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Civil Procedure

Finished, look at appeals, may just want to read outline, just in case

QuestionAnswer
Civil Procedure: Three big areas (1) Choosing the Right Court. (2) Shape of the Case (3) Adjudication
Choosing the Right Court: Jurisidction Two types of jurisdiction (1) Personal and (2) Subject Matter Jurisdiction
Personal Jurisdiction Is the power of the court to exercise power over a particular person or item. There are two limations on PJ: (1) State Statutory Limitations and (2) Constitutional Limitations (Consti. is more important of the two).
Federal Personal Jurisdiction Rule 4 of the FRE provides each federal court must analyze PJ as if it were a court of the state in which it is located.
Personal Jurisdiction Analysis (PJ1): Statutory limitations on PJ G/R: If no state statute grants the court power over the parties b/f the CT, then the court lacks PJ. Gen. called a long arm statute. In Wyo. court may exercise PJH over a nonresident on any basis that is not inconsistent with the WY and US constitutions.
Traditional Basis for PJ that meet the statutory requirements (and constitutional reqs too.)(PJ2) (i) (ii)Where the D is present in the forum state and is personally served w/process. (iii) Where the D is domiciled in the forum State. (iv): Where D constents to jurisdiction and (v) Where D has committed acts bringing him w/the states long arm stat
Domicile: (PJ3) G/R: It is constitutionally permissible for a ST court to exercise PJ over persons who are domicillaries of the state, even if served w/process outside the state.
Test for Domicile: (PJ4) Domicile is where a person maintains her permanent home. Where a person has legal capacity, her domicile is the place she has chosen through presence and an intent to make the place her home.
Physical presence at time of personal service: (PJ5) Service on a non-resident while he is present in WY serves as a sufficient basis for PJ, and SCOTUS has agreed even if the process was for a cause of action unrelated to the D's brief presence w/in the state.
Consent: (PJ6) Consent provides PJ. It may be express or implied or through making a general appearance in court of the state.
Express Consent: (PJ7) A P's express consent may grant PJ, whether given b/f or after an action commences. Advance consent is generally given by (1) a contract or (2) by appointing an agent to accept service of process (scope of power may be limited by K).
Implied Consent: (PJ8) Where a State has SUBSTANTIAL reason to regulate in-state activity, it may provide that by engaging in this activity, the nonresident thereby appoints a designated State official to act has his agent to receive process (upheld in WY and by SCOTUS)
Voluntary Appearance: (PJ9) A defendant may consent to jurisdiction by contesting a case w/o challenging PJ.
Constitutional Limitations on PJ: Second Step of analysis: (PJ10) Two components for constitutional PJ to be granted. There must be (1)contacts and (2) notice.
Contacts: (PJ11)-- G/R: Does D have such "minimum contacts with the forum so the exercise of PJ does not offend traditional notions of fair place and substantial justice"--this is determined by two factors: (1) Sufficient Contact and (2) Fairness.
Sufficient Contacts (1) The defendant is served w/process w/in the state. (2)Minimum Contacts: International Shoe
Minimum Contacts ..... is determined by two factors (1) Purposeful Availment and (2)foreseeability.
Purposeful Availment: Exists when D purposefully availed herself "of the privilege of conducting activities within the forum ST, thus invoking the benefits and protection of its laws." Such contacts cannot be accidental, but do exist when D is using the roads or making money.
Stream of Commerce Cases and Purposeful Availment Ambiguous area but so far (1) merely placing an item in the stream of commerce,by itself, is not enough for PJ.(2) KNOWING or Hoping a product will arrive in a ST is not enough, look for intentional targeting. (3) SOCC plus something else will provide PJ.
Internet Cases (1)Maintenance of an info. site is not enough to grant general jurisdiction, but may be enough for specific jurisdiction if the serve is maintained in that state or the info. is directed at a part. state. (2) While an active website grants general PJ.
Foreseeability Test: The defendant must know or reasonably anticipate that her activities in the forum render it foreseeable that she may be "haled into court" here.
Fairness This the traditional nations of fair play and substantial justice prong of international shoe (minimal contacts). It is possible that an especially strong showing of fairness may mitigate a lesser showing of contacts.
Fairness factors Test for Fairness is determined by (1) Relatedness of Claim to Contact. (2)Convenience; (3) Forum State's Interest; (4) Other Factors;
Relatedness of Claims to Contact Most important factor in determining whether fairness is met. Relevant rules (1)
If D's in-state activity is less than systematic or continuous.... ....PJ will be proper only for action arising from that activity (SPECIFIC JURISDICTION)
If D's in-state activity is SYSTEMATIC AND CONTINUOUS such that the D is ESSENTIALLY AT HOME in the forum..... PJ for any cause of action, whether the cause of action arose from the in-state activity or from activity outside the state, is granted. (GENERAL JURISDICTION).
Convenience SCOTUS has NOT held a proper forum is the best alternative. A forum is acceptable unless it is " so gravely difficult and inconvenient that a party is unfairly put at a sever disadvantage in comparison to his opponent." Very high bar for D to meet.
Forum State's Interest The forum may a have a legitimate interest in providing redress for its residents.
Other Fairness factors (1)PLA's interest in obtaining convenient and effect. relief; (2)The interstate judicial system's interest in obtaining the most efficient resolution of controversies;(3)the shared interest of the states in furthering fundamental substant. social policys.
Notice (2nd Constitutional Element) Due process requires that a reasonable method be used to notify the D of a pending lawsuit so that she may have an opportunity to appear and be heard.
In other words Notice must be.... ..."reasonably calculated, under all the circs., to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."
Traditional Methods of Personal Service Satisfy Due Process Notice Requirements such as (1)Personal Delivery to the D: (2)leaving papers with a responsible person at D's residence or place of business: (3) delivery to an agent appointed to accept service: (4) delivery by registered mail, return receipt requested.
If an agent appointed by contract or by operation of law, fails to notify the Defendant of service . . . then personal jurisdiction will be denied.
In Rem Jurisdiction -in rem actions adjudicate rights of all persons w/ respect to prop located in the state -An in rem jdgmt doesn't bind the parites personally, but is binding as to the disposition of the property in the state
In Rem Jurisdiction: Statutory Limitations -Most states have stats providing for in rem juris for: Condemnation, title regist, confiscation of prop, forfeiture of a vessel, distribution of assets of an estate, & grant of divorce when only complaining spouse is present & subject to personal Juris
In Rem Jurisdiction: Constitutional Limitations -Nexus -Notice
In Rem Jurisdiction: Const'l Limitations: Nexus -basis of this juris is the presence of prop in the state -presence of the prop in the state is const'lly sufficient for exercise of juris over prop -no juris over prop not in state -no juris if prop brought in by fraud or force
In Rem Jurisdiction: Const'l Limitations: Notice -persons whose interests are affected and whose addresses are known must be at least noified by ordinary mail (no longer sufficeint notice to intereseted persons to post notice or ad in paper)
Quasi In Rem Jurisdiction -permits a crt w/out in personam juris to determine certain disputes btwn a P and D regarding prop when the prop is loacted in the forum state -P unable to obtain Pers Juris over D, but D has prop in state that P attaches
Quasi In Rem Jurisdiction: Statutory Limitations -2 types of Quasi 1)involves disputes btwn parties over thier rights in prop w/in the state 2)involves disputes unrelated to the in-state prop and has been severely limited byt the S.Crt.
Quasi In Rem Jurisdiction: Const'l Limitations -Nexus -Notice
Quasi In Rem Jurisdiction: Const'l Limitations: Nexus -S.Crt held that the minimum contacts standard is applicable to every exercise of juris & that the mere presence of prop w/in a state is no longer sufficient to permit a crt to exercise quasi in rem juris over prop in quasi action
Quasi In Rem Jurisdiction: Const'l Limitations: Nexus: Quasi In Rem Type 1 -when dispute involves rights of the parites in the prop itself (type 1) juris is based upon the presence of the prop in the state is proper -the close connection btwn the litigation and the prop provides necessary minimum contacts
Quasi In Rem Jurisdiction: Const'l Limitations: Nexus: Quasi In Rem Type 2 -Dispute unrelated to ownership of prop (type 2) -juris cannot be based solely on the presence of the prop in forum state -must be minimum contats btwn D and forum State -use of quasi in rem type 2 are rare
Quasi In Rem Jurisdiction: Const'l Limitations: Nexus: Procedural Req'ts -a P must "bring the asset befroe the crt" by attachment (or garnishment) -inhibits the sale/mrtg of D's interest
Quasi In Rem Jurisdiction: Const'l Limitations: Notice -requires the best practical notice -posting of notice or notice by publication are insufficient where addresses of persons affected by the action are known or reasonably ascertainable
Subject Matter Jurisdiction: Wyoming State District Courts -crts of general juris, have juris over all matters not otherwise assigned to other crts -have appellat juris over matters appealed from inferior crts -sits as probate crt
Subject Matter Jurisdiction: Wyoming State Circuit Courts -original, but not exclusive, civil juris for actions not exceeding $50K -crts are established for each judicial dist & the boundaries are the same as the judicial dist
Assignment of Case by Dist Crt Judge to Circ Crt Judge: WY -dist crt judge may assgin to circ crt judge any case or proceeding w/in the juris of the dist crt provided that circ crt judge accepts and each P and D consents to the transfer in a civil action if amt in controversy exceeds $50K
Circuit Crt: Magistrates: WY -circ crt appoints full-time magistrate -counties w/out circut crt judge have magistrate
WY: Small Claims Court -circ crts may utilize small claims procedures (claims that don't exceedin $6K) -a party may be represented by counsel in small claims crt -if atty appears for one party, opposing party is entitled to continuance for purpose of obtaining atty
Subject Matter Jurisdiction of Federal Crts -SMJ of fed crt limited to that authorized by Const as implemented by fed stat and decisional law: Diversity of Citizenship Juris and Federal Question Juris
SMJ: Diversity of Citizenship Jurisdiction -main req't: that there be: 1)complete diversity btwn opposing parties --each P must be of diverse citizenship from each D -AND, 2)amt in controversy must exceed $75K
SMJ: Diversity of Citizenship -must exist as of the time suit is instituted -determination of state of citizenship=the permanet home to which he intends to return
SMJ: Diversity of Citizenship: Citizenship of Corporation -Corp is deemed to be a citizen of EVERY state & foreign country in which it is incorporated and the ONE state or foreign county in which it has its principal place of business
Citizenship of Corporation: Principal place of business -the state from which the corps high level officers direct, control, & coordinate the corps activities (the nerve-center)
Citizenship of Corporation: Special Rule for Direct Actions -when P sues an insurer on a policy or K of liability insurance, and doesn't join the insured, the insurer is treated as a citizen of all the following: 1)stat or foreign county in which the insurer is incoprorated 2)the state or foreign county in....
which insurer has its principal place of buisness, and 3) the state or foreign county of which the insured is a citizen
Incorporation or Principal Place of Business in Foreign Country -a corp might simultaneously be an alien and citizen of U.S. State -fact that corp is an alien will defeat juris in a suit involving solely another alien, even though the corp may also have U.S. state citizenship
SMJ: Diversity of Citizenship: Citizenship of Unincorporated Associations -for diversity purposes, an unicorp association (i.e. partnership or labor union) is considered a citizen of each state of which any member is a citizen
SMJ: Diversity of Citizenship: Citizenship of Legal Representatives -legal reps of the estate of a decedent, an infant, or an incompetent is deemed to have the same citizenship as the decedent, infant or incompetent
SMJ: Class Actions -Diversity is dteremed on the basis of the citizenship of the named members of the class who are suing
SMJ: Diversity of Citizenship: "Alienage" Jurisdiction -SMJ over "alienage" cases (dispute btwn citizen of U.S. state & an "alien" (citizen/subject of another country) -SMJ denied if case btwn citizen of state & citizen of foreign country but admitted to the U.S. for permanent residence & domiciled in U.S.
SMJ: Federal Question -When an action "arises under" federal law
SMJ: Federal Question: Specific Statutory Grants of Jurisdiction -fed crts exclusive in st crts in: bankruptcy, patent/copyright, U.S involved, where consuls/vice consuls sued as Ds, antitrust cases, actions against foreign states removed from st crts to fed crt, postal matters, IRS cases, Sec Exchange Act, admiralty
SMJ: Removal Jurisdiction -allows Ds to remove an action brought in a state crt to a fed crt if fed crt would have had original juris over the action -ONLY Ds CAN REMOVE! All Ds must join in removal, except in fed question case
SMJ: Removal Jurisdiction: Time -notice of removal- must be filed 30days after D receives notice that case is or has become removable, but (diversity case only) in no event more than 1yr after case was commenced unless it can be shown P acted in bad faith to prevent D from removing case
SMJ: Removal Jurisdiction: Limitations on Removal in Diversity of Citizenship cases -when juris of fed crt is based on diversity & one of the Ds is a citizen of the state in which the state action was brought, the action is not removable
SMJ: Removal Jurisdiction: Remand -P can file a motion to have the case remanded to st crt -will be remanded if theres no fed juris -fed crt has discretion to remand case to state crt once all fed claims have been resolved, leaving only state claims over which there is no diversity juri
Supplemental Jurisdiction -allows a fed crt to entertain certain claims over which it would have no independent basis of SMJ (i.e. claims that dont satisfy diversity/fed question juris req'ts) -operates only after a claim has invoked fed SMJ after the case is properly in fed crt
Venue -refers to proper place for lawsuit -prevent P from forcing D to defend @ a remote place burdensome to him -Local Action=have crt closest to SM of suit hear action. one in which res must be before crt(recovery/dmgs to real estate/easements)
Waiver of Venue -If venue is improper in the chosen forum, it must be raised in the 1st responsive pleading or immediately by motion -if its not raised at the outset, any objection to venue is waived
Statutory Requrements: Local Actions -Actions for recovery of real prop or estates, or interets therein; actions for partition or real prop; and actions for sale of real prop under mrtgs, liens, or encumbrances must be brought in the WY county in which the prop is loacted
Local Actions: Specific Performance -actions for Specific Performance of K to sell realty may be brought in WY county in which any D resides
Statutory Requrements: Certain Actions must be brough where they arose -actions for recovery of fines, penalties, or forfeitures; actions against public officers; and actions on the bond of public officers must be brought in WY county in which the cause of action arose
Statutory Requrements: Actions against Corporations -actions brought agasint domestic (WY) corps must be brought in the Wy county in which the corp is situated or hast is principal office or place of business -actions against domestic insurance comp=WY county in which cause of action arose
-action against non-resident & foreign (not WY)corps, may be brought in the WY county in which the action arose or the P resides
Statutory Requrements: Actions against Executors, Adminstrators, Guardiansh and trustees -may be brought in the WY county in which the fiduciary was appointed or resides
Statutory Requrements: Personal Injury Actions -may be brought in the WY county inw hich the cause of action arose or in which the D resides or may be summoned
Statutory Requrements: Probate Matters -Wills must be proved, and letters of testamentary of adminstration granted, in the county of which the decedent was a resident at the time of his death, regardless of the county in which he may have died
Statutory Requrements: Fallback Provision -all actions not specifically provided for must be brought in WY county in which the D resides or may be summoned -if there are multiple resident Ds, the action may be brought in any WY county in which any one of the Ds resides or may be summoned
Change of Venue -the crt, on a motion of any party made w/in 15 days after the last pleading is flied, must transfer the case to another county for trial if the crt finds that there is prejudice against the party or the party's action in the current county...
that the party can't obtain a fair and impartial tiral in the present county; or the conveninece of witnesses would be prmoted by a transfer -the judge, on his own motion, may also order transfer if justice so requires
Improper Venue -if P files in wrong venue, D may seek a transfer or dismissal of action by presenting facts showing venue is improper -if a defect not shown, crt will deny motion -Motion may be denied or held in abeyance if crt determines add'l info necessary
Transfer vs Dismissal -a case shouldn't be dismissed on the grounds of improper venue, rather it should be transferred to another WY count of proper venue -dismissal for improper venue is not reversible error
Commencement of Action and Service of Process: Statute of Limitations -SoL proves an outermost deadline for the P to commence an action after a cause of action accrues -In Wy, statute generally begins to run whn the P knows or has reason to know of the existence of the cause of action
Common SoL in WY Tort=4 K for Sale=4 -Cases involving single injury=1yr for workers comp claims when injury readily apparant, if not=1yr from discovery; injury over time-1yr from date diagnosis is disclosed to EE or 3 yrs from last exposer, whichever occurs later
Recovery of Real Prop=10yrs wrongful taking of personal prop=5yrs wrongful death action=2yrs of appointment of personal representative -against govt entity-2yrs
SoL: Professional Malpractice -a professional malpractice action generally must be brought w/in 2yrs of date of alleged act of malpractice -the discovery rule applies if P can establish that malpractice was not reas'ly discoverable w/in 2yr period-then its 2yrs from date of discovery
SoL: Legal Disabilities -other than professional malpractice (w/in 1yr of removal of disability) a P who is a minor/subject to legal disability may bring an action w/in 3 yrs after the disability is removed or w/in an statotry period of limitation, whichever is greater
SoL: Abscounding Defendants -if cause of action accrues against a person when he is out of the state, or when he has absconded or concealed himself, the SoL period doesn't begin to run until he comes into the state or is found
SoL and Equitable Estoppel -to establish EquitEstop P must show that: 1)delay in filing action was induced by D; 2)D misled the P; AND 3)he acted on the misinfo in good faith to the extent that he failed to pursue his action in a timely manner
SoL: Commencement of the Action -action is commenced on the date of filing if the D is served w/in 60 days of the filing, in not w/in 60 days, action is deemed commenced when service is made
Savings Statute -if an action commenced where a jdgmt for the P is reversed, or P fails, upon the merits & the time limited for commencemnt of the action has expired at the date of the reversal or failure....may commence new action w/in 1yr after date of failure/reversal
Effect of Savings Statute -has been interpreted not to apply to cases in which Ps attempt at service was deemed to be void but to apply when service was merely voidable -void or voidable- look to whether D would be entitled to vacate the default jdgmt due to lack of service
Inapplicable to claims Against the Govt -savings stat doesnt apply to actions brought under the WY Governmental Claims Act
Service of Process -D must be served w/ a summons and a copy of the complaint-together they = process
Who May Serve Process In WY - by an person of the age of majority, not a party to the action, or, at the request of the serving party, the sheriff of the county where the service is made or the sheriffs designee
Who May Serve Process In Another State or U.S territory -any person of the age of majority, not a party to the action, or, at the request of the serving party, by the sehriff of the county where service is made or sheriff's designee or by the U.S marshal or marshal's designee
Who May Serve Process In A Foreign Country -may be made by any citizen of the U.S of the age of majority
Return of Service Affidavit -process server must file affidavit w/ the clerk indicating that the process server has served the complaint and summons on the D -affidavit is filed w/ the district crt -D's answer is due based upon the date of service
Waiver of Service -P may mail to D (1st class/other reliable means) a copy of complaint w/ request to waive formal service -waiver is effected by the Ds return of a waiver form included in the mailing -D must have @ least 30 days from date of request to return waiver
Personal Service W/in The State Service on: -Individual D -Infant and Incompetent -a Partnership or Unincorporated Association -a Corporation -State, Municipality, or Public Corporation -the Sec of State as Agent for D -Foreign Insurance Carrier
Service on an Individual Defendant -served by delivering copy of summons & complaint to: 1) individual personally; 2) a person over 14 at the Ds dwelling place/ uusal place of abode, who lives there; 3) an EE of D in charge of Ds place of bus; or 4)agent authorized by appointment or law
Service on an Individual Defendant: Meaning of "delivery to the individual personally" -service will be proper if the process server 1) informs the D that he is attempting service; and 2) leaves the process in a place where the D is likely to find it
Service of an Infant and Incompetent -made by leaving the process w/ a guardian or person w/ custody
Service on a Partnership or Unincorporated Association -made by leaving process w/ one or more partners, associates, managing or general agent for process, or at the place of business w/ the EE in charge
Service on a Corporation -made by delivering process to an officer, manager, general agent, or agent for service of process -service on corp at post officer not effective service
Service on State, Municipality, or Public Corp -made by delivering process to the chief executive officer, secretary, clerk, person in charge of the principal office, or to a member of the governing body
Service on Sec of State as Agent for Defendant -sometimes authorized -e.g. nonresdient motorists, foreign corps not registered)
Service on a Foregin Insurance Carriere -by statute, insurance carrier authorized to do business in WY may only be made by service on the state insurance commissioner as the agent for service of process
Personal Service Outside the State -P may obtain service w/out publication by either: 1) delivering to the D copies of the summons and Complaint or 2) serving the D by registered or certified mail
Service by mail -on request party, & if supported by affidavit, clerk can send, by regis'd or certified mail, a copy of the complaint & summons addressed to party to be served @ address given in affidavit -must be marked as "restricted delivery" & request return receip
Service Outside State Must be Authorized -nonresident service of process stats are strictly construed -each step is jurisdictional and a condition precedent to effective service of process on a nonresident
Service Outside State Must be Authorized: DP must be Satisfied -Fed DP req's due diligence to attempt to locate D when using a long-arm stat such as the WY nonresident motorist stat to effect service -notice to an insurance co alone is not due diligence
Service Outside State Must be Authorized: Defective Service -Service of process must stricly comply w/ the req'ts set forth in rule 4 -when service is lakcing or defective, the dist crt lacks juris to enter a jdgmt or order and renders any subsequent jdgmt a nullity
Service by Publication -b4 this service can be utilized, an affidavit of party, party's agent, or atty must be flied stating service of summons cant be made in state & Ds address, if known, or his address is unknown & cant be ascertained w/ reasonable diligence, detail efforts
Service of Pleadings and Papers Subsequent to Complaint -usually made on opposing party's atty -may be by fax & doesnt have to be followed by regular mail -may be filed by fax w/ prior clerk approval & an executed original mailed to clerk w/in 24hrs -service by mail generally complete when docs placed in ma
Pleadings and Motions: Permitted Pleadings -Pleadings= complaint and answer; a reply to a counterclalim denominated as such; an answer to a cross claim; if the answer contains a cross-claim; a 3rd party complaint, if a person who was not an original party is summoned; and a 3rd party answer
General Rules of Pleading -a complaint, counterclaim, cross-claim, or 3rd party claim must contain: 1) a short and plain statement of the grounds for the crts SMJ, unless the crt already has juris and the claim needs no new grounds; 2)a short and plain statment of the claim....
showing that the pleader is entitled to relief and 3) a demand for jdgmt for relief. -Pleadings may be in the alternative, hypothetical and inconsistent -all statments shall be made subject to obligations set forth in Rule 11
G/R of Pleadings: Splitting of Claims -P cant split 1 claim into several & sue on each 1 -if P sues only part, res judicata bars a 2nd suit & entire claim merges into 1st jdgmt -a party may be found to have improperly split claims if fails to set forth part of claim in reply to counterclaim
G/R of Pleadings: Denials -a D must state, in short plain terms, his defenses to each claim, and he must admit or deny the averments on which the P relies -If a d doesnt have knowledge or info sufficient to form a belief as to the turth of an averment, the D must so state=a denia
-Denials must fairly meet substance of averments denied -when D denies only part, must specify which part is true & deny the rest -effect of failure to deny averments in pleading to which a response is req'd is to admit such averments, except amt of dmg
G/R of Pleadings: Affirmative Defenses -answer must set forth all matters constituting an avoidance or affirmative defense to the complaint -affirmative defense that must be specifically pleaded include: LOOK AT PAGE 24 THERE'S A BUNCH :)
Pleading Special Matters -Capacity to Sue -State of Mind -Conditions PRecedent -Time and Place -Special Damages -Governmental Claims
Capacity to Sue -need not be specifically pleaded except to the extent req'd to show the juris of the crt or when a party desires to riase such issue
State of Mind -an allegationof fraud or mistake must be stated with particularity; malice, intent, knowledge and other conditions of mind may be generally stated -opportunity to amend the compliant is generally give a P who fails to state fraud w/ particularity
Conditions Precedent -if is sufficient to aver generally that all conditions precedent have been performed or have occured -a denial of performance shall be made specifically & w/ particularity
Time and Place -averments of time and place are material and shall be considered like all other material matters
Special Damages (e.g. medical bills) must be specifically stated
Governmental Claims -crts have juris to hear and decide actions brought against governmental entities if a notice of claim complying w/ the const'l & statutory req'ts has been presented -allege compliance in complained
Read section on page 25-26 regarding: Signing and Verification of Pleadings and Motions--Rule 11 and Sanctions
Response to Complaint -Answer -Cross-Claims and Counterclaims -Defenses
Answer -D shall serve answer w/in 20days after service of process -D served out of state/sevice made by pub, D must serve w/in 30 days/within 30days of last publication -if service waived, D must serve w/in 60days after date when request for waiver was sent
Cross-Claims and Counterclaims -party served w/ pleading stating a cross-claim shall serve answer w/in 20days -P shall serve reply to counterclaim in answer w/in 20days after service of answer w/in 20days after service of order, unless order directs otherwise
Defenses -every defense to claim for relief in any pleading shall be asserted in the responsive pleading if one is req'd, except the following may be made by motion: 1)lack of juris over the SM (is not waived); 2)lack of juris over person (waived if not raised);
3)improper venue (waived if not raised) 4)Insufficiency of process (waived if not raised); 5)insufficiency of service of process (waived if not raised) 6)failure to join indispensable party 7)failure to state claim on which relief can be granted
Conversion of Motion to Dismiss to Motion for Summary Judgment -a motion to dismiss for failure to state a claim is made, and affidavits or other info outside the pleadings is attachced/incorporated w/in the motion, and the judge doesnt exclude the info, motion is automatically converted to one for SJ
Motion for More Definite Statment -a motion for a more definite statement is in order if a pleading for which a responsive pleading is permitted is so vauge or ambiguous that a prty cant reasonably be req'd to frame a responsive pleading
Motion to Strike -is an appropriate response to any insufficient defense or any redundant, immagerial, impertinent or scandalous matter
Sua Sponte Dismissal -a crt considers the complaint before any answer and may take it upon itself to dismiss if there is no possible way the complaint can succeed -in order to dismiss sua sponte, WY ahs adopted a 5-step process: 1)allow service of complaint on D;....
2)notify all parties of crts intent to dismiss complaint; 3)give P a chance to either amend complaint or respond to reasons stated by district crt in its notice of intended sua sponte dismissal; 4)give the D a chance to respond or file an answer or motion
5)if the claim is dismissed, the crt must state its reasons for the dismissal
Counterclaims -asserted by D in answer-to which P must reply -Compulsory Crossclaims=if arises out of transaction/occurrence that is SM of opposing party's claim & doesnt req presence of 3rd parties over who crt cant acquire juris -"common nucleus of operative facts"
Permissive Counterclaims -those the D has against the P which are basically unrelated to claims set forth in the P's complaint
Cross-Claims -when party makes a claim against a co-party arising out of transaction/occurence that is SM of original action, or of a counterclaim, or relating to prop that is the Sm of original action -Generally, a cross claim arises when D asserts it against Co-D
Amendment of Pleadings -a party may amend once as a matter of course before a responsive pleading is served or if pleading is one to which no responsive pleading is allowed, then w/in 20days after service of pleadings sought to be amended -amend is allowed only w/ leave of crt
Amendment of Pleadings: Relation Back of Pleadings -amendments to pleading relate back to the time the original pleading was filed -to relate back, amend must arise out of the conduct, transaction, or occurrence originally pleaded, and if, w/in 120days after filing the complaint: 1)the new party has...
rec'd such notice of the initiation of the action that the party can defend on the merits w/out prejudice; and 2)but for mistake concerning the ID of the proper party, action would've been brought against the proper party
Amendment of Pleadings: Amendments to Confrom to Evidence -may be made w/ leave of crt at any time, even after jdgmt
Joinder of Parties -Compulsory Joinder -Permissive joinder -Misjoinder -Substitution of Parties
Compulsory Joinder -covers parties who must be joined and who should be joined -person must be joined if: 1)in persons absence complete relief cant be accorded to those already parties or 2)the perosn cliams an interest relating to subject...
of the action & is so situated that disposition of action into persons' absence may, as a practical matter, impair/impede the persons ability to protect that interest; or leave any of the persons already parties subject to substantial risk of incurring...
Permissive Joinder -applies to parties who may be joined if P chooses -all persons asserting any right to relief jointly, severally, or in alt, where right arises out of same transaction or series of transactions & presents a common question of law or fact, may be joined
Misjoinder -parties may be dropped or added by order of crt on the motion of any party or on its own initiative at any stage of the proceedings for jsut cause -not a grounds for complete dismissal
Substitution of Parties -involves changes in parties to a lawsuit necessitate by death, incompetency, etc., of an original party after action has been commenced -in fed crt, the citizenship of original party controls
Interpleader -enables party, against who 2/more claims are asserted w/ respect to same debt/prop to join all adverse claimants in same action & req them to litigate among themselves to decide who has valid claim -D may obtain this by way of cross-action/ counterclaim
Class Action -for a class must appear: 1)Numerous 2)involve common questions of law or facts 3)representative parties must be typical 4) class rep must fairly and adequately represent interest of class
5) must also find one of the following: a) members of class would create a risk of inconsistent or varying adjudications, would impair interests of absent class members; b)party opposing class has acted/refused to act on grounds generally applicable to...
class making approp final injunctive relief/corresponding declaratory relief w/ respect 2 class; c)questions of law/fact common 2 members of class predominate over questions affecting only indiv'l members of class & class action superior 2 other methods
Notice to class Members must be given notice advising: 1)that crt will exclude the member if the requests 2) that jdgmt will include all members not excluded by request; and 3)that any member may enter an appearance thorugh is counsel
Shareholder Derivative Suits -verified complaint must allege that the P was a shareholder at the time of the complained of transaction or that his shareholder status devolved upon him by operation of law
Intervention -arises where a non-party wishes to interpose himself into pending litigation
Intervention as of Right must meet 4 conditions: 1)applicant must claim an interest rleated to prop/transaction which is subject of action 2) disposition of pending action would, impair or impede applicant's ability to protect interest 3) applicants interests will not be....
adequately represented by the parties and 4) application for intervention must be timely
Intervention as of Right: Timeliness 4 factors: 1)length of time 2)extent of prejudice that existing parties to litigation may suffer as result of applicant failure to seek intervention 3)extent of prejudice thta the applicant for intervention may suffer if the application is denied; and.
4)existence of unusual circumstances militating either for or against a determination that the application is timely
Permissive Intervention -crt has discretion to permit a non-party to intervene if applicant's claim/defenses has a common question of law or fact w/ main action
Limitation on Intervenors Participation -a crt is w/in the proper exercise of its discretion when it places reasonable limits or conditions upon intervenors
Mandatory Disclosure 1)names & addresses of indiv'ls likely to have discoverable info 2)copy of/description/location of all docs in possession of party 3)computation of any category of dmgs claimed by disclosing party, not privilged & 4)any insurance agrmt which may be use
Pretrial Disclosures 1. Expert witness=90days before trial and 30days after disclosure made by other party
Discovery Methods -Deposition -Interrogatories to parites -Requests for Production or Inspection -Physical and Mental Examination -Requests for Admission
Motions to Compel Discovery and Sanctions Failure to comply, sanctions: 1)willful disobedience=a party/witness may be held in contempt of crt 2)crt may strike/dismiss all or part of disobedient party's action or defense 3)crt may hold certian disputed facts are established in favor of opponent...
and 4)crt may bar the disobedient party from introducing evdience in support of his claim or defense
Motion Practice in General -must be in writing, particularity of grounds, set forth relief -request for heairng may be served by moving w/in 30 dyas after service of motion -motion not determined w/in 90days after filing is deemed denied
Default Judgment -when a party against whom a jdgmt for affirmative relief is sought has failed to plead or otherwise defend, and that fact is shown by affidavit, clerk may enter the fact of the party's default
Entry of Default Judgment -by clerk= Ps claim agaisnt d is for sum-clerk must enter jdgmt fo that amnt and costs -By Court=party entitled to jdgmt by default must apply to crt
Effect of Default Judgmetn vs. Entry of Default -entry of default doesnt constitute jdgmt -it establishes liability w/ respect to pleadings, it doesnt establish amt or degree of relief -when default entered, D may no longer contest liability, but when default has been tnered, D may no longer contest
Notice Req't for Default Judgment -appeared in the action, written notice three days prior to a default jdgmt hearing is req'd
Setting Aside Entry of Default Factors to determine whether a motion made for good cause should be granted: 1)whether P will be prejudiced 2)whehter D has a meritorious Defense 3)whether culpable conduct of D led to default
Summary Judgment -attacks the merits of the opponent's case, and is desgined to pierce the pleadings to show that the opponents case has no merit
Summary Judgment: No Genuine Issues of Material Fact -moving party has burden to show that there is no genuine issue as to any material fact, & is entitled to jdgmt as matter of law -once moving party puts forth evid, burden shifts & nonmoving party must show w/ admissible evid that there is genuine issue
Partial Summary judgment -not available in WY
Dismissals by Plaintiff -P may voluntarily dismiss a complaint w/out crt order at any time before the D answers or serves a motion for SJ
Dismissals by Parties -parties can stipulate to a dismissal and can negotiate the conditions on which they agree to the stipulation
Dismissals by Crt -crt may dismiss case w/ terms and conditions as it deems proper
Declaratory Judgments Act -Uniform Declartory Jdgts act has been adopted by WY -purpose is to settle and to afford relief from uncertainty and insecurity w/ respect to legal relations
Subpoenas -appearance of witnessess, production of documents and inspection of premises may be compelled by subponena (may be issued in discovery proceedings, for a hearing, or trial)
Service of Subpoena -must be served by any person not a minor who isn't a party -must be personally served
Use of Depositions in Crt Proceedings -may be used by any party for any reason if crt finds that 1)witness is dead 2)wintess is absent from state 3)witness is unavailable 4)party offering dep has ben unable to procure attendance of witness or 5)exceptional circumstances exist
Add'l Req'ts for admissibility 1)testimony must satisfy rules of evid applied as though witness were then present and testifying 2)party against whom dep is offered must genearlly ahve been present or represtned at the taking of dep or had reasonable notice of it
Errors and Irregularities in Depositions: Objections as to Competency, Relevancy or materiality -these objectsion are not waived at trial unless ground of objection is one which might have been obviated or removed if presented at time of dep
Withdrawal of Atty -counsel not permitted to w/draw from case except upon crt order -condition w/drawal on substitution of other counsel
Change of Judge -jdg may be peremptorily disqualified from acting in case by filing moiton request'g disqualification -motion must be filed by P w/in 5 day after compliant filed -motion filed by D at/before time of 1st responsive pleading filed/ or w/in 30days after se
Jury Trials: may want to review: voir dire etc
Removing Case from Jury -Judgment as matter of Law -Insupportable Jury Finding
Judgment as matter of law -may be made at any state of a trial before sumission of the case to jury on any issue on which a party has been fully heard -crt finds no legally sufficeint evidentiary basis for a jury to find for that party, crt my grant this jdgmt as to any claim, et
Insupportable Jury Finding -when case goes to jury, jury renders verdit not supported by legally sufficient evid, crt has obligation to direct the entry of jdgmt as matter of law
Entry of Judment On Order -writtne jdmts or orders must be presented to the crt w/in 20 days after crts decision is known -party drafting order must obtain approval of other parties as to form
Judgment By Consent -may reserve right to appeal terms of jdgmt by consent -may be appealed due to: 1)lack of SMJ 2) lack of actual consent 3)fraude in procurement of order or 4)mistake
Motions after Verdict or Judgment -Motion for new trial; Amendment of Judgment -Relief from Jdgmt -Atty Fees -Litigation Costs
Motion for New Trial -filed no later that 10 days after entry of jdgmt -grounds: 1)irregularity in proceedings 2)misconduct 3)suprise 4)excessive damages 5)error in assesment of dmgs 6)insufficent evid or verdict contrary ot law 7)newly discovered evid and 8)error of law
Motion for New Trial: Newly Discovered Evidence -factors: evid has come to attention of party since trial, failure to discover evide not caused by lack of due diligence, its so material that it would probably produce diff verdiec and it not cumulative to facts in evid at trial
Relief from Judgment -party may seek relief from a judgment for: 1)mistake 2) inadvertence 3)suprise 4)excusable neglect 5)newly discovered evid that couldnt have been discovered by due diligence in time to move for new trial or 6)fraud, misrep, or misconduct by adverse party
Atty Fees -each party generally responsible for own atty fees and costs -prevailing party is entitled to be reimbursed if authorized by law, must be made by motion and served no later than 20days after entry of default
Appeal -Appellate rules govern
Res Judicata (claim Preclusion) -an absolute bar to subsequent action involving the same claim, demand or cuase of action
Res Judicata applies when.... 1)parties are identical 2)SM is identical 3)issues are the same and related to SM; and 4)capacities of persons were identical w/ reference to both SM and issues btwn them
Exceptions to Application or Res Judicata 1)a part of single claim has been assigned or reserved 2)consent or agrmt btwn parties 3)injustice in tis application 4)ignorance of full dimensions of claim and 5)special circumstances, gross procedural defects, rights of vital public importance, etc
Collateral Estoppel (Issue Preclusion) -prevents relitigation of issues whic were invovled actually and necessarily in the prior action btwn the same parties: -doesn't apply if facts or circumstances have changed since resolution of 1st suit
Collateral Estoppel, 4 factors considered 1)whethr issue decided by prior proceeding is identical to present issue 2)whether prior proceeding resutled in jdgmt on merits 3)wehter party against who collateral estop is being asserted was party/in privity w/ party in prior proceeding; and...
4)whehter paryt against who collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in prior proceeding
Judicial estoppel -binds party by his judicial declaration, and that party may not contradict them in a subsequent proceeding inolving the same issues and parties
Law of the Case Doctrine -stands for the proposition that crts decision on an issue of law made at one stage of case becomes a binding precedent to be followed in successive stages of the same litigation
Created by: sachav3