civ pro essay rules Flashcards
Personal Jurisdiction
The court must have proper jurisdiction over the parties to an action and it is proper where there is a sufficiently close relationship between the defendant and the forum state.
Traditional Basis
A traditional basis for personal jurisdiction exists where a defendant consents, is domiciled in the forum state or is present when served with process in the forum state.
Long arm statute
A long arm statute is a mechanism that gives a state power to reach beyond its borders and assert jurisdiction over a non-resident.
Constitutional Limitations
Minimum Contacts
Relatedness of the claim to the contract
Fairness Factors
Minimum Contacts
The exercise of personal jurisdiction must be constitutional. To be constitutional, the non-resident defendant must have sufficient contacts with the forum state such that maintenance of the action does not offend traditional notions of fair play and substantial justice.
Purposeful availment / foreseeability
The defendant’s contacts with the forum state must be assessed to determine if the defendant purposefully availed himself of the benefits and protections of the forum state, such that it is reasonably foreseeable that his activities in the forum subject him to be haled in court there.
Relatedness of the claim to the contact (Specific and General Jurisdiction)
Specific jurisdiction may be found when a cause of action arises out of, or closely relates to a defendant’s contact with the forum state.
General jurisdiction exists if the D has systematic and continuous activity in the forum state such that the D is “essentially” at home.
Fairness Factors
In determining whether exercising PJ is fair, the court will look at the burden on the defendant of appearing, the forum state’s interest in adjudicating the matter and other factors.
SMJ
Federal SMJ means the court has proper jurisdiction over the subject matter of an action. Federal courts have limited SMJ and may only hear cases involving federal questions or diversity of citizenship which requires complete diversity and where the claim exceeds 75k.
Removal
A D may remove to federal court if a case is brought in state court, but could have properly been brought in federal court.
However, when the basis for SMJ is diversity and one of the Ds is a citizen of the forum state, the action is not
removable.
Moreover, all Ds must agree to removal and must remove no later than 30 days after service.
Motion to remand
If at any time before final judgment it appears that the district court lacks SMJ, then the court may remand the case. However, if a party seeks to remand the case on any other basis, the party must make the motion within 30 days of filing.
Venue
In federal court, venue relates to the proper geographic district in which a trial should occur. Venue is proper in the following judicial districts
- A judicial district in which any D resides if all Ds are residents of the same state in which the district is located
- A judicial district where a substantial part of the events giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated.
- If there is otherwise no district in which an action may otherwise be brought: then the “fall back” alternative is that venue is proper in any judicial district in which any defendant is subject to the courts personal jurisdiction with respect to such action.
Discovery
Is generally permitted w/ regard to any non-privileged matter relevant to any party’s claim or defense in the action and proportional to the needs of the case.
Information within the scope of discovery need not be admissible to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense.
Timing of discovery
A party may not seek discovery until after a discovery conference, unless ordered by the court, stipulated by the parties or authorized by a specific rule.
Interrogatory Limits
Any party may serve no more than 25 written interrogatories on any other party. The court however has the power to increase that limit.
Request for Production of documents
A request to produce documents is a discovery tool that allows a party to request and inspect designated documents in another party’s possession, custody or control.
The party to whom the request is directed must respond in writing, within 30 days after being served or if the request was served prior to that conference, within 30 days after the parties first discovery conference.
Motion to compel
If a party fails to respond to discovery that has been properly served, then the party seeking the information may move to compel such discovery.
A motion to compel must be served on all parties and accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without a court action.
Mental and physical exam
A party may seek to have the other party submit to a physical or mental examination by a suitably licensed or certified examiner when the other party’s physical or mental condition is in controversy.
An order for a physical or mental exam may be made only upon motion, for good cause and the person to be examined must be given notice specifying the time, place, conditions and scope of the examination and the identity of the examiner.
Expert Witnesses
Parties are required to disclose the identities of persons who may testify as expert witnesses and to produce an expert report for each such witness.
If the expert was retained or specifically employed by another party in anticipation of litigation or to prepare for trial, but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
Basis for objection
Whenever a party withholds information on the basis of privilege, the party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection.
Work Product Privilege
A party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.
Disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation are absolutely protected.
For all other trial preparation materials, a court may order discovery if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain a substantial equivalent by other means.
Res Judicata
prevents the re-assertion of the claimant’s cause of action if there was a valid final judgment on the merits that involved the same parties and same claims.
Res Judicata requires proof of the following elements
(1) There was a valid judgment on the merits of the came
The Court must have had both personal and SMJ and the defendant had property notice and an opportunity to be heard.
(2) The original and subsequent claims are identical
The claims must arise out of the same series of transactions or occurrences.
(3) The claimant and defendant must be the same in both the original and subsequent action
Collateral Estoppel (Issue Preclusion)
he doctrine of collateral estoppel precludes the relitigation of a particular issue of fact or law that has already been necessarily determined in an earlier adjudication. Unlike res judicata, collateral estoppel does not require strict mutuality of the parties, it requires only that the party against whom the issue is to be precluded was a party to the original action.
To offensively use collateral estoppel, the following requirements must be met:
(i) the issue sought to be precluded must be the same as that involved in the prior action,
(ii) the issue must have been actually litigated in the prior action,
(iii) the issue must have been determined by a valid and binding final judgment, and
(iv) the determination of the issue must have been essential to the prior judgment.
Joinder of claims
Allows a single plaintiff to join all claims against a single defendant so long as the court has SMJ over each claim.
