Midterm Exam Flashcards
Rule 1
Just, speedy, inexpensive determination of every action and proceeding
Rule 3
Civil action is started when complaint is filed
Rule 4
A summons must be served with a copy of the complaint
Ways of service
Personal service
Dwelling service
Agent (someone authorized to receive summons)
Waiver (get more time and don’t have to pay)
State/substitutions method
Lassiter Case
Do not get assigned council in civil court
Pro se litigants
Personal Jurisdiction
Jurisdiction over the parties
Civil cases need
Proper notice
Personal jurisdiction
Subject matter jurisdiction
International shoe
Quality and nature of the activity must be “substantial and continuous”
Meets traditional notions of fair play and justice
General personal jurisdiction
Defendants home state connection leads to any claim being able to be taken to court in that state
Specific personal jurisdiction
Connection of activities of the defendant in a state to the claims of the complaint
Ford motor co.
Purposeful availment
Subject matter jurisdiction
Jurisdiction over the law
Federal court jurisdiction
Diversity jurisdiction
Federal question doctrine
Diversity jurisdiction
Plaintiffs home must be a different state from the defendant
Amount in controversy over 75,000
Diversity is looked at at time of filing
Burden of proof is on the party invoking diversity jurisdiction
Humans
Domicile
Fixed and permanent home and principal establishment to which they have the intention to return when absent from there
Corporations
Home is where they are incorporated and principal place of businesses
Nerve center = corporate headquarters
LLC must look at home states of partners
Amount in controversy
Must be over 75,000
Single plaintiff can aggregate claims against a single defendant
Multiple plaintiff cannot aggregate claims against a single defendant
Federal question doctrine
Original cause of action must raise substantial and necessary federal question
Anticipated defense is not enough
Direct federal question
Cause of action alleges claim based on express federal law
Implied federal question
Federal statute that provides a right without direct way to get compensation (regulator laws)
Embedded/mixed federal question
State tort claim that uses federal statute to show wrongdoing
Only take if
1. Substantial
2. Necessary
3. Actual dispute
4. Federalism is not disturbed
Rule 8
A pleading that states a claim for relief must contain
1. Short and plain statement for the courts jurisdiction
2. Short and plain statement that the pleader is entitled to relief
3. A demand for relief sought
Conley Case
Complaint should not be dismissed unless it is beyond doubt that the facts cannot support the claim
Only requires a short and plain statement of the claim
Possible
Failure to state a claim
Citing law that does not apply
No statute supporting the claim
Twombly Case
Circumstantial evidence is not enough
Need more than speculation
Cost of discovery
Probable
Iqbal Case
Need facts not conclusory statements
Rule 8(b)
Answers
1. Jurisdiction is wrong
2. Bad service
3. Legal insufficiency
4. Deny allegations
5. Affirmative defense
6. Arbitration has to be somewhere else (contract)
7. Counter claim
Motions to dismiss 12(b)
Either file an answer or a motion to dismiss
1. SMJ
2. PJ
3. Venue
4. Insufficient process
5. Insufficient service of process
6. Insufficient complaint
7. Failure to join parties
Improper answer
Defendant never admitted that they were the wrong party to sue in the complaint
Affirmative defenses
Must be addressed at the beginning or the defense waives their rights of appeal on that issue
Rule 15
May amend pleading within 21 days of service without permission of the opposing council or judge
After 21 days, need permission of the court or opposing council (justice and fairness)
Response to amended pleading must be given within the original period or within 14 days (whichever is longer)
Plaintiff can add evidence as long as
It adds to the merit of the trial and
Does not prejudice the defense
Pre-trial schedule
Good cause to overrule (high standard)
Relation back
If statute of limitation has run, amendment must relate back to the original pleading
Burden is on the defendant to make sure the complaint raised the correct party
- arises from the same conduct
- involves defendant who received notice
Rule 11
Abuse of discretion
Lawyer need to take all reasonable steps to make sure the complaint is legitimate
Must sign a credible and truthful complaint
Discretionary sanctions
Deterrence
Is the lawsuit presented for improper purpose?
The lawsuit based on proper law
Is there evidentiary support
The denial of evidence is proper
Safe harbor provision
21 days to amend the complaint to avoid sanctions
Mallory
Federalism
- every state cannot be a companies home state
Goals of Rule 8
Frame the issue
Disclose evidence
Weed out frivolous litigation
