Civil Procedure SCU 1L
About this set
Created by:
mrafanan13 on March 1, 2011
Subjects:
Log in to favorite or report as inappropriate.
Order by
129 terms
Terms | Definitions |
|---|---|
 In personam jurisdiction | allows the court to exercise personal jurisdiction over an individual - always able to exercise it over a resident of your own state |
| Substantive Due Process | State must have power to act upon either property or person to subject him to personal liability |
| Procedural Due process | Adequate notice is given to defendant and defendant has the opportunity to be heard |
| In Personam Jurisdiction Over Non-Residents | - long arm statute of the state - minimum contracts test - presence in state (Burnham divorce case) - Domicile (Milliken) - Residence - Consent - Tortious acts done within the state or directed toward the state |
| Minimum Contacts Test | - International Shoe Case - business is being done in that state - the business is purposeful (denkla) - Purposely availed themselves upon the state (burger king, McGee) |
| Where is a Corporation domiciled? | - never has an actual physical presence - is either where they are incorporated - OR where their principle place of business is |
| Specific Jurisdiction | where the cause of action arose (i.e. the conflict that gave rise to the suit) (McGee) |
| General Jurisdiction | though the claim may not arise our of actions that occurred within the state, if there is enough contacts with the forum state a defendant may still be brought in under general jurisdiction (Benguet) |
| Forum Selection Clauses | -clauses in a contract that decide where a suit will be adjudicated should one arise - subject to a test of reasonableness ---> for example see Carnival Cruise Line |
| Purposeful Availment | - Burger King - the benefits a would be defendant has obtained from its business activities conducted within the forum state, often involving contractual relations iwth forum residents - the defendant was benefiting from the forum state laws, therefore should be able to be pulled into the jurisdiction of that state - most often used in suits surrounding a contract |
| Purposeful Direction | - Asahi - defendant's activities outside the forums tate that have consequences inside the forum state - most often used in suits surrounding in tort - where defendants' intentional, and allegedly tortuous, actions were expressly aimed at the forum state (calder v. jones) |
| The Effects Test | Defendant has: - committed an intentional act - expressly aimed at the forum state - cause harm, most of it suffered and which the defendant knows is likely to be suffered in the forum state --->for example see Calder v. Jones |
| Quasi in Rem Jurisdiction | if the non-resident has property within the territorial limits of the state, plaintiff can bring claim against the property as a way to gain jurisdiction over the individual property owner (Harris v. Balk) |
| In Rem Jurisdiction | similar to quasi except here it actually is the property that is in contention |
| Proper Service on an individual | - personal - substitute - agent - local state law - methods allowed by treaties (for foreign defendants) |
| Proper Service for Corporations | - must be done upon an officer or an agent which has the authority to by appointment or law to receive service for the corporation - local state law mandates |
| Waiver of Service | plaintiff can send a request for waiver of service to the defendant and if defendant agrees, then no service is necessary |
| Amenability to Suit | plaintiff must show that defendant is close enough linked ot the forum state - for federal law: must show either federal question or diversity jurisdiction |
| Special Appearance | different from a general appearance - this is a specific challenge to jurisdiction - when this occurs the defendant has a sort of immunity to being served with in personam jurisdiction |
| Collateral Attack | a defendant who defaults in an action in one jurisdiction may collaterally attack the default judgment when it is sued upon in a second jurisdiction for follow through on the default judgment - can be done through; * personal jurisdiction, in rem, extrinsic fraud, subject matter jurisdiction - Note: if defendant argues jurisdiciton and fails, the defendant cannot collaterally attack this but may appeal directly |
| Substitute Service | some states will allow for this type of service as a proper form so long as the person service is left with meets the "suitable age and discretion" standard |
| Suitable age and Discretion Standard | some states require that service be left with someone that is of the suitable age and discretion who lives at the residence that once is attempting to leave service |
| Constructive Notice for Non-Residents | can be done by mail - will be tested on a reasonableness test (are they reasonably likely to receive this notice) |
| Service by Publication | generally held as insufficient unless the defendant is hiding himself within the state |
| Mullane Balancing Test | Factors must be taken into account when assessing the reasonableness of the service, including: 1. when considerations of economy limit the ability to inform every absentee defendant 2. if names and addresses are known - this is a fact specific test |
| Diversity Jurisdiction | - FRCP 1332 - plaintiff and defendant must be from different states (complete diversity) - amount in controversy must be at least 75K |
| Citizenship | determined by where the parties were citizens at the time of the event that gave rise to action - measured by domicile, not residence ( mas v. perry) |
| Ways to Destroy Diversity | 1. improperly or collusively designed 2. failure to name indispensible parties 3. assignment of claims 4. joinder of a non-diverse defendant |
| The Well Pleaded Complaint | - federal question basis of jurisdiction must come from plaintiff's original complaint - cannot be an anticipation of a defense - the remedy to the complaint is found in federal law |
| Federal Question Jurisdiction | - FRCP 1331 - based on a well pleaded complaint - also applicable where a party is a gov't entity |
| Removal to Federal Court: Diversity Jurisdiction | - FRCP 1441b - only removable if no defendant is a citizen of the state in which the action was brought |
| Removal to Federal Court: Federal Question Jurisdiction | - FRCP 1441 - cases here may be removed no matter the citizenship of the parties |
| Removal to Federal Court: general | - must be the sort of case that could have originally been brought in federal court - removal is done by the defendant only - the whole case comes with them - if the defendant makes extensive arguments on the merits in state court, he is viewed to have waived his right to remove the case to federal courts |
| Plaintiff's ability to defeat removal | - forego the federal claim, keeping only state claim -join defendants who destroy complete diversity -some claims are non-removable |
| Joinder Claims | - plaintiff may join all defendants under FRCP 20(a) that are liable to the plaintiff in the same transaction -FRCP 18 lets plaintiff join all claims even unrelated |
| FRCP 20(a) | allows the plaintiff to join all parties that are liable to the plaintiff from the same transaction or event |
| FRCP 18 | this allows the plaintiff to add all claims to their suit, even those unrelated to the tranaction |
| FRCP 1367 | - Supplemental jurisdiction |
| Supplemental Jurisdiction and Diversity Jurisdiction | - INCLUDED where: compulsory counterclaim (13a), class action plaintiffs, cross claims (13g), impleader (14), permissively joined plaintiffs (20a) - EXCLUDED where: claims against third party defendants by plaintiff(14), compulsory joinder (19a) |
| Forum non conveniens | a court may decline to exercise their jurisdiction over a claim if a more appropriate forum is available (balance of state interest and parties convenience |
| Factors to decide forum non conveniens | 1. if plaintiff is a resident 2. if witness are located in the forum 3. which forum is more familir |
| 3 methods of finding venue in a judicial district | 1. any defendants reside in the state containing the district 2. substantial amount of the events occurred in the state containing the district 3. escape hatch provision |
| escape hatch provision | 1. in diversity cases it give venue to the judicial district where any defendant is subject to personal jurisdiction at the time the action is commenced IF there is no other district the action can be brought on other grounds 2. federal question cases it gives venue anywhere defendant can be found if there is no other district the action may be brought |
| Outcome Determinative Test | if the outcome of applying federal law will so drastically alter the outcome of the case then the issue at hand is treated as substantive and state law should prevail as a matter of policy (guaranty trust) |
| Balancing Test (Byrd) | 1. integral part of the state statute 2. importance of the federal interest 3. outcome determinativeness |
| Twin Aims of Erie | 1. discourage forum shopping 2. avoid inequitable administration of justice |
| Res Judicata | 1. the original claim was judged upon the merits of the claim 2. there was a final judgment entered 3. the claim in the original action is the "same" in the action that is being barred |
| Res Judicata: "same" requirement | 1. whether or not the claim is to be considered the "same" for res judicata purposes will be subject to the transaction test |
| Res Judicata: Transaction Test | claims that arise from the same incident or transaction involving the same parties and issues, will be barred from re-litigation by the doctrine of res judicata |
| Res Judicata: Claim Splitting | 1. a plaintiff cannot split his claim. if he does he has implicitly given up his right to bring action on the other claim from the same transaction 2. this is so even where the claim splitting was done unintentionally |
| FRCP 41(b) | grounds for dismissal that will NEVER lead to claim preclusion: 1. lack of jurisdiction 2. improper venue 3. failure to join an indispensible party |
| Collateral Estoppel | - regarded as claim preclusion when the same issues are being litigated - can be viewed as a sort of consequence or res judicata - applies where any issue is the same, even though the causes of action are different - this does not prevent suit but compels the court to to make the same finding of fact on the identical issue that the first court ruled upon |
| Requirements for Collateral Estoppel | 1. the issue in the second case must be the same as the issue in the first 2. the issue must have been actually litigated 3. the issue must have been actually decided in the action 4. the issue must have been necessary to the court's judgment in the prior action |
| Non-mutual collateral estoppel | - this is where the parties may differ from those in the original action - allows a new party to invoke collateral estoppel against a party who litigated and lost on an issue in the prior action |
| Mutuality Rule | - states that estoppel is confined to the original parties - this has clearly been expanded |
| Defensive non-mutual estoppel | - occurs where a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant -the party being estopped was usually the plaintiff in the original suit and chose the forum and the defendant against whom to litigate the issue *this is why defensive estoppel is generally accepted as valid |
| Offensive non-mutual estoppel | - occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party - this is frowned upon and rarely allowed as valid |
| FRCP 1331 | - federal question jurisdiction - all civil actions arising under the US constitution, laws, treaties, have original federal jurisdiction |
| FRCP 1332 (c) | - citizenship of corporations for purposes of 1332 and 1441 |
| FRCP 12(a) | time frame for parties to respond |
| FRCP 12(b) | possible motions to present notably: 1. 12b1: subject matter 2. 12b2: personal jurisdiction 3. 12b3: improper venue |
| FRCP 12(h) | waiver of the defenses |
| FRCP 1441 (a) | removal by defendant |
| FRCP 1441 (b) | removable subject matters: 1. federal question cases can be removed by ANY party 2. diversity cases can be removed as long as any defendant is not a citizen of the present forum |
| FRCP 1367 (a) | supplemental jurisdiction |
| FRCP 1367(b) | supplemental jurisdiction over diversity cases - where the federal court has jurisdiction based only on diversity jurisdiction, complete diversity must be maintained |
| FRCP 1367(c) | declining supplemental jurisdiction - court may do so if: * claim raises a novel/complex issue of state law, is substantially predominant over the original claim, all other claims the federal court had subject matter jurisdiction over were dismissed, exceptional circumstances |
| FRCP 1391(a) | venue in diversity cases only |
| FRCP 1391(b) | venue in non-diversity federal question cases only |
| 1391(c) | venues with corporations |
| FRCP 1404(a) | change of venue can be done b/c of: - convenience of parties -convenience of witnesses - in the interest of justice |
| FRCP 1404(b) | venue change must be consented to by all parties |
| FRCP 14(a)(2) | when defendants can implead third party defendants |
| FRCP 14(b) | when a plaintiff can bring in third parties defendants |
| FRCP 18(a) | essentially allows the plaintiff to join as many claims as there are possible even if they are unrelated to the original transaction |
| FRCP 19(a) | when persons are required to be joined |
| FRCP 19(b) | when a joinder isn't possible |
| FRCP 20(a) | permissive joinder |
| FRCP 4 | proper service |
| Code Pleading | used in small amount of state courts, is also called fact pleading - is a statement of the facts constituting the cause of action, in ordinary and concise language |
| Notice Pleading | - used in fed. district courts - is a short and plain statement of the claim showing that the pleader is entitled to relief |
| FRCP 8 | tells what the pleading must include |
| What must a Pleading Include? | 1. the basis to invoke subject matter jurisdiction 2. statement showing you are entitled to relief 3. a demand or prayer for the relief sought |
| FRCP 12(e) | calls for a more definite/detailed pleading |
| Dismissal with Prejudice: | means that you may not file the claim again - aka res judicata is given full effect |
| Demurrer | essentially says "so what" - even if everything that plaintiffs set forth is essentially true, plaintiff still cannot win b/c the law requires more than plaintiff has given therefore the law says you cannot win here |
| Heightened Pleading Requirements | 1. for specific cases, like fraud, there needs to be more particularity in the pleading 2. the standard in these cases is FRCP 9(b) |
| Inconsistent Pleadings | - these are allowed where they are pleading in the alternative - allowed in cases where the plaintiffs does not have enough knowledge to say what exactly occurred - must not have known nor should not be held to have such knowledge - done in the interest of giving plaintiff an adequate day in court |
| Safe Harbor Practice | allows for the attorneys to redraw and resubmit a pleading in order to make it not frivolous so long as it is within 21 days of original filing |
| FRCP 15(c ) | - allows for a file to relate back to a previous claim so long as claim 1 was done so within the statute of limitations and claim 2 arises from the same set of circumstances through amending the complaint |
| FRCP 13 (a) | - compulsory counterclaims - these these must be claimed or lost |
| Permissive Counter Claims | - where the ∆ is already the subject matter of an already filed other law suit - in case where ∆ has a counterclaim arising from the same events but the court does not have jurisdiction over the ∆'s person - these require separate SMJ |
| Real Party in Interest RUle | - a nominal party (like a guardian ad litim who has been named to represent a child in lawsuit) will be named in party but will not have any real effect of SJM -see FRCP 17(a) |
| Impleaders | -consists of an action or a procedure by which you reach outside the scope of this litigation and you bring someone in - often done by FRCP 14 - can be done by FRCP 13(h) |
| Impleader and Derivative Liability | - there is a relationship between the 3ed party ∆ and the ∆ that is between the two of them almost at the exclusion of π |
| Intervention | - done pursuant to FRCP 24a - a person has a right to intervene - or a person may intervene (permissive intervention) |
| Interpleader | - this is a special joinder device that allows a stakeholder to obtain a judicial determination that he owes an obligation to one of several competing claimants - the company is willing to pay but wants to pay only once |
| Discovery: general | - discovery is done to give direction to the suit, the allow parties to prepare for trial/defense, to determine the salient issues etc |
| Methods of Discovery | 1. automatic disclosure 2. depositions 3. interrogatories 4. requests to inspect documents or property 5. requests for admission of facts 6. requests for physical or mental examination |
| Function of Pleadings | 1. fact stating 2. definition of issues 3. deterring and discovering shams suits 4. give notice to all parties of nature of suits 5. allow each party to make sufficient preparations |
| Sufficiency of the Complaint | 1. 8a 2. a short and plain statement of the claim showing that the pleader is entitled to relief |
| amendment of pleadings as matter of right | 1. 7a 2. allows pleading to be amended at any time before the responsive pleading is served |
| amendment of pleadings by leave of court | 1. 15a 2. allows the court to freely give leave to amend when justice so requires 3. prejudice may occur here |
| FRCP 30 | oral depositions limited to 10 per side |
| FRCP 31 | written depositions |
| FRCP 33a | interrogatories to the parties limited to 25 questions |
| FRCP 36 | requests for admission |
| FRCP 34 | requests to produce documents and to inspect land |
| FRCP 35 | Physical and mental examinations |
| Scope of Discovery | FRCP 26 1. applies to all forms of discovery 2. the parties may obtain discovery regarding any nonprivileged matter that is relevent to any party's claim or defense |
| Relevance of Discovery | three categories of inadmissible but discoverable information 1. leads 2. legal theories 3. witnesses |
| Privilege | FRCP 26 |
| Work Attorney Privilege | FRCP 26 1. work product is immune from discovery 2. this is inherently different from attorney-client privilege |
| Absolute Immunity | documents containing subjective thoughts of the attorney have absolute immunity |
| Qualified Immunity | this can be overcome by a strong showing that the discovering party has a 1. substantial need for the materials 2. the equivalent is not accessible by other means |
| Classification of Experts | FRCP 26b 1. experts who will be called at trial 2. experts who have been retained by counsel, but who will not be called at trial 3. experts who have not been retained, and who will not be called at trial 4. participant experts 5. parties who are themselves experts |
| Experts called at trial | must be revealed |
| experts retained to by counsel but not called | more difficult to obtain discovery but can be done More difficult because of 1. parasitism 2. inhibition |
| Three things for mandatory disclosure | 1. witness list 2. documents and tangible things 2. damages and insurance |
| Burden of Presumption | the party bears the initial burden of producing evidence of non presumption 1. if he produces no evidence, he suffers a directed verdict |
| Burden of Persuasion | 1. if the defendant offers enough evidence of non presumption that a reasonable jury might find non presumption, it is clear that defendant has met his production burden, and that the case will go to the jury |
| Adjudication without Trial | 1. voluntary dismissal by plaintiff 2. involuntary dismissal (frcp 41b) 3. summary judgment (frcp 56) |
| FRCP 48 | discusses the jury and jury selection |
| FRCP 50a | directed verdict 1. takes the case away from the court 2. will only be removed from the jury where the evidence is such that reasonable people could differ as to the result |
| FRCP 61 | order for new trial if: 1. evidence error 2. improper conduct 3. verdict against the weight of the evidence 4. verdict was excessive or inadequate 5. partial or new trial 6. newly discovered evidence |
| judgment not withstanding the verdict | allows the judge to set aside the jury's verdict and enter judgment for the verdict loser |
| FRCP 48 | jury unanimity and at least 6 people on the jury |
| FRCP 61 | order for a new trial if: 1. evidence error 2. improper conduct 3. verdict against the weight of evidence 4. verdict excessive or inadequate 5. partial or new trial 6. newly discovered evidence |
| Two Part Test for Constitutional Right to a Jury | 1. compare the statutory action to the actions available in the courts of England 2. examine the remedy sought |
First Time Here?
Welcome to Quizlet, a fun, free place to study. Try these flashcards, find others to study, or make your own.