Civ Pro Flashcards
Subject Matter on Basis of Diversity
Defendant must show that there is complete diversity between the plaintiff and all the defendants at the time the lawsuit is filed.
A case cannot be removed by defendant if:
- -the defendant’s sole basis is diversity jurisdiction and,
- -the defendant resides in the state of the court which the action is brought
Subject Matter on Basis of Federal Question Juris
Turns on whether a federal question is present in plaintiff’s well-plead complaint. There is no federal-q juris if only federal question is brought up in the defense (thus defendant may not remove such case to fed court)
When Can Party Challenge Subject Matter Jurisdiction?
Can be considered at any stage of the proceeding, even for the first time on appeal and even if there is a scheduling order which sets a deadline that is missed by a party.
Subject Matter for MI Courts
Michigan courts are courts of general jurisdiction. If an action is filed in the wrong court, a motion for summary disposition based on lack of subject-matter jurisdiction may be made at any time.
MI Court System
District Courts: exclusive jurisdiction for cases valued $25k or less and hear misdemeanor cases.
Circuit Courts: general jurisdiction, hear cases over $25k as well as felonies
Appellate Court: jurisdiction over appeals from all circuit courts and the court of claims . 3 panel judges
Supreme Court: discretionary appellate jurisdiction or may bear question of law brought before it by certification by any trial judge
Court of Claims: hears and determines civil actions filed against the state and its agencies
Personal Jurisdiction
First discuss whether there is general personal jurisdiction (incorporation, consent, or continuous and systematic contacts). If there is not, then discuss specific jurisdiction that is:
- -whether jurisdiction is granted by the MI long-arm statute, and
- -whether exercising this jurisdiction would be constitutional under the 14th Amendment of Constitution
May be brought in the first motion or first responsive pleading, but a party may amend the pleading as a matter of right in a MI state court within 14 days. In fed ct, 21 days.
Venue for Torts Actions
Venue for tort action proper (follow hierarchy):
1) First, where the claim arose and the defendants reside, conduct business or have an office;
2) Second, where the claim arose and the plaintiff’s reside, conduct business or have an office;
3) the defendants and plaintiffs reside, conduct business or have an office;
4) go back to general rule (where any defendant resides, or if no defendants are in MI, then where any plaintiff resides).
Summary Disposition
aka summary judgment– no issue of material fact
A case (or part of a case) is decided in favor of the plaintiff or defendant without a trial.
- In Michigan, can be filed at any time, subject to scheduling order. In fed ct, it can be filed any time until 30 days after the close of discovery, unless a different time is set by the court.
- -Note: in both state and fed can be filed in response to the complaint instead of an answer.
- Standard for the motion is whether a genuine issue of material fact.
- Burden on moving party to produce evidence to show there is no genuine issue of material fact.
- The burden shifts to the nonmoving party, which then must produce evidence to show the there is a genuine issue of material fact for trial.
- Motion is looked at in light most favorable to nonmoving party.
- Motion only proper if supported by affidavits, admissions, depositions, or other documentary evidence. (not parties own restatement of pleadings)
Case Evaluation
Where parties go in front of panel of 3 attorney case evaluators and argue the case. The evaluators will make a monetary evaluation.
Parties do not have to accept the evaluation. However, if a party rejects the evaluation (or does not respond) and the action proceeds to a verdict then the party must pay the opposing party’s actual costs, unless the verdict is more favorable to the rejecting party than the case evaluation. (If the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that part than the case evaluation). To be more favorable, they ask if it was 10% above (for plaintiff) or below (for the defendant) the award.
Class Actions
Plaintiffs must satisfy all prerequisites in order for their suit to proceed as a class action. CANTS
1) Commonality: establishes that issues of fact and law common to the class predominate over those issues subject only to individualized proof. Requires that plaintiff demonstrate that the class members have suffered the same injury.
2) Adequacy: tests whether the class representative can fairly and adequately represent the interest of the class as a whole by showing that (1) counsel is qualified to pursue the propose class action and (2) the members of the class do not have antagonistic or conflicting interests
3) Numerosity: no particular number necessary to meet requirement but the class should be adequately defined so potential members can be identified and a plaintiff must offer reasonable estimate of the number of class members and there must be a sizable amount of members that suffered actual injury
4) Typicality: Whether the claims of the named representatives have the same essential characteristics of the claim of the class at large. ‘Sharing a common core of allegations with the class as a whole’
5) : Superiority: whether a class action, rather than individual suits, will be the most convenient way to decide the legal questions presented, making a class action a superior form of action.
Michigan Long Arm Statutes
LIMIT
1) Land: defendant owns, uses or possesses real property in MI which lawsuit derives
2) Injury: injury in MI from defendant’s tort from which lawsuit derives
3) Matrimony: defendant maintains a domicile in MI while subject to family relationship which is the basis of a claim of divorce, alimony, maintenance, property settlement, child support or child custody
4) Insurance Contract: defendant entered into insurance contracts for a risk located in MI from which lawsuit derives
5) Transaction of Business: defendant entered in transaction in MI or transaction to be performed in MI from which lawsuit derives
note: also regular contracts
Removal
Two primary grounds for removing from state to federal court: federal question jurisdiction and diversity jurisdiction
- removing party bears burden of showing that federal jurisdiction exists
- to show diversity: there must be complete diversity
- -1) plaintiff must be a citizen of a state different from any state where a defendant is a citizen and
- -2) there must be over 75k in controversary
- -additionally, in complete diversity, removal based on diversity also requires that no defendant be a citizen of the state where the original state action was filed
Fraudulent Joinder
- Judicially created doctrine that provides an exception to the requirement of complete diversity
- Inquiry: whether there is a colorable basis or predicting that the plaintiff may recover against that party
- i.e. add defendant of same place so you can avoid removal by based on complete diversity
Discovery
- A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.
- It is not grounds for objection if it would be inadmissible at trial
For analysis of q:
- start with relevancy of the information
- then look at privileges
Attorney-Client Privilege
To apply there must be:
1) a confidential communication between
2) a client (includ. an officer, employee, or agent of the client) and
3) and attorney
4) made for the purpose of obtaining legal information
