Civil Procedure Flashcards
Personal Jurisdiction** ( HIGHLY TESTED & TESTED IN FEB 2021)
Before a court may obligate a party to comply with its orders, the court must have jurisdiction over the party. Jurisdiction over the person may be established by way of general personal jurisdiction or specific personal jurisdiction.
General PJ doesn’t have to arise out of contacts w/ the state- rather D is generally liable for acts committed inside/outside of the state. General jurisdiction is established if there is consent (express or implied by D failing to object to PJ in first response), presence (actual, physical, voluntary presence or continuous and systematic contacts), or D is domiciled in Michigan.
Specific Jurisdiction arises over a defendant if the lawsuit arises out of contacts with the state. Michigan’s long arm statute allows a plaintiff to sue D who transacts business, or enters into a contract for services to be performed in the state, or who commits a tort in the state.
The due process test for specific jurisdiction must also be satisfied. The court must ask whether D purposely availed itself of the privilege of conducting activities in Michigan, whether the cause of action arises from D’s activities in the state, and whether D’s activities are substantially connected with Michigan to make jurisdiction reasonable and consistent with notions of fair play and substantial justice.
Subject Matter Jurisdiction** ( HIGHLY TESTED)
Diversity
In order to bring an action in federal court the court must have subject matter jurisdiction. The court can establish subject matter jurisdiction by showing it has diversity jurisdiction. Diversity jurisdiction is established when the parties to the suit have citizenship in wholly different states at the time of filing and the amount in controversy is over $75,000. An individual is a citizen of a state in which he intends to reside indefinitely.
A corporation is a citizen of its state of incorporation and the state where its headquarters or main office is located.
Federal Question Jurisdiction
Federal question jurisdiction is established when the underlying claim arises from federal law or is created by state law but depends on a substantial federal question. The federal issue must appear on the fact of the plaintiff’s complaint.
Removal **
The defendant can remove an action from state court to the federal court that geographically embraces it on the grounds of federal-question jurisdiction, or diversity jurisdiction. Defendants, as the removing parties, bear the burden of showing that federal jurisdiction exists at the time of removal.
A defendant may not remove case if he is sued in his home state and the only basis for removal is diversity.**
EXCEPTION: Fraudulent Joinder
Fraudulent joinder of a non-diverse defendant will not defeat removal based on diversity. In determining whether a non-diverse party has been fraudulently joined, the court looks at whether there is a colorable basis for predicting that the plaintiff may recover against that party.
Jurisdiction for MI Courts*
Circuit courts are courts of general jurisdiction and can hear any kind of case unless there is exclusive jurisdiction in some other forum. They hear cases over 25k, as well as cases involving felonies, and appeals from the district court. They cannot hear cases valued at less than 25k ( for district courts), or civil actions filed against the state of Michigan and its agencies (court of claims).
If an action is filed in the wrong court a motion for summary disposition based on lack of SMJ may be made at any time.
Venue for Michigan Tort Actions *
What to do if venue of a civil action is improper?
In tort actions, venue lies in the county in which the original injury occurred if the defendant resides, has a place of business, conducts business, or has a corporate registered office in that county.
If the venue of a civil action is improper, the court
shall order a change of venue on timely motion of a defendant, or may order a change of venue on its own initiative with notice to the parties and opportunity for them to be heard on the venue question.
Statute of Limitations
Tolled by the filing of the complaint
- 3 years for negligence, injury or death to persons, products liability
- 4 years for UCC contracts
- 6 years for other contract actions
Relation back of amendments against new parties to conform to SOL
New parties relate back if claims against the new party derive from the same conduct, transaction, or occurrence as the original (timely filed) claim and the new party had notice of the action within the time period allowed for service of process, and the new party acquired knowledge that but for a mistake as to the identity of the proper party, the original action would have been filed against him
What must be raised in the first responsive pleading?
- Lack of PJ*
- Insufficient process or service of process
- Improper Venue
If not raised, waived unless D amends in 14 days in Michigan, or 21 days in federal court
What must be raised in first answer? *
Affirmative defenses
- Res judicata
- SOL
What can be raised at any time from a pre-answer motion through trial?
- Failure to join a necessary party
- Judgment on the pleadings
- Failure to state a valid claim or defense
If not raised, waived unless D amends in 14 days in Michigan, or 21 days in federal court
Motion for Summary Disposition C(10) & commonly tested issues**
A motion for summary disposition will be granting if there is no genuine issue as to any material fact, and the moving party is entitled to judgement as a matter of law. The burden is on the moving party to show that there is no genuine issue as to any material fact. In support of its motion, a party may attach depositions, affidavits, and other documentary evidence. The burden then shifts to the non-moving party to show that there is an issue as to any material fact. In support of their motion they too can attach documentary evidence for the court to review. The judge will then review the evidence in a light most favorable to the non-moving party and make a determination as to whether or not there is an issue for a jury to decide or if the motion should be granted and the case dismissed.
Key points:
- Court may not rely on inadmissible hearsay when determining whether a genuine issue of material fact exists**
- A court may not weigh the evidence or make determinations of credibility when deciding a motion for summary disposition.
- A valid affidavit must be signed and notarized, otherwise it cannot be considered by the court.
- A court may not consider evidence not on file or submitted by the parties when deciding whether to grant an MSD.
- A court may not make findings of fact; if the evidence before it is conflicting, summary disposition is improper.
- Use of an affidavit alone is sufficient to create a genuine issue of material fact. No other evidence is necessary so long as the affidavit itself raises a genuine issue of material fact.
Class Actions: 4 requirements? **
Plaintiffs must satisfy commonality, adequacy, numerosity, typicality, and superiority in order for their suit to proceed as a class action.
Commonality: common issues of fact or law AND common injuries must make up a vital part of lawsuit
Adequacy: named p & class counsel must fairly and adequately represent the class. Interests of the named party can’t conflict with interests of the rest of the class
Numerosity - class must be so numerous that joinder would be impractical ( ie. 40 +)
Typicality: the claims of the named plaintiff are typical of the class
Superiority: class actions is the superior method of adjudication. The court looks at things like whether the common questions of fact or law predominate over individual issues, whether prosecuting separately would create inconsistent results, etc, expenses incurred, whether any individual has an interest in bringing the claim individually, etc.
- P must move to have a class certified within 91 days after filing complaint + provide notice to class.
Discovery*
Parties may discover any non-privileged matter that is relevant to a party’s claim or defense and proportional to the needs of the case. Parties may discover things that are inadmissible at trial.
Attorney - client privilege applies if there is a confidential communication between an attorney and client made for the purpose of obtaining legal advice
Work product is any material prepared in anticipation of litigation. A party’s agents can be covered by the work-product doctrine. Written statements given by witnesses may be discoverable if the other party can show substantial need and undue hardship.
A court can seek a protective order on reasonable notice and good cause shown limiting discover to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense
Case Evaluation Sanctions*
An award by a case evaluation panel is binding and enforceable and there may be sanctions for rejecting a case evaluation. Sanctions are awarded only against the party.
The failure of a party to file a written acceptance or rejection of a case evaluation award within 28 days of being notified of the evaluation panel’s award constitutes a rejection of the award.
If a party has rejected an evaluation, and the other party accepts, the rejecting party must pay the opposing party’s actual costs unless the verdict is more favourable ( 10% below/above case eval) to the rejecting party than the case evaluation.
If both parties reject, a party is entitled to actual costs only if the verdict is more favorable than the evaluation offer for that party.
A “verdict” is a jury verdict, a judgement by the court after a nonjury trial, or a judgment entered as a result of a ruling on a motion after rejection of the case eval.
Collateral Estoppel: issue preclusion**
Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties (including privies) when the prior proceeding culminated in a valid final judgment and the issue was actually litigated and decided in the action, was necessary to the court’s judgment.
The elements of issue preclusion are : 1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment; (2) the same parties must have had a full and fair opportunity to litigate the issue; and (3) there must be mutuality of estoppel (neither party can bring up issue) unless CE is being used defensively.
