Civ Pro Essay Definitions Flashcards
SMJX
MI circuit courts are courts of general and original JX. They, unlike fed courts, have SMJX over all kinds of civil actions, unless there is exclusive JX in some other forum.
SMJX may be considered at any stage of the proceeding, even on appeal. The remedy for lack of SMJX is to transfer the case elsewhere.
PJX
Whether a MI trial court can exercise jurisdiction over a ∆ involves a 2-fold inquiry:
1. Do ∆’s acts fall within the applicable general or long-arm statute?
General: 1) incorporation, 2) consent, 3) continuous/systematic gen biz
Long arm (LIMIT): 1) land, 2) injury, 3) matrimonial, 4) insurance, 5) transaction
Note: for long-arm, claim must derive from the contact
2. Does the exercise of JX over ∆ comport with the requirements of due process?
Constitutional requirements: “minimum contacts” + doesn’t offend “traditional notions of fair play and substantial justice”
3-prong test:
1) purposefully availed himself of privileges of conducting activities in MI
2) COA arises from ∆’s activities in the state
3) ∆’s activities substantially connected w/ MI such that JX over ∆ is reasonable
Venue (torts)
In a tort action, venue lies in the county in which the original injury occurred if the defendant resides, has a place of business, conducts business, or a defendant has a corporate registered office in that county.
Collateral Estoppel
To apply CE/issue preclusion, a party must show that
- the issue was actually litigated and determined by a valid and final judgment,
- a determination of the issue was necessary to the outcome of the proceeding, and
- the parties in the prior proceeding are the same as in the present proceeding.
Amending Pleadings
A party may amend his pleading once as a matter of course, as long as it is done within 14 days of serving the pleading. Outside of the 14 days, leave to amend a pleading shall be freely given when justice so requires. A motion to amend should be denied only for particularized reasons, such as when amendment would be futile.
An amendment that adds a claim or defense “relates back” to the date of the original pleading (for SOL purposes) if it arose out of the same transaction or occurrence.
The relation-back doctrine does not extend to the addition of new parties, although the misnomer doctrine will allow for correction of scrivener’s errors and inconsequential deficiencies or technicalities in naming the parties.
Timing for Motion for Summary Disposition
- MSD may be filed at any time and may be filed in lieu of answer to complaint if w/in 21 (or 28) days.
- May be filed at any time, even if scheduling order places limits on timing of motions.
- Require at least 21 days’ notice, so if filing less than 21 days from trial, need motion to adjourn (court has discretion; should show good cause).
General Rule for MSD
The court considers the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, in light most favorable to the party opposing the motion.
If the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to JMOL.
Burden-Shifting for MSD
Motion only proper if supported by substantively admissible affidavits, depositions, or other documentary evidence. Mere allegations in the pleading are insufficient.
If the moving party does not properly support the motion, the nonmoving party has no duty to respond and the motion must be denied.
If it is properly supported, the nonmoving party must come forward with substantively admissible evidence that establishes a genuine issue of material fact. If the nonmoving party fails to do so, the motion will be granted.
Discovery
MI follows an open, broad discovery policy that permits liberal discovery of any matter, not privileged, that is relevant to the case.
Any request properly made must be complied with within 28 days of receipt.
Case Evaluation Sanctions
If only one party has rejected an evaluation offer and action proceeds to verdict, that party must pay the other party’s actual costs unless the verdict ≥ offer
If both parties rejected an evaluation offer, then the winning party is entitled to actual costs only if verdict > offer
Work Product Privilege
Documents and reports prepared in anticipation of litigation are subject to the work product privilege and are not discoverable absent a showing of substantial need and undue hardship, at the court’s discretion.
Attorney mental impressions, legal analyses, and direct communications are absolutely privileged.
Disovery of Liability Insurance
Liability insurance is specifically discoverable, although inadmissible at trial.
Personal finances are not discoverable (generally not relevant or reasonably calculated to lead to the discovery of admissible evidence).
Class Action Certification
In Michigan, the prerequisites for certifying a class are numerosity, commonality, typicality, adequacy, and superiority.
The plaintiffs are required to provide the court with “information sufficient to establish that each prerequisite for class certification is, in fact, satisfied. The pleadings alone may be sufficient, but the court is permitted to consider additional information.
Class Action Notice
If the class is certified, all of the requirements of notice must be satisfied.
Notice must be given to persons who are included in the class.
The plaintiff must make a proposal regarding notification in the motion for certification, and the court makes a determination about how, when, by whom, and to whom the notice shall be given.
The plaintiff bears the costs of giving notice to class members
