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Flashcards in Civ Pro Deck (98)

Personal jurisdiction definition

Ability of court to exercise SMJ over a particular person or property


Personal jurisdiction requirements

Must be
(1) Authorized by statute (long arm)
(2) Constitutional
-Minimum contacts


Three types of personal jurisdiction

(1) In personam - power over particular person
(2) Quasi in rem - determine rights of particular persons over a specific property
(3) In Rem - Adjudicate all rights against a person no matter where they are in the world over a piece of property


In Personam jurisdiction granted how

(1) In the state and served notice
(2) Domiciled in forum state
(3) D is a citizen
(4) Consents to jurisdiction
(5) D's acts bring him within long arm statute


In Personam constitutional limits

Must have
(1) Minimum contact
(2) relatedness (specific or general jurisdiction)
(3) fairness - "does not offend traditional notions of fair play and substantial justice"
(4) notice


In Personam - Minimum contact test

"Purposefully availabled herself"

If stream of commerce or internet issue - personal jurisdiction over D if there is some intent to serve/target a particular state with his product or internet service


In Personam - Specific vs. general jurisdiction

General jurisdiction - court has jurisdiction over D irrespective of the claim.

Specific jurisdiction - court has jurisdiction over D due to the claim.


In Personam - How is notice satisified

(1) serve on D or D's agent
(2) If multiple D's - the best available method. But if mail returned unclaimed, cannot rely on service if other practical means available


How is in rem jurisdiction satisfied?

property being in the state is enough - serve notice to the property owner


How is quasi in rem jursidiction satisified?

Minimum contacts required whether dispute is between the parties over property or dispute is between parties regardless of property


Diversity Jurisdiction requirements

(1) Must be complete diversity
(2) No P can be citizen of same state as any D
(3) Amount in controversy must exceed $75,000


Alienage Jurisdiction requirements

US Citizen vs. Alien - OK
US Citizen vs. Permanent resident of same state as P - NOT OK
Alien vs. Alien - NOT OK

Alien co. (PPB) + also citizen of US state (Inc.) vs. Alien - NOT OK


Citizenship of Individual

Permanent home TO WHICH he intends to return


Citizenship of corporation

Citizen of
(1) every state in which incorporated and
(2) one PPB


Citizenship of unincorporated association (Partnership)

Citizen of
each state which any member is a citizen (limited and general)


Citizenship of Class Actions

Citizen of all named members who are suing


Supplemental Jurisdiction

Other claims in a diversity action that would not otherwise have diversity AND be based on a fed question can still be heard by the court if the claims arise from a "common nucleus of operative fact"


Joinder or additional parties

Parties relationship or claim MUST invoke diversity or fed jurisdiction to be added.

IF it doesn't, court MAY invoke supplemental jurisdiction if common nucleus test satisfied.

However, if original claim is based on diversity, then supplemental jurisdiction cannot be used for joinder of additional parties when
(1) P vs. impleaded/intervening parties - must be independent basis


Cross claims allowed and do they affect jurisdiction?

Cross claims allowed

If no diversity or fed question - must satisfy supplemental jurisdiction test


What can be added to make the $75,000

(1) Aggregation of separate claims against a single D
(2) Aggregation of separate claims against multiple D's if D's are jointly liable to P
(3) Punitive damages
(4) Attorney's fees


What can't be added to make the $75,000

(1) Interest and costs
(2) Separate claims against one D
(3) Collateral consequences of the judgment (right to future installments on disability policy)
(4) Counterclaims


Do counterclaims need their own jurisdictional basis?

NO, UNLESS they are completely independent from the claim, then must have their own fed question or diversity. Growing case law that supplemental jurisdiction can apply if related to the same facts at least.


Who can remove to fed court?

ONLY THE DEFENDANT - watch for tricks where P wants to remove


If Diversity is applied, what procedural and substantive law does the fed court apply?

Procedural - fed court
Substantive - state court


What is considered substantive?

Statute of limitations
Rules for tolling
Choice of law rules
Elements of a claim or defense
Anything satisifying one of the three tests


What is considered procedural?

Everything that is not the four considered procedural - court will use three tests to determine if substantive or procedural


What are the three tests court uses to determine if an action is substantive or procedural?

(1) Outcome determination test
(2) Balance of interest test
(3) Forum shopping deterrence


Outcome determinitve test

issue is substantive if it clearly affects the outcome


Balance of interest test

if state has greater interest, it's substantive


Forum shopping deterrence

if failing to apply state law would increase litigation in fed court, it's substantive


What if a state statute combines procedure and substance

Split it up


Conflicts in timing between hearing a case in fed court and state law modifying the law

Appeals review de novo. Therefore, if high state court renders a decision that is contrary now to the trial court outcome, decision of the trial court may be changed to conform to new decision up until final disposition of the final appeal.


Does fed common law exist?

Yes - fed courts can fill in the gaps of fed law when interpreting - look at what the state does or what a majority of the states do


Multi party Uniform Act

At least 75 people died, allowed to have minimal diversity (one P different than one D), and
(1) One D must reside in different state from where accident took place
(2) any two D's must reside in different states
(3) substantial part of accident took place in different states


Federal question jurisdiction arises when...

Civil action arising under constitution, laws, or US treaties AND pleaded in compliant. D's defenses based on fed law DO NOT give rise to fed jurisdiction


Supplemental Jurisdiction restriction

P has both fed and state claims - fed court has discretion to exercise supplemental jurisdiction

If it exercises to hear both claims, and fed claim dismissed, fed court can still hear the state law claim on its own


What is venue

Relates to proper district in which to bring an action


When is venue proper

(1) Judicial district where any D resides, if all D's in same state. IF NOT in same state, then cannot be where any D resides - must be where the claim occurred.
(2) Substantial parts of events or omissions occurred
(3) Substantial part of property
(4) If 1-3 not satisified - any jurisdiciton that has personal jurisdiction over D


Venue for individuals and permanent residence

Where he is domiciled


Venue for corporations

Resides in district where it has the most significant contacts


Venue for Nonresident

Any venue


Can you waive venue or SMJ?

Venue, yes.



Can you transfer venue?

Yes - if venue proper court direction if for the convenience of the parties (same law of original court still applies though!!!!!).

Yes - if venue improper court must transfer to proper venue but case is not dismissed (new law of new venue now applies!!!!!)


Elements required for removal

(1) Case could originally have been brought in fed court
(2) If diveristy applies, No D is a citizen of the state where the action is filed.

If multiple D's, all must agree to remove
Can remove only the fed claim and keep state issue in state court

Time limit in diversity action: 30 days once D receives the order, and not more than one year after commencement of action in state court


What is a remand

P can file motion to remand to state court after removal granted. Can remand if (1) no fed matter anymore or (2) all fed questions resolved and only state law claims remain. Discretion is left to fed court.


How to make service

(1) 18 years old
(2) not a party to the action
may service


Personal Service

(1) Left at D's usual place of abode
(2) with one of suitable age, OR
(1) Serivce on D's agent, OR
(2) Mail request to waive service


Immuninty of service

(1) parties, attorney, witness enters state for another action
(2) induced by P's fraud or deceit to enter state


Preliminary Injunction requirements

Injunction prior to trial to preserve status quo
Give adverse party
(1) notice
(2) opportunity to be heard


Temporary Restraining Order requirements

If irrepreable injury will occur before hearing on preliminary injunction, get TRO to preserve status quo before hearing.
Give adverse party
(1) notice

NO NOTICE required if
(1) moving party states facts of irreparable injury she will suffer if TRO not granted
(2) provide reasons why notice should not be required
(3) moving party provides security to pay for any damages incurred if wrongfully restrained


Complaint must state

(1) grounds for fed jurisdiction
(2) short statement of claim - only needs to be plausible
(3) demand for relief

IF fraud/mistake in complaint - then show particularity
IF special damages - then show specificity


What Defenses MUST be raised on D's first motion or first answer or they are waived?

(1) lack of personal jurisdiction
(2) improper venue
(3) insufficient process
(4) insufficient service


What defenses can be raised anytime before start of trial?

(1) failure to state a claim on which relief can be granted
(2) failure to join an indispensable party


What defense can be raised at any time until all appeals have been exhausted?

(1) lack of subject matter jurisdiction


What must an answer to a complaint contain?

(1) Specific denial or admission of each averment in compliant, OR
(2) general denial with specific admission, OR
(3) Lack of knowledge, which counts as a denial



Order of pleadings

(1) Complaint
(2) D's pre-answer motions (if filed)
(3) Answer
(4) Reply


How many days to answer a complaint?

21 days if formal service
60 days if formal service waived
14 days if pre-answer motion denied/ruled on


Default judgment

Entered into against D because they didn't oppose the case


Compulsory Counterclaim

Claim by D from the same transaction that MUST be raised or else it is barred. Court has supplemental jurisdiction over it


Permissive Counterclaim

Any other claim that is not related to same transaction - must have it's own separate jurisdictional basis and no bar if not raised here



Optional by P (unless ordered by court to file one) and no presumptions against him if he doesn't file one to D's allegations in their answer.


Amendments to pleadings

Can do it - once within 21 days of service. Thereafter, need permission from court


Relation Back doctrine

For statute of limitations purposes, amended pleading relates baqck to the original filing date if its from the same conduct, transaction, or occurrence


Changing Party doctrine

For statute of limitations purposes, amended pleading relates back to the original filing date if
(1) new party had sufficient notice of the action,
(2) party knew that but for a mistake concerning her identity, would have been named originally


Rule 11 - Certification of presenting any paper to court

certify that
(1) paper is not presented for improper purpose
(2) legal contentions warranted
(3) have or will have after discovery evidentiary support
(4) denials are based on lack of information and belief


Compulsory joinder

(1) Should the be joined?
(2) Can they be joined?
(3) Should the action proceed without absentee?

If #3 is no then must be dismissed


Permissive joinder

Parties may be joined if
(1) Claim against each D out of same series of occurrences
(2) question of fact or law common to all parties


when is class action OK

(1) Class is so numerous that joinder is impractiable
(2) Questions of law or fact common to class
(3) Named parties interests are typical of class
(4) Named parties will adequately represent class
(5) One of these situations present
(a) separate actions would create risk of inconsistent results
(b) declaratory relief is appropriate for the class
(c) common questions of law/fact predominate


Class action diversity jurisdiction requirement

ONLY named parties must satisfy diversity


Class Action Fairness Act Requirements

SMJ established if
(1) any one class member is diverse from any D
(2) amount in controversy is $5m in aggregate
(3) at least 100 members

Doesn't apply if state actors primary D's, fed security law involved, internal affairs of corp involved


Shareholder derivitate suit

Shareholder sues to enforce right of the corp that those in charge refuse to assert, if
(1) Was a shareholder at time of complained transaction
(2) No collusion
(3) Made a demand on directors first

If based on diversity jurisdiction, then:
Corp treated as P to determine amount in controversy
Corp treated as D to determine diveristy among parties


Whats a cross-claim

Co parties assert claim against each other arising out of same transaction - comes within court's supplemental jurisdiction


Rule 26 discovery

Must disclose, WITHOUT BEING ASKED, information to other party info that is "reasonably available and not privileged or atty work product"


What are the three types of Rule 26 discovery disclosures that must be made to other party without them asking?

(1) Initial disclosures
(2) Expert testimony
(3) Pretrial disclosures


Pretrial disclousres

(1) witness list
(2) list of documents and exhibits
(3) impeachment witnesses never need to be disclosed at any time before trial


Trial Prep Materials (those made in anticipation of litigation) discoverable?

NO - unless other party shows
(1) substantial need
(2) avoid undue hardship


Pretrial discovery - Rule 26(f)

Parties required to sit down and try to settle, consider claims/defenses, make initial disclosures, and make discovery schedule


Scheduling conference - Rule 16(b)

Court must hold a scheduling conference among the parties - can be held by any means. Sets key dates. Can only be changed by party by showing good cause


Right to jury trial

MUST demand within 14 days after last pleading on jury-triable issue or else waived

However, in a diversity case, court MUST permit jury case.


What claims get tried first with jury?

(1) Legal claim tried first by jury then equitable claim to court
(2) jury tries the facts, court tries the equity claim
(3) damages by jury first then equitable claim


Jury objections must given

before jury retires


Jury deliberations

Can only use
(1) papers or exhibits in evidence and own notes
(2) no experimenting
(3) cannot view propertywithout court order
(4) communicatino with non-jury member prohibited


Jury verdicts

(1) judge can order redeliberation or new trial if verdict erroneous
(2) can completely change verdict if redeliberation ordered
(3) New trial if juror gave false testimony during voir dire or concealed any material fact relating to qualification to serve as juror
(4) juror may not testify except to outside influences.


P's voluntary dismissal allowed when.

(1) any time before d's files an answer or motion
(2) stipulation by all parties
(3) If D filed answer or motion, then need leave of court
(4) If counterclaim pending- no dismissal over D's objection unless counterclaim remains pending


Summary judgment MUST be granted when?

from pleadings, affidavits, discovery there is no genuine dispute of material fact and moving party entitled to judgment as matter of law.

Look for moving party submitting affidavit in support and other party not countering - they must counter or if they don't then rule for moving party.

Can file at any time up to 30 days after close of discovery


Directed Verdict

Grant for any party if reasonable jury would not have a legally sufficient basis to find for nonmoving party


Judgment Notwithstanding the Verdict (JNOV)

Verdict could not be reached by reasonable persons. Must have moved for directed verdit at some time during trial. Within 28 days of verdict, file


Motion for new trial

Within 28 days of verdit, file. Granted if error shown at trial


Court can reliev party from final judgment if

(1) mistake, surprise or excusable neglect
(2) Newly discovered evidence
(3) Fraud, misrepresentation
(4) judgment was void,


How long till you can appeal

Must appeal within 30 days of entry of judgment


What matters are reviewable by appeals court?

(1) Interlocutory orders - injunctions, appointments of receivers, patent infringement and property possession
(2) Collateral to the main suit - and too important to avoid deferring


Standards of review on appeal

On matter of law - de novo
On questions of fact - not disturbed unless clearly erroneous
On mixed questions - de novo
Discretionary matters - discretion


Res Judicata

Once judgment final, P barred from trying case again. Look at whether claim arises out of the same transaction or occurrence


collateral estoppel

Goes to issue preclusion - once a court has decided an issue of fact or law necessary to its judgment, that decision ... preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case"



D brings a third party into an action who may be liable to D for all or part of the judgment



P possess property claimed by two or more people - let them hash it out


SMJ of corporation

(1) Principal place of business (one location)
(2) Incorporation



(1) Only served on parties, not nonparties