MBE One Sheets Flashcards
JURISDICTION AND VENUE
Personal jurisdiction: about fairness to D.
* General jurisdiction: P can sue D for anything generally.
* Look for consent (express/implied due to failure to properly object), presence (continuous & systematic contacts w/ state/present in state when served), or domicile.
» Person is domiciled in the state that is her permanent home where she intends to stay indefinitely.
» Corporation is domiciled in the state where it is incorporated and where its principal place of business is located.
» A partnership or LLC is domiciled where its partners or members are citizens.
JURISDICTION AND VENUE:
Specific jurisdiction:
- Lawsuit must arise out of specific contacts w/ state (ex. tort committed in state/K/business transaction arising out of contacts w/ state).
- It must be both constitutional under the state constitution (long-arm statute) & under Due Process Clause (there must be minimum contacts w/ forum state so as not to offend “traditional notions of fair play & substantial justice”).
JURISDICTION AND VENUE:
SMJ; FQ; DC
Subject-matter jurisdiction: about power of fed ct to hear a certain kind of case.
* Federal-question jurisdiction: It must arise out of federal law. The federal issue must be on the face of the** well-plead complaint**.
* Diversity jurisdiction: there must be complete diversity at the time the case is filed & amount in controversy must exceed $75,000.
* Supplemental jurisdiction: State claims may be brought in a federal case if they arise out of a common nucleus of operative fact. Further, nondiverse parties may be sued in a diversity case.
* Tip: in a diversity case, D may implead a nondiverse party, but P may not sue a nondiverse party directly if the only basis for the lawsuit is diversity.
JURISDICTION AND VENUE:
Removal & Remand
- Removal: D may remove a case w/in 30 days of being on notice that the case is removable (but not over a year in diversity cases unless P acted in bad faith).
- Ds cannot remove on diversity grounds if any D is domiciled in state in which they are sued.
- Tip: When D removes a case, do not look to traditional venue rules to determine venue.
- D has only one venue option—it may remove the action to the federal court that geographically embraces the state court where the suit was filed.
- Remand: if P wishes to file a motion to remand to state court due to failure to comply with procedure requirements of the rule, it must do so within 30 days after removal.
Venue:
- The state has personal jurisdiction over D. Where in the state does P sue?
- Venue is proper where any D resides if all Ds reside in same state/where a substantial part of the events/omissions giving rise to the claim occurred.
- A court may transfer a case to a different venue in certain circumstances:
- (1) Transfer to proper venue: Occurs if the case is filed in the wrong venue. The law of transferee court applies.
- (2) Transfer to more appropriate forum: Occurs when there is a more convenient forum for the case. The federal court may transfer it in the interests of justice. Law of the transferor court applies.
- (3) Forum non conveniens: if a case should be litigated in a different forum (ex. different country) a court may dismiss the case.
Service:
- P must serve D w/ summons & copy of the complaint
- Process server must be at least 18 & not a party
- P can use the following (SAID) methods to serve an individual:
- (1) state law: state law methods where the fed ct is located/where service is made,
- (2) agent: deliver copy of the summons & complaint to agent appointed by D/law,
- (3) individual: deliver a copy of S&C to Individual personally, or
- (4) dwelling: leave a copy of S&C at individual’s dwelling/usual place of abode w/ someone of suitable age & discretion who resides there.
- Serving a corporation: P may use state law methods where district ct is located/where service is made, or it may serve an officer, a managing/general agent authorized, or any other agent appointed to receive service.
- Waiver: P may ask a D to waive formal SOP by sending complaint, 2 copies of waiver form, & prepaid means for returning form via first-class mail/other reliable means. If D waives formal service, it has 60 days to answer complaint (rather than 21). If D does not, must pay for formal service of process.
PRETRIAL PROCEDURES
- Pretrial procedures—this tells you what to file & how to prepare your case
- Complaint & answer
- Complaint must be served w/in 90 days after filing.
- Response (answer/motion) must be served within 21 days (or 60 if process was waived) after complaint is served.
- Pleading may be amended as of right w/in 21 days after service (or if pleading requires a responsive pleading, 21 days after service of the responsive pleading/motion).
- After 21 days, a party may amend its pleadings w/ consent of other party/court. Court will freely give leave when justice so requires.
PRETRIAL PROCEDURES: Joinder of claims and parties - Claims
- Joinder of new claims: Once party has one properly filed claim, it can bring all claims if court has jurisdiction.
- This applies to P’s claims & D’s counterclaims (suing P)/cross-claims (D v. D or P v. P).
- Counterclaims: Compulsory counterclaims - D must bring a counterclaim if it arises out of the same transaction/occurrence/D loses right to bring claim later.
- A permissive counterclaim (one not arising out of the same transaction/occurrence) may be filed but does not have to be filed.
- Cross-claims: A cross-claim is a claim asserted by one party against coparty (D v. D or P v. P). It must arise out of same transaction/occurrence as initial claim. A cross-claim is not compulsory.
PRETRIAL PROCEDURES: Joinder of claims and parties - Parties
Joinder of parties
- Ps joining Ps: Ps may sue together if they assert a right to relief jointly, severally, or in alternative w/ respect to claims arising out of same transaction/occurrence & involving a common question of law/fact.
- D adds D: D may implead a new claim against a new party if that party may be liable to D for part/all of recovery.
- Must be filed w/in 14 days of serving answer, otherwise leave of ct is required.
- Intervention: Movant may intervene as a* matter of right* if:
- (1) it has an interest related to property/transaction that is the subject of the action,
- (2) disposition w/o movant may impair/impede movant’s ability to protect its interest, and
- (3) its interest is not adequately represented by existing parties. The motion must be timely made.
- Court may grant permissive intervention if party has a claim/defense that shares a common question of law/fact w/ the main action.
» Interpleader: Occurs when holder of property subject to conflicting claims (usually an insurance company that holds a common fund) may file a lawsuit as P & join all claimants to avoid possibility of double liability.
- Under statutory interpleader, $500 is enough & minimal diversity is enough (if there is diversity between any 2 claimants) to get into fed court.
PRETRIAL PROCEDURES: Class Actions
- Class actions: Requirements include: commonality, adequacy, numerosity, typicality, & (w/ common question suits) Ps need to show superiority & that common questions predominate.
- The Class Action Fairness Act (CAFA) allows a fed ct to have jurisdiction over a class action if there are 100/more Ps seeking over $5 million & they have minimal diversity.
PRETRIAL PROCEDURES:: Preliminary measures:
- For TRO, notice to other party is not needed. Should not last longer than 14 days unless good cause is shown.
- For preliminary injunction, notice must be given to adverse party. A preliminary injunction is equitable relief to preserve status quo.
PRETRIAL PROCEDURES: Discovery:
- Parties may discover anything that is relevant & not privileged.
- Parties can use interrogatories (25 per side), depositions, & requests to admit. Tip: depositions & subpoenas are the only methods that may be used on a nonparty.
- Work product (prepared in anticipation of litigation) is not discoverable unless there is a substantial need & undue hardship. However, an attorney’s mental impressions are never discoverable.
- Conferences & disclosure
- 26(f) conference: In fed ct, 26(f) conference is where initial disclosures of (DISS) damages calculation, insurance agreements, identity of supporting witnesses, & supporting docs are made & discovery plan is outlined. Tip: unfavorable witnesses/docs do not need to be disclosed.
- 16(b) conference: Next, 16(b) scheduling conference is held. Court enters a scheduling order & deadlines for motions.
- Pretrial disclosures: 30 days before trial, parties must disclose identity & reports of experts, names of witnesses to be called at trial, & docs & depositions parties plan to offer at trial.
PRETRIAL PROCEDURES: Rule 11 Sanctions
- Rule 11 sanctions are made if improper paper is presented to court.
- However, if motion is made by a party to impose Rule 11 sanctions, party must give the other party 21 days to withdraw offending paper prior to filing motion w/ court.
LAW APPLIED BY FEDERAL COURTS JURY TRIALS: State law in federal court:
- If a case is in fed ct under diversity jurisdiction, fed law
generally applies to procedural issues. - Tip: this includes FRE/FRCP, when to bring class action, & right to a jury trial.
- Generally, state law applies to substantive issues.
- Tip: this includes which party has the burden of proof, which SOLs applies, caps on damages, elements of claims, & choice of law rules.
LAW APPLIED BY FEDERAL COURTS JURY TRIALS: Federal common law
- FCL is applied where Congress has given cts power to develop law (ex. bankruptcy law, admiralty, & civil rights) or where a fed rule is necessary & state law would frustrate fed objectives. (This latter category is very narrow & usually comes up when a case would directly affect U.S. gov)
LAW APPLIED BY FEDERAL COURTS JURY TRIALS:
The Klaxon doctrine:
- Fed ct sitting in diversity must apply choice of law approach prevailing in the state where it sits. Tip: this is a** MBE favorite!**
JURY TRIALS
- Jury trial 7th Amend: A jury pool must be taken from a cross section of the community. Tip: jury itself does not need to be diverse.
- Jury trial request: For an issue triable by jury, a party can demand a jury trial by serving other parties a written demand (which can be in a pleading) “no later than 14 days after last pleading directed to the issue is served.”
- A proper demand may be withdrawn w/ all parties’ consent.
- Number: A jury must begin with at least 6 & no more than 12 members. Unless the parties agree otherwise, verdict must be unanimous & returned by a jury of at least six.
- At close of evidence, a party may file & furnish to every other party written requests for jury instructions.
- Objecting to jury instructions: a party who objects to instructions must do so in a timely manner, on record, stating matter objected to & grounds.
- Plain error: an appellate ct may consider a plain error in instructions, even if it has not been properly preserved/objected to, if error affects substantial rights.
MOTIONS MADE DURING AND AFTER TRIAL:
DIRECTED VERDICT
(JUDGMENT AS A
MATTER OF LAW—JMOL)
- If there is no substantial evidence to support a verdict for nonmoving party, a directed verdict will be given.
- The ct looks at whether P has met its burden of production.
- D may file this motion after P rests its case. Either party may file it after D rests its case.
MOTIONS MADE DURING AND AFTER TRIAL:
RENEWED JMOL
- Under fed law, party must have already made a motion for JMOL at some point.
- Here, party is renewing it & must show evidence is insufficient as a matter of law to support jury’s verdict.
- Within 28 days of entry of the jury’s verdict
MOTIONS MADE DURING AND AFTER TRIAL:
NEW TRIAL
- A new trial is granted if there were errors in the trial that tainted jury’s decision-making/if jury’s decision was against great weight of evidence.
- It also may be granted if verdict is excessive (i.e., remittitur) or inadequate (i.e., additur, which is not recognized by fed courts).
- Within 28 days of entry of jury’s verdict.
- Court may even order a new trial on its own.
MOTIONS MADE DURING AND AFTER TRIAL:
RELIEF FROM JUDGMENT
- If there are circumstances like mistake, fraud, or new evidence that could not have been discovered, ct may grant relief from judgment.
- Generally, within one year of the judgment (but there are exceptions, e.g., fraud).
MOTIONS MADE DURING AND AFTER TRIAL: APPEAL
- Final judgments generally are appealable (exceptions: preliminary injunctions, interlocutory orders, & collateral matters).
- Orders granting a directed verdict/denying a new trial are appealable.
- Generally, within 30 days after entry of judgment.
Timing of Motions
1st: Complaint:
2nd: Bring in pre-answer motions:
- More definite statement
- Motion to strike
Timing of Motions:
ANSWER OR MOTION
Bring in first answer/motion:
(1) Lack of personal jurisdiction
(2) Insufficient process/service
(3) Venue
(4) Affirmative defenses
