Civil Procedure Flashcards
SMJ - Circuit Courts
Courts of original and general jurisdiction, unless other court has exclusive jurisdiction (Illinois Supreme Court or federal court)
SMJ - Appellate Courts
Appellate jurisdiction, only over final orders.
Exceptions:
1) Injunctions
2) Partial Final Orders
- If lower court finds no just reason to delay
3) Significant Interlocutory Orders by Appellate Court Permission
- PJ, Attorney DQ, or Class Certification
4) Certified Questions
- Materially advance the litigation
Time Frame
- Within 30 days of the order, except certified questions (14 days)
SMJ - Supreme Court
Exclusive, original jurisdiction
1) Governor’s vacancies
2) Legislative redistricting
Appellate
- Mandatory: Any order entered by IL court declaring a statute unconstitutional
- Otherwise discretionary
Personal Jurisdiction
1) IL law must itself grant PJ
2) IL law must be constitutional
Personal Jurisdiction - IL Law bases
1) Consent
- Express
- Implied (D must object to PJ in its 1st response to complaint, and in a timely fashion)
2) Presence
- Actual, voluntary, physical presence when served
- Domicile
- Doing business
3) Long-arm statute (specific to lawsuit)
- Land
- Injury
- Matrimony
- Insurance Contract
- Transaction of business
To the max amount allowed by Constitution
Personal Jurisdiction - Constitutional
1) Minimum contacts + fairness
2) Purposeful availment or targeting
Service of Process
Who is authorized? Certain gov’t officials, or any nonparty over 18 authorized by court
Time frame? Summons expires 30 days after issuance, but process server can reissue
Proper if:
1) Proper under IL Rules
2) Constitutional (reasonably calculated to apprise parties)
Service of Process - Individuals
1) Personal, in-hand delivery
2) Abode Service
3) Waiver
Service of Process - Entities
Corporation/Partnership: Personal service, or waiver request, to an authorized/qualified agent or partner.
Partnership exception: Can serve one partner personally, then mail copies to all others if IL connection.
Service of Process - Publication
Only available if:
1) Real Property
2) Affidavit
3) Mail
4) Publish
Venue
General rule: Proper in a county where either a) any D resides; or b) any part of the cause of action arose.
Exceptions:
1) Governmental units (only principal office)
2) Real property (only where located)
3) Absent Ds (no IL resident D –> any county works)
4) IL Insurance Company Ds (where P resides also works)
5) Libel actions (where libelous article was composed also works)
Venue - Motion to Transfer
- Remedy for improper venue
- D must file motion in its 1st response
- Granted in court’s discretion of convenience, and interests of justice
Venue - Motion to Change
- Based upon fear of bias or prejudice against party by county inhabitants
- File before judge has resolved a substantial merits-based issue
- Moving party must:
1) file affidavit fearing prejudice
2) file 2 supporting affidavits from inhabitants in the county
Forum Non Conveniens
Filed in a proper forum, dismissed for gross inconvenience
- Discretionary
- Dismissal
- Gross inconvenience
- Conditional
Complaints - Generally
- IL is a liberal fact pleading state.
- Must contain facts constituting a cause of action. Construed liberally to do justice and serve the merits.
Complaints - Verified Complaints
- A complaint sworn to by someone with personal knowledge of the facts alleged.
- Not required in IL, but if used, all subsequent pleadings must be verified.
Complaints - Punitive Damages
- P must convince judge at a hearing that they’re warranted.
- If allowed, judge grants leave to amend complaint
Complaints - Medical Malpractice
Must include affidavit swearing that a qualified healthcare professional has or within 90 days will file a report certifying that the action has merit.
Complaints - Trial by Jury
- P must make demand in complaint
- P has constitutional right if claims seeks primarily monetary damages
Answers
1) Must fairly and precisely admit or deny those allegations that are true or false
2) Write “insufficient info to admit or deny” plus affidavit swearing after inquiry, you still don’t know
Affirmative defenses must appear in answer or else waived
Trial by jury must be demanded in answer or else waived.
Amendments - Generally
Liberally granted on just and reasonable terms to serve the merits.
Amendments - Relation Back
Amendment that adds claims/parties, which is not timely, but is allowed to relate back to conform to S/F.
Claims: 1) new claim derives from the same transaction or occurrence as the earlier, timely filed claim
Parties: 1) claim against new party derives from the same transaction or occurrence; and 2) new party must have acquired knowledge that, but for a mistake in name, it would have been sued
Amendments - Statute of Limitations
Personal Injury Tort Claims: 2 years from discovery of claim
Statute of Repose: Absolute limit that runs from the occurrence of the claim. Med mal is 4 years
Extension for Fraudulent Concealment
Extension for Disability: 2 more years from when disability is removed
Joinder - Generally
Liberal and generally permissive.
1) Of claims: as many as you have against an adversary
2) Of parties: same transaction or occurrence
3) Impleader: third-party claims
4) Interpleader: holder of a common fund
5) Intervention: Act of a nonparty in moving to intervene.
- As of right: if interest will be adversely affected by lawsuit and not protected by parties
- Permissive: court’s discretion to permit if commonality of issues
6) Class Actions
Joinder - Class Actions
An action in which a named party represents a class of commonly situated absent parties.
Judicial Oversight
1) Judge must grant motion for class certification
2) Judge must order notice that is reasonably calculated to apprise interested class members
3) Judge must approve of any settlement of the class action
Class Certification
1) Numerosity
2) Adequacy
3) Appropriateness
4) Commonality
5) Predominance
Discovery - Generally
1) Method of discovery must be proper
2) Material sought must be within the proper scope of discovery
Discovery - Proper Methods
1) Automatic Prompt Disclosure: AIC $50k or less –> auto disclose all bases for claims/defenses, potential witnesses, relevant docs, damages computation, relevant insurance coverage
2) Depositions (discovery or evidence)
- only method that can be used on non-parties
3) Pre-trial disclosure of testifying witness
- controlled testifying experts
- independent testifying experts
- lay testifying witnesses
4) Request to admit
5) Duty to supplement
Discovery - Proper Scope
Must be relevant and not privileged.
Work product: any material that has been prepared for litigation, and not in the ordinary course of business.
- Mental Impressions of an Attorney
- All other types
Motions - Pre-trial
1) Motion to substitute judges
2) P’s motion for voluntary dismissal without prejudice
3) D’s motion attacking the complaint
4) D’s motion to dismiss the complaint
5) MSJ
Motions - During and After Trial
1) Motion for directed verdict
2) Motion for JNOV
3) Motion for new trial
4) Motion to vacate a default judgment
5) Petition for relief from a judgment
- Merit
- Equity
- New facts
- Due diligence
Finality
Parties are barred from re-litigating claims (res judicata) or issues (collateral estoppel) which they have already litigated to final judgment on the merits.
