South Carolina Flashcards
Personal Jurisdiction - SC - Steps
Whether statutory authority exists & whether due process of 14th amendment is satisfied
Personal Jurisdiction - SC rule for Fed court
Fed court has jurisdiction if state court would. Based on bulge rule. Also if national jurisdiction exists: claim under fed law, no state has PJ, but due process satisfied because of contacts w/nation
Bulge Rule - Fed court in SC
When a Defendant is served within the US and not more than 100 miles from where federal court sits, if joined within Impleader or Joinder
Personal Jurisdiction - SC - Step 1
General or Specific Jurisdiction from statute
General Personal Jurisdiction - SC - Step 1
Contacts are such they have an enduring relationship with the state. Four types: 1) domiciled in SC 2) organized under laws of SC 3) maintains principal place of business in SC 4) doing business in SC
Specific Personal Jurisdiction - SC - Step 1
RABI KInGS
Where action arises from defendant’s contacts:
R: REAL property - interest or uses
A: tortious ACT, in whole or in part, within state
B: transacts BUSINESS within the state
I: tortious INJURY/death outside state if in SC, solicits business, persistent course fo conduct, substantial revenue from goods/services
K: Has a CONTRACT to be performed in SC
In: InSURES person, property, or interest in SC
G: GOODS produced or distributed to be consumed in SC
S: SUPPLYS or K to supply services/thigns in SC
Personal Jurisdiction - CONX requirements - Step 2 - generally
Fair and adequate notice AND have constitutional appropriate contacts between Defendant and Forum State
Personal Jurisdiction - CONX requirements - step 2 - Appropriate contacts
General Jurisdiction: Continuous and Systematic Contacts - based on Def’s ongoing relationship with the state even if suit does not arise from that relationship.Def is essentially “at home” in SC.
Specific Jurisdiction: Minimum Contacts then Traditional Notices of Fair Play: 1) power prong: minimum contacts = stream of commerce w/notice of marketing in state (purposeful availment and not from fed rules)
2) four part fairness prong -
duration and activity of non-resident in SC
character & circumstances of the commission of def’s acts
inconvenience from refusing to confer jurisdiction to SC
state’s interest in exercising jurisdiction.
Other Basis for jurisdiction
Transient (tag) jurisdiction (with limits of fraud, etc), Consent Jurisdiction (express and implied), Internet Based PJ - 3 part test: 1) evidence that def directed electronic activity into SC 2) Def must have done so with manifest intent to engage in business or other interactions w/resident of SC 3) that activity in the person within SC creates a potential cause of action.
SC Courts SMJ
Trial courts hear everything except those where exclusive jurisdiction lies elsewhere - Family, probate, municipal, and magistrate
Venue - location of suit rules by subject
In the same county as: 1) recovery of real property, estate or interest in such 2) injuries to real property 3) determination of real prop interest. 4) partition of real prop 5) foreclosure 6) recovery of pers. prop seized for any cause 7) landlord/T disputes
Venue - location of suit by party rules
Single Resident Defendant - where lives or cause of action arose
Single Nonresident Defendant - most substantial part of alleged act giving rise, where P resides when cause rose, or principal place of business when cause arose
Domestic OR Foreign Corp - where substantial act giving rose occured, OR where principal place of business was at time cause rose.
If Foreign corp w/no certificate - then also where Plaintiff resides (or principal place of business if P is corp)
Venue - Change rules
Change proper if:
original venue is improper OR,
no fair and impartial trial can be given, OR
for convenience of witnesses and ends justice
(FNC - dismissal)
Service rules - by who
By sheriff or deputy, someone over 18 and not party or their attorney.
Service rules - Time
120 days from complaint filed
Service rules - on who
Delivered personally, OR copy at dwelling/place of abode w/person of suitable age living there OR to agent authorized by appointment or law to take OR what statute says.
Service Rules - Minors/Incomp
Under 14 or retard: on guardian or competent person whom they live with or employed by. If between 14-18 then also on parent/guardian.
Service Rules - Municipal/govt
Deliver copy of summons & complaint to AG, or other officials as statute permits AND registered/certified to AG.
Service - Agents
Service proper if either actual or apparent authority exists. Actual authority vs. Apparent (inferred from high level of responsibility) authority
Statute of Limitations - Discovery Rule
SOL doesn’t run until the date claimant knew or should have known that a cause of action existed.
SOL - tolling
Can toll if Defendant is in and out of state. Doesn’t BEGIN to run until in state.
If legally disabled, can bring within one year it ceases.
If P is insane, no longer than 5 year extension.
If minor & med mal, then 7 years after treatment; or one year after age of majority, whichever is first.
SOL - equitable estoppel
Cant use SOL if acted in a manner to induce the other party to delay in timely filing a claim. Burden of proof: 1) he lacked knowledge/means of obtaining info of facts 2) relied on conduct 3) other party falsely represented or concealed material facts AND intended the conduct to be acted on by other party AND possessed knowledge, real or constructive, of the true facts
SOL - offenses
2 years - libel, false impr, forfeiture to state 3 years - Ks, liability from statute, real property, taking of goods, assault battery, wrongful death, fraud 10 years - recovery of real prop, disputes to title, entry upon real prop. Also Catch-all 20 - K’s involving a mortgage Med mal -3 years from treatment or 3 years from discovery, no greater than 6 from occurrence.
Day Counting - Difference between Fed and State
If less than 7 days, weekends and holidays not counted. Federal: all days counted.
SC Rule 11
The signer has signed it AND to best of signer’s knowledge paper has good grounds to support and not being filed for delay .
SC Affirmative defenses
“AFRAID of MMARC D”
All federal defenses plus:
Misrepresentation
Mistake
Admisinstration of closed estate
Recrimination
Condonation
Discharge in barnkruptcy
Defenses pled by motion - SC
Lack of SJ
Lack of PJ
improper venue
Insufficient process
Insufficient service of process
12 b 6
failure to join indespensable party
Another action is pending
If pre-answer motion: must plead ALL the waivable defenses (12b2-5) or lose them.
Motion to clarify - SC
15 days to do so
JNOV / motion for new trial deadline - SC
10 days.
Motion for New trial reasons - SC
Verdict agaisnt weight of evidence
Verdict excessive or inadequate
Newly discovered evidence
Improper conduct by court, or counsel, or affecting the jury
Types of New Trials - SC
New trial Absolute: Granted unconditionally - regarding judgments which shock conscience New trial Nisi - conditionally - remitter where excessive, additur where inadequate. Additure only allowed in state, fed is unCONX
When can self-dismiss - SC
Before answer, or after answer signed by stipulation of parties.
Settlement rules
1) Consent order signed by counsel & entered into record
2) Stipulation order signed & entered
3) Made in open court & noted
4) reduced to writing, signed by parties & counsel
Motion for SJ rules - SC
No genuine issue of material fact - just need to point out lack of evidence. Burden shifts and have to provide a mere scintilla. (fed court = enough evidence for a jury to find reasonably in their favor)
Evidence must be viewed in a light most favorable to the non-moving party.
Joinder - SC
Rule 82 If improperly joined, just drop those parties or claims. Once joined, must also demonstrate smj, pj, and venue is proper
Discovery - generally - SC
any matters not privileged which are relevant to the subject matter involved in the pending action
Discovery - SC - limitations
Can limit if 1) unreasonably cumulative or duplicative 2) if info can be obtained from other more convenient sources 3) if party seeking had ample time in discovery 4) if burden outweighs the benefit
Discovery - SC - Experts
If non-testifying, can only get report by examining physician showing exceptional circumstances. ‘ Drafts of experts = work product
Depo rules (non procedure)- SC
Where suit pending, where person resides, employed, or transacts business in person. Only in cases $10,000 or more. Can only depose ONCE.
Collateral Estoppel - SC
1) if the party in the preceding litigation actually litigated the case in the prior lawsuit.
2) if the issue to be estopped was directly determined in the prior lawsuit, AND
3) that determination was necessary to support the prior judgment.
SC - ESI rules
Electronically Stored Information - can resist production if not reasonably accessible or because of undue burden or cost.
Res Judicata - both SC and Fed
1) Prior case, regarding the same claim, must be disposed on the merits with prejudice
2) two cases are between the same parties
3) the first court had the power to ajudicate
Service by Mail - SC
Must be by:
1) registered OR certified, AND
2) return receipt requested, AND
3) Delivery restricted
Service by Publication
If cafter due diligence, can’t be found in state, & certified by affidavit, court permits service by publication.
Newspaper most likely to give notice: not less than once a week for 3 weeks.
SC Complaint Pleading
Identify grounds on which jurisdiction exists
state a claim
demand relief.
SC requires “fact pleading” - ultimate facts that evidence introduced at trial will prove.
Fed Court is - stated in such a way that enough facts are supplied to state a claim for relief.
Limits: No demand of punitive or exemplary damages, only alleged generally
And can limit amount in controversy to avoid diversity.
Conduct of Depos
No off the record conferences
No objections that are designed to coach or suggest answeres
Instructions not ot answer are limited (privilege, enforce court orders, to recess to seek relief from court)
Must supply docs within 2 business days before depo, or alow reasonable during depo for counsel and party to confer over the docs.
Interrogatories
8 standard, unless 25k or higher amount in controversy.
RFPs
Unlimited amount. Can seek
Documents
Tangible things
ESI
Land
Physical and Mental Examinations - SC
Absent consent, court order required. Such condition must be “in controversy” and a motion for “good cause” shown.
must exceed $100k in actual damages
Party being examined can insist on presence of own physician during exam
Exam occurs in county where examined party resides, or where county doctor lives
Can object to a doctor affiliated w/opposing party and therefore not impartial.
RTA
20 limit. 30 days, unless w/answer or complaint then 45.
Admin, deny, admit in part deny in part, state why can’t admit or dney in truth, or that after reasonable inquiry, the information he knows or can readily obtain is insufficient to admit or deny.
voir dire
SC is 4, Fed is 3 preemptory challenges
