Untitled Deck Flashcards
(155 cards)
1
Q
Rule Statement: Personal Jurisdiction
A
this involves the court’s ability to exercise authority over parties or their property
2
Q
What analysis should PJ be used to analyze PJ?
A
Jurisdiction must be statutorily authorized and constitutional.
- statutorily: an applicable state law must authorized jurisdiction
- constitutional: Jurisdiction must satisfy due process
3
Q
What are the 3 types of PJ
A
In personam, in rem, quasi in rem
4
Q
What is In personam jurisdiction?
A
a court has jurisdiction over persons and can render a judgement against an individual based on their contacts with the forum state.
5
Q
What is in rem jurisdiction?
A
a court has jurisdiction over property and status and the court will adjudicate rights of parties with respect to property located in the forum state.
6
Q
What is Quasi in rem jurisdiction?
A
a court has jurisdiction to determine disputes between a P and D when property, attached for some reason other than involving the property itself, is located in the forum state. the judgement rendered by the court is to person with respect to the property.
7
Q
When do most state statutes grant courts in personam jurisdiction?
A
(PALC) Personal service of process, Actual Domicile, Long-arm, consent
8
Q
Rule statement for the Constitutional analysis to PJ
A
To be subject to PJ a defendant must have such minimum contacts with the forum state so that the exercise of PJ is fair and reasonable.
9
Q
What is the constitutional Analysis for Pj
A
- Contacts: purposeful availment - D purposefully conduct activity in the forum state and Foreseeability - D knew or should have known they could be brought to court in that state from those activities.
- Relatedness: Specific Jurisdiction - P’s claim arises from or relates to D’s in-state contacts. General Jurisdiction - D is “at home”
- Fairness: Severe burden on the D and W? Does the forum state have an interest in providing redress for residents or an interest in the outcome?
- Notice: D must be sufficiently notified of pending lawsuit and afford them an opportunity to be heard.
10
Q
What is “at home” in terms of PJ for individuals and Businesses (corp and unincorp)
A
Individuals: where they are domiciled, if served with process physically in forum state then there is PJ. Corporation: if the state asserts that when registered in that state, subjected to PJ and PPB and where incorporated. Unincorporated: any state that any member of the organization is a citizen.
11
Q
What is a website circumstance that may give rise to minimum contacts for PJ?
A
An interactive (two way communication) site will more likely have the requisite minimum contacts.
11
Q
What is a stream of commerce circumstance that may give rise to minimum contacts for PJ
A
Intentional targeting such as hoping a product will wind up in a particular forum.
12
Q
For PJ, how does a defendant consent to jurisdiction by waiving an objection to it?
A
The defendant must raise the objection with their first appearance and litigate it promptly or else they consent to Jurisdiction.
13
Q
Can a defendant consent to Jurisdiction with a forum selection clause?
A
Yes, the court will enforce the clause unless the selected forum is remote and alien to the parties/transaction.
14
Q
Can a defendant consent to jurisdiction by appointing an agent in that state?
A
yes, but only is state law allows PJ on this basis.
15
Q
What are the 3 exceptions to the consent to jurisdiction by personal service?
A
Fraud - lured into forum by fraud, Force - involuntarily brought to forum , Witness - in forum as a party to another case.
16
Q
Rule Statement for Subject Matter Jurisdiction
A
This is what gives courts the authority over the claim in question.
17
Q
What are the types of SMJ
A
Diversity Jurisdiction, Federal Question Jurisdiction, Supplemental Jurisdiction, Removal Jurisdiction.
18
Q
Rule Statement for Diversity Jurisdiction
A
The constitution grants courts SMJ over controversies over defendants even when the claim does not involve federal law when the parties have complete diversity and the amount in controversy exceeds 75K.
19
Q
What are some cases that federal court will not hear, even if there is diversity jurisdiction?
A
Alimony cases, divorces cases, child custody cases, probate cases.
20
Q
In terms of Diversity Jurisdiction what constitutes citizenship for Individuals and Businesses?
A
Individuals: where person is domiciled. (only 1) Corporations: PPB (where decisions are made) and where incorporated. Unincorporated: citizens of all states in which any member is a citizen.
21
Q
What are the factors too look at to determine someone’s domicile for Diversity Jurisdiction?
A
- they are physically in the state 2. they have the mental intent to stay there for the foreseeable future.
22
Q
For amount in controversy in Diversity Jurisdiction how is the amount determined?
A
P’s complaint must make a good faith allegation that the amount of damages or injury in controversy exceeds 75K (excludes interest and costs)
23
Q
For equitable relief claims, in terms of Diversity jurisdiction how is the amount in controversy determined?
A
two tests: (1) Does the act requiring injunctive relief har P by more than 75K? (2) Does the relief granted cost the D more than 75k?
24
In terms of the amount in controversy for Diversity Jurisdiction what is the rule for aggregation of claims?
1. One P can aggregate all her claims against one D 2. Multiple P seeking to enforce a single right in common can aggregate. 3. One P has joint liability claim against multiple D's can use total value.
25
How can a defendant challenge the plaintiff's allege amount in controversy?
must show that there is no legal possibility that recovery will exceed 75K.
26
Rule statement for Federal Question Jurisdiction
Federal courts have jurisdiction over well-pleaded claims arising under federal law.
27
What is the test to determine the claim is in a well-pleaded complaint by the P?
is P enforcing a federal right? If yes--> FQJ.
28
What cases do federal courts have exclusive jurisdiction over?
Bankruptcy cases, Copyright, trademark, patent, federal antitrust, postal matters.
29
Rule statement for supplemental jurisdiction
Supplemental jurisdiction allows a federal court to hear additional claims that do not on their own meet Diversity J or FQJ.
30
What is the process for Supplemental Jurisdiction?
1. There must be one claim with SMJ already in federal court 2. Each additional claim must pass the common nucleus of operative fact test - arise from same transaction or occurrence. 3. court can dismiss Supp J for various reasons.
NOTE: Diversity case limitation.
31
What are the various reasons a court could dismiss a Supp J claim
Original SMJ claim is dismissed early in the proceeding, Supp claim raises a novel or complex state issue, Supp claim substantially predominates over original SMJ claim.
32
What is the Diversity limitation to Supplemental Jurisdiction?
If the original case is in for Diversity jurisdiction and P is the one claiming a supp J claim ---> supp J is withdrawn. UNLESS it is a co-P using supp J for a claim below 75K (amount in controversy)
NOTE: Still need complete diversity.
33
Rule statement for Removal Jurisdiction
a Defendant can remove a case originally filed in state court to federal court if the federal court would have had SMJ.
Limitation: Diversity limitation
34
What is the Procedure for Removal Jurisdiction?
Timing: D must remove within 30 days of service of the first removable document (usually service of Process; What: D must file a notice containing grounds for removal and all documents from state court, D must send adverse parties and state court a copy.
35
What are the Removal Rules
(DOEP) 1. Only D can and all D's must join. 2. Only can be done if originally could have been in Fed court. 3. must remove to fed district embracing the state court. D files a permissive counter claim in state court --> removal waived.
36
What is the Diversity Limitation on Removal?
D cannot remove if P filed suit in any D's homes state.
37
What is the outcome of an improper removal by D?
P can move to remand within 30 days and court can remand back to state court.
NOTE: can always remove for SMJ at anytime.
38
Erie Doctrine Rule Statement
In diversity cases, federal courts must apply state substantive law and federal procedural law; the Erie analysis determines if state or federal law applies. (AKA whether state law is substantive)
39
Erie Doctrine Analysis
1. is there federal law on point that directly conflicts with state law? (yes use federal law) 2. If there is no federal law the court must determine if state law is substantive and should be applied. (outcome determinative, balance of interests, Forum Shopping avoidance.)
40
What are the Erie Factors a court uses to determine whether a state law us substantive?
1. Outcome determinative: would applying or ignoring state law on the issue determine the outcome of the case? Yes--> use state law. 2. Balance of Interests: does either federal or state system have a specific interest in applying their rule? if one is clearly stronger---> use that law. 3. Forum shopping avoidance: if the federal court ignores state law, would it encourage litigants to flock to federal court? if yes--> use state law.
41
What are the five issues that will always use state substantive law?
(CLEAR) 1. Choice/Conflict of law 2. Elements of a claim or defense 3. statute of limitations 4. tolling of statute of limitations 5. standard of review used for an in adequate or excessive award by a jury.
42
Rule statement for venue
Venue determines in which federal district the case may be brought
43
ways to determine proper venue (generally)
1. Any D resides - any district court where any D resides if all Ds reside in the same state. 2. In any district court in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is located. 3. if 1 and 2 don't work then any district in which D is subject to PJ.
44
For terms of venue what does reside mean (individual and business)
Individual: reside = domicile. Business: reside = anywhere subject to PJ. states with more than 1 federal district a corporation in the district where its contacts are sufficient for PJ if that district were a state (same PJ analysis)
45
Venue Transfer Rule statement
a case may be transferred from one federal district to another in which the case could have been filed or one to which all parties consent.
46
what are the 2 venue statutes
1. transfer of Venue from a proper district to another proper district
2. transfer of venue from an improper district to a proper district
47
Venue statute 1
if the original venue is proper a court can transfer to another proper district based on the interest of justice and convenience; the court will look at public and private factors.
48
Venue Statute 2
if the original district is improper a court can transfer to a proper venue in the interest of justice or dismiss the case.
49
What is the choice of law after a venue transfer?
the original courts rules are used unless the original venue was improper or if transfer was because of a forum selection clause.
50
what is a forum selection clause transfer
a case must be transferred to the indicated federal district court unless public factors present a compelling reason otherwise.
51
Rule statement for Forum non conveniens
When there is a more appropriate forum for the litigation, but the case cannot be transferred there, a court may dismiss the action pursuant to the Forum non conveniens doctrine.
52
If a court dismisses a case based on Forum non conveniens what will the court do first?
1. make sure there is an adequate alternative forum (if adequacy in doubt court can stay the proceeding instead) 2. look at public and private factors (must show strong public and private factors)
53
Service of process Rule statement
Service of process is the delivery to D by P of the summons and complaint, which satisfies the notice requirements for PJ. Subsequent papers filed with the court (motions, answers) do not require formal service.
54
What are the service requirements?
1. D must be served with the summons and complaint 2. must be within 90 days of filing of the case 3. a non-party who is 18 years or older must serve.
55
if service is not timely what happens?
the case will be dismissed without prejudice, unless P shows good cause for the delay.
56
What are the methods of service of process?
1. Personal service 2. substituted service 3. service upon D agent 4. any method permitted by state law.
57
what is personal service?
this is service upon the D physically
58
what is substituted service?
this is service upon someone who is at the defendant's usual place of abode, the substitute is of suitable age and discretion, the substitute resides at this place.
NOTE: businesses registering to do business in a state may be required to appoint an agent for service; this is only consent to PJ if state law allows.
59
What is any method permitted under state law for service?
any method that state law allows of the state where the federal court sits or where service will be made.
60
what are requirements for service of process on a minor/incompetent?
this person must be served using the rules of the state where service is to be made.
61
Waiver of service rule statement
P may request that D waives service by mailing D the complaint and a formal request to waive service.
62
What happens if a D deny's waiver of service or fails to respond timely?
the plaintiff must serve through another method and D is obligated to pay for the cost of service.
63
What happens if D agrees to waive service?
D extends her time to answer complaint to 60 days from the date the waiver request was sent.
64
Does waiving service waive the right to object to venue or jurisdiction?
NO
65
Complaint Rule Statement
this is the initial pleading in a lawsuit filed by the P. It begins an action and gives notice to the opposing party.
66
What are the requirements for a complaint?
1. statement of SMJ 2. Statement of the claim - the factual content allows the court to draw the reasonable inference that defendant is liable. 3. Demand for judgement
67
Answer Rule statement
this is a response to the complain in which D states defenses to each claim asserted and admits or denies each count of P's complaint.
68
What is the timing of an answer?
must be filed within 21 days of service of process, or 14 days after a rule 12 motion is denied or postponed.
69
What are the requirements for an answer?
1. admit allegations 2. deny allegations - failure to deny is admission except to damages 3. "don't know" - lack of info to admit or deny
70
what are some example of defenses that are waived if not explicitly pleaded in the answer by D? (CCSFSS)
(Crazy Cousins Say Freaky Stupid Stuff) Contributory negligence, claim preclusion, statute of frauds, fraud, statute of limitations, self-defense, res judicata. (affirmative defenses are typically waived if not pleaded in the answer)
71
What counterclaims are required in D's answer?
compulsory counterclaims.
72
Rule statement for Rule 12 motion
a motion where D may attack the validity of P's complaint.
73
What are the 4 Rule 12b motion defenses that are waived if not included in the D first response?
1. Bad service of process 2. Lack of PJ 3. Improper Venue 4. Bad process (papers)
74
What are the non waivable 12b motion defenses.
1. lack of SMJ 2. failure to state a claim 3. failure to join a necessary party
75
How can rule 12b defenses be raised?
Within a motion or an answer
76
What is a 12e motion?
Motion for a more definitive statement - the complaint is so vague D cant respond.
77
What is a 12f motion
Motion to strike - D move to strike from the complaint any redundant, immaterial, impertinent or scandalous material. (RIIS)
78
what is a 12c motion
motion for judgement on the pleadings - P or D may move for judgment on the pleadings when the complaint plus the answer reveal that one party must win.
79
What is a counterclaim?
this is an offensive claim, compulsory or permissive, usually raised by D against P which may be pleaded in D's answer to the complaint. The court must have SMJ to hear the counterclaim. (compulsory always have supplemental)
80
Compulsory counterclaim
This is a claim by D against P that arises from the same T/O as one of P's claims. (has supplemental Jurisdiction). this must be filed in D answer or it will be waived.
81
Permissive Counterclaim
This is a claim by D against P that does not arise from the same T/O as any of P's claims. these are not waived if not brought up. Must make sure there is SMJ.
82
What is a crossclaim?
this is an offensive claim asserted by a co-party against another co-party
83
what are the requirements for a crossclaim?
1. must arise from the same T/O 2. Not compulsory 3. Must have SMJ (usually satisfy Supp J)
84
What are the timing requirements for Amended Pleadings of Right
1. no later than 21 days after service or within 21 days of responsive pleadings/ pre-answer motion. 2. party has 14 days to respond to amended pleading.
85
Amended pleadings without right
may only amend if there is written consent of adverse party or permission by the court (sought by motion).
86
When will leave be granted for an amendment without right to a pleading?
when justice requires: courts looks at (1) length of the delay (2) potential prejudice to parties (3) pointlessness of amendment
87
What is Relation back and when does it apply to amended pleadings?
this is when the amended pleading is allowed and so it will be treated as if it was filed when the original pleading was filed. this doctrine applies when parties are amending a claim or D after statute of limitations have ran out.
88
What are the requirements for relation back amendments for a new claim?
1. addition claim concerns the same conduct or T/O as original pleading
89
what are the requirements for a new D in a relation back amendment?
1. amendment concerns the same conduct or T/O and original claim 2. within 90 days of filing the original pleading: the D knew of the notice of action and Knew it was a mistake and they should have been it.
90
Rule statement for Rule 11 Certification
this requires an attorney to sign all pleading, written motions, and other papers certifying them.
91
What is Rule 11 certifying?
to the best of the signor's knowledge after a reasonable inquiry: 1. for a proper purpose 2. contentions have legal support or a good argument to change the law 3. factual contentions are backed by evidence.
92
What does a court do if they find a party in violation of Rule 11?
the court will issue sanctions
93
what is the safe harbor rule for rule 11?
the rule 11 motion must first be given to opposing party and 21 days must be given for them to fix the problem. If not remedied in that time then the motion is filed with the court.
94
When a rule 11 motion is finally filed with the court what must the judge do?
the court must give the attorney or party a chance to be heard before imposing sanctions. (sanctions can be non-monetary or monetary)
95
Class action Rule statement
Rule 23 allows an individual or small group to represent a larger group (class) that shares a common interest in a lawsuit.
96
A class action must be certified by the court, how does the court do this?
(Numero Classmates Typically Act Together) 1. Numerosity - the class size must be so big that joinder is impracticable. 2. Commonality - must be a common question of law or fact to the entire class. 3. Typicality - claim or defenses of the class representative are typical of those of the class 4. Adequacy - class representative will fairly and adequately protect interests of the entire class 5. Type - the action must fit into 1 of the 3 types of class actions.
97
Type of Class actions
Anti prejudice device, injunction or declaratory judgment, damages
98
What is a anti prejudice device class action (type 1) (rarely tested)
used where actions by or against class members would create a risk of conflicting court decisions or harm the interests of the class members.
99
What is a injunction or declaratory judgment Class action (type 2)
allows class where the suit requests injunctive or declaratory relief as the primary relief sought.
100
What is a damages class action (type 3)
used when primary relief sought is damages.
101
What are the requirements for a damages (type 3) class action? (PSON)
1. predominance - common question of law or fact predominates over individual questions; 2. Superiority - class action is superior to other procedures to resolve the dispute. 3. if class members did not opt out, then the judgment binds them 4. Notified - all reasonably identifiable class members must have been notified of the pending action which includes their right to opt out and to appear separate.
102
For class action Diversity Jurisdiction SMJ how does a court handle amount in controversy and citizenship?
the class representatives need to be diverse from all opposing parties and the class representatives' individual claims must exceed 75K.
103
in CAFA how is SMJ obtained?
(any member) 1. any class member is diverse of any opposing party 2. (5M) aggregated claims of the class exceed 5M 3. Any D (even in state D) may remove 4. local stay actions rule
104
for CAFA what is the local stay action rule?
Generally, when most class members and primary D's are citizens of the same state, the cases will get remanded or dismissed.
105
what does CAFA not apply to?
fewer than 100 class members class actions, shareholder claims against corporate management, certain state securities law fraud claims.
106
Once a class has been certified, what must a court do?
1. define the class, claims, issues and defenses 2. appoint counsel
107
can certification of a class be appealed?
yes, via interlocutory appeal before final judgment on the merits.
108
Is a judgment binding to absent class members?
yes, unless they opt out
109
Can class action use settlement?
yes, it must be fair, reasonable and adequate. court will seek feedback from absent class members in deciding to approve or decline.
110
In a type 3 class action what may a court do for a settlement in this type?
it may refuse to approve the settlement unless members are given another option to opt out.
111
Rule statement for discovery
Discovery involves a court mandated process of acquiring and producing information from parties and non-party witnesses
112
What is a mandatory meet and confer in discovery?
the parties must meet and confer at least 21 days before the scheduling conference to discuss claims, defenses and settlement AND develop a plan for discovery
113
when is the discovery plan due to the court?
within 14 days of the meet and confer
114
what is a scheduling conference?
this is a conference at or after which the judge issues scheduling order setting deadlines for filings of pleadings, joinder, amendments, and discovery deadlines.
115
What is a pre-trial conference?
this is a conference before the court held as needed to move the case forward or try to settle.
116
what is the final pre-trial conference?
this is set to finalize issues to be resolved at trial and evidence to be presented.
117
what is a pre-trial conference order?
memorializes the pretrial conference, issues not included generally are excluded at trial, and it only can be modified to prevent manifest injustices.
118
What material is discoverable?
anything that is non-privelged, relevant and proportional.
119
what material is privileged?
attorney-client, work product, physician-patient, clergy-penitent, marital, journalist-source, priv against self incrimination.
120
What is the exception to work product?
qualified work product may be discoverable upon a showing of substantial need for material that is not otherwise available.
121
How must objections to discovery based on privilege be stated?
with particularity.
122
What are the mandatory disclosures?
initial disclosures, expert disclosures, pretrial disclosures
123
what are initial disclosures?
parties must disclose: 1. W and Docs that they may use to support their claim or defenses. 2. Computation of damages claimed 3. any insurance agreement that may be used to satisfy all or part of the judgment.
124
what is the timing of initial disclosures?
within 14 days of parties mandatory meet and confer (parties served alter must make initial disclosures within 30 days of being served or joined)
125
what is the duty to supplement in relation to initial disclosures?
parties must supplement their mandatory disclosures if the produced information becomes incomplete or incorrect.
126
what are expert disclosures?
at least 90 days before trial, parties must identify experts who may be used at trial and produce a report containing their opinion, data used, qualifications.
127
what are pretrial disclosures?
parties must give detailed information about evidence to be used at trial at least 30 days before trial
128
What interrogatories?
these are written requests proposed by one party to an opposing party. must be responded to with 30 days.
129
what are requests for production?
these are written requests to a party to make documents, electronic documents, or other things within the party's control available for review, inspection and/or copy. must be responded to within 30 days.
130
if you are requesting production from a non-party what must you do?
subpoena them so they are compelled to come.
131
What are requests for admission?
these are requests to parties to admit the truth of discoverable information. any information admitted does not have to be litigated at trial. must be responded to within 30 days. (admit, deny, lack knowledge)
132
what are physical or mental examinations?
these are only available through court order where a person's physical or mental condition is an issue in the case. (must show the parties health or condition is in controversy) if this is allowed Doctor-patient confidentiality disappears.
133
What is a deposition?
these are oral proceedings in which an attorney may examine any person under oath
134
how must you notice parties and non-parties for depositions?
parties - notice of deposition will compel attendance non-parties - must be subpoenaed.
135
what is Subpoena duces tecum?
this is used to compel a deponent to bring documents to the deposition.
136
What is the scope of depositions?
may cover any issue within the scope of discovery.
137
can deponent's counsel object during depositions?
yes, but deponent is still required to answer unless the objection is based on privilege.
138
what is the allowed length of a deposition?
limited to 1 day for seven hours at most.
139
when must counsel seek court approval for depositions?
when they want to take more than 10 depositions or depose the same person twice.
140
what is attorney client privilege
this protects information exchanged confidentially between attorney and client
141
what is the requirements to invoke Attorney client privilege?
party must demonstrate the communication was 1. made between client and counsel 2. intended to be and was kept confidential 3. was made for the purpose of obtaining or providing legal advice.
142
What is the work product privilege?
this protects material prepared by or for an attorney in anticipation of litigation
143
the only way work product is discoverable is how?
the opposing party shows: 1. substantial need for the material and 2. inability. without undue hardship, to obtain the substantial equivalent of materials by other means.
144
what is a protective order in discovery?
this is a court order limiting discovery of material; sought by a party seeking to prevent disclosure.
145
what must you do before seeking a protective order in discovery?
moving party must certify that they have or have attempted to meet and confer with affected parties to resolve the dispute.
146
what is the standard for a court to issue a protective order in discovery?
for good cause. it will either limit, condition, delay, or bar discovery of affected information.
147
what is a motion to compel?
this is when a party moves for an order compelling disclosure or discovery of requested material.
148
what must a motion to compel certify?
it must certify that the moving party has made a good faith attempt to obtain discovery absent court intervention.
149
what will a judge do if a motion to compel is filed?
the judge will call a hearing to confer with parties regarding dispute and make a decision on whether material may be withheld.
150
What are the grounds for sanctions in discovery?
a court can sanction any type of failure to comply with discovery obligations or court order.
151
what are the types of sanctions?
partial violation sanctions and complete violation sanctions
152
what are partial violation sanctions?
these are less serious. the court may issue order compelling discoveree to respond to discovery requests; can award costs to party for bringing motion to compel (including attorney fees)
153
what are complete violation sanctions
a court may: strike pleadings, disallow evidence, establish disputed or unanswered facts as true, issue monetary sanctions, dismiss P case (this requires bad faith), enter default judgment (requires bad faith) hold bad party in contempt.
154
is a motion to compel required before moving for sanctions?
no
