KS Civ Pro Flashcards
Statutory Limitations on PJ:
Most states have statutes granted their courts in personam jurisdiction in following four situations:
- Where the D is present in the forum state & is personally served with process;
- Where the D is domiciled in the forum state;
- Where the D consents to jurisdiction; and
- Where the D has committed acts bringing him within the forum state’s long arm statutes.
Physical Presence at Time of Personal Service
KS (along with most states) allows—even if time present was brief.
State law exceptions
A. Service by Fraud or Force– Invalid
B. Immunity of Parties and Witnesses
Domicile
KS –grants court PJ over people who are domiciliaries of state [even if not present within the state when served]
Consent
Express: 1. Contract 2. By Appt. of Agent to Accept Service of Process Implied Consent Voluntary Appearance
KS Long Arm Statute
Required when: a D is (i) non resident individual who cannot be served in KS or (ii) a foreign corporation.
KS Long Arm Statute Requirements
A nonresident D can be served outside of KS in connection with suit brought in KS IF THE CAUSE OF ACTION AROSE OUT OF ANY OF THE FOLLOWING ACTS:
1. Transaction of any business in KS;
2. Commission of a tortious act in KS;
3. Ownership, use, or possession of real estate situated in KS;
4. Contracting to insure any person, property, or risk located in KS at the time of contracting.
See full list on outline**
General JX based on Substantial, Continuous and systematic conduct.
KS long arm statute has been modified to provide for GJ if the D has substantial, continuous, and systematic contact with KS such that would support jx consistent with the constitution of US and KS
Constitutional Limitations on in PJ
- Sufficient contacts with the Forum: Contact and Fairness
2. Notice
Contact
Sufficient minimum contact between the D and the forum–so that the exercise of jurisdiction would be fair and reasonable.
Will look at: Purposeful availment & foreseeability.
In Rem Jx
adjudicates rights of all persons with respect to property located in the state. In rem judgment doesnt bind parties personally but is binding as to the disposition of the property in the state.
Specific JX
- Claim must arise out of D’s contacts with the forum state
- D has minimum contacts with forum state, but minimum contacts are only enough if the claim arises out of those contacts
- Simply placing an item in the stream of commerce may not be enough–show contacts by:
- designing a product for forum state
- advertising in forum
- advice to customers in forum
- marketing through sales in forum
General JX
- Claim does not arise from D’s contacts with forum state
- Defendant has substantial, systematic, continuous contacts with the forum because claim is unrelated to contacts with forum - for individuals: domicile can be enough
- for corporations, state of incorporation or principal place of business.
Fairness required for both types:
Must be consistent with traditional notions of fair play and substantial justice
Look at: burden on D, interest of forum state in adjudicating dispute, P’s interest in getting convenient relief, judicial efficiency and public policy.
If a state court has Jx based on constitutional analysis and long-arm statute, then the fed court there does as well. If not, a fed court may still have jx if:
- Bulge rule: if D is joined by imp leader or as necessary party, fed ct has personal jx if service is done within 100 miles of courthouse.
- per specific statutes
- in fed qs cases or if there is no state that works.
SMJ
in KS: a district court in each county has general original smj over all matters, unless otherwise provided
Petition - KS
Petition, If for less than $75, 000, must specify amount; if more than $75K simply say so without specifying amount unless it is a K case.
Petition - Fed
Complaint, must include statement of jx and short and plain statement of the complaint and demand for judgment
Certification– Rule 11 violations
KS has no safe harbor provision for Rule 11 violations and the ct must impose sanctions (fed ct
Answers:
Must admit or deny because of lack of sufficient information as to each allegation
Raise any affirmative defenses
Failure to state a claim
Even if P’s allegations are true, P would not be entitled to relief
Complaint does not give sufficient notice of what the claim is about
P has not pleaded enough facts to make the claim plausible, not just conceivable.
Lack of subject matter jurisdiction
Never waived, even on appeal
Lack of PJ
Waived if not raised at first opportunity
Improper venue
waived if not raised on first opportunity
Insufficiency of process
Waived if not raised at first opportunity
Insufficiency of service of process
Waived if not raised at first opportunity
Failure to join a necessary party
D may raise up to time of trial
Pre-answer motion
Joinder of Claims and Parties: compulsory counter-claims
Must arise from same transaction or occurrence
If not raised, it is waived
Joinder of Claims and Parties: permissive counter-claims
any claim
Joinder of Claims and Parties: permissive cross-claim:
P against another P, D against another D– if claim arises out of same transaction or occurrence as claim or counter-claim
-No unrelated cross-claims are permitted, and no cross-claims are compulsory
Amendment of pleadings
All pleadings can be amended once freely before an answer has been served; can amend answer once freely within 20 days of service
- need leave of court to amend otherwise: court will grant when justice requires, unless there was delay, bad faith, undue prejudice or it would be futile to do so.
Relation Back
Amended complaints relate back if the new claim arises from the same conduct, transaction or occurrence; or if new D had notice or original complaint and knew that he would’ve been sued originally but for a mistake.
Joinder of Parties: Permissive Joinder
Claims against each party must arise from same transaction or occurrence and there must be a common question of fact or law.
Joinder of Parties: Impleader
BY Ds to sue a third-party who may be liable to D for all or part of claim against Defendant
Joinder of Parties: Intervention
As of right: when specified by statute or when applicant’s interest in property may be impaired by lawsuit and he is not adequately represented in the suit
Permissive: specified by statute or when applicant’s claim or defense has a common question or law or fact with main action.
Class Actions
Numerosity, commonality, typicality, fair and adequate representation of class, and risk of prejudice through separate suits/claim for injunctive or declatory relief/common question of law of fact predominates
Class actions– complete diversity
not required but:
- federal court may decline if primary Ds and between 1/3-2/3 of Ps are citizens of state where filed.
- Fed court shall decline if primary Ds and more than 2.3 of Ps are citizens of state where filed.
Class Actions: Amount in controversy
Cases without complete diversity: aggregate claims of all P class members must exceed $5million Cases with complete diversity: not all Ps need to hav claims over $75K because supplemental jurisdictions may be used to include Ps with lower claims.
Discovery: Initial Disclosures
Only required in federal court, only required to disclose good information– must disclose names of witnesses, documents, damages, insurance agreement within 14 days of initial conference
Discovery: General disclosures
Information is discoverable if it is not privileged, relevant to a claim or defense, but it need not be admissible at trial as long as it is reasonably calculated to lead to discovery of admissible evidence.
Discovery: Work Product
must be prepared in anticipation of litigation by a lawyer or party of their representatives
- mental impressions always protected
- documents/things may be discovered if: requesting party has a substantial need for material and can’t get it without undue hardship
Discovery: Experts
Mandatory disclosure at least 90 days before trial includes identity and written report
- may depose testifying witnesses after report is provided; may depose non-testifying witnesses only in connection with mental or physical examination or on showing of exceptional circumstances (impracticable to get facts or opinions through any other means)
Discovery: Electronic information
KS has no special rules different from general rules
Spoliation
Parties can be sanctioned for destruction of failure to preserve evidence in pending litigation or reasonably foreseeable litigation
Discovery: Electronic Info
If item is inadvertently disclosed and reasonable efforts were made to prevent disclosure, no waiver of privilege
Discovery: Electronic Info–fed rules
Party need not produce electronically stored information that is not reasonably accessible, produced only if court finds good cause after party explains inaccessibility;
-clawback provision if inadvertently disclosed and other side is notified and court then rules on whether privilege has been waived; no sanction for spoliation if loss resulted from routine, good faith operation of an electronic information system.
Pretrial – summary judgment
*default judgment
Fed: entry of default from clerk of court, but can get default judgment from clerk only if claim is for sum certain, D has failed to appear and D is not a minor or incompetent
KS: Only court can enter default judgment – can move for relief from the default judgment if excusable basis for mistake, inadvertence or surprise.
Pretrial – SJ
*Involuntary dismissal
D gets it if P failed to prosecute, comply with rules or comply with any court order
made on the merits–so claim preclusion will be a defense if P tries to re-litigate
Pretrial –SJ
*Voluntary dismissal
Can be made by court order, stipulation of all parties or once as a matter of right before answer or motion for SJ has been granted
KS saving statute: If case is dismissed without prejudice, P has 6 months to commence a new action even though the statute of limitations has now run
Summary Judgment
P will survive as long as he has enough evidence that could persuade a reasonable trier of fact, but can no longer rely on sufficiency of allegations
D must prove: no genuine issue of material fact and that he is entitled to judgment as a matter of law
- prove by showing absence of evidence
- court will make all inferences in favor of non-moving party
Trial: Right to trial by jury
KS: 7th A does NOT apply, but right applies in cases that would have historically been tried in law, not equity
- if P wants money damages, right to jury trial--also, suits for replevin, ejectment and habeas corpus
- Courts looks to whether it is essentially a legal or equitable claim - Either party can request jury trial, but must request within 10 days of service of last pleading - once requested, can't withdraw without consent of all other parties - Same standard as MSJ, but made at trial instead of after trial - Move for directed verdict is required to preserve right to move for JNOV
- KS: must move at close of all evidence
- Fed: move at any time
JNOV
Same as MSJ, but made within 10 days of entry of judgment
Motion for New Trial
Must be within 10 days of entry of judgement
- flaws in procedure: court wrongly allowed or excluded evidence; or partly wrongly said prejudicial statement in front of jury
- Flaw in verdict: verdict in against the weight of the evidence
- combine with JNOV motion because it JNOV is granted, court will conditionally grant/deny motion for new trial so that the next decision is already in place
Post-trial: Effect of judgment
*Claim Preclusion
P cannot re-litigate same cause of action between same parties after a final judgment on the merits; same cause of action if it arises out of the same transaction or occurrence.
Post-trial: Effect of judgment
*Issue Preclusion
Relitigation barred if same issue of fact or law, issue actually litigated and determined, final judgment, determination of issue was essential to the judgment and parties were the same.
Post-trial: Effect of judgment
*Issue Preclusion: KS
KS requires that they be the same parties–mutuality requirement
- Defensive issue preclusion: new D may raise earlier determination against P who lost in the first case
- Offensive issue preclusion: may be allowed at court’s discretion
Appeal
Must file timely notice of appeal within 30 days of judgment
- can only appeal from final judgment, not interlocutory appeals
Appeal: Exceptions
- Orders regarding injunctions: temporary restraining orders may not be appealed
- certification by district court: appellate jx is at dissection of appellate court
- collateral order doctrine: interlocutory issue is separable from main suit
- mandamus or habeas corpus: usually start in state supreme court or fed court of appeals.
Venue v. Transfer: KS Venue
Venue lies where:
- against KS residents (cause of action arose, D resides, P resides if D is served in this county, orD has business or employment, if D served in the county)
- against non-residents (cause of action arose, P resides, D is served, D is transacting business)
- Against corporations (Cause of action arose, D’s registered office, D is transacting business if P resides there)
Federal Venue
3 possible types:
- if all Ds reside in the same state, then district where any reside
- district where substantial part of events occurred
- if neither of the above yield a district, then where any defendant is subject to personal jurisdiction
Transfer
Move case to another district or county –case is NOT dismissed
Types of transfer
- move for convenience of parties and witnesses (keep substantive law of transferor state)
- KS: move because fair trial is not possible where brought, keep substantive law of transferor
- KS: move by stipulation of parties (Keep subs. law of transferor)
- Curing a venue or PJ defect: apply substantive law of transferee forum
- Curing a subject matter jx: in fed court only.
Forum non conveniens:*
Case is dismissed
- case is not moved, but dismissed all together
FED: where court thinks a foreign country is more appropriate forum–fed court can
Forum non conveniens: where fed court thinks a foreign country is more appropriate forum*
Fed court can transfer to other fed district— state court cant
State court – forum non conveniens*
When court thinks a foreign country or state is more appropriate forum
