Jurisdiction Specific Jurisdiction |
| General jurisdiction (goodyear) | when continuous corporate operations within the state are so substantial and of such nature as to justify suit against a defendant on cause of action arising from dealings entirely distinct from those activities in the state. Entity feels at home in FS |
| Specific jurisdiction (Marvix photo) | jurisdiction based on specific connection between the defendant's specific activity in the state and the resulting law suit |
| Modern Due Process Standard | Fairness; relatedness; contacts |
| Fairness (international shoe) | out of state co employed salesmen within the state. Court held that shoe had certain minimum contacts in state D was afforded protection of laws in the state and so should be subject to them. Did not offend notions of fair play and substantial justice |
| Gestalt factors | Burden on D; FS interests; P interest in obtaining effective relief; Shared interest between states in resolution and furthering substantive policies |
| Due Process elements | Proper SMJ; Proper PJ; appropriate notice of the action; and has given the D the opportunity to be heard |
| traditional methods of notice RULE 4 | personal delivery to D;leaving papers w/responsible person D's residence or place of business; delivery to an agent appointed to accept service; or delivery by registered mail, return slip requested |
| Removal and Remand | when a defendant moves a claim from state court where it was originally filed to federal court |
| Venue | in civil actions in the federal court is proper when: in state which D resides, substantial part of events happened/ property located in state, if no court meets first two- court were D is subject to PJ |
| Forum selection clauses | when contract states what forum one must adjudicate claims in. Clause is normally significant but not dete |
| Forum non conviens | allows court to dismiss and action even if PJ and venue are otherwise proper if it finds that the forum would be too inconvenient for parties and witnesses and that another more convenient venue is available |
| Multi- district litigation | civil actions involving one or more common questions of fact that are pending in different courts, all cases will be transferred to one court for all pre-trial proceedings and discovery and try to be settled or dismissed |
| ERIE | when a federal court sits in diversity jurisdiction they must apply state substantive law and federal procedural law. |
| ERIE Twin Aims | 1. To discourage forum shopping and inequitable administration of the law |
| Substantive Law | The part of the law that creates, defines, and regulates rights. i.e property law, contract law, torts, criminal law |
| Procedural Law | Laws that comprises the rules by which a court hears and determines what happens in a civil lawsuit, and criminal or administrative proceedings |
| Erie railroad v. Tompkins | P walking along RR had arm severed by object protruding from train. occurred in PA suit brought in NY. if state law applied P would lose, If federal law applied P would recover. |
| Garuntee Trust v. York | Outcome determinative test: the choice of state or federal court in diversity case should not affect the outcome of the case, if federal practice differs from state practice the court should determine if its own rule would change the outcome of the case |
| Byrd v. Blue Ridge | Byrd Balancing: does not overrule york but states that balancing is necessary in matter related to procedure, only if important federal policies would be compromised by following the state rules might the FC choose to follow a federal procedue |
| Hannah v. Plumer | Rules enabling act: rule may not abridge, enlarge, or modify any substantive right |
| Rule 8: General rule of pleading | a: claim for relief, b:defenses, c:affirmative defenses, d:pleading to be concise and direct |
| Rule 9: Pleading Special Matters | Fraud and Mistake |
| Rule 11: Signing pleading motions and other papers | b)Lawyer signature certifies paper is not being submitted for improper purposes, and the claims have evidentiary support c) Sanctions d) inapplicability to discovery |
| Rule 12: Defenses to objections | a) time to serve response pleading b) how to present defense g) joining motions h) waiving and preserving defenses (1,6,7 anytime, rest barred if not joined initially) 3)SMJ always be brought |
| Rule 13: Counterclaim and Crossclaim | a) compulsory (must be brought) b) permissive (can be brought) |
| Rule 14: Third-party Practice | a)when D may bring third party b) when P may bring third party |
| Rule 15: Amended and Supplemental Pleadings | a)amendments before trial b)amendments during trial c) relation back of amendments d) supplemental pleadings |
| Rule 18: Joinder of Claims | a) in general b) joinder of contingent claims |
| Rule 19: Required joinder of parties | a)persons required to be joined b) when joinder is not feasible c) pleading the reasons for non-joinder d) exception for class actions |
| Rule 20: Permissive joinder | a) persons who may be join or be joined b) protective measures |
| Rule 22: Interpleader | a) grounds (by plaintiff, by defendant) b) relation to other rules and statutes |
| Rule 23: Class actions | a) prerequisites b) types of class actions c) certification order d)conducting the action e) settlement, voluntary dismissal, compromise f)appeals g)class counsel h) attorney fee's |
| Rule 24: Intervention | a) intervention of right b)permissive intervention c)notice and pleading required |
| Rule 26: Duty to disclose | a)required disclosures b) discovery and scope limits c) protective orders d)timing and sequence of discovery e) supplementing disclosures and responses f) conference of the parties g) signing disclosures and discovery requests |
| Rule 30: Depositions by oral examination | a)when a deposition may be taken b)notice of depositions c) examination and cross-examination d)duration;sanction;motion to terminate e)review by the witness f) certification and delivery |
| Rule 31: Depositions by written questions | a) when a deposition may be taken b) delivery to the officer c) notice of completion or filing |
| Rule 32: Using depositions in court proceedings | a) using depositions b) objections to admissibility c) form of presentation d) waiver objections |
| Rule 33: Interrogatories to parties | a)general b) answers to objections c) use d) option to produce business records |
| Rule 34: Producing ESI and tangible things | a) general b)procedure c) non-parties |
| Rule 35: Physical and mental examinations | a) order for examination b) examiner's report |
| Rule 36: Request for admission | a) scope and procedure b) effect of admission |
| Rule 37: Failure to make a disclosure | a) motion for order compelling disclosure/discovery b)failure to comply w/court order c) failure to disclose/supplement earlier response d)failure to attend own deposition e) failure to preserve ESI f) failure to participate in dicovery plan |
| Rule 41: Dismissal of actions | a) voluntary dismissal b) involuntary dismissal c) dismissing a counterclaim, crossclaim, or third party claim d) costs of a previously dismissed action |
| Rule 47: Selecting Jurors | a) examining jurors b) peremptory challenges c) excusing a juror |
| Rule 48: Number of jurors | a) number of jurors b)verdict c) polling |
| Rule 49: Special verdict; general verdict questions | a) special verdict b) general verdict with answers to written questions |
| Rule 50: Judgment as a matter of law in a jury trial | a) judgment as a matter of law b) renewing the motion after trial; alternative motion for a new trial c) granting a renewed motion d) time for losing party's new trial motion e) denying motion for judgment as a matter of law; reversal on appeal |
| Rule 55: Default judgment | a) entering a default b) entering a default judgment c) setting aside a default or default judgment judgment against the united states |
| Rule 56: Summary judgment | a) motion for SJ b) time to file a motion c) procedures d) when facts are unavailable to non-movant e) failing to property support/adress a fact f)judgment independent of motion g) failing to grant requested relief h) motion sub. in bad faith |
| Rule 60: Relief from a judgment or order | a) corrections based on clerical mistakes b) grounds for relief from final judgment, order or, proceeding c) timing and effect of motion d) other powers to grant relief e) bills and writs abolished |
| Rule 68: Offer of judgment | a) making an offer; judgment on accepted offer b) unaccepted offer c) offer after liability is determined d) paying costs after an unaccepted offer |
| Rule 16: Pretrial conferences, scheduling, management | a) purposes of pretrial conferences b)scheduling c) attendance and matters for consideration at a pre-trial conference |
| Res Judicata | furthers legal systems policy of finality to avoid duplicative, wasteful, or inconsistent litigation results |
| Claim preclusion | requires a plaintiff to assert all rights to relief in a single COA: 1) two cases must involve the same claim; 2) case one must have a valid final judgment on the merits; and 3) must be between the same parties (or those in privity) |
| Privity | 1) non-party whose interest were represented by a party 2) a non-party who entered into a substantive legal relationship with a party binds the non-party with the judgment against the party |
| Exceptions to claim preclusion | 1) agreement of parties 2) court held that claim splitting is appropriate 3) restricted jurisdiction of first court 4) recurrent wrongs 5) extraordinary reasons |
| Issue preclusion | party is precluded from raisning an issue which was: the same issue litigated and determined in a prior case; was essential to the judgment in the prior case; and the prior case was between the same parties |
Created by:
hockley2
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