Shared Flashcard Set

Details

Civil Procedure Final
Final
213
Law
11/20/2011
Click here to study/print these flashcards.

Create your own flash cards! Sign up here.

Additional Law Flashcards

 

 

Cards

Term
World-Wide Volkswagen Corp. v. Woodson
Majority (White) v. Dissent (Brennan)
 Definition
Term
World-Wide Volkswagen Corp. v. Woodson
 Definition
A consumer's unilateral act of bringing the defendant's product into the forum state is not a sufficient basis for exercising personal jurisdiction over the defendant
Term
World-Wide Volkswagen Corp. v. Woodson
 Definition
A non-resident defendant must purposely avail himself of the forum state’s privileges and protections for that state to have personal jurisdiction over him unless the case pertains to a product connected with defendant’s business that was brought into the forum state by the plaintiff. Foreseeability that the product might eventually enter the state is irrelevant if there is no purposeful availment of that state’s privileges and protections.
Term
Strawbridge v. Curtiss
Definition
(1806) In a diversity action, there is no jurisdiction if any plaintiff is a citizen of the same state as any defendant
Term
Grannis v. Ordean
Definition
(1914) "The fundamental requisite of due process of law is the opportunity to be heard."
Term
Wyman v. Newhouse
 Definition
(1937)
Term
St. Paul Mercury Indemnity Co. v. Red Cab Co.
 Definition
(1938) "The sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.
Term
Williams v. Capital Transit Co.
Definition
(1954) Invalid service when papers were left with the defendant's estranged wife and the defendant did not receive the summons and complaint until three years after a default judgment was entered against him.
Term
Karlsson v. Rabinowitz
 Definition
(1963) Upheld service given to the defendant's wife in Maryland even though the family was in the process of moving to Arizona (with no intention of returning) and the defendant had already left.
Term
Frummer v. Hilton Hotels International, Inc.
Definition
(1967) Jurisdiction upheld in New York for a resident who while visiting London, injured himself in the shower at the Hilton hotel. Reasoning for jurisdiction was the existence of the Hilton Reservation Service, a separate corporation.
Term
Kramer v. Caribbean Mills, Inc
 Definition
(1969) Did not allow parties to create diversity by assigning rights to a third party in bad faith
Term
Ratliff v. Cooper Laboratories
Definition
(1971) South Carolina could not assert personal jurisdiction over the defendants, two drug manufacturers in Conn. and N.Y. because their contacts with South Carolina was insufficient to satisfy due process. It was significant that the plaintiffs were nonresidents taking advantage of South Carolina's relatively long statute of limitations.
Term
M/S Bremen v. Zapata Off-Shore Co.
Definition
(1972) The Supreme Court enforced a forum-selection clause naming the London high court because the expansion of American business in the global economy would be otherwise impeded
Term
Data Disc, Inc. v. Systems Technology Associates, Inc.
Definition
(1977) When a jurisdictional issue is raised, and there are sharply disputed relevant facts, the method of determination is up to the trial court
Term
Alchemie International, Inc. v. Metal World, Inc.
Definition
(1981) The court upheld jurisdiction over the defendant even though Metal World maintained no office in New Jersey and had sent no personell into that state; it was enough that Metal World, by numerous mail and telephone contacts had solicited a substantial contract with Alchemie, a New Jersey corporation, even assuming that the contract was executed in Illinois
Term
Direct Mail Specialists, Inc. v. Eclat Computerized Technologies
 Definition
(1988) Service of process on receptionist of shared office of defendant corporation and another corporation was sufficient to create personal jurisdiction under the circumstances
Term
Rose v. Giamatti
Definition
(1989) The court dismissed nominal parties that were added by the plaintiff to destroy diversity
Term
National Development Co. v. Triad Housing Corp.
 Definition
(1990) Upheld service when it was delivered to one of the defendant's twelve homes around the globe (NYC), especially because the defendant was "actually living" in the apartment on the day of service. "A person can have two or more dwelling houses or usual places of abode."
Term
Rodriguez v. Fullerton Tires Corp. v. Custom Metal Spinning Corp.
Definition
(1997) Adopted Justice O'Connor's view (from Asahi) that mere awareness that a product will pass through the stream of commerce into the forum state does not satisfy the requirement of purposeful avialment
Term
Cybersell, Inc. v. Cybersell, Inc.
Definition
(1997) The court held that "something more" than the mere maintenance of a website is required to show that the defendant purposefully directed its activities at the forum
Term
American Institute of Certified Public Accountants v. Affinity Card, Inc.
Definition
(1998) Service on vice president of one corporation sharing office with defendant corporation insufficient to create personal jurisdiction, despite the fact that both corporations were owned by the same individual who had received actual notice.
Term
JPMorgan Chase v. Trafic Stream (BVI) Infrastructure Limited
 Definition
(2002) The Supreme Court, in a unanimous opinion, held that citizens of overseas territories of the U.K. are citizens or subjects of a foreign state.
Term
Harris Rutsky & Co. Insurance Services, Inc. v. Bell & Clements Ltd.
 Definition
(2003) Applied a three prong "effects" test, Defendant:
1. Committed an intentional act
2. Expressly aimed at the forum state
3. Causing harm, the brunt of which is suffered, and which the defendant knows is likely to be suffered, in the forum state.
Term
MKM Capital Pty Ltd. v. Corbo, A.C.T.
Definition
(2008) After numerous unsuccessful attempts at traditional service, the Supreme Court of the Australian Capital Territory allowed plaintiffs to effect service by sending a private message to the defendant's facebook page.
Term
International Shoe Co. v. Washington
 Definition
1. Due process requires that in order to subject a defendant to a judgment in personam if they are from outside the forum, he must have certain minimum contacts to the extent that it would not offend fair play and substantial justice; CONTINUOUS and SYSTEMATIC
2. Since a corporation is a "fiction," its "presence" is determined by activities in the forum state
Term
Kulko v. Superior Court
 Definition
1. In order to establish personal jurisdiction a defendant must have certain minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice
2. A father who agrees in the interests of family harmony to allow them to spend more time in another state cannot be said to have availed himself of the benefits and protections of that state's laws
Term
Aggregating Claims
 Definition
1. One plaintiff can aggregate all of her claims against one defendant to meet the amount-in-controversy requirement "even when those claims share nothing in common besides the identify of the parties." Everett v. Verizon Wireless, Inc.
2. Multiple plaintiffs who join together in one lawsuit may not aggregate their claims to meet the jurisdictional requirement if the claims are separate and distinct.
Term
Minimum Contacts Test
 Definition
1. The defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum
2. The claim arises out of or results from the defendant's forum-related activities
3. The exercise of jurisdiction is reasonable
Term
Louisville & Nashville Railroad v. Mottley
 Definition
28 U.S.C. § 1331 application
Term
Merrell Dow Pharmaceuticals v. Thompson
 Definition
28 U.S.C. § 1331 application
Term
Grable & Sons v. Darue
 Definition
28 U.S.C. § 1331 application
Term
Sheehan v. Gustafson
 Definition
28 U.S.C. § 1331 application
Term
Exxon Mobil v. Allapattah
 Definition
28 U.S.C. § 1367 application
Term
Piper Aircraft v. Reyno
 Definition
28 U.S.C. § 1404 application
Term
Spencer v. U.S. District Court for the Northern District of CA
 Definition
28 U.S.C. § 1441 application
Term
Rules Enabling Act
 Definition
28 U.S.C. § 2072;
In diversity cases, state substantive law and federal procedural law FRCP
Term
Chauffeurs v. Terry
 Definition
7th Amendment application
Term
Markman v. Westview Instruments, Inc.
Definition
7th Amendment application
Term
Travelers Health Association v. Commonwealth of Virginia
 Definition
A Nebraska insurance corporation was held subject to the jurisdiction of a Virginia regulatory commission although it had no paid agents within the state and its only contact there was a mail-order business operated from its Omaha office
Term
A.F.A. Tours, Inc. v. Whitechurch
 Definition
A case can only be dismissed for failure to allege the proper jurisdictional amount if it is legally certain that the plaintiff would not be able to recover that amount. The plaintiff must have an opportunity to establish that he would be able to recover the jurisdictional amount before the court can order dismissal.
Term
Pennoyer v. Neff
 Definition
A court may enter a judgment against a non-resident only if the party:
1) Is personally served with process while within the state OR
(2) Has property within the state which is attached before litigation begins (quasi in rem JX)
Term
Erie Doctrine
 Definition
A federal court in diversity jurisdiction must apply state substantive law.
Term
Grace v. MacArthur
 Definition
A person flying over Arkansas is within the "territorial limits" of the state and is amendable to service under the provisions
Term
Calder v. Jones
 Definition
A state can exercise jurisdiction over a D based on the "effects test" - a state has power to exercise personal jurisdiction over a party who causes effects in a state by an act done elsewhere with respect to any cause of action arising from these effects.
Term
Burnham v. Superior Court
 Definition
A state can gain personal jurisdiction over a nonresident who was personally served with process while temporarily in the state, even if his purpose for being in the state is unrelated to the matter before the court.
Term
Keeton v. Hustler Magazine
 Definition
A state court can assert personal jurisdiction over the publisher of a national magazine which published an allegedly defamous article about a resident of another state and where the magazine had wide circulation in that state
Term
McGee v. International Life Insurance Company
 Definition
A state court's jurisdiction satisfies due process when it is based on a contract with substantial connection with that state
Term
Perkins v. Benquet Consolidated Mining Co.
 Definition
A state may exercise personal jurisdiction over a foreign corporation even when the cause of action does not arise in the state or relate to any of the corporation's activities in the state if the corporation carries on continuous and systematic corporate activities in that state.
Term
Harris v. Balk
198 U.S. 215
 Definition
A valid judgment by another state's court that had jurisdiction over a party must be given full faith and credit by another state's court; full faith and credit
Term
FRCP 4(a)(2)
 Definition
AMENDMENTS; the court may permit a summons to be amended
Term
Limited Appearance
 Definition
Allows a defendant in an action commenced on a quasi-in-rem basis to appear for the limited purpose of defending his interest in the attached property without submitting to the full in personam jurisdiction of the court
Term
Meed and Confer
 Definition
Attorneys are required, under penalty of perjury, to attempt to meet in person to settle the issue
Term
Multiparty, Multiforum Act
Section 1369
 Definition
Authorizes original federal jurisdiction in any civil action arising "from a single accident when at least 75 natural persons have died. Also requires:
1. That any two defendants reside in different states
2. Substantial parts of the accident took place in different States
3. A defendant resides in a State and substantial part of the accident took place in another state
Term
FRCP 3
 Definition
COMMENCING AN ACTION; a civil action is commenced by filing a complaint with the court
Term
Ad Damnum
 Definition
Clause that explains what you are seeking in your damages
Term
United States for the Use and Benefit of D'Agostino Excavators, Inc. v. Heyward-Robinson Co.
430 F.2d 1077
 Definition
Counterclaims need only have similar circumstances to the subject matter of the litigation in order to be compulsory. There need not be identical facts.
Term
FRCP 26(f)
 Definition
Discovery Conference
Term
FRCP 26(b)(4)
 Definition
Discovery; Expert Deposition
Term
Keeton v. Hustler Magazine
 Definition
Distribution of magazines in the forum state is sufficient to grant personal jurisdiction
Term
Owen Equipment & Erection Co. v. Kroger
437 U.S. 365
 Definition
Diversity jurisdiction does not exist unless each defendant is a citizen of a different state from each plaintiff, even where the non-diverse defendant is impleaded through ancillary jurisdiction
Term
14th Amendment (Section 1)
 Definition
Due Process;
"Nor shall any state deprive any person of life, liberty, or property, without due process of law"
Term
FRCP 26(b)(2)(B)
 Definition
E-Discovery
Term
Erie Railroad Co. v. Tompkins
304 U.S. 64
 Definition
Except in matters governed by the Constitution or by acts of Congress, the law to be applied in any case is the law of the state. There is no federal general common law. Overrules Swift v. Tyson
Term
FRCP 4(d)(2)
 Definition
FAILURE TO WAIVE; if a defendant fails to waive without due cause the court MUST IMPOSE:
(a) EXPENSES MAKING SERVICE
(b) EXPENSES (attorney fees) to collect those EXPENSES (a)
Term
Acuna v. Brown & Root
 Definition
FRCP 16(b) application
Term
R.M.R. v. Muscogee County School District
 Definition
FRCP 16(e) application
Term
Makah Indian Tribe v. Verity
 Definition
FRCP 19(a) application
Term
Alexander v. Fulton County
 Definition
FRCP 20 application
Term
Grutter v. Bollinger
 Definition
FRCP 24(a) application
Term
Sanyo v. Arista Records
 Definition
FRCP 26(b)(1) application
Term
Phillips v. General Motors
 Definition
FRCP 26(c) application
Term
Gonsalves v. City of New Bedford
 Definition
FRCP 26(g) application
Term
National Hockey League v. Metro Hockey League
 Definition
FRCP 37(a) application
Term
Rio Properties, Inc, v. Rio International Interlink
 Definition
FRCP 4
Term
Edmonson v. Leesville Concrete Co.
 Definition
FRCP 47(b); 28 U.S.C. § 1870 application
Term
Reeves v. Sanderson Plumbing
 Definition
FRCP 50(a) application
Term
Celotex v. Catrett
 Definition
FRCP 56 application
Term
Scott v. Harris
 Definition
FRCP 56 application
Term
Mareck v. Chesney
 Definition
FRCP 68 application
Term
Conley v. Gibson
 Definition
FRCP 8(a)
Term
Bell Atlantic Corp. v. Twombly
 Definition
FRCP 8(a)
Term
Carter v. U.S.
 Definition
FRCP 8(c)
Term
FRCP 1
 Definition
FRCP VALUES:
Purpose of FRCP is to secure just, speedy and inexpensive determinations of actions/proceedings
Term
Swift v. Tyson
41 U.S. 1
 Definition
Federal courts exercising jurisdiction predicated upon the ground of diversity citizenship need not, in matters of general jurisprudence, apply the unwritten law of the state as declared by its highest court. The federal court is free to exercise an independent judgment as to what the common law of the state is, or should be.
Term
Helicopteros Nacionales De Colombia, S.A. v. Hall
 Definition
For a court to exercise general in personam jurisdiction, the defendant must engage in CONTINUOUS and SYSTEMATIC contacts with the forum state UNLESS the defendant's contacts are related to the cause of action
Term
Carnival Cruise Lines, Inc. v. Shute
 Definition
Forum-selection clauses forcing individuals to agree to submit to jurisdiction in a particular place are enforceable if they pass the test for judicial fairness
Term
Burger King v. Rudzewicz
471 U.S. 462
 Definition
Forum-selection clauses may be enforced if the forum state's long-arm statute permits. If exercising jurisdiction would cause a grave hardship to the defendant, then exercising jurisdiction would violate due process
Term
FRCP 4(b)
Definition
ISSUANCE; a summons must be issued for each defendant
Term
Calder v. Jones "Effects" Test
 Definition
If an action completed in one State has an "effect" in another state, the plaintiff can bring suit in that other state.
Term
Hanna v. Plumer
380 U.S. 460
 Definition
If the rule at issue is procedural and the federal rule is on point with the state rule, then the federal rule must be applied as long as it complies with the Rules Enabling Act 28 USC § 2071 and the U.S. Constitution. If there is no federal rule on point, then the Erie Doctrine should apply
Term
Adam v. Saenger
 Definition
If you consent to one part of litigation, you've consented to all of the litigation
Term
Hess v. Pawloski
 Definition
Implied consent: Mass. statute observes
Term
Helicopteros Nacionales De Colombia, S.A. v. Hall
 Definition
In order to exercise general in personam jurisdiction over a party, the party’s contacts with the forum state must be of a “continuous and systematic” nature.
Term
McIntyre v. Nicastro
 Definition
Insignificant that N.J. is huge scrap metal market, that the company operates a website and that they attend an annual scrap metal convention in LV. The claim must arise out of the “minimum contacts”
Term
FRCP 4(d)(5)
 Definition
JURISDICTION AND VENUE NOT WAIVED; waiving service DOES NOT waive any objection to personal jurisdiction or venue
Term
Standing Order
 Definition
Judges may require specific things such as a paper copy of motions in lieu of digital (which is now the standard)
Term
Burnham v. Superior Court of California
495 U.S. 604
 Definition
Jurisdiction based on physical presence alone (service while in state) constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard
Term
Class Action Fairness Act
 Definition
Makes federal district courts available for any class action in which the aggregate amount in controversy exceeds $5m and in which any plaintiff is a citizen of a State different from any defendant.
Term
International Shoe Co. v. Washington
 Definition
Minimum contacts with the forum state can enable a court in that state to exert personal jurisdiction over a party consistent with the Due Process clause.
Term
Can a local rule override the substance of a federal rule?
 Definition
No.
Term
Pennoyer v. Neff
 Definition
No. A court may enter a judgment against a non-resident only if the party 1) is personally served with process while within the state, or 2) has property within the state, and that property is attached before litigation begins (i.e. quasi in rem jurisdiction)
Term
Shaffer v. Heitner
 Definition
No. A state cannot obtain personal jurisdiction over a party based merely on that party’s ownership of property in the state.
Yes. Quasi in rem jurisdiction is subject to the constitutional requirements of minimum contacts.
Term
Mullane v. Central Hanover Bank & Trust
339 U.S. 306
 Definition
Notice must be "reasonably calculated under all the circumstances, to apprise interested parties of the action and give them an opportunity to object"
Term
FRCP 2
 Definition
ONE FORM OF ACTION; there is one form of action - the civil action
Term
Mas v. Perry
489 F.2d 1396
 Definition
Original jurisdiction is provided by the Constitution in the federal district courts for all actions that are between citizens of different states or citizens of a state and citizens of foreign states, and in which the amount in controversy exceeds $10,000 (at the time, now $75k)
Term
Adversarial System
 Definition
Parties are represented by advocates; judges serve as mediators
Term
FRCP 4(d)(4)
 Definition
RESULTS OF FILING A WAIVER; proof of service is NOT REQUIRED
Term
Special Appearance
 Definition
Refers to the procedure at common law by which a defendant presented a challenge to the court's exercise of personal jurisdiction without submitting to the court's jurisdiction for any other purpose
Term
FRCP 52(a)(6)
 Definition
Requires that "findings of fact shall not be set aside unless clearly erroneous"
Term
Rush v. City of Maple Heights
 Definition
Restatement § 17 application
Term
Parklane Hosiery Co. v. Shore
 Definition
Restatement § 27 application
Term
FRCP 1
 Definition
SCOPE AND PURPOSE; these rules govern the procedure in all civil actions in the U.S. district courts
Term
FRCP 4(c)
 Definition
SERVICE;
(1) IN GENERAL; summons must be served with a copy of the complaint
(2) BY WHOM; any person who is at least 18 and not a party may serve a summons and a complaint
(3) BY A MARSHAL OR SOMEONE SPECIALLY APPOINTED; the the plaintiff's request, the court may order service by a U.S. marshal
Term
FRCP 4(h)
 Definition
SERVING A CORPORATION, PARTNERSHIP OR ASSOCIATION;
Unless federal law provides otherwise; MUST BE SERVED:
(1) in a judicial district of the U.S.
(a) in a manner prescribed by 4(e)(1) OR
(b) by delivering a copy of the summons and complaint to an agent authorized to receive service of process
(2) at a place not in the U.S., any rule for serving under 4(f) except personal delivery under (f)(2)(c)(i)
Term
FRCP 4(g)
 Definition
SERVING A MINOR OR INCOMPETENT PERSON; Follow state law or if not in U.S. by rule 4(f)(2)(a), (f)(2)(b), or (f)(3)
Term
FRCP 4(f)
 Definition
SERVING AN INDIVIDUAL IN A FOREIGN;
(1) By any internationally agreed means of service
(2) If there is no internationally agreed means, then an method reasonably calculated to give notice:
(a) as prescribed by the foreign country's law
(b) as the foreign authority directs
(c) unless prohibited by foreign country's law by
(1) Delivering personally or (2) Certified Mail
(3) by any other means not prohibited by international agreement
Term
FRCP 4(e)
Definition
SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE UNITED STATES; person may be served in the U.S. by:
(1) following state law for serving a summons OR
(2) doing any of the following:
(a) delivering a copy of the summons to the person
(b) leaving a copy at the defendant's dwelling OR usual place of abode with someone of suitable age/discretion
(c) delivering a copy of each to an agent authorized by appointment or law
Term
FRCP 4(i)
 Definition
SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES;
(1)(A)(i) deliver a copy to the district attorney where the action is brought OR
(ii) send a copy by registered mail to the U.S. attorney's office
(b) send a copy by certified mail to the Attorney General
(c) if the action challenges an order of a nonparty agency, send a copy by certified mail to the agency
Term
FRCP 4(a)(1)
 Definition
SUMMONS; a summons MUST:
a. name the court/parties, b. be directed to the defendant; c. state the name and address of plaintiff's attorney or plaintiff; d. state the time within which the defendant must appear; e. notify the defendant that failure to appear will result in default; f. be signed by the clerk; bear the court's seal
Term
Rules of Decision Act
 Definition
Section 34 of the Judiciary Act of 1789
Federal Courts apply state law in their decisions arising out of diversity jurisdiction except when in conflict with federal law.
Term
28 U.S.C. § 1291
 Definition
Stage: Appeals; Issue: Final Judgment Rule;
-A losing party may only appeal when there remains nothing to be done at the trial level (with some explicit statutory exceptions)
Term
FRCP 16(e)
 Definition
Stage: Case Management, Settlement & ADR; Issue: Final Pretrial Conference & Order;
-Usually held after the completion of discovery
-Focuses on the conduct of the trial
-Most judges require the parties to submit a joint trial plan
Term
FRCP 16(c), (d)
 Definition
Stage: Case Management, Settlement & ADR; Issue: Pretrial Conferences and Orders;
(c) Conferences
(d) Orders
Term
FRCP 16(f)
 Definition
Stage: Case Management, Settlement & ADR; Issue: Sanctions;
-Sanctions for failure to appear at pretrial conference
-Sanctions for failure to be prepared for pretrial conference
-Sanctions for failure to comply with scheduling order
Term
FRCP 16(b)
Definition
Stage: Case Management, Settlement & ADR; Issue: Scheduling Order;
(3) Required Deadlines: Joining parties, amending pleadings, filing motions, completing discovery
(3) Permitted Deadlines: Providing Rule 26 Disclosures, Scheduling pretrial conferences, starting trial
(4) Can be modified only for good cause and with judge's consent
Term
FRCP 68
 Definition
Stage: Case Management, Settlement & ADR; Issue: Settlement - Damages Limitation;
-If a claimant does not accept the defendant's offer and does not do better in the end, the plaintiff is liable for the defendant's "post-offer" costs (usually not attorney's fees)
-Costs: filing fees, etc.
Term
FRCP 30-32
 Definition
Stage: Discovery
Issue: Depositions
Term
FRCP 33
 Definition
Stage: Discovery
Issue: Interrogatories
Term
FRCP 37(a)
 Definition
Stage: Discovery
Issue: Motion to Compel
Term
FRCP 35
 Definition
Stage: Discovery
Issue: Physical & Mental Exams
Term
FRCP 36
 Definition
Stage: Discovery
Issue: Requests for Admission
Term
FRCP 34
 Definition
Stage: Discovery
Issue: Requests for Production
Term
FRCP 45
 Definition
Stage: Discovery
Issue: Subpoenas
Term
FRCP 26(a)
 Definition
Stage: Discovery; Issue: Expert Discovery:
(2)(A) Expert Disclosure
(2)(B) Written Report
(2)(C) Court-ordered deadline or 90 days before trial
Term
FRCP 26(a)
 Definition
Stage: Discovery; Issue: Mandatory Initial Disclosure;
-Each party must disclose the identity of witnesses and documents, unless it would be used solely for impeachment
-Should occur within 14 days of discovery conference
Term
FRCP 26(c)
 Definition
Stage: Discovery; Issue: Motion for Protective Order;
-Judge can order to cease asking
Term
FRCP 26(b)(1)
 Definition
Stage: Discovery; Issue: Relvancy
Term
FRCP 37
 Definition
Stage: Discovery; Issue: Sanctions;
(a) Minor Sanctions
(b) Major Sanctions
Term
FRCP 26(g)
 Definition
Stage: Discovery; Issue: Signature & Sanctions;
(1) Signature
(2) Sanctions
Term
FRCP 13(a)
 Definition
Stage: Joinder; Issue: Compulsory Counterclaim;
-Defendant must state as a counterclaim any claim against the plaintiff that arises out of the same transaction or occurrence that is the subject of the complaint
Term
FRCP 13(g)
Definition
Stage: Joinder; Issue: Crossclaims;
-a pleading may state as a crossclaim against a co-party any claim that arises out of the transaction or occurrence that is the subject matter of the original action
-The crossclaim may include a claim that the co-party is liable for all or part of the claim asserted in the action against the crossclaimant
Term
FRCP 22
 Definition
Stage: Joinder; Issue: Interpleader;
-Rule interpleader: available whenever there exists people with claims that may expose a plaintiff to double or multiple liability
-Statutory interpleader: interpleader authorized by statute
Term
FRCP 24(a)
 Definition
Stage: Joinder; Issue: Intervention of Right
Court MUST permit:
(1) Person had an unconditional statutory right; OR
(2) Person claims an interest that may be impaired and no existing party will adequately represent that interest
Term
FRCP 18
 Definition
Stage: Joinder; Issue: Joinder of Claims (In General);
-A party may join, as independent or alternative claims, as many claims as it has against an opposing party
Term
FRCP 13(b)
 Definition
Stage: Joinder; Issue: Permissive Counterclaim;
-Defendant may state as a counterclaim any other claim against the plaintiff, but the claim must have an independent basis for federal jurisdiction
Term
FRCP 24(b)
 Definition
Stage: Joinder; Issue: Permissive Intervention;
(1) Court MAY permit:
(A) person has a conditional statutory right; OR
(B) Person has a claim or defense that shares with the main action a common question of law or fact
(2) By Government Officer or Agency
Term
FRCP 20
 Definition
Stage: Joinder; Issue: Permissive Party;
(a) Permissive joinder of other parties as plaintiffs or defendants allowed where:
(A) they assert any right to relief or a right to relief is asserted against them arising out of the same transactions or occurrences;
(B) any common question of law or fact will arise in the action
(b) The court may issue orders to protect parties from embarrassment, delay, expense, or prejudice
Term
FRCP 19(a)
 Definition
Stage: Joinder; Issue: Required Party
-Party is necessary when:
(1)(A) The party is necessary for the court to grant complete relief; OR
(1)(B) The party has a legally protected interest that would be impaired or impeded or that creates a risk of inconsistent rulings and obligations
Term
FRCP 42(b)
 Definition
Stage: Joinder; Issue: Separate Trials;
-Bifurcation
-For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, etc.
Term
28 U.S.C. § 1367
 Definition
Stage: Joinder; Issue: Supplemental Jurisdiction;
-If plaintiff has a federal question claim against the defendant, the plaintiff can join state law theories arising out of the same nucleus of common fact against the defendant without satisfying diversity requirements
-If plaintiff has federal question claim against a defendant, the plaintiff can join state law theories against other defendants arising out of the same nucleus of facts without satisfying diversity requirements
-If any plaintiff has diversity claim against a defendant, other plaintiffs with same state law claim can join in the action even though less than $75k in controversy (still need diversity of citizenship)
Term
FRCP 23
 Definition
Stage: Joinder; Issue: class actions
-Basic Idea: a large number of people ("class") all find themselves in a similar legal situation as a result of a transaction or occurrence that has created possible legal liability
-Sometimes mandatory
-Class members may sometimes opt out of the class
Term
FRCP 50(a)
 Definition
Stage: Judge & Jury; Issue: Judgment as a Matter of Law;
-May be made at any time before the case is submitted to the jury (as soon as an opposing side has been heard on an issue)
-Standard: Is there enough evidence that reasonable jurors could differ?
Term
FRCP 48
Definition
Stage: Judge & Jury; Issue: Jury Composition;
-Must be composed of 6-12 members
Term
FRCP 38(b)
 Definition
Stage: Judge & Jury; Issue: Jury Demand;
-Must file no later than 10 days after the last pleading directed to the issue is served
Term
FRCP 49, 51
 Definition
Stage: Judge & Jury; Issue: Jury Instructions;
-The court determines the content of jury instructions
-Failure to object = waived
Term
FRCP 47(c)
 Definition
Stage: Judge & Jury; Issue: Jury Selection - Excuses for cause;
-May excuse for a good cause
-Members of the panel show themselves incapable of performing their fact finding tasks
-Unlimited
Term
28 U.S.C. § 1870
 Definition
Stage: Judge & Jury; Issue: Jury selection - peremptory challenges;
-lawyers' opportunity to strike without explanation or cause
-limited
-can't be race-based
Term
FRCP 59
 Definition
Stage: Judge & Jury; Issue: Motion for a New Trial;
-Must be filed within 10 days of the entry of judgment
-Should bring both a Rule 50(b) motion and Rule 59 motion at the same time
-Trial judge has broad discretion to determine whether fairness requires a new trial for prejudicial errors, misconduct, etc.
-Most commonly awarded when the verdict is excessively large
Term
FRCP 47(b)
 Definition
Stage: Judge & Jury; Issue: Peremptory Challenges;
-Lawyers' opportunity to strike without explanation or cause
-Limited
-Can't be race-based
Term
FRCP 50(b)
 Definition
Stage: Judge & Jury; Issue: Renewed Motion for Judgment as a Matter of Law;
-May be made within 10 days after jury is discharged
-Can only be made if the moving party brought a Rule 50(a) motion during the trial and can only assert the same grounds addressed in the Rule 50(a) motion
-May include a joint request for a new trial under FRCP 59
-Grounds: no legally sufficient evidentiary basis for a reasonable jury to find for the party opposing the motion
Term
7th Amendment
 Definition
Stage: Judge & Jury; Issue: Right to Jury;
-Only applies to the federal government, not incorporated to apply to the states
Term
FRCP 56
 Definition
Stage: Judge & Jury; Issue: Summary Judgement;
-Standard: Is there enough evidence that reasonable jurors could differ?
-Seeking judgment on a party's claim or defense
-Will be granted when there remains "no genuine issue as to any material fact"
Term
Restatement § 28
 Definition
Stage: Judgments;
Issue: Issue Preclusion Exceptions
Term
Restatement § 17
 Definition
Stage: Judgments; Issue: Claim Preclusion;
-A valid, final personal judgment is conclusive between the parties:
If the judgment is for the plaintiff, the claim is extinguished and merged in the judgment and a new claim may arise on the judgment
If the judgment is for the Defendant, the claim is extinguished and judgment bars any subsequent action on the claim
Term
Restatement § 27
 Definition
Stage: Judgments; Issue: Issue Preclusion (General Rule);
-When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive i a subsequent action between the parties, whether on the same or a different claim
Term
Restatement § 29
 Definition
Stage: Judgments; Issue: Preclusion in subsequent litigation;
-Re-litigating is also usually precluded in litigation with others with some exceptions
Term
Restatement § 24(1)
 Definition
Stage: Judgments; Issue: Scope of the "Claim"
-The claim includes all rights related to all or any part of the transaction or series of connected transactions out of which the action arose
Term
Restatement § 24(2)
 Definition
Stage: Judgments; Issue: Sope of the "Claim;"
-"Transaction" and "series" to be determined pragmatically considering:
-Whether the facts are related in time, space, origin or motivation;
-Whether the facts form a convenient trial unit; AND
-Whether their treatment as a unit conforms to the parties' expectations or business understanding or usage
Term
FRCP 4
 Definition
Stage: Personal JX; Issue: Deference to stages;
-For personal JX in federal court, refer to state statute
Term
FRCP 8(d)
 Definition
Stage: Pleading
Allegations MUST be simple, concise, and direct
Term
FRCP 38(b)
 Definition
Stage: Pleading: Issue: Jury Demand;
-If you want a jury, put a demand in your pleading
Term
FRCP 15
 Definition
Stage: Pleading; Issue: Amendment;
-Amendments as a matter of course (within 20 days of serving the pleadings
-Other amendments - after 20 days
-(c) if after statute of limitations has run, must "relate back" to original claim(s)
Term
FRCP 8(b)
 Definition
Stage: Pleading; Issue: Answer-Admit/Deny:
(1): (A) & (B): Defendant must state affirmative defenses and admit/deny allegations
(5) Lack of knowledge or information = effect of a denial
(6) Failure to deny = admission
Term
FRCP 8(c)
Definition
Stage: Pleading; Issue: Answer: Affirmative Defenses:
-Some affirmative defenses (not exclusive): contributory negligence, fraud, res judicata, statute of frauds, statute of limitations
-Admit/Deny allegations
Term
FRCP 12(a)
 Definition
Stage: Pleading; Issue: Answer: Time;
-if service is waived - D gets 60 days
-If service is not waived - D gets 20 days
Term
FRCP 10
 Definition
Stage: Pleading; Issue: Caption;
Caption required for pleadings
Term
FRCP 8(a)
 Definition
Stage: Pleading; Issue: Complaint:
Function: Notice
REQUIRES: short and plain statement of:
(1) grounds for JX
(2) the claim showing entitled to relief
(3) demand for the relief sought
Term
FRCP 12(c)
 Definition
Stage: Pleading; Issue: Motion - Judgment on Pleadings;
-Occurs after the pleadings have closed
-Court will examine all pleadings and determine if judgment in favor of either party is appropriate
-Either party can make this motion
Term
FRCP 12(f)
 Definition
Stage: Pleading; Issue: Motion - Other;
-Motion to strike - Insufficient defense or redundant, immaterial, impertinent, or scandalous matter
Term
FRCP 12(e)
 Definition
Stage: Pleading; Issue: Motion - other;
-Motion for a more definite statement
-Must be so vague or ambiguous that the party cannot respond
Term
FRCP 12(b)
 Definition
Stage: Pleading; Issue: Motion to dismiss;
Challenges the sufficiency of the complaint, does not meet the Rule 8 requirements:
(1) Lack of subject matter JX
(2) Lack of personal JX
(3) Improper Venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join a party under Rule 19
A failure to raise (2), (3), (4), or (5) waives those defenses, others can be raised throughout litigation
Term
FRCP 9(b)
 Definition
Stage: Pleading; Issue: Pleading Special Matters - Fraud;
-In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake
-Must go beyond Rule 8 for fraud
Term
FRCP 8(e)
 Definition
Stage: Pleading; Issue: Pleadings; construing:
"Pleadings must be construed so as to do justice"
Term
FRCP 11(c)
 Definition
Stage: Pleading; Issue: Sanctions;
-subject to sanctions if the court finds that you did not bring the case in good faith
-party initiated or sua sponte
-party-initiated: 21-day safe harbor provision, objective reasonableness standard
-sua sponte: no safe harbor, objective reasonableness or subjective good faith
-does not apply to discovery
Term
FRCP 4
 Definition
Stage: Pleading; Issue: Service:
(c) Personal Service
(d) Waiver
(m) Time limit - 120 days after filing complaint
Personal JX is same in federal as in state court
Term
FRCP 11(a), (b)
 Definition
Stage: Pleading; Issue: Signature;
(a) attorney signature
(b) by signing, claiming that a pleading is brought in good faith, must have reasonable basis in fact and law
Term
Article III
 Definition
Stage: Subject Matter JX, Issue: U.S. Supreme Court;
-Constitutional Authority
-Allows P's claims and D's defenses under federal question
-Anything that raises a federal question in defense can go
Term
28 U.S.C. § 1332
 Definition
Stage: Subject Matter JX; Issue District Court Diversity;
-Complete Diversity of Parties
-Amount in controversy over $75k
Term
28 U.S.C. § 1331
 Definition
Stage: Subject Matter JX; Issue: District Court - Federal Question;
-Only P's claims for federal question
-Wel-Pleaded complaint rule
Term
28 U.S.C. § 1441
 Definition
Stage: Subject Matter JX; Issue: Removal to a federal Court;
-Allows defendant to move to federal court if plaintiff could have brought the case there in the first place
-Time limits
-In federal question cases, citizenship is irrelevant
-In diversity cases, no defendants can be a citizen of the state where the action is brought
Term
28 U.S.C. § 1367
 Definition
Stage: Subject Matter JX; Issue: Supplemental JX;
-Bring in state claims and additional defendants as long as they arise out of the same case/controversy
-Must still have complete diversity
-Can go with only one plaintiff that meets amount in controversy requirement
Term
28 U.S.C. § 1404
 Definition
Stage: Venue; Issue Inconvenient Venue;
-Transfer for convenience
-Number of factors to consider
-Can only transfer to another federal court
Term
28 U.S.C. § 1391
 Definition
Stage: Venue; Issue: Federal District Court Venue;
(a) Diversity of citizenship
(b) Federal Question
Term
28 U.S.C. § 1406(a)
 Definition
Stage: Venue; Issue: Improper Venue;
-District Court can dismiss
-District Court can transfer to another district court where it could have been brought
-Can only transfer to another FEDERAL court
Term
Louisville & Nashville R.R. Co. v. Mottley
211 U.S. 149
 Definition
Subject matter jurisdiction, based on a suit arising under the Constitution and the laws of the United States is established only when the plaintiff's statement of his own cause of action shows that it is based upon the laws of that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution
Term
FRCP 4(d)(3)
 Definition
TIME TO ANSWER AFTER A WAIVER = 60 DAYS
Term
Nelson v. Miller
 Definition
The commission of a single tort within a state was held sufficient to sustain jurisdiction under the statute.
Term
Gray v. American Radiator & Standard Sanitary Corp.
 Definition
The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.
Term
Pendent Personal Jurisdiction
United States v. Botefuhr (2002)
 Definition
The idea that "once a district court has personal jurisdiction over a defendant for one claim, it may 'piggyback' onto that claim other claims over which it lacks independent personal jurisdiction, provided that all the claims arise from the same facts as the claim over which it has proper personal jurisdiction
Term
Asahi Metal Industry Co. v. Superior Court
 Definition
The mere awareness that a product may reach a remote jurisdiction when put in the stream of commerce is not sufficient to satisfy the requirement for minimum contacts under the Due Process Clause.
Term
Piper Aircraft Co. v. Reyno
454 U.S. 235
 Definition
The possibility of change in substantive law should not be given conclusive or even substantial weight in a forum non conveniens inquiry
Term
Asahi Metal Industry Co. v. Superior Court
480 U.S. 102
 Definition
The substantial connection between the defendant and the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state
Term
Hanson v. Denckla
 Definition
The unilateral activity of a plaintiff who claims some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum state
Term
Pebble Beach Co. v. Caddy
 Definition
Three Part Test:
1. Perform an act or consummate a transaction, 2. Arises out of forum activities, 3. Reasonableness
Case fails on #1 – purposeful availment v. purposeful direction
“Effects Test” (from Calder)
1. Intentional Act, 2. Expressly aimed at forum, 3. Cause foreseeable harm in forum.
Case fails on #2 – passive website aimed at “anyone”
Term
Inquisitorial System
 Definition
U.K. judges take an active role in trial as fact finders
Term
Baldwin v. Ohio State Traveling Men's Ass'n
283 U.S. 522
 Definition
Under res judicata, once the defendant's motion was denied in Missouri's court, he was bound to that ruling. Defendant cannot raise the same issue in another Court. It could have been appealed, but the defendant did not do that, so the Missouri ruling is binding
Term
FRCP 4(d)
 Definition
WAIVING SERVICE;
(1) REQUESTING A WAIVER; personed being serviced has a duty not to create unnecessary expense in delivery; plaintiff may request waiver but it MUST:
(a) be in writing and (1) addressed to defendant or (2) to an agent or officer authorized by appt. or law to receive it
(b) name the court
(c) have a copy of the complaint, 2 copies of waiver form, and a prepaid means for returning the form
(d)inform the defendant of benefits of waiving
(e) state the date when request is sent
(f) give the defendant a reasonable time (30 days)
(g_ sent by first-class mail or other reliable means
Term
Van Dusen v. Barrack
376 U.S. 612
 Definition
When a case is transferred from a federal court in one state to a federal court in another state, the choice of law should be that of the state in which the case was originally filed
Term
Guaranty Trust Co. v. York
326 U.S. 99
 Definition
When there is diversity jurisdiction, the federal court should use the outcome-determinative test to ensure that the outcome of the federal court's application of law would not be different than the outcome if the state had tried the case. In this case, the federal court sitting with diversity jurisdiction must follow a state statue of limitations (usually considered a procedural rule)
Term
Burger King Corp. v. Rudzewicz
 Definition
Where a Defendant who has purposefully directed his activities at forum residents seeks to prevent jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable;
Term
Shaffer v. Heitner
433 U.S. 186
 Definition
Where the only contact the defendant has with the forum state is the location of property as defined by statute in the forum state, the forum lacks personal jurisdiction over the defendant unless the minimum contacts test of International Shoe is satisfied; Derivative suit case Greyhound
Term
Harris v. Balk
 Definition
Yes. A court may obtain personal jurisdiction over a nonresident through personal service within the state in which that court resides.
Yes. Quasi in rem jurisdiction is exercisable over intangible property such as debt.
Term
Outcome-Determinative Test
 Definition
York; if the outcome by applying federal rules differs from applying state rules in a diversity case, the state rule is used; if it is substantively the same then the federal court can apply its own rules instead of state rules