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FP
| Question | Answer |
|---|---|
| Overview | 1) Right Court 2) Case 3) Joinder 4) Adjudication 5) Appeal 6) Preclusion |
| In personam jurisdiction (statutory analysis) | Some Sts allow PJ over Ds who 1) are served in St, 2) domiciled in St, or 3) act in St. BUT most Sts the statute reaches the constitutional limit. |
| In personam jurisdiction (constitutional analysis) | Does D have such min contacts w/ the forum so jur does not offend traditional notions of fair play and substantial justice? |
| Traditional bases for in personam jur in re con | D is domiciled in forum, D consents, or D is present in forum when served w/ process. |
| Difficult analysis of in personam jur in re con | Contact + Relatedness + Fairness |
| Contact (in personam jur) | There must be a relevant contact between D and forum St. 1) Contact must result from PURPOSEFUL AVAILMENT (voluntary act of reaching out to forum), AND 2) FORESEEABILITY that D would get sued in this forum. |
| Relatedness (in personam jur) | Relatedness between contact and P's claim. (Does P's claim arise from D's contact w/ the forum?) SPECIFIC PERSONAL JURISDICTION. |
| General Personal Jurisdiction | D has continuous and systematic ties w/ the forum so that D is essentially at home in that forum. |
| Where is a human always "essentially at home"? | Where domiciled. |
| Where is a business always "essentially at home"? | Where it is FORMED and where it has its PRINCIPLE PLACE OF BUSINESS |
| Difference between General and Specific Personal Jurisdiction | D essentially at home in the forum can be sued there for claim that arose anywhere in the world; that is general PJ. But a D who is not essentially at home in the forum can only be sued there for a claim arising from those activities; that is specific PJ. |
| Fairness (in personam jur) | 1) Convenience, 2) State's Interest, 3) Plaintiff's Interest (no fairness analysis w/ gen jur) |
| Convenience (in personam jur) | Severe Disadvantage in the Litigation. Relative Wealth of parties is not determinative. |
| Summary of Constitutional Test | CONTACT 1) purposeful availment 2) Foreseeability RELATEDNESS General v Specific FAIRNESS 1) Convenience, 2) St's Interest, 3) P's Interest |
| What types of suits can Fed Cts hear? (Subj Matter Jur) | 1) Diversity of Citizenship and 2) Federal Q |
| Diversity of Citizenship Requirements | 1) Case is either between a) citizens of diff Sts or b) citizen of a St and a citizen of a foreign country AND 2) Amt in controversy exceeds $75k. |
| Complete Diversity Rule | No diversity if ANY P is a citizen of the same St as ANY D. |
| Citizenship of Natural Person | Natural person who is a US Citizen, citizenship is the St of DOMICILE. |
| Domicile | Established by two factors: 1) PRESENCE in St and 2) INTENT to make it permanent home. |
| Citizenship of Corporation | Citizenship = 1) St where INCORPORATED and 2) St where it has its PRINCIPAL PLACE OF BUSINESS. |
| Citizenship of Unincorporated Association | Use the citizenship of all members. |
| Amount in Controversy | Any amt OVER $75k claimed in good faith by P, unless it is CLEAR TO A LEGAL CERTAINTY that cannot recover more than $75k. |
| If P wins less than $75k? | P may have to pay D's litigation costs. Generally, loser pays winner's costs, not including attn's fees. |
| Aggregation | Adding two or more claims to meet the amt requirement. |
| Equitable Relief | Injunction |
| When does Equitable Relief meet Amt in Controversy requirement? | P: lack of injunction decreases value of P's property by more than $75k. D: cost of injunction to D is more than $75k. |
| Diversity cases excluded from Federal Ct | Divorce/Alimony, Child Custody, and Probate |
| Federal Question Cases | Complaint shows a rt or interest founded substantially on a federal law (e.g. federal con, legislation). The claim "arises under" federal law. |
| Well Pleaded Complaint Rule | It is not enough that some fed issue is raised by the complaint. The P's claim itself must "arise under" federal law. (Is P enforcing a Federal Right?) |
| Supplemental Jurisdiction | Claim shares a COMMON NUCLEUS OF OPERATIVE FACT w/ claim that invoked fed subj matter jur. (arises from same transaction or occurrence) LIMITATION: in diversity case, P cannot use supp jur to overcome a lack of diversity. |
| Summary of Supplemental Jurisdiction | A non-federal, non-diversity claim can be heard in fed ct if it arises from same transaction/occurrence; UNLESS it is 1) asserted by a P, 2) in a diversity of citizenship case, AND 3) is against a citizen of the same St as the P. |
| When does a Ct have discretion to refuse supplemental jurisdiction? | 1) Fed Q is dismissed early, 2) St law claim is complex, or 3) St law issues would predominate. |
| Removal | D sued in St Ct might be able to remove the case to Fed Ct. Removal transfers the case fr a St tr Ct to a Fed tr Ct. If removal improper, Fed Ct can Remand the case back to St Ct. |
| When can D remove? | Within 30 days of service (not filing) of the first paper that shows the case is removable (e.g. service of process). All Ds served w/ process must join in removal (unanimous). |
| What cases can be removed? | GENERALLY, any case that meets the requirements for diversity of citizenship or FQ. EXCEPT, in Diversity Cases 1) no removal if any D is a citizen of the forum; 2) no removal more than one yr a/f the case was filed in St Ct. |
| Where can D remove? | Only to Fed District that embraces the St Ct where the case was filed. |
| Procedure for Removal | D files notice of removal in Fed Ct, stating grounds of removal; signed under Rule 11. Attach all docs served on D in St Action. Serve a copy on all adverse parties. Then file copy of notice in St .Ct. |
| What if removal was improper? | P will move to remand to St Ct, but must do so w/in 30 days of removal. However, if no fed subj matter jur, P can move to remand anytime. |
| Erie Doctrine | In diversity cases, Fed Ct must apply St substantive law. |
| Examples of Substantive Law (in re Erie doctrine) | 1) Elements of claim of defense, 2) SoL, 3) Rules for tolling SoL, and 4) conflict of law rules. |
| Proper Venue | 1) Where all Ds reside, OR 2) Where a Substantial Part of the Claim arose. EXCEPTION: If all Ds reside in diff districts of same St, P can lay venue in district in which any D resides. |
| Where do Ds reside for venue purposes? | Human where domiciled. Business in all districts where subject to Personal Jurisdiction. |
| Factors considered by Ct to transfer from proper venue to proper venue. | Public: what law applies, what community should be burdened w/ jury service, keeping local controversy in local ct. Private: convenience (e.g. where Ws and evidence are). Transferee Ct applies choice of law rules original Ct would. |
| Cts option if improper venue. | Transfer in interest of justice OR Dismiss. |
| Forum Non Conveniens | Like transfer, there is another Ct that is the center of gravity, that just makes more sense than the present Ct; however, Ct does not transfer to other Ct, but dismisses or stays the case. (Transfer is impossible b/c diff judicial system.) |
| Service of Process | SUMMONS (formal Ct notice of suit and time for response) and Copy of COMPLAINT. |
| Who can serve process? | Any nonparty who is at least 18 years old. |
| How is process served? | 1) personal service, 2) substituted service (D's usual abode and served on someone of suitable age and discretion who resides there), 3) Service on D's agent, 4) St law (where Fed Ct sits or where service is made) |
| Waiver by Mail | Mail to D copy of complaint and two copies of a waiver form, w/ prepaid means of returning form. If D executes and mails waiver form to P w/in 30 days, D waives service. If D has no good cause for failing to return waiver form, D pays cost of service. |
| Rule 11 | (all docs, except discovery) Attn's signature certifies that to best of knowledge and belief, a/f reas inquiry, 1) paper not for improper purpose, 2) legal contentions are warranted by law, and 3) factual contentions and denials have evidentiary support. |
| If other party violates Rule 11, can you move for sanctions now? | NO. Serve motion on other party but cannot file. Party in violation has a SAFE HARBOR OF 21 DAYS in which to fix the problem and avoid sanctions. If does not, then motion can be filed. |
| Complaint requirements | 1) Statement of grounds of subj matter jur, 2) Short and plain statement of the claim, showing entitled to relief, 3) Demand for relief sought. |
| Current standard for stating the claim in complaint. | Must plead facts supporting a PLAUSIBLE claim. |
| What three matters must be pleaded w/ even more detail (w/ particularity or specificity)? | FRAUD, Mistake, and Special Damages |
| Defendant's Response to Complaint | Rule 12 req's D to respond in one of two ways 1) by MOTION or 2) by ANSWER. |
| To avoid default, when must D respond? | Within 21 days a/f Service of Process. (If waived service, 60 days from when P mailed waiver form.) |
| Rule 12 Motions | (NOT pleadings, but requests of Ct orders) Issues of Form and Defenses. |
| Issues of Form | 1) mot for more definite statement, 2) mot to strike |
| Rule 12(b) defenses | 1) lack of subj matter jur, 2) lack of pers jur, 3) improper venue, 4) insufficiency of process, 5) insufficient service of process, 6) failure to st a claim, 7) failure to join indispensable party. (can be in motion or Answer) |
| Waivable Defenses | Pers Jur, Improper Venue, Insufficiency of Process, Insufficient Service of Process |
| The Answer | (Pleading) Serve w/in 21 days a/f served w/ process. Responds to allegations of complaint (admit, deny, lack of sufficient info) Raises affirmative defenses (new facts) |
| Lack of sufficient information to admit or deny. | Acts as a denial, but cannot be used if the info is PUBLIC KNOWLEDGE or is in DEFENDANT'S CONTROL. |
| Failure to deny | Acts as an admission on any matter EXCEPT damages. |
| Affirmative Defenses | SoL, SoF, res judicata, self-defense |
| Counterclaim | Claim against an Opposing Party. (Compulsory or Permissive) |
| Compulsory Counterclaim | Arises from the same T/O as P's claim. Unless have already filed claim in another case, MUST FILE IN THE PENDING CASE, OR THE CLAIM IS WAIVED. |
| Permissive Counterclaim | Does not arise from same T/O as P's claim. May file it in your answer in this case or can assert it in a separate case. |
| Cross-claim | Claim against a co-party. MUST arise from the same T/O as the underlying action. It is PERMISSIVE. |
| Right to Amend | P has rt to amend ONCE w/in 21 days a/f D serves 1st R 12 response. D has a rt to amend ONCE w/in 21 days of serving his Answer. |
| Variance | Evidence at trial does not match what was pleaded. If opposing party does not obj, at or a/f tr party can move to amend complaint to conform to the evidence. If opposing party does obj, evidence is inadmissible. |
| Amendment after the SoL has run ("relation back") | (know) Amended pleadings "relate back" if they concern the same conduct, transaction or occurrence as the original pleading. So it can avoid a SoL problem. |
| Required Disclosures (Discovery) | Initial Disclosures, Experts, Pretrial |
| Initial Disclosures | W/in 14 days of Rule26(f) conference, must id persons, ESI and docs that are LIKELY TO HAVE DISCOVERABLE INFO THAT THE DISCLOSING PARTY MAY USE TO SUPPORTS ITS CLAIMS/DEFENSES. P must give computation of dmgs and D must disclose insur. |
| Experts (req'd disclosure) | As directed by ct, must id experts who may be used at tr and produce a written report containing opinions, data used, qualifications, compensation for study, etc. That report and drafts of it are work product. |
| Pretrial (req'd disclosure) | No later than 30 days b/f tr, must give detailed info about tr evidence, including docs and id of Ws to testify live or by deposition. |
| Discovery Tools | (may not be used until a/f Rule 26(f) conference) Depositions, Interrogatories, Requests to produce, Physical or mental examination, Request for admission. |
| Depositions | Can depose non-parties or parties. Non-party should be subpoenaed, however, or she is not compelled to attend. |
| Interrogatories | Questions in writing to ANOTHER PARTY. |
| Requests to Produce | To another party or to non-party if accompanied by subpoena. |
| Physical or Mental Examination | ONLY available through court order. |
| Request for Admission | To ANOTHER PARTY. |
| Scope of Discovery | Anything relevant to claim/defense. Relevant = reasonably calculated to lead to the discovery of admissible evidence. |
| Work Product (Discovery) | Material prepared in anticipation of litigation. Generally protected from discovery; however, discoverable of if show 1) Substantial Need, and 2) Not Otherwise Available. |
| Absolutely Protected Work Product | 1) Mental Impressions, 2) Opinions, 3) Conclusions, and 4) Legal Theories. |
| Does work product have to be generated by a lawyer? | No. By party or rep of party. |
| Enforcement of Discovery Rules | 1) Protective Order, 2) Partial Response (light sanction), 3) No Response (total violation). Party seeking sanctions must certify to the Ct that tried in GOOD FAITH to get info w/o Ct involvement. |
| Partial Response in re discovery requests | 1) Move for order compelling answer, plus costs of motion. 2) If violates order to compel, heavy sanctions plus costs. |
| No Response in re discovery requests | Heavy sanctions plus costs. No need to get an order compelling answers. |
| Heavy Sanctions | 1) Establishment Order, 2) Strike Pleadings of the disobedient party, 3) Disallow evidence from the disobedient party, 4) Dismiss P's case (if bad faith), 5) Enter default judgment against D (if bad faith) |
| Necessary and Indispensable Parties (Absentees) | An absentee who meets ANY of these tests: 1) w/o A, Ct cannot accord complete relief among existing parties, 2) A's interest may be harmed if not joined, OR 3) A claims an interest that subjects a party to a risk of multiple obligations. |
| If absentee cannot be joined… | 1) proceed w/o A, or 2) dismiss entire case. If Ct dismisses, A is Indispensable. |
| Interpleader | A defending party wants to bring in someone new (Third-Pary D) because TPD may owe INDEMNITY or CONTRIBUTION of the defending party on the underlying claim. Rt to implead w/in 14 days of serving Answer, otherwise need Ct permission. |
| Steps to implead a Third-Party Defendant | 1) File Third-Party complaint naming TPD, and 2) Serve process on TPD. After TPD is joined, P may assert a claim against TPD, if claims arises from same T/O, and vice versa. |
| Class Action | Representative(s) sues on behalf of group. |
| Initial Requirements of Class Action | 1) NUMEROSITY, 2) COMMONALITY, 3) TYPICALITY, 4) REPRESENTATIVE ADEQUATE |
| Numerosity | Too many class members for practicable joinder. |
| Commonality | There is some issue in common to all class members, so resolution of that issue will generate answers for everybody. |
| Typicality | Representative's claims/defenses typical of those of the class. |
| Representative adequate | Class rep will fairly and adequately rep class. |
| If initial requirements met, Class Action case MUST fall w/in one of three types. | 1) Class treatment necessary to avoid harm to class members or non-class party. 2) Injunction/Declaratory Judgment (not dmgs) sought b/c D treated class alike. 3) Dmgs, a) common Qs PREDOMINATE over individual Qs, AND b) class action SUPERIOR method. |
| What happens after Court certifies class action as such? | A/f Ct grants motion to certify, Ct must define the class and class claims, issues, or defenses. Ct must also appt class counsel. |
| Subject Matter Jurisdiction over Class Action | Class invokes FQ, or Rep is diverse from all Ds and Rep's claim exceeds $75k. |
| Failure to State a Claim | (FRCP 12(b)(6)) D moves to dismiss for failure to state a claim. Tests only the sufficiency of P's allegations. Ct ignores legal conclusions. Ct only looks at allegations of fact in the complaint and asks if these facts were true, would P win a judgment. |
| Motion for Judgment on the Pleadings | Same motion as Failure to St a Claim, but made a/f D has answered. |
| Summary Judgment | (Rule 56) Must show 1) there is NO GENUINE DISPUTE ON A MATERIAL FACT and 2) movant is ENTITLED TO JUDGMENT AS A MATTER OF LAW. (w/in 30 days a/f close of discovery) |
| What does the Ct look at in Summary Judgment motion? | Evidence in form of affidavits or declarations, deposition testimony, or interrogatory answers. (under oath) |
| Pretrial Conferences | Ct may hold pretrial conferences to process case and foster settlement. Final pretrial conference determines issues to be tried and evidence to be proffered. This is recorded in a pretrial conference order, which supersedes the pleadings. |
| Right to Jury Trial in Federal Court | 7th Amend (only to Fed Cts) preserves rt to jury in civil actions at law, but not in suits at equity. |
| Demand for Jury | In writing no later than 14 days a/f service of last pleading raising jury triable issue. If don't, waive rt to a jury. |
| Motion for Judgment as a Matter of Law (JMOL) | Effect is to take the case away from the jury. Can ONLY be brought a/f the other side has been heard at trial. |
| Standard for granting JMOL | Reasonable People could not disagree on the result (similar to SJ, but at tr) |
| Renewed Motion for Judgment as a Matter of Law (RJMOL) | Same as JMOL, but comes up AFTER TRIAL. |
| What is an absolute prerequisite to bringing RJMOL? | Must move for JMOL at trial. |
| Motion for a New Trial | Move w/in 28 days a/f Judgment. Grounds: 1) error at tr makes judgment unfair, 2) new evidence not discoverable despite due diligence, 3) prejudicial misconduct, 4) judgment against weight of evidence, 5) inadequate/excessive dmgs |
| Final Judgment Rule (Appeal) | GENERALLY, can app only from final judgments, which means an ultimate decision by the trial ct of the merits of the entire case. File notice of app in Tr Ct w/in 30 days a/f entry of final judgment. |
| How to determine if a ruling is a final judgment? | Ask: A/f making order, does tr ct have anything left to do on the merits of the case? |
| Exceptions to Final Judgment Rule | Interlocutory Orders Reviewable as of Rt, Interlocutory Appeals Act, Collateral Order, More than one claim/parties, Extraordinary Writ, CLASS ACTION (w/in 14 days of grant/deny certification). (see pg 35) |
| Claim Preclusion | (res judicata) 1) same claimant against same D, 2) Case 1 ended in valid final judgment on merits, and 3) Same claim. |
| Judgment on the merits | Any judgment, unless ct says otherwise, or based on Jur, venue, or indispensable party. |
| Same Claim | (Majority) Claim is any rt to relief arising from SAME T/O. (minority) Separate claims for property dmg and for personal injuries b/c those are diff primary rts. |
| Issue Preclusion | (collateral estoppel) An issue was litigated in Case 1. Same issue comes up in Case 2. But if issue preclusion applies, will not allow issue to be re-litigated in Case 2. It is DEEMED ESTABLISHED in Case 2. |
| Requirements for Issue Preclusion | 1) Case 1 ended in valid, final judgment on merits, 2) Same issue was actually litigated and determined in Case 1 (e.g. went to tr), 3) Issue was essential to the judgment in Case 1, 4) Against one who was party to Case 1, 5) by one who was party |
| By whom can issue preclusion be asserted? | MUTUALITY, only by one who was party to case 1 (not req'd by due process). Some Cts allow Non-mutual defensive issue preclusion and Non-mutual offensive issue preclusion. |
| Non-mutual Defensive Issue Preclusion | One using preclusion not a party in Case 1 and is D in Case 2. Under Mutuality Rule, could not be done, Most Cts allow if other side had FULL CHANCE TO LITIGATE in Case 1. |
| Non-mutual Offensive Issue Preclusion | One using it was not a party in Case 1 and is the P in Case 2. Under Mutuality Rule, cannot be done. Trend in law allows if NOT UNFAIR. |
| Factors of Fairness in re Non-mutual Offensive Issue Preclusion | 1) Full and fair opportunity to litigate, 2) could foresee multiple suits, 3) could not have joined easily in Case 1, AND 4) no inconsistent judgments in re issue (e.g. multiple cases). |
Created by:
Sarah_Shore
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